Toward accommodating physicians’ conscientious objections: an argument for public disclosure.

J Med Ethics doi:10.1136/medethics-2013-101731

T.D. Harter


This paper aims to demonstrate how public disclosure can be used to balance physicians’ conscientious objections with their professional obligations to patients – specifically respect for patient autonomy and informed consent. It is argued here that physicians should be permitted to exercise conscientious objections, but that they have a professional obligation to provide advance notification to patients about those objections. It is further argued here that public disclosure is an appropriate and ethically justifiable limit to the principle of advance notification. The argument for publicly disclosing physicians’ conscientious objections is made in this paper by discussing three practical benefits of public disclosure in medicine, and then addressing how publicly disclosing physicians’ conscientious objections is not an undue invasion of privacy. Three additional concerns with public disclosure of physicians’ conscientious objections are briefly addressed – potential harassment of physicians, workplace discrimination, and mischaracterising physicians’ professional aptitude – concluding that each of these concerns requires further deliberation in the realm of business ethics.
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American HHS birth control mandate controversy

Little Sisters of the Poor have filed appeal in Denver, Colorado against the HHS Mandate.  Catholic Notre Dame University in Indiana has been denied injunctive relief, apparently because it had already agreed to comply with the mandate.  The Becket Fund reports 95 lawsuits filed against the federal government regulation, with over 300 plaintiffs: 47 by for-profit corporations, 46 by non-profit corporations, and two class action lawsuits.  Of the rulings so far, 33 injunctions have been granted to for-profit corporations (six denied) and 19 have been granted to non-profit corporations (one denied).


  Crusade against NFP-only physicians

“Religious beliefs should remain where they belong – in the private domain.”

 Sean Murphy*


A 25 year old woman could not obtain a prescription for contraceptives at a clinic because the physician did not prescribe them for reasons of “medical judgment as well as professional ethical concerns and religious values.”  She obtained the prescription at a clinic two minutes away. A crusade was started against the physician and two colleagues with the same views. Crusaders argued that in a ‘secular’ state health care system, physicians should be forbidden to act on their moral or religious beliefs.

Physicians who refuse to prescribe contraceptives face a difficult challenge, since aggressive contraceptive promotion has left most people unaware of alternatives. Further, the social progress of women is widely attributed to contraceptives, so that failure to provide them risks an adverse reaction. Nonetheless, based on a respectful understanding of female fertility cycles and other factors, plausible reasons can be given to justify refusal to prescribe contraceptives and recommendation of Natural Family Planning.

The Supreme Court of Canada has acknowledged that secularists are believers, no less persons with religious beliefs. There is no legal warrant for the idea that a secular state must be purged of the expression of religious belief. The claim that a secular state or health care system is “faith-free” is radically false. Both religious belief and secularism can result in narrow dogmatism and intolerance, as demonstrated by the crusade against the physicians.

Since the practice of medicine is an inescapably moral enterprise, every decision concerning treatment is a moral decision. Since the practice of morality is a human enterprise, the secular public square is populated by people with many moral viewpoints. To discriminate against religious belief is a distortion of liberal principles. Moreover, if religious believers can be forced to do what they believe to be wrong, so can non-religious believers. This would establish a destructive and dangerous ‘duty to do what is wrong.’

It is essential to maintain the integrity of physicians and well-being of patients. After abortion was legalized, a difficult compromise emerged that safeguards both, while protecting the community against a purported ‘duty to do what is wrong.’ Nonetheless, some people are trying to entrench that duty in medical practice, moving from a purported duty to provide or facilitate abortion to a duty to kill or facilitate the killing of patients by euthanasia. It is unacceptable to compel people to commit or even to facilitate what they see as murder, and punish or penalize them if they refuse. It is equally unacceptable to insist that physicians must not act upon beliefs, because it is impossible; one cannot act morally without reference to beliefs. Such policies are inconsistent with the central place occupied by individual conscience and judgment in a liberal democracy.

Freedom of conscience can be adequately accommodated in a society characterized by a plurality of moral and political viewpoints if appropriate distinctions are made. The first of these is the distinction between the exercise of perfective freedom of conscience: pursuing an apparent good – and preservative freedom of conscience: refusing to participate in wrongdoing. The state can sometimes legitimately limit perfective freedom of conscience by preventing people from doing what they believe to be good, but it does not follow that it is equally free to suppress preservative freedom of conscience by forcing them to do what they believe to be wrong.

To force people to do something they believe to be wrong is always an assault on their personal dignity and essential humanity, and it always has negative implications for society. It is a policy fundamentally opposed to civic friendship, which grounds and sustains political community and provides the strongest motive for justice. It is inconsistent with the best traditions and aspirations of liberal democracy, since it instills attitudes more suited to totalitarian regimes than to the demands of responsible freedom. Even the strict approach taken to limiting other fundamental rights and freedoms is not sufficiently refined to be safely applied to limit freedom of conscience in its preservative form. Like the use of potentially deadly force, if the restriction of preservative freedom of conscience can be justified at all, it will only be as a last resort and only in the most exceptional circumstances.

That a young woman had to drive around the block to fill a birth control prescription does not meet this standard.

Part 1:  The Making of a Story


Liberal Party of Canada adopts pro-euthanasia/assisted suicide policy

Canada’s Liberal Party, meeting at a policy convention in Montreal, Quebec, has overwhelmingly adopted a policy resolution favouring the legalization of euthanasia and assisted suicide.  However, the policy is not binding on the party leader, Justin Trudeau, so it is not certain that it will be included in his official platform in the next Canadian federal election.  The policy resolution calls for a change in the law after public consultation.  [National Post]

Complicity after the fact

Moral blindness becomes a virtue and necessity

US scientists were “accomplices after the fact” in Japanese doctors’ war crimes


Michael Cook*

All of contemporary bioethics springs from the Nuremberg Doctors Trial in 1947. Seven Nazi doctors and officials were hanged and nine received severe prison sentences for performing experiments on an estimated 25,000 prisoners in concentration camps without their consent. Only about 1,200 died but many were maimed and psychologically scarred.

So what did the US do to the hundreds of Japanese medical personnel who experimented on Chinese civilians and prisoners of war of many nationalities, including Chinese, Koreans, Russians, Australians, and Americans? They killed an estimated 3,000 people in the infamous Unit 731 in Harbin, in northeastern China before and during World War II – plus tens of thousands of civilians when they field-tested germ warfare. Many of the doctors were academics from Japan’s leading medical schools.
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Quebec euthanasia bill stalled

The government of Quebec was unable to convince the opposition Liberal Party to complete debate on Bill 52, legislation to legalize euthanasia, in order to bring it to a vote before the Quebec National Assembly adjourned for two weeks.  The government has tabled a budget, which takes precedence over other bills.  It is believed that the government will call an election when the Assembly returns, which means that the euthanasia bill will not pass.  It could be resurrected by a government formed after the election. [CBC News]

Swedish nurse takes a stand on conscience rights

 If soldiers can object to using weapons, why can’t health professionals refuse to assist at abortions?


Mariola O’Brien

In 2011, the European Council adopted a resolution that protects healthcare workers’ right to freedom of conscience regarding abortion and euthanasia. Sweden has signed this agreement. But reality paints a different picture. Out of the 47 member states in the European Council, Finland and Sweden are the only two which do not uphold freedom of conscience in practice.

Ellinor Grimmark, 37, is the first midwife in Sweden to report a hospital to the Discrimination Ombudsman (DO) concerning abortion. She claims to have been discriminated against on the basis of her religious beliefs and moral convictions. Newly-graduated, she was fired from her position last summer because she refused to assist abortions. Even though there is a shortage of midwives at the moment, and even though she is willing to take on double shifts, she has been denied a job ever since. One employer had first agreed to hire her in spite of the “complication”, but withdrew the offer when her story began to spread in media.
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Missouri protection of conscience bill passes House of Representatives

House Bill 1430 has passed the Missouri House of Representatives by a vote of 112-38.  The bill largely replicates one that passed the House in 2013 but failed to pass the state Senate.  It is a procedure-specific bill that provides protection of conscience for individuals and institutions. [LifeNews]

Belgium extends euthanasia to children

By a vote of 86-44, the Belgian House of Representatives has approved a bill to extend euthanasia to children.  The bill had previously passed the Belgian Senate.  The law will apply to children who have a terminal and incurable illness, are near death, and suffering “constant and unbearable physical” pain.  Parents and health care professionals must agree, and a paediatric psychiatrist or psychologist must certify that the child has the capacity to discern that being killed is the ‘best choice.’ [The Guardian]

Quebec official considers expanding euthanasia to minors, dementia patients

Although Bill 52, Quebec’s euthanasia legislation, has not yet passed the National Assembly, the secretary of the Collège des médecins du Québec, the state regulator of medical practice, has suggested that grounds for euthanasia will likely be broadened after the bill passes.  Dr. Yves Robert, speaking of Alzheimer patients and those under 18, said “We will have to think about that, not only for [incapable] adults but
obviously for youngsters who face terminal diseases.” [National Post]  His statement is consistent with statements made by various groups giving evidence in committee hearings.  For example, the Quebec Commission on Human Rights and Youth Rights takes the position that failing to provide euthanasia for mentally incompetent patients and minors would constitute a violation of human rights, and warned legislators that if they did not amend the bill to include it, the change would be forced through civil action.