Conscientious Objection: Resisting Ethical Aggression in Medicine
Responding to Cantor, Julie D., Conscientious Objection Gone Awry -
Restoring Selfless Professionalism in Medicine. N Eng J Med 360;15, 9
Note: The NEJM declined this paper: "We
do not publish full-length manuscripts in
response to previously published NEJM articles."
The Journal was willing to consider a 175 word
letter to the editor.
Judging from the title of her article, Professor
Julie D. Cantor believes that "selfless
professionalism" in medicine is being destroyed by
health care workers who will not do what they
believe to be wrong. (Cantor, Julie D.,
Conscientious Objection Gone Awry - Restoring
Selfless Professionalism in Medicine." N Eng J
Med 360;15, 9 April, 2009)
She also implies that Americans have access to
health care only because health care workers are
compelled to provide services that they find morally
repugnant. At least, that is the inference to be
drawn from her warning that health care "could grind
to a halt" if a federal protection of conscience
regulation were "[t]aken to its logical extreme."
Such anxiety is inconsistent with the fact that
religious believers and organizations have been
providing health care in the United States for
generations. If anything, this demonstrates that
health care is provided to many Americans - and many
of the poorest Americans - because of the commitment
of health care workers to their moral convictions,
not in spite of them.
Professor Cantor's article suggests that she is
worried that protection of conscience regulations
will limit patient access to health care. If so, she
offers a peculiar solution.
"Qualms about abortion, sterilization, and birth
control?" she asks. "Do not practice women's
health." (As if someone taking her advice could
possibly enter general practice.)
"Do not become a transplant surgeon."
"Do not train to be an intensivist."
In other words, people unwilling to do what they
believe to be wrong should not become physicians or
health care workers because they lack "selfless
professionalism." What Professor Cantor proposes as
a "solution" to the problem of patient access to
health care could drive as many as 90% of religious
believers out of the field.1
Her "solution" could shut down over 900 Catholic
hospitals and health care centres that served over
90 millions patients last year,2
to say nothing of other denominational facilities.
How all of this will improve access to health care
she does not explain.
Professor Cantor frankly acknowledges that the
current controversy is rooted in fundamental
disagreement about abortion. What she does not
acknowledge is that disagreement about abortion is,
in itself, insufficient to cause the kind of
conflict now developing about freedom of conscience.
Were she and like-minded activists content to agree
to disagree, to live and let others live according
to different moral standards, there would be no
controversy and no need for protection of conscience
The current conflict (which is not limited to the
United States) has arisen primarily because abortion
laws were changed with an overly optimistic
expectation that health care workers would be
willing to participate in the procedure. Having
discovered that this is not the case, abortion
advocates have been moving from persuasion to a
policy of coercion. To this end, they claim to have discovered a "right"
to abortion and "reproductive health care" in
international law. They seek enforcement of the
purported "right" through national and international
institutions and tribunals, as well as regulatory
authorities and professional associations. Such
"rights" claims, initially aimed at governments to
force changes in abortion laws, are also directed at
"third parties" - objecting health care workers.3
This strategy is exemplified in a proposed federal
Freedom of Choice Act (FOCA).4
Canada provides a case study of the trajectory
from persuasion to coercion. Protection of
conscience measures were deliberately rejected when
abortion became a regulated procedure in Canada in
1969, since hospitals were not obliged to offer
abortion services and doctors did not have to
perform abortions, or even to initiate applications
for them.5 However, it
gradually became apparent that many hospitals were
not willing to provide abortions. Only five years
after decriminalization of the procedure, Toronto's
Globe and Mail demanded that all publicly funded
hospitals (which included Catholic hospitals) be
forced to establish abortion committees.6
The "public funding" argument is particularly
effective where (as in Canada) the state has assumed
responsibility for providing health care. "In our
society, we all pay taxes for this medical system to
receive services," said Dr. Preston Zuliani, the
President of the College of Physicians and Surgeons
of Ontario. "And if a citizen or taxpayer goes to
access those services and they are blocked from
receiving legitimate services by a physician, we
don't feel that's acceptable."7
Dr. Zuliani was defending a policy drafted last
year in obedience to the Ontario Human Rights
Commission (OHRC). Like Professor Cantor, it demands
that physicians "'check their personal views at the
door' in providing medical care."8The
draft policy was opposed by the Ontario Medical
Association, representing 25,000 physicians.9
The most inflammatory language was removed from the
final policy, but the OHRC continues to pursue a
radical "rights" agenda. Objecting physicians face
financially ruinous harassment by the province's
inquisitorial human rights apparatus.10 Moreover,
their practice environment is increasingly poisoned
by innuendo like that found in an essay in a
standard Canadian health law textbook. A passage in
the essay implies that objecting health care workers
who decline to tell patients where or how they can
obtain the morning after pill or abortion commit the
offence of "forced pregnancy" under international
law. The author portrays this as a crime against
humanity "analogous to torture," or, at least, a
gross violation of human rights.11,12
Returning to the United States, in 2006 Professor
Cantor herself argued that American plastic surgeons
should provide "female genital alteration" (female
circumcision) for adults, not only to "spare
[patients] the tribal elder's knife," but to respect
a choice made by an adult. She implied that surgeons
who refused were abandoning the patient, and even
cited one opinion that refusing to perform the
surgery was discriminatory.13
What is remarkable in the current context is
that, despite her own views, Professor Cantor was
willing to admit that a reasonable surgeon might see
things differently and refuse to perform adult
female circumcision, since "there is no obligation
to treat any patient in a nonemergent situation."14
Now, however, she believes that it is time to
"reconsider the scope of conscience in health care,"
and that the current freedom to refuse to
participate in abortion and sterilization ("perhaps
too broad") must not be extended further. She calls
for a law to force physicians to provide or
facilitate all legal services demanded by patients.
But if health care workers can be compelled to
participate in abortion and sterilization, there is
no principled reason why they should not be forced
to participate in adult female circumcision or other
controversial procedures: artificial reproduction,
assisted suicide, euthanasia, sex reassignment
surgery, and eugenic screening, to name a few.
Objecting health care workers are acutely aware of
this. They see current efforts to suppress their
freedom of conscience as the first steps on a
slippery slope that will prove inimical to their
careers and their fundamental freedoms. Support for
protection of conscience legislation is simply a
response to increasingly coercive ethical
Professor Cantor, too, is worried about a
slippery slope - what she calls "conscience creep" -
arguing that allowing freedom of conscience is the
first step to anarchy in health care. "Conscience is
a poor touchstone" she writes, because "it can
result in a rule that knows no bounds."
She has good reason to be worried, but not
because of what conscientious objectors might refuse
to do. The shadow of anarchy she sees lying on the
future of health care is cast by her own beliefs and
her own understanding of conscience, not by those of
objecting health care workers. There are at least
three different views of what conscience is and how
it works, and Professor Cantor has made the mistake
of assuming that people who disagree with her about
abortion and sterilization nonetheless share her
views about morality and conscience.
It is often thought that conscience is a faculty
that independently constructs personal moral norms:
that it actually creates right and wrong. Conscience
becomes the great liberator, to which one appeals
against any restrictive moral precept on the ground
that my conscience has determined what is "right for
me," or at least "right for me in these
A second idea about conscience is that it is
simply a barometer of moral distress, a faculty that
senses one's 'comfort level' based on the tension
between one's moral views and the demands of a
particular situation. There is no question here of
the objective morality of a procedure; it is all a
question of dissonance between personal views and
what are purported to be professional obligations.
In these circumstances, sacrificing one's personal
'comfort' to help the patient can be portrayed as
the noble thing to do: in Professor Cantor's words,
These ideas are not mutually exclusive. Someone
whose moral views have been inculcated by culture
and upbringing may retain some, discard others, and
modify the rest through a 'creative' exercise of
conscience. Common to both ideas about conscience,
however, is an underlying belief that there are no
objective standards of good and evil, or that it is
impossible to arrive at any certain conclusions
about such things. This is moral relativism: what
Professor Cantor calls "the randomness of individual
morality." No wonder she is frightened. It is
impossible to conceive of a society that could
survive if conscience, understood in these terms,
were to be let off its leash.
Unlike Professor Cantor, most conscientious
objectors are not moral relativists. Most subscribe
to some form of the belief that conscience judges
whether an act is good or evil according to a true
moral standard that it does not make. It judges
correctly only when its judgement accords with
objective reality and true moral principles. Thus,
one is first obliged to ascertain relevant facts -
say, what correct science tells us about stem cells
- and then determine which moral principles apply.
Typically, these are drawn from religious or
philosophical traditions. It follows that conscience
can err in two ways; it can be mistaken as to the
facts, and it can be mistaken in its choice of
Moreover, one is morally responsible for evil done
if the mistakes could have been avoided by more
careful enquiries or moral reflection.
One cannot discount the possibility that some
people may attempt to justify illicit conduct by
appeals to freedom of conscience. However, as the
U.S. Declaration of Independence and Bill of Rights
indicate, the fact that fundamental freedoms can be
abused is not a reason to suppress them. Normally,
the need to ascertain all relevant facts and apply
correct moral principles prevents the legitimate
exercise of freedom of conscience from degenerating
into the kind of anarchy that Professor Cantor
fears. This explains why Americans have, for
generations, been able to obtain dependable medical
care from religious believers and denominational
health care facilities.
Professor Cantor stands outside this tradition.
That is why she implies that health care workers who
refuse to do what they believe to be wrong are
pursuing selfish interests under "the cloak of
conscience." That is why she invokes the concept of
self-sacrifice by calling for "a brand of
professionalism that demands less self-interest, not
more." Like her fear of anarchy, her perception of
selfishness arises from her own views about the
nature of conscience, not the real history of health
care in the United States.
The real history of health care in the United
States has been made by hundreds of thousands of
professionals with only one identity, served by a
single conscience that governs conduct in private
and professional life. This moral unity of the human
person — integrity — was highly
prized by Martin Luther King, who described it at as
essential for "a complete life."16
Selflessness or self-sacrifice, in the tradition of
King, might mean going to jail or losing one's life,
but has never been understood to include the
sacrifice of one's integrity.
From this perspective, to abandon one's moral or
ethical convictions in order to serve others is not
"selfless professionalism," but prostitution.
1. Memorandum from the Christian Medical Association to the Office of Public Health and Science, Department of Health and Human Services (9 April, 2009) Data and analysis of two national surveys on conscience rights regulation and laws, as related to HHS requested information on rescission proposal.
2. United States Conference of Catholic Bishops, “The Catholic Church in the United States at a Glance” (2007) Internet Archive Wayback Machine (website).
3. US, Cong Rec, vol 149, Extensions of Remarks at E2534–E2547 (8 Dec 2003) (Christopher H. Smith) Center for Reproductive Rights, International Legal Program Summary of Strategic Planning: Through October 31, 2003: Memo #1: “International Reproductive Rights Norms: Current Assessment;” Memo #2- “Establishing International Reproductive Rights Norms: Theory of Change.” Center for Reproductive Rights, Domestic Legal Progam Summary of Strategic Planning Through October 31, 2003: Memo #3- “Report to Strategic Planning Participants From ‘Other Litigation’ Subgroup.”
4. US, Bill S 1173, Freedom of Choice Act, 110th Cong, 2007.
5. Parliament of Canada, Hansard- Commons Debates, 28th Parl, 1st Sess, No 8 (28 April, 1969) at 8058 (Hon John Turner).
6. “Law that Denies Equality”, Editorial, The Globe and Mail (18 January 1974). Quoted in Alphonse de Valk, Morality and Law in Canadian Politics: The Abortion Controversy (Dorval, Quebec: Palm Publishers, 1974), at 138.
7. Stuart Laidlaw, “Does faith have a place in medicine?” Toronto Star (18 September, 2008).
8. Ontario Human Rights Commission, “Submission of the Ontario Human Rights Commission to the College of Physicians and Surgeons of Ontario Regarding the draft policy, ‘Physicians and the Ontario Human Rights Code’” (15 August, 2008) Ontario Human Rights Commission (website).
9. Ontario Medical Association, “OMA Response to CPSO Draft Policy ‘Physicians and the Ontario Human Rights Code’” (11 September, 2008), Internet Archive Wayback Machine (website).
10. Sean Murphy, “The New Inquisitors”, (31 August, 2008), Protection of Conscience Project (website).
11. Bernard M Dickens,“Informed Consent” in Jocelyn Downie, Timothy Caulfield, Timothy Colleen Flood, eds, Canadian Health Law and Policy 2nd ed (Toronto: Butterworths, 2002) [Dickens] at 149.
12. Sean Murphy, “Conscientious Objection as Crime Against Humanity”, (10 April, 2009), Protection of Conscience Project (website) (Critiquing Dickens, supra note 11).
13. Julie D Cantor, “When an Adult Female Seeks Ritual Genital Alteration: Ethics, Law and the Parameters of Participation”, (2006) 117(4) Plastic and Reconstructive Surgery 1158 at 1161, n 18.
14. Ibid at 1161.
15. J Budziszewski,“Handling Issues of Conscience”, The Newman Rambler, 3:2 (Spring/Summer 1999) 3.
16. Martin Luther King Jr, “The Three Dimensions of a Complete Life” (Sermon delivered at New Covenant Baptist Church, Chicago, Illinois, 9 April 1967), The Seattle Times, Martin Luther King Jr: An Extraordinary Life (website).