Abortion, Conscience, and Doctors
Public Discourse: Ethics, Law
and the Common Good
29 October, 2010
Reproduced with permission
Suggestions to end conscience protection ignore the
importance of conscience and rely on a circular-and baseless-understanding
of a woman's "right" to abortion. Following such suggestions would be
detrimental to the entire health care system.
"If people are not prepared to offer legally permitted, efficient, and
beneficial care to a patient because it conflicts with their values, they
should not be doctors," declares Julian Savulescu of Oxford University.
Savulescu's position, known as the "incompatibility thesis," contradicts
important statements about the rights of conscientious refusal articulated
by the American Medical Association, U.S. federal law, and international
law. So, what reasons are given to justify the idea that doctors must
Savulescu offers several justifications for undermining conscientious
objection: the first is an argument from inefficiency. Conscientious
objection is inefficient because patients denied services that they request
will have to seek out other doctors to get these services, wasting their
time, energy, and money in the process.
Now, no one believes that all doctors have a duty to provide
all possible legal and beneficial services (bracketing for the moment
the disputed question about whether abortion is really beneficial care).
Some doctors specialize in providing certain treatments and refuse to
provide others for reasons of personal preference. For example, a particular
doctor may choose not to perform cosmetic surgery, though legal and in some
cases beneficial, even though this means that a patient must visit another
doctor to get the requested service. If a mere lack of personal interest (in
learning the required procedure) justifies not offering a service (despite
the inefficiency for the patient), then a more weighty interest like
personal integrity certainly justifies not providing the procedure.
A second justification for the incompatibility thesis offered by
Savulescu is that some patients, "less informed of their entitlements, will
fail to receive a service they should have received. This inequity is
unjustifiable." So, in order that these patients not have their rights
violated, we must not honor conscientious refusal to perform abortion.
. . .given that there are 1.2 million abortions
performed per year in the U.S. alone, it is apparent that the current law
protecting the right of conscientious refusal is not generally impeding the
availability of abortion . . .
It is theoretically possible that some patients denied abortion by their
doctors will end up not getting abortions at all. However, practically
speaking, given that there are 1.2 million abortions performed per year in
the U.S. alone, it is apparent that the current law protecting the right of
conscientious refusal is not generally impeding the availability of
abortion, which remains one of the most common medical procedures worldwide.
However, let's suppose that in a given situation a doctor's refusal to
perform an abortion did in fact lead to a particular woman's not getting an
abortion. Has this woman been denied what she is entitled to or what she
should have received?
When we speak of her "entitlement" or what she "should" have received,
these terms can be understood in a legal sense or in an ethical sense.
Legally, in the United States, the Church Amendment protects the right of a
doctor to refuse to perform an abortion, so a woman has no legal right to
receive an abortion from an objecting physician. So it is false that a woman
has been denied what she was legally entitled to or should have received
under the law when a doctor refuses to give her an abortion.
Has a woman denied an abortion been deprived of what she is entitled to
receive in an ethical sense? An answer to this question depends upon whether
or not abortion is ethically permissible. As I have argued in my new book
The Ethics of Abortion: Human Life, Women's Rights, and the Question of
Justice, I believe that intentional abortion is morally
impermissible. If this view is correct, then a woman denied an abortion has
not been deprived of what she is entitled to receive. Indeed, if the
pro-life view is correct, everyone has a duty not to get, perform, or
formally cooperate with abortion.
If we understand the right to abortion as a claim
right, then someone else-presumably the woman's physician-has a duty to
provide the abortion. But understanding abortion as a claim right in this
way begs the question at issue, which is precisely: Do doctors have duties
to perform abortions?
Even supposing that abortion is morally permissible, we would then need
to identify whether the right to abortion is a liberty right or a
claim right. A liberty right allows a person to do a certain
action, but implies no duty for others to assist in that action. The right
to free speech, an important liberty right, means that an agent may speak,
but there is no duty for others to help the agent to speak, say by giving
the agent air time on television. A claim right, by contrast, implies the
duty of others. The right to property of one person implies the duty of
everyone else not to steal. If we understand the right to abortion as a
liberty right, then it means that no one has a duty to assist in an
abortion. If we understand the right to abortion as a claim right, then
someone else-presumably the woman's physician-has a duty to provide the
abortion. But understanding abortion as a claim right in this way begs the
question at issue, which is precisely: Do doctors have duties to perform
abortions? Appealing to the premise "they should have received the service"
from their doctor is circular reasoning that merely asserts, in slightly
different language, the disputed conclusion.
Savulescu offers a third argument from "inconsistency" against a
physician's conscientious objection:
Imagine an intensive care doctor refusing to treat
people over the age of 70 because he believes such patients have had a fair
innings. This is a plausible moral view, but it would be inappropriate for
him to conscientiously object to delivering such services if society has
deemed patients are entitled to treatment.
Conscientious objection, in the context of abortion, is not a denial of
services to particular kinds of people, but rather a denial of
services of particular kinds of actions. Further, it hardly follows
that because some acts of conscientious denial are unreasonable,
immoral, or wrong, that all acts of conscientious denial are
unreasonable, immoral, or wrong.
Savulescu continues, "Or imagine in an epidemic of bird flu or other
infectious disease that a specialist decided she valued her own life more
than her duty to treat her patients. Such a set of values would be
incompatible with being a doctor." He goes on to argue that if preserving
even the physician's life is insufficient justification for shirking one's
duty to the well-being of patients, how much less could protection of a
physician's conscience be justification for compromising the care of
patients? The interests of the patients should trump the interests of health
care workers in protecting conscience.
Savulescu's argument implicitly presupposes a highly
controversial claim: that preserving physical welfare is of greater value
than preserving moral integrity.
Savulescu's argument implicitly presupposes a highly controversial claim:
that preserving physical welfare is of greater value than preserving moral
integrity. This view is rejected by Socrates in the Crito, Thomas
Aquinas in the Summa Theologiae, Kant in the Groundwork of the
Metaphysics of Morals, and by the witness of contemporary figures such
as Dietrich Bonhoffer, Martin Luther King, Jr., and Nelson Mandela, who were
willing to suffer bodily harm rather than compromise what they held to be
right. Furthermore, the interests of the patient do not always trump the
interests of the doctor, otherwise all doctors would have to provide free
services and house calls.
Finally, Savulescu offers what can be called the "commitments of the
doctor" argument against conscientious objection. Doctors take on
commitments to patient well-being. "To be a doctor is to be willing and able
to offer appropriate medical interventions that are legal, beneficial,
desired by the patient, and a part of a just health care system." Thus, the
argument goes, since abortions are legal, desired by the patient, and part
of a just health care system, the doctor must perform them. As Mark Wicclair
points out, doctors do not in fact commit themselves to offering all legal,
beneficial, and desired treatment. Podiatrists do not offer heart surgery;
gynecologists do not treat cancer of the lymph. It is also implausible that
doctors must provide any treatment that is desired by the patient; adopting
Savulescu's standard would, in some cases, force physicians to amputate
healthy limbs, prescribe drugs for recreational use, participate in
physician assisted suicide and capital punishment, and attempt to alter the
sexual orientation of patients who request it.
At issue, ultimately, is whether abortion really is an appropriate
medical intervention compatible with the medical commitment to preserving
life and health rather than taking them, whether abortion really is
beneficial to women, and whether there is only one or really two patients
involved in pregnancy.
Our current law protecting conscience should remain
in place and receive robust defense not least because it helps to ensure a
more ethnically diverse medical profession in addition to facilitating
greater ideological diversity in the field.
Our current law protecting conscience should remain in place and receive
robust defense not least because it helps to ensure a more ethnically
diverse medical profession in addition to facilitating greater ideological
diversity in the field. Given that Latinos are disproportionately Catholic
and African-Americans are disproportionately Evangelical, and both are
underrepresented in the medical professions, protecting them from performing
abortions could help. As J.W. Gerrard notes, "professions may have problems
recruiting and retaining talented members in certain specialties if they do
not find a way to accommodate divergent views." The current law protects the
autonomy of physicians, making the profession generally more attractive.
The current law also provides greater access to non-controversial health
care for all people. If all Catholic hospitals and pro-life physicians are
forced to choose between performing abortions and no longer providing any
services, many of them will simply shut down. As a
noted, "615 Catholic hospitals account for 12.5% of
community hospitals in the United States, and over 15.5% of all U.S.
hospital admissions." The loss of these hospitals in addition to the loss of
other pro-life health care providers would involve a devastating reduction
in the availability of health care services, to the detriment of all. If one
favors women's health (not just abortion, but women's and other people's
overall health), then support should be given for conscientious objectors to
abortion on pragmatic grounds.
Christopher Kaczor is
Professor of Philosophy at Loyola Marymount and the author of
The Ethics of Abortion: Women's Rights, Human Life, and the Question of
Justice. This piece is adapted from his remarks delivered at the
conference "Open Hearts, Open Minds, and Fair-Minded Words," held on the
campus of Princeton University on October 15th and 16th,
Copyright 2010 the Witherspoon Institute.
All rights reserved.