Abortion, Conscience, and Health Care Provider Rights

In November 2007 the American College of Obstetricians and Gynecologists (ACOG) published an opinion that if a woman’s physical or mental health were at risk, medical practitioners had “an obligation” to provide “medically indicated” abortions “regardless of the provider’s personal moral objections.” It acknowledged that respect for consciences is important, but that “conscientious refusals should be limited if they constitute an imposition of religious or moral beliefs on patients.”

The ACOG’s opinion motivated the Bush administration in summer 2008 to establish federal regulations meant to ensure that laws on the books protecting the right of health-care workers to conscientiously object to involvement in abortions and sterilizations would be duly enforced. The lame duck administration issued the regulations in December 2008. In March 2009, the new Obama administration began a process of rescission. It argued the regulations were unnecessary because conscience laws were already adequately upheld in U.S. healthcare and that any positive goals they might achieve were likely to be accompanied by unacceptable harms such as restricting access to legal abortion for low-income women. The Obama administration formally rescinded the regulations in February 2011.

Given the numerous counterexamples, there are good reasons for rejecting the administration’s argument that conscience laws are adequately enforced. But I do not pursue them here. Behind the controversy over the Bush regulations lies the more basic question of whether healthcare providers have a right to refuse to cooperate in medical procedures they judge to be wrong. And beneath this lies the question of the nature of conscience more generally. As far as I can see, the ACOG’s conclusion has only one merit: it follows consistently from its prior account of conscience, an account that reduces the faculty to subjective feeling.

In this essay, I will elaborate the ACOG account, juxtapose it to what I call the “classical account” as defended in Western philosophy, and finally answer the question whether healthcare providers have a right to refuse to treat some patients. In addition to setting forth what I think is an account that is philosophically consistent and flexible enough to be useful in discussions of public policy, I hope also to shed light on the way the current administration understands conscience and the rights that attach to it. For it is unquestionably the case that Obama’s account mirrors the ACOG’s.

The ACOG opinion on conscience

The ACOG refers to conscience as “the private, constant, ethically attuned part of the human character”; conscience acts as an “internal sanction” on action and inaction; it expresses itself in the form of “a sentiment” such as: “If I were to do ‘x,’ I could not live with myself/I would hate myself/I wouldn’t be able to sleep at night”; not to direct action in accord with it is to “betray oneself—to risk personal wholeness or identity”; conscience is “authentic” when one believes that acting against it will cause one to “experience guilt, shame, or loss of self-respect.”

According to this definition, the moral disapproval that conscience registers is essentially a strong feeling—a “sentiment”—of repugnance or self-reproach that I feel when I compare my beliefs about my own moral uprightness with contemplated behavior that I feel threatens those beliefs. Conscience protects this subjective sense, elliptically referred to as “moral integrity”; indeed, it is my “right” to protect it, for herein lies the “soundness, reliability, wholeness and integration of [one’s] moral character.”

What happens when a conflict arises between my personal beliefs and the objective duty of my profession to provide patient-centered care? Say, for example, that I am a pro-life ObGyn faced with an urgent request from a patient to abort her fetus. If conscientious refusal would constitute an imposition of my values on a patient who does not share them, and if refusal would negatively impact the well-being of the patient “as the patient perceives it,” then the claims arising from my subjective sense should not be allowed to override my duty to the patient: “providers have an obligation to provide medically indicated and requested [abortions] regardless of the provider’s personal moral objections.”

Following this logic, our subjective moral sense and the faculty of conscience that enforces it apparently have nothing to do with objective right and wrong. But let’s be clear: the ACOG’s moral universe is not devoid of normativity. The opinion refers to performing abortions as an “obligation”; reproductive services “should be maintained”; conscience rights “should not be a pretext for interfering with patients’ rights to [abortion] services”; and so on (emphases added). The opinion is full of normative assertions giving primacy to some judgments over others. But if judgments of conscience stretch no wider than sentiment, how is it that the ACOG justifies its own normative conclusions as superior to those of abortion opponents? On this, the opinion is mute.

The classical conception of conscience

In its classical understanding, conscience is an operation of reason—practical reason, interested in true knowledge for the sake of acting. Reasoning practically entails, first, a process of deliberation over interesting alternatives for action, and second, the judgment that this or that alternative is right or wrong, and consequently rightly or wrongly chosen. This presupposes a general cognitive framework of right and wrong. This framework—our moral knowledge—is not merely an affectively supported matrix of subjective beliefs, but the basic apprehension of a set of propositions asserting truths pertaining to what is good, choiceworthy, and consistent with human well-being. Practical reasoning, then, is the process of moving from these “general principles” to practical conclusions. The conclusions are judgments hic et nunc (here and now) that some rational proposal for acting is consistent or inconsistent with human good, and so is right or wrong. These judgments are acts of conscience.

So I exercise conscience whenever I consider what I or one for whom I have some responsibility, including a group, including the entire community the common good of which my good in part constitutes, should or should not do. Conscience entails the entire realm of practical deliberation and judgment.

Now insofar as its acts are the acts of a person (i.e., a primary source of moral agency), conscience’s subjectivity is plain. But the propositional contents of its acts do not merely signify the experience of an emotional state: “I feel this is wrong.” However closely interconnected conscience is to human emotions, its judgments pitch themselves higher than affective states. They are judgments upon reality: “X is right (wrong) and so should (should not) be done whether or not I feel like it.” The realm of conscience, then, is the realm of the rationally normative. And is it not the case that squarely in the center of that realm sits the ACOG’s judgment that providers sometimes have an obligation to provide abortions regardless of their personal moral objections? Do not its authors put it forward as normative—as true?

What, then, is a “conscience objection”? An objection follows from a prior judgment that some option is wrong and should not be done. The objection is precisely my rational opposition to adopting that option. It is my unwillingness to do what I judge to be wrong. I may, of course, judge something wrong that is in fact quite innocent. It would not be innocent, however, for me to do it if I judged it in advance to be wrong. The epistemological basis of obligation is the judgment itself. In this account, wrongdoing is chosen—i.e., I am culpable for doing wrong—whenever I judge something to be wrong and then reject that judgment and do it; I do what I believe I should not do.

For this reason, conscience is said to be supreme in matters of action. If self-direction and hence responsibility exist and are not fictions, then judgments about good and evil must be the basis of right action. And they must be binding.

Implications for public policy

We can affirm, then, both that conscience errs and that its judgments always bind. They bind unless and until I come, perhaps through further deliberation, new knowledge, or being disabused of some error, to a contrary judgment. Although positive judgments do not always command action, but rather sanction it (“X is legitimate and may rightly be done”), negative judgments always command here and now in the form of a prohibition (“Y should not be done”).

To say that the duty to act consistently with my conscience is absolute is simply to say that I should only do what I judge to be legitimate and never do what I judge to be wrong. If this is the case, a negative conscience judgment on some type of behavior seals the imperative not to choose that behavior. Hence the proposition repeated in the ACOG opinion that some conscience claims are “not genuine” and should be disregarded seems to me false. To the extent that they embody moral judgments about right action, conscience claims bind, even claims arising from self-deception, invidious opinions, and aesthetic repugnance. This is no more than to say that the conscience judgments of morally immature people are binding. We overcome an immature conscience through education, not by denying that its claims are “genuine.” It follows that healthcare workers never have a prior duty to carry out requests that they judge to be wrong.

Does it follow that every kind of conscience objection must be accommodated without any consequences to workers? Rightful accommodation certainly prohibits all forcible opposition. But it need not be incompatible with the expectation that reasonable duties will be carried out. Who decides what’s reasonable? Ordinarily the question poses no conflict. When it does, for example, in the vexed arena of so-called “reproductive services,” where orthodoxies clash, public policy needs to step in and give practical definition to the scope of reasonable conscience objection.

For practical purposes, “conscience laws” are instituted to protect claims arising from negative conscience judgments. I suggest that if some kind of legally protected behavior elicits strong ethical disapproval from a significant percentage of responsible healthcare professionals, then conscientious objection from participation in that behavior should be protected under law. This includes, for example, activities associated with terminating fetal human life (e.g., undergoing, performing, assisting in the performance of, requiring or providing training in the performance of, providing referrals for, paying for, and providing coverage for abortions). It also includes the provision of contraceptive services, which elicits strong ethical disapproval from the largest non-governmental provider of health care in the United States, the Catholic Church.

Conclusion

The ACOG opinion suffers from gross illogic and ideological bias. It proposes that some moral judgments, namely, positive judgments related to procuring an abortion in emergency situations, not only sanction the choice for the abortion seeker, but apodictically command medical professionals to carry out that choice on the seeker’s behalf, irrespective of their conscientious objections.

I have argued that moral obligation stems from the judgment of conscience; that negative judgments issue in exceptionless prohibitions; and that no professional obligation may override conscience’s settled voice. Actions that elicit strong ethical disapproval from large numbers of people should be singled out by law as the protected subject matter of conscientious objection. Whatever one’s own ethical judgment on those actions, political stability is better served erring on the side of liberty of conscience.