Ethical Issues in Medicine and Public Health Communication
October 22, 2011
Physician Morals versus Patient Autonomy: Conscientious Refusal and Access to Abortions
To ask the question, “Do doctors have a right to refuse to perform abortions, provide birth control, or engage in other medical treatments and procedures which they find ethically or religiously unacceptable?”(often referred to as conscientious refusal) is largely a moot point—because legally, the answer is yes. An article in the Journal of Clinical Ethics (summarized on the website of the American Academy of Fertility Care Professionals by Linda Mackenzie) recaps the history of such laws:
The earliest conscientious refusal law Congress enacted was the Church Amendment, which prohibits courts and government agencies from requiring individuals or facilities to perform abortions or sterilizations if they have moral objections … Congress enacted additional conscience clause legislation: The Coats Amendment in 1996 and the Weldon Amendment in 2005 [which] prohibit both the government and recipients of government funding from discriminating against providers who refuse to participate in any training or health service on the basis of moral convictions … [in 2010] President Obama signed the Patient Protection and Affordable Care Act (PPACA), [which] provides that … no individual provider or facility may be discriminated against because of a willingness or unwillingness to perform an abortion based on religious or moral beliefs (Pope).
With the law historically (and currently) on the physician’s side, the ethical question arises not as whether conscientious refusal is allowed, but rather, whether it should be allowed. And perhaps one of the best ways to answer this question is to apply Immanuel Kant’s Categorical Imperative, which states, “A right act has a maxim that is universal. An act is right if one can will its maxim or rule to be acted on by all others” (Pence 343). What would happen if every physician chose to refuse abortions or birth control to women? In 1996, at least one county in California came face to face with this question. This particular county “had a state-mandated legal obligation to provide abortion services for two population groups—those incarcerated in the county penal facility and those deemed incompetent to make their own medical decisions.” The county chose to provide such services through its public hospital, but because of California’s “conscience clause” legislation, physicians had the option to sign a declaration that freed them from any requirement to perform abortions if they had ethical or religious objections. In this case, so many physicians at this hospital chose to sign this declaration that “the hospital, as the county agency providing state-mandated health care, was obliged to maintain abortion services but had no one willing and qualified to do so … In short, the hospital and county were legally stuck between a rock and a hard place” (Meyers, Wood 115).
Clearly we can see that having laws set in place does not necessarily free us from the ethical implications and dilemmas that may arise as consequences of those laws. In fact, rather than clarifying an issue and serving as a compass for good behavior, laws often only compound ethical issues, and raise even more questions. That was certainly the case in February 2011, when a Georgia lawmaker proposed a law that would prohibit physicians from performing abortions, which the law called “prenatal murder,” based on “the belief that all life begins at conception.” In addition to the fact that this raises the questions of whether it is ethically acceptable to paternalistically force the public to adhere to a law based on an ethical or moral belief they might not share, we must also note that “The bill's definition of ‘prenatal murder’ excludes miscarriages ‘so long as there is no human involvement whatsoever in causing them.’” But what happens if a pregnant woman starts bleeding or cramping heavily and rushes to the ER, and then has a miscarriage in the hospital under the treatment of the medical staff there? Are the woman and her medical care team now guilty of “prenatal murder” because the miscarriage took place at the hospital? Once such “human involvement” takes place, are mother and doctor guilty? Let’s hope not, since “Anyone convicted would face the death penalty or life behind bars” (Clark).
One of the biggest ethical principles evident in the discussion of conscientious refusal is patient autonomy. While there are indeed many federal and state laws in place protecting a physician’s right to refuse, there are at least as many laws and ethical principles that assert the competent patient’s right to make his or her own choices as they pertain to the patient’s own medical treatment and overall health and well-being:
Respect for a person’s autonomy has always been an implicit, if often violated, characteristic of providing health and medical care. Its elevation to a guiding ethical principle occurred mostly as a result of court actions in Western societies and not, as might be expected, in response to some legislative action, nor was it a reflection of a particular religious doctrine. These court opinions establishing patients’ rights, however, were preceded by a major change in the attitude of Western societies regarding the important of human rights. This shift occurred after the events of World War II, when it was acknowledged that human rights derive from the inherent dignity of the human person and that violation cannot be tolerated (Barofsky 474).
One of the primary reasons that patient autonomy is of paramount importance when considering pregnancy and abortion is that pregnancy, and the relationship between a woman and the baby inside her, are highly private situations. Pregnancy begins with an intimacy between two people, but upon conception, a new intimacy is born between mother and fetus—and any outsider who attempts to impose his or her views upon that relationship is operating from a purely paternalistic standpoint:
…Abortion deals with a situation marked by a particular, and particularly thoroughgoing, kind of physical intertwinement. This means that the fetus, the gestating woman, and their relationship do not fit ready-made categories; the question we’re being asked to address falls outside of our theory’s comfort zone … when entertaining the possibility that the fetus is a person, we have no way of acknowledging the kind of relationship that holds between the pregnant woman and this person (Little 296).
When taking a stance as pro-life or pro-choice, this relationship seems to have been overlooked as opposing parties fight for the rights of the woman or the rights of the fetus. Indeed, “there is scant acknowledgement that the procreational decision at issue with abortion is a decision about whether a fetus will live inside [the mother’s] womb” (Little 297).
Beneficence and non-maleficence are also crucial here, but are also unfortunately subjective and open to individual interpretation. If we’re talking about doing no harm, is the psychological harm of a woman who does not wish to give birth, for whatever reason, or the financial harm the family must undergo if they cannot afford to raise a child, more or less important when weighed against the harm done to a fetus by aborting it? Your answer here might be determined by your religious beliefs, or your ideas about whether or not a fetus has moral status as “person” and therefore whether or not harm can come to it—if it has moral status, surely aborting it would be harmful, but if not, then harm is not an issue. Likewise, should physicians practice beneficence towards the woman, or towards the fetus? If the woman was a victim of rape, or is significantly developmentally delayed, financially burdened, or in some other way not prepared to rear a child, beneficence might mean not forcing her to go through with the birth. But if the fetus is our primary concern, then surely beneficence means delivering a healthy baby and allowing it to live its life. It is precisely because there are so many gray areas when it comes to beneficence and non-maleficence that patient autonomy must be the ethical principle held above all other considerations here, including—and especially—the moral beliefs of the physician.
Based on the survey cited in the original article from which this discussion has sprung, it seems that most med students hold the moral beliefs of the physician in high regard (no surprise here—isn’t it human nature to believe that the moral and ethical concerns that are of utmost importance are our own?). The article says that:
A survey of medical students has found that almost half believe doctors should be allowed to refuse to perform any procedure to which they object on moral, cultural or religious grounds, such as prescribing contraception or treating someone who is drunk or high on drugs … The survey revealed that almost a third of students would not perform an abortion for a congenitally malformed foetus [sic] after 24 weeks, a quarter would not perform an abortion for failed contraception before 24 weeks and a fifth would not perform an abortion on a minor who was the victim of rape (Campbell).
After med school, however, it appears that opinions seem to shift slightly, putting autonomy back in the driver’s seat. In a 2005 survey of 53 U.S. physicians spanning several different specialties in both academic and private settings, ”With few exceptions, [the] subjects expressed positive attitudes towards patient participation in decision-making … Many subjects expressed themselves using the language of ethics, stressing the importance of patient autonomy and the patient’s right to make decisions.” In addition to autonomy, beneficence also played a role in the physicians’ desires to allow patients to have some say in their medical care: “They engaged patients in decision-making largely because they hoped it would result in better health outcomes, believing that involving patients in decision-making promotes trust and honesty that leads to better diagnosis and care” (McGuire et al. 467).
The patient, in this case a pregnant woman, may have other stakeholders that are important to her when making the decision of whether or not to abort a pregnancy. She may choose to consult the father of her child; her mother, best friend, or other close confidant; and her religious leader and the doctrines of her faith of choice. Which religion she ascribes to will often have a large influence on decisions about abortion:
Religious groups have long been involved with abortion politics. In 1976, shortly after the 1973 Roe v. Wade Supreme Court decision on abortion, representatives of the Roman Catholic Church and the United Methodist Church appeared before a Congressional hearing on a constitutional amendment to overrun the Roe decision. The former organization had led the effort to keep abortion illegal, and the latter had just been instrumental in founding a coalition of mainline Protestant denominations to defend the Roe decision … It appeared that the conflict between competing social movements, which drew their adherents from distinct religious traditions, would be a part of the more generalized conflict between antiabortion groups and feminist women’s organizations (Evans 398).
However, religion may not be the only factor to influence a woman’s decision to abort or not; many other socio-demographic trends play a role as well. Information from “15 General Social Surveys from the National Opinion Research Center spanning the 20-year period between 1977 and 1996” shows that in addition to religion as a deciding factor, “Education attainment is one of the most reliable predictors of respondents’ views on abortion, with highly educated respondents of both sexes supporting legal abortion.” Additionally, “… analyses have found that white women are less likely than black women to have an abortion, yet whites appear to be more approving of abortion rights than blacks” (Strickler, Danigelis 189).
In addition to the patient, the child’s father, and a religious entity, another key stakeholder in the abortion decision might be the ethics committee at the hospital that the patient has chosen to receive care from. It is important for a woman to be aware of the ethical stance of a medical institution before she commits to receiving care at the facility. But this begs the question: What is it about an ethical committee that gives it intrinsic knowledge and authority to make decisions about a patient’s medical care? One explanation of the role of the ethics committee reads:
A hospital ethics committee can function in one or more ways: to educate staff about the ethical dimensions of clinical care; to develop mandatory or suggested policies or guidelines for the institution on ethical issues; to serve as a forum for airing and resolving disagreements among staff, patients, and families about clinical care decisions and as a source of support as these difficult decisions are made; and to review cases, prospectively or retrospectively, and offer advice and conclusions, to those directly involved and when needed to hospital officials or other (Levine 10).
It should be noted, however, that “the AHA guidelines state: ‘Ethics committees should not serve as professional ethics review boards, as substitutes for legal or judicial review, or as decision-makers in biomedical ethics dilemmas. An ethical committee should not replace the traditional loci of decision making on these issues’” (Levine 10).
The ethical implications of a world where any physician may refuse to care for his or her patients on morals grounds are frightening. For starters, it is likely that those women who still feel that they should or must abort could turn, in the absence of a willing physician, back to illegal abortion practices, the negative ramifications of which can be shocking:
Before the Supreme Court legalized abortions in 1973, women who had abortions often had horrible experiences. Physicians who performed abortions often did so only for the money, and some demanded sex … abortionists didn’t use anesthesia … if damage occurred, women had no legal recourse … because what they had done was illegal, victims of botched abortions came into emergency rooms only at the last moment … despite these conditions, during the 1950s and 1960s, hundreds of thousands of American women had illegal abortions … during the 1960s, over 1,000 died (Pence 80).
And the idea that restricting access to abortions—whether by making them illegal outright or by allowing medical professionals to refuse them to autonomous, competent patients—will necessarily lead to unsafe and illegal abortions is not mere speculation; it’s a fact that is happening all around the world, today:
The right to choose abortion remains unavailable or under threat in many parts of the world. Each year, millions of women living in countries that impose severe restrictions on abortion attempt to end unwanted pregnancies through clandestine abortions, the majority of which are unsafe … consider that most of Africa’s 54 countries have restrictive abortion laws, resulting in nearly five million unsafe abortions each year … More than 40%—or 34,000 per year—of the world’s deaths due to unsafe abortion occur in Africa (Sai 16).
Clearly, leaving women with few choices and risking a return to the experiences of American women in the 1960s violates not only autonomy, but beneficence and nonmaleficence as well:
In its constitution, which came into force in 1948, the World Health Organization defined health as a state of complete physical, mental and social well being and not merely the absence of disease or infirmity. That definition has remained unchanged over the past 50+ years. Yet, in places where abortion is restricted, women seeking to terminate unwanted pregnancies face an all-too-real threat to their physical, mental and social well being (Sai 16).
How is this unbridled paternalism any different from the paternalism that drives female genital mutilation (FGM)? While one issue is about restricting access to a medical procedure (by allowing conscientious refusal) and the other is about forcing a particular medical procedure upon women (by medicalizing FGM), both presume that the medical professionals and the cultural norms of the society have a right to determine what is best for women and their sexual and reproductive health—and both strip away human rights and autonomy from the woman. Many in favor of FGM, either based on religious or cultural justifications, claim “circumcision helps keep women free and independent and promises their equality with men by preserving a woman’s virtue” (Moore et al. 140). But why does a society have the right to paternalistically decide what “virtue” is for each woman, or to take on the responsibility of “preserving” it through FGM? The same kinds of questions could be asked about women’s rights to access of safe abortions—why do the morals of physicians or society as a whole come into play when deciding such intimate details in family planning, childbirth, etc.?
Parallels can be drawn between what is happening in Egypt [regarding FGM] and what happened in the United Stated with regard to access to safe and legal abortion. Historically, women’s reproductive health and rights in the United States were defined or circumscribed by medical professionals. In the latter part of the nineteenth century, American medical professionals played a leading role in criminalizing abortion, in large part to force white Anglo-Protestant women to procreate. At the time, a majority of health professionals held conservative viewpoints regarding women’s sexuality, similar to those expressed by some health professionals in Egypt today (Moore et al. 142).
So, considering how long the debate about abortion—who has the right to obtain one, who has the right to decide who obtains one, and who has the right to refuse to perform one—has been going on, is there any possible resolution? The simple solution, as the laws in favor of conscientious refusal present it today, is for women to simply “go someplace else” if they want an abortion and their current medical team refuses to provide one. But rather than make a pregnant woman who is in need of care and already stressed out and suffering struggle to find a doctor who will perform an abortion before she reaches her third trimester, why not ask the doctors to “go someplace else” if they can’t handle the responsibility and fulfill all the duties associated with being an obstetrician/gynecologist?
Suppose a pro-life maternal-fetal doctor practices in a location where pro-choice maternal-fetal specialists are not hard to find, and where many patients hold pro-choice views … Why can’t she stay in the field and simply refer all patients who want abortions [to another physician]? She probably can, provided that her routine refusals and referrals do not interfere unduly with her patients or her community of specialists … However … although each referral may not inconvenience a given patient unduly, the cumulative volume of terminations and referrals might produce a large volume of patient interference (in the form of inconvenience) … One way to avoid all that inconvenience is for the doctor to routinely disclose her pro-life views at the outset … Depending on the nature of the doctor’s practice, that may be enough. However, if disclosures up front do not sufficiently reduce the total volume of inconvenience, that volume may constitute more total harm to others than the harm the doctor would suffer by staying out of that specialty (Davis 87).
In most other professions, once an employee is hired, he cannot simply pick and choose which duties to perform and which he finds objectionable. A veterinarian doesn’t get to heal sick animals and then “opt out” when one must be euthanized. A history teacher cannot educate children about most of US history and then skip over the morally objectionable parts about slavery and Nazi concentration camps. A police officer cannot choose to serve and protect those who adhere to the laws and then refer the victim of domestic violence to another officer because he finds the issue disquieting. Taken to the extreme end of absurdity, here is what too many conscientious refusal laws allow:
Imagine a lifeguard at a public beach who sees a swimmer caught in a riptide but feels he cannot rescue her because his faith prohibits contact between the sexes. He calls for his partner who does not share his beliefs, and the woman is saved. The government hears about this and intervenes—not by demanding that the lifeguard rescue all swimmers but by telling him that he does not need to notify another guard, regardless of the consequence for half of the world's swimmers. Deciding that religious freedom is what needs saving, the government proposes antidiscrimination regulations that extend its version of the right of refusal to the people who repair the lifeboats, train the guards, and insure the beach (Chavkin).
Ultimately, the question is this: Why should a doctor’s ethical or religious beliefs determine the entire course of life for a woman, a child, and a family who are to him, for all purposes, total strangers?
Barofsky, Ivan. "Patients' Rights, Quality of Life, and Health Care System Performance."
Quality of Life Research 12.5 (2003): 473-84. JSTOR. Web.
Campbell, Denis. "Doctors' Anti-abortion Views Could Impact on Women's Access to Service." TheGuardian. Guardian News, 18 July 2011. Web.
Chavkin, Wendy. "Bush 'Conscientious Refusal' Puts Us All At Risk." RH Reality Check | Reproductive Health Information, News, Commentary and Community. 25 Sept. 2008. Web.
Clark, Stephen. "Georgia Lawmaker's Anti-Abortion Proposal Could Punish Women for Miscarriages." Online posting. FoxNews.com. Fox News, 26 Feb. 2011. Web.
Davis, John K. “Conscientious Refusal and a Doctor’s Right to Quit.” Journal of Medicine and Philosophy 29.1 (2004): 75-91. JSTOR. Web.
Evans, John H. "Polarization in Abortion Attitudes in U.S. Religious Traditions, 1972-1998." Sociological Forum 17.3 (2002): 397-422. JSTOR. Web.
Levine, Carol. "Questions and (Some Very Tentative) Answers about Hospital Ethics
Committees." The Hastings Center Report 14.3 (1984): 9-12. JSTOR. Web.
Little, Margaret O. "Abortion, Intimacy, and the Duty to Gestate." Ethical Theory and Moral Practice 2.3 (1999): 295-312. JSTOR. Web.
McGuire, Amy L., Laurence B. McCullough, Susan C. Weller, and Simon N. Whitney. "Missed Expectations?: Physicians' Views of Patients' Participation in Medical Decision-Making." Medical Care 43.5 (2005): 466-70. JSTOR. Web.
Meyers, Christopher, and Robert D. Wood. "An Obligation to Provide Abortion Services: What Happens When Physicians Refuse?" Journal of Medical Ethics 22.2 (1996): 115-20. JSTOR. Web.
Moore, Kirsten, Kate Randolph, Nahid Toubia, and Elizabeth Kirberger. "The Synergistic Relationship between Health and Human Rights: A Case Study Using Female Genital Mutilation." Health and Human Rights 2.2 (1997): 137-46. JSTOR. Web.
Pence, Gregory E. Medical Ethics: Accounts of Ground-breaking Cases. 6th ed. New
York: McGraw-Hill, 2011. Print.
Pope, Thaddeus M. "Legal Briefing: Conscience Clauses and Conscientious Refusal." Journal of Clinical Ethics (2010). American Academy of FertilityCare Professionals - AAFCP. Web. <http://www.aafcp.org/cplm/roc_10.htm>.
Strickler, Jennifer, and Nicholas L. Danigelis. "(1) Changing Frameworks in Attitudes toward Abortion." Sociological Forum 17.2 (2002): 187-201. JSTOR. Web.
Sai, Fred. “International Commitments and Guidance on Unsafe Abortion.” African Journal of Reproductive Health 8.1 (2004): 15-28. JSTOR. Web.