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The scope and limits of conscientious objection
International Journal of Gynecology & Obstetrics 71 Ž2000. 71᎐77
Ethical and legal issues in reproductive health
The scope and limits of conscientious objection B.M. DickensU , R.J. Cook Faculty of Law, Faculty of Medicine and Joint Center for Bioethics, Uni¨ ersity of Toronto, Toronto, Canada Accepted 3 August 2000
Abstract Principles of religious freedom protect physicians, nurses and others who refuse participation in medical procedures to which they hold conscientious objections. However, they cannot decline participation in procedures to save life or continuing health. Physicians who refuse to perform procedures on religious grounds must refer their patients to non-objecting practitioners. When physicians refuse to accept applicants as patients for procedures to which they object, governmental healthcare administrators must ensure that non-objecting providers are reasonably accessible. Nurses’ conscientious objections to participate directly in procedures they find religiously offensive should be accommodated, but nurses cannot object to giving patients indirect aid. Medical and nursing students cannot object to be educated about procedures in which they would not participate, but may object to having to perform them under supervision. Hospitals cannot usually claim an institutional conscientious objection, nor discriminate against potential staff applicants who would not object to participation in particular procedures. 䊚 2000 International Federation of Gynecology and Obstetrics. All rights reserved. Keywords: Conscientious objection; Abortion objection; Sterilization objection; Nurses’ conscientious objection; Pharmacists’ conscientious objection; Religiously-based hospitals; Hospital conscientious objection; Employment non-discrimination
1. Introduction People of religious faith commonly believe that a legal obligation that compels them to act contrary to their religious convictions is a profound
U
Corresponding author. Fax: q1-416-978-7899. E-mail address: [email protected] ŽB.M. Dickens..
violation of their ethical and human rights. Leading international human rights treaties and many national constitutions and more general laws consistently protect freedom of religious conscience. They also condemn discrimination, such as refusal of employment or appointment, based on a person’s religion. Laws that do not allow noncompliance to be founded on a person’s political, philosophical, moral, social or other convictions, such as laws on mandatory military service,
0020-7292r00r$20.00 䊚 2000 International Federation of Gynecology and Obstetrics. All rights reserved. PII: S 0 0 2 0 - 7 2 9 2 Ž 0 0 . 0 0 3 3 0 - 1
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B.M. Dickens, R.J. Cook r International Journal of Gynecology & Obstetrics 71 (2000) 71᎐77
schooling of children and vaccination against childhood diseases, usually allow non-compliance based on religious beliefs w1x. The medical specialty of gynecology and obstetrics has provided more occasions of conscientious objection than most others. This is due to its coverage of sterilization and abortion procedures, and, more recently, the introduction of medically-assisted reproduction through manipulations including deliberate wastage of sperm, ova, and embryos, such as in in vitro fertilization ŽIVF., where, for instance, legislation in the UK recognizes conscientious objection w2x. General medical practitioners whose religious convictions oppose the use of artificial contraception, and prescribing or undertaking means of contraception, no doubt also face dilemmas of religious conscience when fertility control is in patients’ health interests. They may receive increasing sympathy from practitioners at the other end of the life cycle, as elderly and disabled patients become aware of medical means of assisting death, and make demands on practitioners conscientiously opposed to such means. Accordingly, physicians may sense a growing need for protection of their rights of conscientious objection. Ethically, these rights should be reasonably accommodated where patients’ rights to medically indicated and lawful care are not compromised. In some settings, however, it has been shown that physicians’ claims of conscientious objection are so widespread as to deny patients access to treatment of their choice. In southern Italy, for instance, lawful abortion is often unavailable to patients who seek it, because few if any physicians in this area undertake the procedure w3x. This denies patients their choice of lawful care, and may leave them exposed to serious risks to their health. When continuation of pregnancy poses a serious danger to life or health, however, conscientious objection is inapplicable. This is so under enacted laws, such as section 4Ž2. of the British Abortion Act, 1967, which excludes refusal on grounds of conscience of ‘treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman’. The Roman Catholic religious principle of Double Effect provides that no wrong
is involved in performing a legitimate procedure for a proper reason when an effect follows that is improper to achieve for its own sake w4x. On this basis, there is no conscientious objection in that religious tradition to ending ectopic or other lifeendangering pregnancy, because this is not considered abortion, or for instance to removing a man’s cancerous testicles, since this is not considered sterilization, even though it has this secondary effect. The right of religious conscience is a human right, and not a monopoly of physicians. Nursing and other staff members of health care facilities can also decline involvement in practices offensive to their religious convictions. They differ from physicians, however, often in at least two regards. First, their involvement is usually in an auxiliary or secondary role, in that they support, facilitate or follow up procedures conducted or initiated by physicians. Their level of involvement may be so indirect or remote as to sever their complicity, meaning their partnership in wrongdoing. Second, their legal status is often created by a contract under which they have voluntarily bound themselves as ‘servants’ to comply with orders given by ‘masters’ or principals. Non-compliance may be a dismissible offence. In contrast, physicians are usually independent contractors who discharge their contractual responsibilities of patient care under the provisions of their professional ethical code and personal morality. The scope of conscientious objection allowed by law may differ accordingly among different practitioners. However, everyone who claims an exemption from their duty to perform a task within an employment responsibility on grounds of conscience bears the burden of showing his or her adherence to convictions that found the conscientious objection. Furthermore, as a human right of personal or spiritual conscience, the right is not available to institutions, such as hospital corporations, which may have an artificial legal personality but not a spiritual personality protected by human rights laws.
2. Physicians Various translations of the historic Hippocratic
B.M. Dickens, R.J. Cook r International Journal of Gynecology & Obstetrics 71 (2000) 71᎐77
Oath have included a prohibition of abortion, despite historical ambivalence about the practice of abortion in classical times w5x. Modern, secular versions of the Oath do not include this provision. The World Medical Association’s equivalent, the 1948 Declaration of Geneva, as amended, has graduates on admission to the medical profession solemnly pledge to practice the profession ‘with conscience and dignity,’ and to maintain ‘respect for human life from its beginning,’ leaving each member conscientiously to determine the meaning of ‘human life’ and the moment of its beginning. A variant widely applied in North America requires medical graduates to undertake to ‘give no drug, perform no operation, for a criminal purpose, even if solicited,’ leaving them to perform or to decline to perform lawful sterilization or abortion or medically-assisted reproduction according to their individual beliefs. A practitioner making solemn pledges also undertakes, as the Declaration of Geneva provides, that ‘the health of my patient will be my first consideration.’ The World Health Organization describes ‘health’ as a state of physical, mental and social well-being. Practitioners who feel conscientiously obliged to decline to perform any medical procedure or act indicated on grounds of health are ethically and legally required to refer patients to equivalent practitioners who do not share such objections. The duty of appropriate referral has strong ethical, legal and human rights support. The ethical duty arises from the principle of respect for patients, particularly their right to self-determination or autonomy w6x. Physicians’ protection of their spiritual interests should not be at the cost of patients’ health or other interests, nor subordinate patients’ religious convictions to their own. In law, principles of negligence and abandonment govern physicians’ withdrawal from the care of patients who rely on them for health services. Physicians are expected to undertake the transfer of health care of the patients they cannot treat, for instance because of excessive work load or because the indicated diagnosis or care is beyond their specialty, and of patients they will not treat on grounds of their own conscience. Specialists in obstetrics and gynecology have been observed to be under particular duties to refer patients else-
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where for abortions they will not perform on these grounds w7x. Human rights principles protect the interests of both patients, meaning persons for whose health care physicians are responsible by existing commitments, and non-patients. Physicians have clear legal and ethical duties to persons they have accepted as their patients, such as to tell them in advance of any lawful, health-related medical procedures they object to undertake. However, they do not have comparable responsibilities to persons they have not accepted to care for, even when those persons request to be their patients. Hospitals and ambulance services may have legal responsibilities to members of communities they encourage to rely on them for emergency and other care w8x but individual physicians usually have no legal responsibility for the care of persons they have not accepted as patients. Codes of medical ethics, and laws, often recognize physicians’ rights in principle to decide who they will accept as their patients. If their decisions to decline to accept applicants for their care as patients are based on such persons’ race, religion or other comparable characteristics, they may violate ethical and legal duties of non-discrimination w9x. Refusal on the basis of physicians’ conscientious objections to the type of care that persons request of them is, however, not usually such a violation. When government departments or other public agencies responsible for health care services allow persons’ access to lawful care to be denied or obstructed due to physicians’ conscientious objections to undertaking it, the government and the state itself may be in violation of legal commitments under international human rights laws. For instance under Article 12Ž1. of the International Covenant on Economic, Social and Cultural Rights, parties ‘recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’ The duty of governments is to ensure individuals’ reasonable access to medically-indicated lawful health care. For instance in the state-run health care systems of many developed countries, those eligible for services unavailable in their own region or country will be funded to obtain it elsewhere, with coverage of travel as well as medical costs, including
74
B.M. Dickens, R.J. Cook r International Journal of Gynecology & Obstetrics 71 (2000) 71᎐77
the travel and accommodation costs of a companion, such as a family member. The observance of the UN Convention on the Elimination of All Forms of Discrimination Against Women Žthe Women’s Convention. is monitored by the Committee on the Elimination of Discrimination Against Women ŽCEDAW.. Because physicians’ conscientious objection to performance of procedures has traditionally been most experienced in women’s health care, CEDAW has been vigilant regarding obstacles to women’s access to medical services indicated on health grounds. Article 12 of the Women’s Convention addresses health care, and in February 1999, CEDAW issued its General Recommendation 24 elaborating its understanding of the Article w10x. Paragraph 11 notes that: It is discriminatory for a State Party (to the Convention) to refuse to legally provide for the performance of certain reproductive health services for women. For instance, if health service providers refuse to perform such services based on conscientious objection, measures should be introduced to ensure that women are referred to alternative health providers.
The thrust of this observation is that governments bear responsibility under the Convention to introduce measures to ensure women’s access to care that some physicians conscientiously object to providing. Compliance may require governments to ensure the availability of physicians who are prepared and equipped to undertake a full range of care, such as by ensuring their appropriate training and their recruitment when qualified by adequately distributed and accessible health care facilities w11x. Where under-supplied services may lawfully and safely be undertaken by non-physicians, such as specially trained nurses or midwives, governments can discharge their human rights obligations by ensuring their availability. Where services require physicians’ supervision but can be delivered, for instance, by nurses along the extended lines of authority, such as prostaglandin-based abortions w12x, governments may have to ensure their availability to act under the supervision of non-objecting physicians. Such physicians may be at some distance, and perhaps located in different facilities, from those they supervise, provided that medical emergencies can
be promptly managed. Physicians who object to initiate procedures may not object, or may not ethically or legally be entitled to object, to rendering indicated care in cases of life- or healthendangering emergencies associated with such procedures, in the same way that they deal with emergency consequences of unlawful procedures.
3. Nurses Nurses employed by hospitals are usually considered ‘servants,’ who are directed in what they must do, and how to do it. Most laws, however, allow nurses to invoke their conscientious objection to give direct assistance in abortion and sterilization procedures, and perhaps to object to rendering to a patient for such a procedure immediate pre-operative care. Sensitivity to religious convictions regarding the spiritual status of fetal life may also allow nurses to object to cleaning operating theaters, particularly after second trimester abortions, although many other nurses may also find this distasteful and distressing, and be unsympathetic to an exemption for colleagues whose objections have a religious base. Conscientious objections may not justify nurses’ refusals to care for abortion or sterilization patients before they are prepared for surgery, such as by serving them meals and ensuring that they are appropriately medicated, nor to rendering them post-operative care. Furthermore, nurses may face disciplinary proceedings by employing institutions and professional licensing authorities if their care of patients for procedures the nurses consider objectionable includes a punitive or negatively judgmental element. Physicians may have some responsibility for caregivers’ attitudes, and find it in the patients’ interests to explain to the appropriate nursing staff when procedures to which they object in principle are justified on grounds of preserving patients’ lives or continuing health, and may, therefore, fall outside the usual scope of conscientious objection. When seeking employment in hospitals or clinics where abortion, sterilization, IVF or comparably sensitive procedures are undertaken, nurse applicants may be asked if they are willing to
B.M. Dickens, R.J. Cook r International Journal of Gynecology & Obstetrics 71 (2000) 71᎐77
participate in all of the procedures performed there. A reply that they are may be deemed to waive any rights of later conscientious objection, unless they can show subsequent religious conversion to a faith that prohibits participation. A reply that religious conscience compels the refusal of participation in certain procedures may result in applicants not being offered appointments. Hospitals and clinics cannot engage in systematic discrimination in recruitment on religious or other grounds. However, the primary duty of hospitals and comparable facilities is to cater to the needs of their patients and anticipated needs of members of the communities they serve, by ensuring the availability of competent and dedicated care. Anti-discrimination law places employers under a duty of reasonable accommodation. This means that the personal characteristics of employees and prospective recruits must be accommodated as far as reasonably possible, short of an employer facing undue hardship. A healthcare facility that has adequate nursing staff for the safe and efficient performance of procedures to which some have conscientious objections cannot decline to appoint an otherwise suitable applicant on grounds of such objection. If existing nursing staff members include several who refuse attendance at procedures to which they conscientiously object, so that the timely care of patients is compromised, the facility can show that non-objection is a bona fide occupational requirement, since new employees who object to perform such procedures would create undue hardship in the facility meeting its legal responsibilities to patients, so that conscientious objectors are legitimately disqualified.
4. Other service providers Hospital-based social workers may have conscientious objections to medical procedures on access to which patients request counseling and assistance. The professionalism of social workers requires that they be non-directive and non-judgmental. They do not have to make recommendations in the patients’ best interests, unlike physicians, but they must guard against their counsel-
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ing being biased by their religious convictions. They may face the dilemma of being unable to refuse to counsel patients contemplating procedures to which they conscientiously object, and acting unprofessionally in providing counseling that is biased by their own religious convictions. Their dilemma may be eased in that, being nondirective, they have no complicity in what they believe to be patients’ moral errors. With the development of medical, non-surgical abortion, by pharmaceutical products such as mifepristone ŽRU 486. and methotrexate, supported by use of misoprostol w13x, and with the development of emergency or post-coital contraception by birth control drugs condemned by anti-abortion organizations as abortifacient, pharmacists in hospital and community settings may refuse to fill prescriptions on grounds of conscientious objection w14x. The issue is not new, since many dispense prescriptions for routine contraceptive drugs and sell condoms, but complicity in abortion may be considered a greater wrong. A variant is dispensing hormonal or other drugs to induce super-ovulation, with the attendant risk of high multiple pregnancy leading to selective reduction w15x. This may be distinguishable in that several contingencies separate the pharmacist from any termination of pregnancy that follows. Pharmacists who own their dispensaries may select the products they make available, but employees in community and hospital or clinic dispensaries may have to turn, like nurses, to the general law on non-discrimination and employment contracts. Hospital administrators and secretarial aides to departments or physicians are not instrumental or complicit in health care decisions, and are not recognized to possess the rights of conscientious objection to services in general or any medical decision in particular, although they may express objections in any other capacity, including as members of various associations and as citizens. They may be expected to exercise choice in the employment they seek, but once employed, they cannot select work-related tasks according to their conscientious preferences. In England, for instance, the highest court ruled in 1988 that a physician’s secretary could not refuse to type an
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abortion referral letter on grounds of conscientious objection to that procedure w16x.
5. Students and trainees Since governments have human rights responsibilities to ensure patients’ reasonable access to lawful healthcare services that individual physicians may have conscientious objections to perform, they must take care that non-objecting physicians are adequately available. The same is true regarding nursing and related services. This raises concerns about whether medical and nursing schools must include in their training programs procedures that some qualified service providers may decline to perform, whether professional licensing authorities must, or may, require proficiency in such procedures, and particularly whether students and trainees have rights of conscientious objection to training in procedures they would decline to perform w17x. A distinction may be drawn between procedures that trainees may be required to perform on patients under supervision, and procedures they may be required to learn as academic or scientific exercises. Conscientious objection may be invoked in the former case, but not the latter. For instance, medical students must be trained to deal with threatened abortion, whether of spontaneous, induced or unlawful origin, and in techniques of uterine evacuation not constituting elective abortion. Training in how abortion occurs and how it may be caused by skilled and unskilled intervention is required for preventive and postintervention care. Students in medicine, nursing and, for instance, pharmacology may be required to learn about drugs or prescription levels that may impair ovulation or conception or induce miscarriage. This knowledge equips practitioners to preserve fertility or pregnancy, and perhaps to also achieve contraception or sterility, or to induce miscarriage. Students cannot object to be required to acquire therapeutic or scientific knowledge relevant to their profession that they would decline to employ contrary to their convictions.
6. Hospitals A number of religions include tending to the sick among their missions, and adherents may administer hospitals and similar facilities to evidence their faith. They may refuse to allow counseling and the performance of procedures that are contrary to their religious teachings. However, when religious orders or their adherents provide health facilities as a public service, and assure governmental agencies responsible for healthcare provision that their hospitals will discharge this function, they may not be entitled legally or ethically to deny services to which they conscientiously object, unless they or governments are assured of community members’ reasonable access to such services through other facilities. If hospitals undertake to provide the public’s sole source of indicated health services, they risk legal liability and ethical accountability if they refuse to make them available on grounds of conscience. Hospitals, clinics and other institutions, even when constituted to possess a legal personality and to be capable to bring and defend legal claims in their own right, have no claim to religious conscience. Accordingly, they may successfully be sued, for instance, for negligence or abandonment, if, for religious reasons, they prohibit the performance of lawful medical procedures indicated on health grounds, and refuse or fail to refer eligible applicants to obtain services elsewhere. Unless legislation provides religiously-based hospitals or other healthcare facilities with exemptions from liability, they fall under the general law. Furthermore, they cannot limit the recruitment of medical or other staff to those who are entitled to claim conscientious objections to procedures they oppose. The religious freedom that entitles conscientious objectors to non-discrimination in employment equally protects non-objectors. Religious commitment is a bona fide occupational requirement to be appointed a denominational hospital chaplain, but not, for instance, a surgeon or nurse. Accordingly, religiously-based facilities cannot refuse to employ medical, nursing or other healthcare staff on the grounds that they are
B.M. Dickens, R.J. Cook r International Journal of Gynecology & Obstetrics 71 (2000) 71᎐77
prepared to advise, participate in or refer patients for particular lawful healthcare procedures, unless legislation makes such facilities exempt from non-discrimination and employment laws. References w1x Ross LF, Aspinwall TJ. Religious exemptions to the immunization statutes: balancing public health and religious freedom. J Law Med Ethics 1997;25:202᎐209. w2x Human Fertilisation and Embryology Act 1990 ŽStatutes Ch. 37., s. 38. w3x United Nations. Report of the Committee on the Elimination of Discrimination Against Women, 17th Sess, Doc Ar52r38rRev 0.1, 353, 360 Ž12 August 1997.. w4x Boyle JM. Toward understanding the principle of double effect. Ethics 1980;90:527᎐538. w5x Williams G. The sanctity of life and the criminal law. London: Faber and Faber, 1958:140᎐144. w6x Doyal L. Needs, rights and the moral duties of clinicians. In: Gillon R, editor. Principles of health care ethics. Chichester: Wiley, 1994:217᎐230. w7x Mason JK. Medico-Legal Aspects of Reproduction and Parenthood, 2nd ed. Aldershot, UK; Brookfield, USA: AshgaterDartmouth, 1998:128.
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w8x Kent v. Griffiths, w2000x 2 Weekly Law Reports 1158 ŽCourt of Appeal, England.. w9x Korn v. Potter Ž1996., 134 Dominion Law Reports Ž4th . 437 ŽBritish Columbia Sup. Ct... w10x United Nations High Commissioner for Human Rights. Women and health: 02r02r99. CEDAW General recom. 24. w11x Boozang KM. Developing public policy for sectarian providers: accommodating religious beliefs and obtaining access to care. J Law Med Ethics 1996;24:90᎐98. w12x Royal College of Nursing of the U.K. v. Department of Health and Social Security, w1981x Appeal Cases 800 ŽHouse of Lords.. w13x Christin-Maitre S, Bouchard P, Spitz IM. Medical termination of pregnancy. New Engl J Med 2000;342:946᎐956. w14x Weinstein BD. Do pharmacists have a right to refuse to fill prescriptions for abortifacient drugs? Law Med Health Care 1992;20:220᎐223. w15x Dickens BM, Cook RJ. Some ethical and legal issues in assisted reproductive technology. Int J Gynecol Obstet 1999;66:55᎐61. w16x Janaway v. Salford Area Health Authority, w1988x 3 All England Reports 1079 ŽHouse of Lords.. w17x Dresser RS. Freedom of conscience, professional responsibility, and access to abortion. J Law Med Ethics 1994;22:280᎐285.
Ethical and legal issues in reproductive health
The scope and limits of conscientious objection B.M. DickensU , R.J. Cook Faculty of Law, Faculty of Medicine and Joint Center for Bioethics, Uni¨ ersity of Toronto, Toronto, Canada Accepted 3 August 2000
Abstract Principles of religious freedom protect physicians, nurses and others who refuse participation in medical procedures to which they hold conscientious objections. However, they cannot decline participation in procedures to save life or continuing health. Physicians who refuse to perform procedures on religious grounds must refer their patients to non-objecting practitioners. When physicians refuse to accept applicants as patients for procedures to which they object, governmental healthcare administrators must ensure that non-objecting providers are reasonably accessible. Nurses’ conscientious objections to participate directly in procedures they find religiously offensive should be accommodated, but nurses cannot object to giving patients indirect aid. Medical and nursing students cannot object to be educated about procedures in which they would not participate, but may object to having to perform them under supervision. Hospitals cannot usually claim an institutional conscientious objection, nor discriminate against potential staff applicants who would not object to participation in particular procedures. 䊚 2000 International Federation of Gynecology and Obstetrics. All rights reserved. Keywords: Conscientious objection; Abortion objection; Sterilization objection; Nurses’ conscientious objection; Pharmacists’ conscientious objection; Religiously-based hospitals; Hospital conscientious objection; Employment non-discrimination
1. Introduction People of religious faith commonly believe that a legal obligation that compels them to act contrary to their religious convictions is a profound
U
Corresponding author. Fax: q1-416-978-7899. E-mail address: [email protected] ŽB.M. Dickens..
violation of their ethical and human rights. Leading international human rights treaties and many national constitutions and more general laws consistently protect freedom of religious conscience. They also condemn discrimination, such as refusal of employment or appointment, based on a person’s religion. Laws that do not allow noncompliance to be founded on a person’s political, philosophical, moral, social or other convictions, such as laws on mandatory military service,
0020-7292r00r$20.00 䊚 2000 International Federation of Gynecology and Obstetrics. All rights reserved. PII: S 0 0 2 0 - 7 2 9 2 Ž 0 0 . 0 0 3 3 0 - 1
72
B.M. Dickens, R.J. Cook r International Journal of Gynecology & Obstetrics 71 (2000) 71᎐77
schooling of children and vaccination against childhood diseases, usually allow non-compliance based on religious beliefs w1x. The medical specialty of gynecology and obstetrics has provided more occasions of conscientious objection than most others. This is due to its coverage of sterilization and abortion procedures, and, more recently, the introduction of medically-assisted reproduction through manipulations including deliberate wastage of sperm, ova, and embryos, such as in in vitro fertilization ŽIVF., where, for instance, legislation in the UK recognizes conscientious objection w2x. General medical practitioners whose religious convictions oppose the use of artificial contraception, and prescribing or undertaking means of contraception, no doubt also face dilemmas of religious conscience when fertility control is in patients’ health interests. They may receive increasing sympathy from practitioners at the other end of the life cycle, as elderly and disabled patients become aware of medical means of assisting death, and make demands on practitioners conscientiously opposed to such means. Accordingly, physicians may sense a growing need for protection of their rights of conscientious objection. Ethically, these rights should be reasonably accommodated where patients’ rights to medically indicated and lawful care are not compromised. In some settings, however, it has been shown that physicians’ claims of conscientious objection are so widespread as to deny patients access to treatment of their choice. In southern Italy, for instance, lawful abortion is often unavailable to patients who seek it, because few if any physicians in this area undertake the procedure w3x. This denies patients their choice of lawful care, and may leave them exposed to serious risks to their health. When continuation of pregnancy poses a serious danger to life or health, however, conscientious objection is inapplicable. This is so under enacted laws, such as section 4Ž2. of the British Abortion Act, 1967, which excludes refusal on grounds of conscience of ‘treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman’. The Roman Catholic religious principle of Double Effect provides that no wrong
is involved in performing a legitimate procedure for a proper reason when an effect follows that is improper to achieve for its own sake w4x. On this basis, there is no conscientious objection in that religious tradition to ending ectopic or other lifeendangering pregnancy, because this is not considered abortion, or for instance to removing a man’s cancerous testicles, since this is not considered sterilization, even though it has this secondary effect. The right of religious conscience is a human right, and not a monopoly of physicians. Nursing and other staff members of health care facilities can also decline involvement in practices offensive to their religious convictions. They differ from physicians, however, often in at least two regards. First, their involvement is usually in an auxiliary or secondary role, in that they support, facilitate or follow up procedures conducted or initiated by physicians. Their level of involvement may be so indirect or remote as to sever their complicity, meaning their partnership in wrongdoing. Second, their legal status is often created by a contract under which they have voluntarily bound themselves as ‘servants’ to comply with orders given by ‘masters’ or principals. Non-compliance may be a dismissible offence. In contrast, physicians are usually independent contractors who discharge their contractual responsibilities of patient care under the provisions of their professional ethical code and personal morality. The scope of conscientious objection allowed by law may differ accordingly among different practitioners. However, everyone who claims an exemption from their duty to perform a task within an employment responsibility on grounds of conscience bears the burden of showing his or her adherence to convictions that found the conscientious objection. Furthermore, as a human right of personal or spiritual conscience, the right is not available to institutions, such as hospital corporations, which may have an artificial legal personality but not a spiritual personality protected by human rights laws.
2. Physicians Various translations of the historic Hippocratic
B.M. Dickens, R.J. Cook r International Journal of Gynecology & Obstetrics 71 (2000) 71᎐77
Oath have included a prohibition of abortion, despite historical ambivalence about the practice of abortion in classical times w5x. Modern, secular versions of the Oath do not include this provision. The World Medical Association’s equivalent, the 1948 Declaration of Geneva, as amended, has graduates on admission to the medical profession solemnly pledge to practice the profession ‘with conscience and dignity,’ and to maintain ‘respect for human life from its beginning,’ leaving each member conscientiously to determine the meaning of ‘human life’ and the moment of its beginning. A variant widely applied in North America requires medical graduates to undertake to ‘give no drug, perform no operation, for a criminal purpose, even if solicited,’ leaving them to perform or to decline to perform lawful sterilization or abortion or medically-assisted reproduction according to their individual beliefs. A practitioner making solemn pledges also undertakes, as the Declaration of Geneva provides, that ‘the health of my patient will be my first consideration.’ The World Health Organization describes ‘health’ as a state of physical, mental and social well-being. Practitioners who feel conscientiously obliged to decline to perform any medical procedure or act indicated on grounds of health are ethically and legally required to refer patients to equivalent practitioners who do not share such objections. The duty of appropriate referral has strong ethical, legal and human rights support. The ethical duty arises from the principle of respect for patients, particularly their right to self-determination or autonomy w6x. Physicians’ protection of their spiritual interests should not be at the cost of patients’ health or other interests, nor subordinate patients’ religious convictions to their own. In law, principles of negligence and abandonment govern physicians’ withdrawal from the care of patients who rely on them for health services. Physicians are expected to undertake the transfer of health care of the patients they cannot treat, for instance because of excessive work load or because the indicated diagnosis or care is beyond their specialty, and of patients they will not treat on grounds of their own conscience. Specialists in obstetrics and gynecology have been observed to be under particular duties to refer patients else-
73
where for abortions they will not perform on these grounds w7x. Human rights principles protect the interests of both patients, meaning persons for whose health care physicians are responsible by existing commitments, and non-patients. Physicians have clear legal and ethical duties to persons they have accepted as their patients, such as to tell them in advance of any lawful, health-related medical procedures they object to undertake. However, they do not have comparable responsibilities to persons they have not accepted to care for, even when those persons request to be their patients. Hospitals and ambulance services may have legal responsibilities to members of communities they encourage to rely on them for emergency and other care w8x but individual physicians usually have no legal responsibility for the care of persons they have not accepted as patients. Codes of medical ethics, and laws, often recognize physicians’ rights in principle to decide who they will accept as their patients. If their decisions to decline to accept applicants for their care as patients are based on such persons’ race, religion or other comparable characteristics, they may violate ethical and legal duties of non-discrimination w9x. Refusal on the basis of physicians’ conscientious objections to the type of care that persons request of them is, however, not usually such a violation. When government departments or other public agencies responsible for health care services allow persons’ access to lawful care to be denied or obstructed due to physicians’ conscientious objections to undertaking it, the government and the state itself may be in violation of legal commitments under international human rights laws. For instance under Article 12Ž1. of the International Covenant on Economic, Social and Cultural Rights, parties ‘recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’ The duty of governments is to ensure individuals’ reasonable access to medically-indicated lawful health care. For instance in the state-run health care systems of many developed countries, those eligible for services unavailable in their own region or country will be funded to obtain it elsewhere, with coverage of travel as well as medical costs, including
74
B.M. Dickens, R.J. Cook r International Journal of Gynecology & Obstetrics 71 (2000) 71᎐77
the travel and accommodation costs of a companion, such as a family member. The observance of the UN Convention on the Elimination of All Forms of Discrimination Against Women Žthe Women’s Convention. is monitored by the Committee on the Elimination of Discrimination Against Women ŽCEDAW.. Because physicians’ conscientious objection to performance of procedures has traditionally been most experienced in women’s health care, CEDAW has been vigilant regarding obstacles to women’s access to medical services indicated on health grounds. Article 12 of the Women’s Convention addresses health care, and in February 1999, CEDAW issued its General Recommendation 24 elaborating its understanding of the Article w10x. Paragraph 11 notes that: It is discriminatory for a State Party (to the Convention) to refuse to legally provide for the performance of certain reproductive health services for women. For instance, if health service providers refuse to perform such services based on conscientious objection, measures should be introduced to ensure that women are referred to alternative health providers.
The thrust of this observation is that governments bear responsibility under the Convention to introduce measures to ensure women’s access to care that some physicians conscientiously object to providing. Compliance may require governments to ensure the availability of physicians who are prepared and equipped to undertake a full range of care, such as by ensuring their appropriate training and their recruitment when qualified by adequately distributed and accessible health care facilities w11x. Where under-supplied services may lawfully and safely be undertaken by non-physicians, such as specially trained nurses or midwives, governments can discharge their human rights obligations by ensuring their availability. Where services require physicians’ supervision but can be delivered, for instance, by nurses along the extended lines of authority, such as prostaglandin-based abortions w12x, governments may have to ensure their availability to act under the supervision of non-objecting physicians. Such physicians may be at some distance, and perhaps located in different facilities, from those they supervise, provided that medical emergencies can
be promptly managed. Physicians who object to initiate procedures may not object, or may not ethically or legally be entitled to object, to rendering indicated care in cases of life- or healthendangering emergencies associated with such procedures, in the same way that they deal with emergency consequences of unlawful procedures.
3. Nurses Nurses employed by hospitals are usually considered ‘servants,’ who are directed in what they must do, and how to do it. Most laws, however, allow nurses to invoke their conscientious objection to give direct assistance in abortion and sterilization procedures, and perhaps to object to rendering to a patient for such a procedure immediate pre-operative care. Sensitivity to religious convictions regarding the spiritual status of fetal life may also allow nurses to object to cleaning operating theaters, particularly after second trimester abortions, although many other nurses may also find this distasteful and distressing, and be unsympathetic to an exemption for colleagues whose objections have a religious base. Conscientious objections may not justify nurses’ refusals to care for abortion or sterilization patients before they are prepared for surgery, such as by serving them meals and ensuring that they are appropriately medicated, nor to rendering them post-operative care. Furthermore, nurses may face disciplinary proceedings by employing institutions and professional licensing authorities if their care of patients for procedures the nurses consider objectionable includes a punitive or negatively judgmental element. Physicians may have some responsibility for caregivers’ attitudes, and find it in the patients’ interests to explain to the appropriate nursing staff when procedures to which they object in principle are justified on grounds of preserving patients’ lives or continuing health, and may, therefore, fall outside the usual scope of conscientious objection. When seeking employment in hospitals or clinics where abortion, sterilization, IVF or comparably sensitive procedures are undertaken, nurse applicants may be asked if they are willing to
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participate in all of the procedures performed there. A reply that they are may be deemed to waive any rights of later conscientious objection, unless they can show subsequent religious conversion to a faith that prohibits participation. A reply that religious conscience compels the refusal of participation in certain procedures may result in applicants not being offered appointments. Hospitals and clinics cannot engage in systematic discrimination in recruitment on religious or other grounds. However, the primary duty of hospitals and comparable facilities is to cater to the needs of their patients and anticipated needs of members of the communities they serve, by ensuring the availability of competent and dedicated care. Anti-discrimination law places employers under a duty of reasonable accommodation. This means that the personal characteristics of employees and prospective recruits must be accommodated as far as reasonably possible, short of an employer facing undue hardship. A healthcare facility that has adequate nursing staff for the safe and efficient performance of procedures to which some have conscientious objections cannot decline to appoint an otherwise suitable applicant on grounds of such objection. If existing nursing staff members include several who refuse attendance at procedures to which they conscientiously object, so that the timely care of patients is compromised, the facility can show that non-objection is a bona fide occupational requirement, since new employees who object to perform such procedures would create undue hardship in the facility meeting its legal responsibilities to patients, so that conscientious objectors are legitimately disqualified.
4. Other service providers Hospital-based social workers may have conscientious objections to medical procedures on access to which patients request counseling and assistance. The professionalism of social workers requires that they be non-directive and non-judgmental. They do not have to make recommendations in the patients’ best interests, unlike physicians, but they must guard against their counsel-
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ing being biased by their religious convictions. They may face the dilemma of being unable to refuse to counsel patients contemplating procedures to which they conscientiously object, and acting unprofessionally in providing counseling that is biased by their own religious convictions. Their dilemma may be eased in that, being nondirective, they have no complicity in what they believe to be patients’ moral errors. With the development of medical, non-surgical abortion, by pharmaceutical products such as mifepristone ŽRU 486. and methotrexate, supported by use of misoprostol w13x, and with the development of emergency or post-coital contraception by birth control drugs condemned by anti-abortion organizations as abortifacient, pharmacists in hospital and community settings may refuse to fill prescriptions on grounds of conscientious objection w14x. The issue is not new, since many dispense prescriptions for routine contraceptive drugs and sell condoms, but complicity in abortion may be considered a greater wrong. A variant is dispensing hormonal or other drugs to induce super-ovulation, with the attendant risk of high multiple pregnancy leading to selective reduction w15x. This may be distinguishable in that several contingencies separate the pharmacist from any termination of pregnancy that follows. Pharmacists who own their dispensaries may select the products they make available, but employees in community and hospital or clinic dispensaries may have to turn, like nurses, to the general law on non-discrimination and employment contracts. Hospital administrators and secretarial aides to departments or physicians are not instrumental or complicit in health care decisions, and are not recognized to possess the rights of conscientious objection to services in general or any medical decision in particular, although they may express objections in any other capacity, including as members of various associations and as citizens. They may be expected to exercise choice in the employment they seek, but once employed, they cannot select work-related tasks according to their conscientious preferences. In England, for instance, the highest court ruled in 1988 that a physician’s secretary could not refuse to type an
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abortion referral letter on grounds of conscientious objection to that procedure w16x.
5. Students and trainees Since governments have human rights responsibilities to ensure patients’ reasonable access to lawful healthcare services that individual physicians may have conscientious objections to perform, they must take care that non-objecting physicians are adequately available. The same is true regarding nursing and related services. This raises concerns about whether medical and nursing schools must include in their training programs procedures that some qualified service providers may decline to perform, whether professional licensing authorities must, or may, require proficiency in such procedures, and particularly whether students and trainees have rights of conscientious objection to training in procedures they would decline to perform w17x. A distinction may be drawn between procedures that trainees may be required to perform on patients under supervision, and procedures they may be required to learn as academic or scientific exercises. Conscientious objection may be invoked in the former case, but not the latter. For instance, medical students must be trained to deal with threatened abortion, whether of spontaneous, induced or unlawful origin, and in techniques of uterine evacuation not constituting elective abortion. Training in how abortion occurs and how it may be caused by skilled and unskilled intervention is required for preventive and postintervention care. Students in medicine, nursing and, for instance, pharmacology may be required to learn about drugs or prescription levels that may impair ovulation or conception or induce miscarriage. This knowledge equips practitioners to preserve fertility or pregnancy, and perhaps to also achieve contraception or sterility, or to induce miscarriage. Students cannot object to be required to acquire therapeutic or scientific knowledge relevant to their profession that they would decline to employ contrary to their convictions.
6. Hospitals A number of religions include tending to the sick among their missions, and adherents may administer hospitals and similar facilities to evidence their faith. They may refuse to allow counseling and the performance of procedures that are contrary to their religious teachings. However, when religious orders or their adherents provide health facilities as a public service, and assure governmental agencies responsible for healthcare provision that their hospitals will discharge this function, they may not be entitled legally or ethically to deny services to which they conscientiously object, unless they or governments are assured of community members’ reasonable access to such services through other facilities. If hospitals undertake to provide the public’s sole source of indicated health services, they risk legal liability and ethical accountability if they refuse to make them available on grounds of conscience. Hospitals, clinics and other institutions, even when constituted to possess a legal personality and to be capable to bring and defend legal claims in their own right, have no claim to religious conscience. Accordingly, they may successfully be sued, for instance, for negligence or abandonment, if, for religious reasons, they prohibit the performance of lawful medical procedures indicated on health grounds, and refuse or fail to refer eligible applicants to obtain services elsewhere. Unless legislation provides religiously-based hospitals or other healthcare facilities with exemptions from liability, they fall under the general law. Furthermore, they cannot limit the recruitment of medical or other staff to those who are entitled to claim conscientious objections to procedures they oppose. The religious freedom that entitles conscientious objectors to non-discrimination in employment equally protects non-objectors. Religious commitment is a bona fide occupational requirement to be appointed a denominational hospital chaplain, but not, for instance, a surgeon or nurse. Accordingly, religiously-based facilities cannot refuse to employ medical, nursing or other healthcare staff on the grounds that they are
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prepared to advise, participate in or refer patients for particular lawful healthcare procedures, unless legislation makes such facilities exempt from non-discrimination and employment laws. References w1x Ross LF, Aspinwall TJ. Religious exemptions to the immunization statutes: balancing public health and religious freedom. J Law Med Ethics 1997;25:202᎐209. w2x Human Fertilisation and Embryology Act 1990 ŽStatutes Ch. 37., s. 38. w3x United Nations. Report of the Committee on the Elimination of Discrimination Against Women, 17th Sess, Doc Ar52r38rRev 0.1, 353, 360 Ž12 August 1997.. w4x Boyle JM. Toward understanding the principle of double effect. Ethics 1980;90:527᎐538. w5x Williams G. The sanctity of life and the criminal law. London: Faber and Faber, 1958:140᎐144. w6x Doyal L. Needs, rights and the moral duties of clinicians. In: Gillon R, editor. Principles of health care ethics. Chichester: Wiley, 1994:217᎐230. w7x Mason JK. Medico-Legal Aspects of Reproduction and Parenthood, 2nd ed. Aldershot, UK; Brookfield, USA: AshgaterDartmouth, 1998:128.
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w8x Kent v. Griffiths, w2000x 2 Weekly Law Reports 1158 ŽCourt of Appeal, England.. w9x Korn v. Potter Ž1996., 134 Dominion Law Reports Ž4th . 437 ŽBritish Columbia Sup. Ct... w10x United Nations High Commissioner for Human Rights. Women and health: 02r02r99. CEDAW General recom. 24. w11x Boozang KM. Developing public policy for sectarian providers: accommodating religious beliefs and obtaining access to care. J Law Med Ethics 1996;24:90᎐98. w12x Royal College of Nursing of the U.K. v. Department of Health and Social Security, w1981x Appeal Cases 800 ŽHouse of Lords.. w13x Christin-Maitre S, Bouchard P, Spitz IM. Medical termination of pregnancy. New Engl J Med 2000;342:946᎐956. w14x Weinstein BD. Do pharmacists have a right to refuse to fill prescriptions for abortifacient drugs? Law Med Health Care 1992;20:220᎐223. w15x Dickens BM, Cook RJ. Some ethical and legal issues in assisted reproductive technology. Int J Gynecol Obstet 1999;66:55᎐61. w16x Janaway v. Salford Area Health Authority, w1988x 3 All England Reports 1079 ŽHouse of Lords.. w17x Dresser RS. Freedom of conscience, professional responsibility, and access to abortion. J Law Med Ethics 1994;22:280᎐285.