A New Theory of Conscientious Objection in Medicine

Justification and Reasonability

Robert F. Card

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9780367430818
• eBook ISBN: 9781000066951
• Edition: 1
• Topic: Philosophy
• Subtopic: Ethics in Medicine

This book argues that a conscientiously objecting medical professional should receive an exemption only if the grounds of an objector's refusal are reasonable. It defends a detailed, contextual account of public reasonability suited for healthcare, which builds from the overarching concept of Rawlsian public reason.

The author analyzes the main competing positions and maintains that these other views fail precisely due to their systematic inattention to the grounding reasons behind a conscientious objection; he argues that any such view is plausible to the extent that it mimics the 'reason-giving requirement' for conscience objections defended in this work. Only reasonable objections can defeat the prior professional obligation to assign primacy to patient well-being, therefore one who refuses a patient's request for a legally available, medically indicated, and safe service must be able to explain the grounds of their objection in terms understandable to other citizens within the public institutional structure of medicine. The book further offers a novel policy proposal to deploy the Reasonability View: establishing conscientious objector status in medicine. It concludes that the Reasonability View is a viable and attractive position in this debate.

A New Theory of Conscientious Objection in Medicine: Justification and Reasonability will be of interest to researchers and advanced students working in bioethics, medical ethics, and philosophy of medicine, as well as thinkers interested in the intersections between law, medical humanities, and philosophy.

1 The Main Considerations

The case of medical ethics is the most striking. By its very nature, there is a very large difference in knowledge between the buyer and the seller…. To make this relationship a viable one, ethical codes have grown up over the centuries … [and] there is a strong presumption that the doctor is going to perform to a large extent with your welfare in mind.

—Kenneth Arrow

1.1. Introduction

The notion of a medical provider morally objecting to a patient’s request is not new. Yet in the 21st century, practitioners’ conscience objections in the United States (US) are not limited to areas such as abortion or sterilization but have become much more pervasive. Curlin et al. report that 14% of physicians surveyed—responsible for the care of more than 40 million patients at the time of the survey—do not believe they are obligated to disclose information and medically available treatments they consider to be morally objectionable. Further, 29% of physicians—responsible for the care of nearly 100 million patients—do not think they have an obligation to refer a patient who makes a morally unacceptable request to another provider willing to perform the service. Strickland reports that 45% of medical students in the United Kingdom (UK) thought that doctors should be allowed to refuse any procedure on ethical grounds. Since nearly half of future medical professionals surveyed possess quite permissive attitudes regarding such refusals, this issue cries out for a thoughtful, clear analysis that aims to make medical professionals more reflective about these matters and offers a concrete proposal that adequately addresses the associated ethical challenges.

In this book, I will argue that a conscientious exemption from what would otherwise be one’s professional duty should only be granted if the objection and its supporting justification meet a standard of reasonability. I will focus upon conscientious exemptions in reproductive medicine, since many of the most contentious issues arise in this arena, yet I will also discuss examples from other areas of medical practice. I will first introduce in this chapter the major topics one needs to grasp to philosophically approach the topic. In Chapter 2, I motivate the need for the view I propose and then develop its workings in the next two chapters. I suggest in Chapter 5 that this philosophical view be deployed by establishing a form of conscientious objector (CO) status within medicine for those granted exemptions on this basis. Finally, while I reply to criticisms throughout the book, in the last chapter I will address a host of objections to the position and policy proposal I offer to shore up the defense of my view on conscience objections in medicine.

My main aims in this first chapter are to lay out the main issues in this debate as I see them, to lay the groundwork for the defense of my position, and to inform the reflective reader so that s/he can engage the multifaceted issues posed by conscientious objection in medicine. Other book-length works to date either center on law and policy without discussing the relevant philosophical underpinnings, or focus upon the theoretical basis of conscientious objection without sufficient attention to providing an analysis with practical bite. This work, by contrast, aims to chart a middle course between these two extremes by defending an approachable yet philosophically informed theory and by engaging in casuistry of instances of conscientious objection. I will begin the next section by discussing a real-life example—one concerning parents that I will utilize only at this point in the book—to help us begin to think critically about our central topic of conscience objections by medical providers.

1.2. What Matters: A Thought Experiment in the Real World

Consider the following case. With increasing frequency in the US, parents are conscientiously refusing to vaccinate their children. Recently, Governor Jerry Brown signed into law a bill that requires vaccinations of children in the state of California. Essentially, this law eliminates the religious and personal belief exemptions from vaccinations, while it retains the medical exemption (for instance if one’s child is immunocompromised and therefore cannot receive vaccinations). The creation of this law is an important moment in the US cultural debate regarding the proper balance between religious or personal beliefs and general requirements that promote the social good. While the focus of this book concerns scruples-based objections by medical practitioners, let’s first discuss the case of parents’ objections to vaccinations to elucidate the considerations that matter when we set out to systematically think through the standing of such objections. Although I only focus on this context here, the salient points that arise shed light on the proper approach to accommodating conscience objections by medical professionals. Let’s specify the case under consideration as follows:

Vaccination Case

A parent refuses to vaccinate her child because she believes the MMR (measles, mumps, rubella) vaccine leads to or increases the chances of her child becoming autistic. This parent bases her refusal to vaccinate on a personal belief that vaccines are toxic and harmful to her child’s body.

This is precisely the sort of case that motivated Governor Brown to sign the bill in 2015. In the fall of 2014, over 13,500 kindergarten students had personal belief exemptions filed by their parents in California; this represents a substantial 2.5% of children entering kindergarten in that state (Willon and Mason). To put this statistic into perspective, the child vaccination rate in some schools in California municipalities such as Malibu or Santa Monica is as low as that for children in Chad or South Sudan (Khazan). These striking statistics suggest this is not a trivial matter; we should explore some of the main arguments bearing on this issue. Should parents have the right to conscientiously object to their children receiving such vaccinations?

The issue is hotly contested in the US. Let’s begin with a (seemingly) straightforward point: parents are the rightful decision-makers for their children. Yet the scope of parents’ decisions can be properly circumscribed; some decisions on a child’s behalf have been deemed akin to neglect or abuse—for instance, to not allow a child to receive blood products on religious grounds, even if needed to save the child’s life. A court can, in fact, order a blood transfusion for a child over a parent’s religious objection, and this is a justified conclusion. While parents can make all sorts of decisions on their child’s behalf, these need to be reasonably related to the child’s well-being. Yet parents who deny such life-saving medical interventions are causing their children preventable harm; parents are not allowed to impose their will on their children in this way. Further, parents have voluntarily accepted this care-taking role and the attendant responsibilities for their children. The vaccination case is tricky, however, since such parents will claim that they are promoting their child’s interests by refusing the inoculations. Parents will say they only want to take care of their child, not the entire world; they wish to avoid harm occasioned by the increased chances of her becoming autistic, according to the information they accept, and therefore refuse the vaccinations to not let any impure substances harm their child.

Is there a solid scientific basis for the claim that vaccines increase the chances that a child will become autistic? A parent may insist on this connection based on stories s/he has read on the Internet or viewed on television. Yet the matter has been thoroughly studied and there is no sound empirical evidence supporting this claim—this correlation has been shown to be unsustainable. The connection between vaccines and autism stems from a study published in the Lancet by Wakefield et al., yet this study has been shown to be fraudulent in a piece published in the British Medical Journal (Godlee, Smith, and Marcovitch). In light of the mounting evidence, the editors of Lancet made the extraordinary move of retracting Wakefield’s study. This suggests that if a conscientious objection is based upon an empirically mistaken premise, then we should not give that objection credence. Therefore, parents who assert this objection to vaccinating their child based on the link to autism have no scientific leg upon which to stand, and from a reasoned standpoint their objection fails to garner any weight. This, then, reveals another consideration that intuitively matters: an asserted conscientious objection the basis of which is invalidated by the bulk of scientific evidence should not be granted an accommodation. In this case, anti-vaccination advocates should not be excused from fulfilling their role responsibilities or (if they do not have children) undermining the duties possessed by actual parents.

Further, we should balance the relevant benefits and harms to the affected parties. On the benefits side, such parents enjoy the convenience of not having to take their child to a doctor’s appointment as well as the possible financial cost of the shots. In a more serious vein, vaccines have risks—they can have serious, unforeseen side effects, and by sidestepping the vaccination these parents avoid having their child face these risks. Yet there are good reasons to vaccinate one’s child. Science demonstrates that vaccines protect children from a number of dangerous and infectious diseases. Not vaccinating one’s offspring places vulnerable children in danger of avoidable harm. It is true that one’s unvaccinated child may not become sick with one of those conditions, but there is a greater risk of this, and recent outbreaks document this reality. As Nancy Berlinger reports, outbreaks have occurred in the US in number of “hot spots,” including (e.g.) an outbreak of endemic pertussis (whooping cough) in Boulder, Colorado that was linked to vaccination rates of just 50% of children at a private school, and a measles outbreak in 2008 in San Diego involving 12 children, nine of whose parents had filed for California’s now defunct personal belief exemption in order to not vaccinate their children, and three whose children were not yet old enough to receive the vaccination (37).

These two cases reveal some important points. The State can reasonably employ public health measures for the general good of adults and children. These cases (and numerous others) demonstrate that the children of vaccination refusers can be subject to significant avoidable harm, and this harm can spread to their classmates and to other children as well. Anti-vaccination advocates see vaccination laws as mandating a social responsibility they do not want to take on—they simply wish to avoid harm to their offspring. Yet taking this sort of approach is shortsighted—not vaccinating one’s child can lead to individual harm to him or her, and if we now have “hot spots,” we should not have to wait for a roaring fire of outbreaks among children before we can reign in religious and personal belief exemptions from vaccinating one’s child. Education through grade school is compulsory in the US, and the way states attempt to incentivize vaccination is to make vaccinations a requirement for a child’s enrollment in public schools. The State is therefore saying, “If you are going to avail yourself of this public good, you have to vaccinate your child to minimize harm to the child and to others. If you do not want to do that, you have a choice, which is to send your child to school elsewhere.” This is a reasonable measure to promote social responsibility and is perhaps why we saw the Colorado outbreak occurring at a private school with a mere 50% vaccination rate among its students. Unfortunately, such parents who need to be prodded to accept these larger obligations fail to see that there are social responsibilities that are simply part of being a member of society—a parent who drives his minor child and a few friends to the mall takes responsibility for the safety of those others at least to the extent that he must ensure all the children are wearing seat belts. The shortsightedness of such parents prevents them from seeing that these outbreaks and the creation of “hot spots” results from the weakening of “herd immunity”—this relies upon a relatively high percentage of vaccinated individuals to protect those who are too young to be fully vaccinated or who cannot be vaccinated due to medical conditions. Parental refusals to vaccinate their children have been implicated in the weakening of herd immunity that created these hot spots (Berlinger 37), which demonstrates that these refusals can cause avoidable harm to one’s own child and cause social harm by damaging the health of other children—even those children who are vaccinated, since vaccines are not 100% effective. These facts bearing on the balance of benefits and burdens speak strongly against a parent’s right to lodge a religious or personal belief exemption to vaccinating their children. We learn from this discussion several more intuitively important factors: causing individual harm to vulnerable persons matters when assessing the weight of a conscientious objection, and causing social harm ought to be considered as well.

As it turns out, parents from families who enjoy greater economic prosperity are more likely to conscientiously object to vaccinating their children. This brings into full relief another aspect of this issue: in a system with compulsory education and a vaccination requirement for public education, only richer parents can choose to opt out since they can afford private schools while the poor cannot. Often, poorer folks may not even know they have the right to opt out and would not be able to do so even if they did. Therefore, in these circumstances, ascribing significant weight to these parental objections such that we extend a conscientious exemption from vaccinating one’s child serves to reinforce a social disparity, thereby creating or exacerbating a social harm founded upon socioeconomic status. This is unfair, since parents who are lower on the socioeconomic scale may also possess genuinely held religious or personal beliefs that would lead them to seek an exemption from vaccinating their child, although in present circumstances they cannot in practice carry this out. From this we learn that whether a conscientious objection creates or reinforces a social inequality matters when assessing its relative weight; to the extent that the objection causes (additional) unfairness, this speaks against allowing this objection to generate a conscientious exemption. The risk of harms coming to children make the conclusion that parents should vaccinate their children especially compelling, though my central point in this section is not to exhaustively defend this conclusion but instead is to elucidate the salient considerations we ought to keep in mind when considering the weight of a conscience objection.

We can perhaps put a finer point on the last argument relating to unfairness by making clear how parents who conscientiously refuse to vaccinate their children are “free-riders.” The free-rider problem occurs when one gains an advantage without cost from the beneficial behavior of others when it is not possible for all individuals to engage in the same parasitic behavior. Such objecting parents transfer risk to others—namely, poorer parents who cannot conscientiously object to vaccinating their children because they are unable to afford private schooling—and as such are effectively free-riding off the good will of others. The free-riding occurs at the societal level writ large, and the practice is not generalizable to all parents. The costs that are transferred are any risks that may attend the inoculation itself, along with the time, cost, and inconvenience of having to get one’s child vaccinated. Such conscientiously objecting parents, if their numbers remain small enough, can benefit without taking on the relevant costs due to the presence of herd immunity, yet this is unfair—if everyone behaved similarly, this would create a disaster caused by the wholesale destruction of herd immunity, resulting in many young children becoming sick with conditions that are rarely seen in the 21st century, at least in the developed world.

Of course, one could retort that in such a world many of these parents would get their children vaccinated, since the cost-benefit analysis would change. But then this calls into question whether this is truly a conscientious objection founded upon a sincerely held moral or religious value; parents who genuinely believe vaccinations will cause (or more likely cause) autism would not likely vaccinate in this state of affairs, since the risk of autism is still more grave in their view, just as a devout Jehovah’s Witness does not change her view even when faced with dire consequences for her child. Such free-riding behavior is unfair because it benefits the free-rider at the cost of others who cannot benefit without the relevant cost. From this discussion, we see the salience of considering harm to others and the effects of an objection on promoting inequality and unfairness when assessing whether the objection ought to be granted an accommodation. These considerations build a cumulative case that seriously calls into question parents’ rights to conscientiously object to vaccinations. I submit that most readers will agree that these considerations possess substantial force and that parents must adequately address these considerations before they are properly exempted from inoculating their children.

Let’s now consider the application of this case to the main topic addressed by this book. In this work, I am not even attempting to propose a policy to address the parental vaccination crisis, yet the case allows us to gain ...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Dedication
• Contents
• Preface
• Acknowledgments
• 1 The Main Considerations
• 2 The Inescapability of Reasons-Assessment
• 3 Developing the Reasonability View
• 4 Further Developing the Reasonability View
• 5 From Objections to Exemptions: Establishing Conscientious Objector Status in Medicine
• 6 Alternative Views, Objections, and Replies
• Index