The Harms of the Cleansing of Conscience Objection on the Practice of Medicine

Thesis

Presented in Partial Fulfillment of the Requirements for the Degree Master of Arts in the Graduate School of The Ohio State University

Cynthia Jones-Nosacek, MD

Graduate Program in Bioethics

The Ohio State University

2020

Thesis Committee:

Ashley Fernandes, Advisor

Ryan Nash

Courtney Thiele

Abstract

Secular bioethicists such as Ronit Stahl and Ezekiel Emmanuel (among others) look at controversial issues such as abortion and reproductive health and have declared that consensus has been reached. Those who disagree are told that if they cannot sacrifice their consciences, they should sacrifice their careers. They assert that people who agree to enter the field of medicine are bound by the decisions of various medical societies, even ones they do not belong to. It is those societies alone who will determine what it means to be a physician.

But what happens if conscience is removed from the moral equation and ceded to a medical society? While there are limits to conscientious objection where there is imminent risk of injury or death, the cleansing from the practice of medicine of persons who have moral objections would harm not only physicians and the medical profession, but most importantly, harm patients.

First, the impact of the removal of conscience will be decidedly negative. Physicians will know that they cannot be trusted based on their own moral values, that even their own medical societies don’t trust them. They can be forced to act against their conscience without any evidence than what they were doing is causing anything more than subjective patient disagreement or inconvenience. Stahl and Emmanuel’s argument would claim that health care professionals are to do whatever the bureaucracy of medicine tells them to do as long, as it satisfies the demands of the patients. Physicians must submit to the paternalism of external agents.

Second, the limitations on conscience in medicine. While the legal protections are beyond the scope of this paper, there needs to be an ethical evaluation of the conditions for limitations. I

i will defend Daniel Sulmasy’s view that treatment should be provided in an emergency as defined as imminent risk of actual illness or injury and, if there are objections to what is provided by the objector, it should be evidence based, not anecdotal. Furthermore, the information should be accurate. The physician should not lie nor withhold medically necessary information. However, I

will suggest that there may be controversy over what is medically “accurate” and what level of evidence is necessary, especially since “politically correct” treatments such as for gender dysphoria are acceptable at the lowest level of “expert.” The reasons for conscientious objection should also be nondiscriminatory. Care should not be denied based on race, creed or sexual orientation. Finally, alternatives to what the patient is demanding should be offered.

Third, the demand to remove conscience from medicine is based on a fundamental change in its ethos. Medicine will no longer be considered a calling but a job where an external bureaucracy determines what is proper or not.

Lastly, removing persons who morally object to using their medical knowledge to treat conditions which are not a disease will cause serious harm not only to physicians, but also the medical profession and, most importantly, patients. It will not only prevent the reflective equilibrium which Stahl and Emmanuel so value, but actually cause harm by preventing to correct the mistakes that they admit that medical societies have made in the past.

Dedication

This thesis is dedicated to my patients who taught me well.

iii

Acknowledgements

Ashley Fernandes who talked me into this program

My professors who taught me about the realm of bioethics and made me think

My husband Gary, daughter Theresa, son-in-law Tim, and grandchildren Argentina and Xavier who put up with my studying

Vita Education: 1974-1977 B.S. cum laude Carroll College Waukesha, WI 1977-1980 M.D. Loyola University/Stritch School of Medicine Maywood, IL 2018-present graduate master’s degree student bioethics Ohio State University

Postgraduate Training: 1980-1983 Family Practice Resurrection Hospital Chicago, IL

Specialty Certification: 1983 American Academy of Family Practice Recertified 1990, 1996, 2003, 2014

Fellow of the American Academy of Family Medicine

Administrative Appointments Department Head, Family Practice St. Mary’s Medical Clinic 6/88-5/94

Academic Appointments: Associate Professor of Clinical Medicine, Family Practice Medical College of Wisconsin 1990-92 Preceptor Nurse Practitioner Students University of Wisconsin-Milwaukee 1998-2019

University of St. Louis 2003 Marquette University 2003-2010 Concordia University 2007-2010 Marian University 2012-2013 Columbia/St. Mary’s Family Medicine Teaching Service 10/06-2/07

Research Projects Marquette Model of Natural Family Planning 2001 REACH (registry for enhancement of asthma control and health) 2002

Hospital Committees

NICU, St. Mary’s Hospital 3/1992-2/1994, 3/1996-2/1998

Physician Advocate Columbia/St. Mary’s 9/2005-6/2007 (100,000 lives initiative, SBAR)

Publications Jones-Nosacek C. (2014) End of Life Care Should Not Necessarily Be Minimal and Swift, Ch 2. Death and Dying Scherer L, ed., Greenhaven Press (reprinted from "Giving Up Is Hard to Do," Milwaukee-Journal Sentinel, 2/28/2013) Jones-Nosacek C. (2015). Treating Patients as Customers--Whom Does it Help?. WMJ : official publication of the State Medical Society of Wisconsin, 114(6), 229.

Jones-Nosacek C. (2016) Colloquy: Opportunistic Salpingectomy: Benefits Do Not Outweigh Risks. National Catholic Bioethics Quarterly, 16(2):193-195 https://doi.org/10.5840/ncbq201616216

Jones-Nosacek C. (2018) The Hippocratic Oath and Why It Should Still Matter. The Natural Family, 32(1-2):47-70 Jones-Nosacek, C. (2020). Fertility Technology Research and the Use of Human Beings as Property. The Linacre Quarterly. https://doi.org/10.1177/0024363920947263 Jones-Nosacek, C. (2020). Stay-at-Home Orders and the Common Good. The Linacre Quarterly. https://doi.org/10.1177/0024363920951659

Field of Study Major Field: Bioethics

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Table of Contents

Abstract ...... i

Dedication ...... iii

Acknowledgements ...... iv

Vita ...... v

Publications ...... vii

List of Tables ...... x

List of Figures ...... xi

Introduction…………………………………………………………..….…….1

Ch. 1 A Review of Secularist Accounts of Conscientious Objection.……..….4

Ch. 2 Defining Terms: A Critical Issue……………………………………...12

Ch. 3 History of the Term Conscientious Objection and Protection of

Conscience…………………………………………………………………...16

Ch. 4 Conscience…………………………………………………………….20

Ch. 5 Limits of Conscience in Medicine…………………………………….28

Ch. 6 Referrals vs Transferring Care………………………………………..33

Ch. 7 The Telos and Ethos of Medicine…………………………………….35

Ch. 8 Medical Decisions and Values………………………………….…….44

Ch. 9 Harms…………………………………………………………………49

Conclusion…………………………………………………………………..60

viii

Bibliography………………………………………………………………...67

List of Tables Table 1 Summary of key articles in the literature against conscientious objection………8

Table 2 Opposition to CO……………………………………………………………….11 Table 3 Limits of Conscience……………………………………………………………32

Table 4 Ethos of Medicine as Commodity vs Vocation…………………………………42

Table 5 Harms……………………………………………………………………………59

List of Figures

Figure 1 Hull Article………………….……………………………………………………….2

Introduction

The literature on conscientious objection (CO) is increasingly vast. Since Savulescu first published in 2006, there has been a steady drumbeat against CO. After decades of accommodation, CO at its worst is as Christina Fiala and Joyce Arthur point out, “dishonorable disobedience” to the dictates of the profession (Fiala and Arthur, 2014). It is an unprofessional refusal to provide a democratically determined medical service (Savulescu, 2017). It is harmful to patients (Fiala and Arthur, 2017). Those who object to what these authors support should practice in a way that limits those harms if not leave the medical profession altogether.

In 2016, the ACLU published “Healthcare Denied.” In it, it supposedly debunks “myths” that Catholic hospitals give adequate care in emergencies and decries that no tubal ligations or abortions are done there (ACLU, 2016). Under the Affordable Care Act, the Obama administration interpreted section 1557 to include termination of pregnancy and that one must treat patients according to their gender identification (Smeaton, 2020). In the fall of 2019, a transgendered person won a suit against a Catholic Hospital in California for denying “full and equal access” by refusing to perform a hysterectomy (Meyer, 2019). In the New England Journal of Medicine, the merger of Catholic Hospitals with secular one was called a “growing threat”

(Wolfe, 2020).

One article against CO comes complete with a picture of a physician with emphasis on the hand pushing the viewer (patient) away (Hull, 2018).

Figure 1 Hull Article

Reprinted from statnews.com 2008

In this thesis I intend to first review the most significant papers critically against conscience in Chapter 1. In Chapter 2, I will define the terms critical to establish a common understanding of them and explain why these words were chosen. Chapter 3 will address the history of the term “conscientious objection” and how protection of conscience evolved. The definition of conscience itself will be dealt with in Chapter 4 while Chapter 5 will discuss its limits. Chapter 6 will discuss the difference between referral and transfer of care, an important distinction when dealing with complicity with evil. Chapter 7 looks at the difference in the ethos, its spirit and culture, and the telos or goals and purpose between those who wish to remove conscientious objection from medicine and those who argue for its retention. This leads into Chapter 8 which discusses how the different views of the ethos and telos of medicine

2 affect the practice of medicine, especially the views of those who want to remove accommodation for CO. Chapter 9 deals with the harms that would result if CO is removed.

Chapter 1: A Review of Secularist Accounts of Conscientious Objection

Savulescu 2006 (56 citations)

Julian Savulescu (2006) equates physicians making medical decisions based on their values with making moral judgements on behalf of patients. It is paternalism. Patient autonomy is paramount for legally available services for which they are entitled. This results in providing legal care, with a just distribution of finite resources requiring a reasonable concept of patient good for a patient who is making an informed decision.

Conscience can be an excuse for vice or to avoid performing certain duties, resulting in inefficiency and inequity. It results in inconsistency by justifying compromising patient care which does not result in grave physical risk. It corrupts the delivery of medical care by allowing moral values or self-interest to interfere.

According to Savulescu in this paper, medicine has little room for conscience. A physician’s values can be accommodated only when it does not compromise the quality, efficiency and equitable delivery of public medicine. Therefore, there must be enough physicians available to perform the service to whom the objecting physician can refer. Those who compromise patient care should be punished.

However, by 2017, along with Udo Schuklenk, he was arguing that there should no longer even be any accommodation. Laws should be passed to make it illegal for a physician not to do what society thinks is important such as physician assisted suicide, contraception, and abortion. We must “prioritize patient access to care over the protection of doctors’ idiosyncratic moral convictions” (Savulescu and Schuklenk, 2017).

Cook and Dickens 2006 (3 citations)

Shortly after this article, another appeared by Rebecca Cook and Bernard Dickens regarding what they felt were abuses of conscience, especially legal ones (2006). They stated that physicians were giving priority of their own moral and spiritual convictions over a patient’s need and desire for “medically indicated care.” They quoted St. John Paul II about the “indiscriminate recourse” of conscientious objection and that the state needed to step in when it turns into

“license” and an excuse for limiting another’s rights. Laws that allowed physicians and health care facilities to “neglect the medical needs of patients, prospective patients, and dependent communities” were an abuse. Physicians who failed to refer were also not fulfilling their professional covenant with society.

Fiala and Arthur 2014 (61 citations 2014, 2 citations 2017)

For Christian Fiala and Joyce Arthur (2014), physicians practicing according to values that disagree with theirs amounts to “dishonorable disobedience.” It is “systemic abuse.” It endorses the principle that individual beliefs trump the health and lives of those patients who need a medical service. Medicine is a helping profession where the provider is to subordinate one’s interests and beliefs to serve others, even people with whom one dislikes or disagrees.

It allows physicians who are ambivalent to also opt out. Pro-abortion physicians fear stigma and feel that they are not supported by their colleagues. It violates a woman’s fundamental right to lawful healthcare and places all the burden on them. It protects employees from their own negligence. Finally, it is an offense against the secular state.

When it comes to abortion in particular, a physician was not forced to be an obstetrician/gynecologist. Aborting a fetus and embryo, since he or she is fully dependent on the

5 woman and therefore not considered to be fully an individual is not the same as killing a “living person.” Abortion is a “necessary health intervention” and the “standard of care” meaning medically required. It is ethical since we should not force women to continue an unwanted pregnancy.

In sum, they argue that it is unworkable, inappropriate, unethical, and unprofessional. It gives social sanction to intolerance and discrimination. It denies respect to “accepted ethical standard of a non-judgmental approach.” Physicians who refuse based on their values are unsuited to the practice of medicine by allowing one’s religious belief or personal issues to interfere. The objector should be the one who makes the sacrifice to leave the profession or face prison time.

A later article proclaims that it is “widely recognized” that this causes harms and barriers in women’s reproductive health while giving no evidence. There is no real defense for CO since it is based on “non-verifiable” religious beliefs. It is “always harmful,” discriminates against women and allows physicians to boycott “democratically-decided laws.” A person’s word is not good enough since it cannot be verified (Fiala and Arthur, 2017).

Stahl and Emmanuel 2017 (17 citations)

Secular bioethicists such as Ronit Stahl and Ezekiel Emmanuel (2017) look at controversial issues such as abortion and reproductive health and have declared that ethical consensus has been reached. Those who disagree are told that if they cannot sacrifice their consciences, they should sacrifice their careers. They state that they made their decision because people who agree to enter the field of medicine are bound by the decisions of medical societies, even ones they do not belong to. The determination of what is ethical and moral in the practice of

6 medicine is not the practitioner but will be determined only by the societies that they designate who interpret what is ethical and certainly not other medical societies that might hold different values.

They base their views on the contention that physicians agreed to enter medicine, and they therefore are “obligated” to follow professional standards as designated by professional associations. It is the profession, not the individual, that “elucidates the interpretation and the limits of the primary interest.” Therefore, physicians must offer and provide “accepted medical interventions in accordance with (the) patient’s reasoned decisions.” Those who use “alternative values” are being discriminatory based on characteristics not related to patient care. They also assert that while medical societies have made mistakes in the past, they have corrected themselves due to the Rawlsian ethical principle of reflective equilibrium. Reflective equilibrium is an end point of a process of obtaining coherence of a range of facts and moral principles, thus clarifying what we must do (Daniels 2020).

This is not like CO in the military since soldiers are conscripted, while those in the medical profession are volunteers. Also, CO must be all or nothing, not selective, and is subject to external assessment to determine sincerity. Lastly, the objector is punished by either performing alternative service or go to prison.

According to Stahl and Emmanuel, abortion and contraception are “medically not controversial.” They are the standard of care for obstetrical practice. Along with treatment of

LGBT persons and other areas of sexual health, such practices are not to be considered merely nontherapeutic “lifestyle choices.” To do so would result in substituting cultural and political judgement for “professional medical judgement.” Allowing CO in these cases would result in

7 physicians not treating anyone they deemed morally unworthy—for example, obese diabetics because they are gluttonous, and people with heart disease due to sloth.

If someone in the healthcare field refuses to follow the dictates of the medical societies that they chose, then there should be consequences. They should be penalized for prioritizing their “personal commitment” over patient interests. Therefore, they should either find "a specialty that does not involve that which they object to or make the sacrifice and leave the profession altogether. And if they won’t, then the medical profession should punish them if the legal system won’t.

Schuklenk 2018 (2 citations)

Udo Schuklenk (2018) argues that when physicians join the profession, they do so with the understanding that that the scope of professionalism could and would change and that they are obligated to change since it is out of their control. They cede their authority to professional judgement. Society has allowed medicine to be a monopoly with the understanding that it will provide the services promised by and contracted with it. The physician’s sole role is to implement any decision made by democratic means. To accommodate CO means that, for example, a woman wanting an abortion is unable to enjoy her full and equal rights as a citizen when that request is refused. Finally, accommodation merely prolongs the culture wars by allowing dissent. This results in patients being unable to rely on physicians, their associations, or even statutory bodies (by allowing dissent) to take the public good and its rights to reliable access in a “sufficiently serious” manner.

Table 1 Summary of key articles in the literature against conscientious objection: What all the references above have in common is that physicians whose values differ from the “moral standard of care” on controversial practices cannot claim conscientious objection because: 1. Physicians are volunteers, they were not drafted (Stahl and Emmanuel 2017). 2. Physicians object to performing certain medical services that have been determined to be part of the profession, if not the standard of care (Cook and Dickens 2006. Fiala and Arthur 2014 and 2017, Savulescu 2006, Schuklenk 2018, Stahl and Emmanuel 2017). 3. Physicians are not subject to external scrutiny but are a monopoly—granted only because of the obligations society expects them to perform (Schuklenk 2018). 4. Physicians are not punished for their stance (Emmanuel and Stahl 2017; Fiala and Arthur 2014; Savulescu 2006). 5. CO is merely self-serving moral aversion (Cowley 2016).

Reluctant voices?

Even those who support the possibility of morally objecting to certain practices reluctantly support that right. While admitting that “preserving (the) opportunity for physicians to act (or to refrain from acting) in accordance with the dictates of conscience in their professional practice is important for preserving the integrity of the medical profession as well as the integrity of the individual physician, on which patients and the public rely,” the American Medical

Association (AMA) Code of Medical Ethics 1.1.7 Physician Exercise of Conscience calls it creating a “tension” with “patients’ needs” (1.1.7), though it does state that CO “is longstanding and based on a clear understanding of individual autonomy” (Ethics 1.1.7). It also states:

“questioning of the right of conscience in medicine has, to date, relied on (a) an

incomplete examination of the relationship between negative autonomy and positive

autonomy, (b) an invalid presumption that a licensing body has the authority to

mandate a physician’s scope of practice, and (c) valid reactions to the occasional

abuse of the right of conscience by some physicians” (Ethics 1.1.7)

Mark Wicclair does think that CO should be allowed. The main reason is the critical importance of the moral integrity of the physician, an essential part of the concept of good and of a meaningful life. Other reasons are that it values the autonomy of the physician, shows that as a multicultural society we value tolerance, realize that we could be wrong and that disagreements are inevitable, and finally, promotes diversity (Wicclair 2011, pp 25-30).

However, while allowing for CO in health care, Wicclair still states that those who exercise this right nevertheless “forgo care” of “the ethically right option” for the patient.

Patients are seeking legal and professionally accepted goods and services that are being denied by the health professional’s attempt to “maintain moral integrity” (Wicclair 2011, pp. x, 62).

The American College of Obstetricians and Gynecologists (ACOG) talk about “conflict of conscience” involving “indicated and standard” care while acknowledging “deep differences” regarding the moral acceptability of contraception and pregnancy termination in reproductive medicine. In the provision of reproductive services, the patient’s well-being is paramount.

Refusals must limit harm, in particular “significant bodily harm,” including pain, disability, death or “a patient’s conception of well-being.” When imparting information, it must be scientifically accurate and “professionally accepted” versions of the services. A physician should not use one’s professional authority to argue or advocate these positions with a duty to refer in a timely manner to provide the objectionable service. In an emergency, the “medically indicated and requested care” (my emphasis) should be provided. Those who do conscientiously object should practice in close proximity to those willing to provide those services or “ensure that referral processes are in

10 place,” especially in resource-poor areas so that access to “safe and legal reproductive services be maintained.” And legal policies should ensure “timely, effective, evidence-based, and safe access” (ACOG #385, 2007).

The assumption in all these papers is that patients and the profession are being harmed.

Conscientious objection has no direct benefit to the patient. Patients should have available all services that the authors have determined to be “ethically right.” Providing for abortion and contraception is the standard of care and that those who object are denying patients their rights to that care, if not directly imposing their values on patients. It is the duty of the profession

(Savulescu, 2006; Cook, 2006) and society civilly (i.e., malpractice suits) (Sawicki, 2018) and /or criminally to mitigate these harms (Wicclair, 2018; Fiala and Arthur, 2014). Not to do so, fails to protect patients and other third parties from “excessive harms and burdens” and “unduly weakens the legitimate oversight authority” of department heads, employers, professional organizations, and licensing boards (Wicclair, 2018).

But are these concerns true? Does conscientious objection cause “excessive harms?” Are physicians abandoning their patients when they exercise this right? Are they “refusing to treat” them? What would be the consequences of cleansing from the medical profession those physicians who practice according to values different than the authors? What if forcing physicians to practice only according to the paternalism of external forces would cause harm not only to the profession but to patient care as well?

Table 2 Opposition to CO

Author Year of Times Reasons Opposed Define Definition Cited Conscience? Publication

Savulesu 2006 56 Inefficient, unequal Yes “Conscience is Need to provide legal, but a word consistent care cowards use, devised at first to keep the strong in awe” (Shakespeare)

Cook and 2006 2 Need to provide No Dickens medically indicated care Neglects patients’ medical needs Fiala and 2014 61 CO beliefs trump the No Arthur health and lives of patients workable/inappropriate Not following standard of care Tolerates discrimination and intolerance Fiala and 2017 8 Always harmful No Arthur Religious beliefs not verifiable Stahl and 2017 17 Against standard of care No Emmanuel Consensus reached, obligated to follow Professional societies determine care Schuklenk 2018 2 Scope of practice Yes Religious or changes, not under ethical belief physician’s control or conviction Authority ceded to that motivates professional to act in a judgement particular Must implement manner democratically determined decisions

Chapter 2. Defining Terms: A Critical Issue

Chapter 2: Terms for the “Life Issues”

For the purpose of this thesis, those who approve of abortion will be stated to be

“proabortion.” To use the term “reproductive rights” or “pro-choice” makes the assumption

(without argument) that abortion and contraception are legal and moral obligations (duties) and include entitlements (rights) which opponents would deny even exist. However, “pro-life” does accurately describe those who are against abortion (and a smaller number who only work with natural methods of family planning) since they are also against the destruction of the blastocyst for embryonic stem cells at the beginning of life and hastening death via physician assisted suicide (the term used by the AMA so it will also be used here) or active euthanasia at the end.

Conscientious Objection

While CO is a useful way of describing those who opposed abortion, it does have limitations. First, it gives the other side the ability to define that those who object are denying care to patients. Conscientious objectors don’t perform abortions, don’t give medications so patients can commit suicide at the end of life, and don’t prescribe contraception. They don’t give patients what patients are legally entitled to. Even worse, there are anecdotal examples of patients

13 harmed by that denial to treat patients the way they feel is appropriate. It is all negative, nothing positive.

Second, CO does not say what the supporters are for. What are its values? What does it offer as an alternative? What does it offer to patients? Do they even bother to treat patients with whom they disagree or abandon patients to their fate?

Third, it allows opponents to couch it in terms touchy/feely conscience, especially religious conscience, which is not trustworthy as opposed to “rational” secular beliefs. They say that they make their determinations based solely on cold, hard scientific evidence. They have

“moral values,” practice the “standard of care” and “evidence based” medicine. What they see as merely religious feeling has no place in medicine. Because of CO’s feelings, objectors are putting their well-being above that of their patients.

But CO is better than other alternatives. Fiala and Arthur (2014) want to call it

“dishonorable disobedience.” More common in the literature is “conscientious refusal.”

However, without going into detail, this would perpetuate the myth that, as stated earlier, that conscientious objectors are denying, i.e. “refusing,” to care for their patients.

A recent article (Howard, 2020), echoing an article by Childress (1985) states this is more civil disobedience than CO. CO is a private witness of a personal and moral position versus civil disobedience as a public moral position for social change (Childress, 1985). However, civil disobedience involves unlawful (Wicclair, 2011, pp. 11-12) or unprofessional (Howard, 2020) activity. At this point, CO is allowed both by law and medical professional policy. At best, one might call it civil disagreement. Just because something is allowed does not mean that it is professional. The Tuskegee Institute study where men with syphilis were left untreated even

14 after the use of penicillin was approved by the CDC and both African American and Caucasian medical societies (U.S. Public Health Service Syphilis Study at Tuskegee, 2020).

Thus, due to a lack of a viable alternative and since it is a commonly recognized term, for the purpose of this paper, conscientious objection (CO) will be used.

Conscience

While conscience is underlying cause of CO, conscience itself has received very little attention in the literature. Considering the thinness of the secular consideration of conscience, we can consider conscience in part from the depth and wisdom of the Roman Catholic Church in terms of her traditions and understanding.

This is not an “appeal to authority” nor a justification. Rather, it is a way of identifying the sharp contrast from the secularist positions in both first and second principles. It is also an attempt to help secularists and those outside the Catholic tradition to gain insight into her teaching on the importance of conscience developed over millennia and how this relates to CO.

Finally, this understanding closely reflects my personal views. It also reflects my understanding of conscience and its importance as it relates to the process of making of ethical medical decisions.

Having outlined the secularist position on CO, we will turn to the history of CO and the accommodation of it in medicine before looking at an understanding of what conscience can be seen to be.

Chapter 3. History of the Term Conscientious Objection and Protection of Conscience

Conscientious objection is the commonly used term for those who refuse to perform certain duties due to their religious or moral beliefs, especially the military. Historically in the

United States, it was first used in 1775 (Merriam Webster). Initially, it was limited to the “peace churches,” Quakers, Mennonites, and Church of the Brethren. Later, Jehovah’s Witnesses were added. Beginning in the Civil War, these church members were allowed to do alternative service.

In World War II, the Selective Training and Service Act of 1940 stated that those who refused to serve in combat “by reason of religious training and belief” were required to perform mandatory alternative service (Matheson 2020). During the Vietnam War, the courts expanded the criteria stating, “What is necessary . . . for a registrant’s conscientious objection to all war to be

‘religious’ …is that this opposition to war stem from the registrant’s moral, ethical, or religious beliefs about what is right and wrong and that these beliefs be held with the strength of traditional religious convictions”(Matheson 2020), expanding the definition to those who object for nonreligious reasons. Today, the Selective Service states “beliefs which qualify a registrant for CO status may be religious in nature, but don’t have to be. Beliefs may be moral or ethical; however, a man’s reasons for not wanting to participate in a war must not be based on politics, expediency, or self-interest” (Matheson 2020). Even now, with the all-volunteer army, armed personnel can request transfer to noncombatant roles or pursue discharge for reasons of CO

(Army Public Affairs, 2020).

However, CO has been present throughout Christian history more commonly known as pacifism, the belief that any taking of human life is evil (conscientious-

16 objection.info/originmeaning-of-conscientious-objection). And in US history, we have a long history of people objecting to unjust laws and moral standards from the abolition of slavery to suffrage and the right of women to vote to civil rights. Some would see CO in medicine as not part of this history since civil disobedience is a public protest to bring about social change and involves unlawful activity to protest and effect change (Wicclair, 2011, pp.11-12). But that would deny the peaceful protests of Martin Luther King, Jr. and the furtive disobedience of the underground railway. While occurring at the individual level, it is a defiance against unjust laws and discriminatory attitudes (Pruski, 2020) as viewed by the objector. It also ignores the fact that

CO in medicine is part of the larger pro-life movement. It is a public witness of a private conviction occurring in the privacy of the physician-patient relationship shared by others performed at the level of the patient/physician relationship. CO is a private witness of a personal and moral position versus civil disobedience as a public moral position for social change

(Childress, 1985).

When abortion was legalized by the Supreme Court in 1973 in Roe v Wade and Doe v

Bolton, the government stepped in to prevent those who opposed from being forced to comply, including Catholic hospitals. Known at the “Church Amendments,” they were “enacted…to protect the conscience rights of individuals and entities that object to performing or assisting in the performance of abortion or sterilization procedures if doing so would be contrary to the provider’s religious beliefs or moral convictions” to any facility that receives government funding, preventing discrimination against “any physician or other health care personnel who, not only refused to perform, but also those who perform, abortions”

(hhs.gov/conscience/conscience-protections). In 1996, Public Health Service Act “prohibits the federal government and any state or local government receiving federal financial assistance from

17 discriminating against any health care entity” that refused to undergo or require training for abortions or refused to makes arrangements for it or had been at a residency program that did not have abortion training which was further clarified with the Weldon amendment in 2005. This was reaffirmed with the Affordable Care Act (hhs.gov/conscience/conscience-protections).

Initially abortion was all that was covered, but over time CO has expanded to include sterilization, contraception, in vitro fertilization, stem cell research, and end of life issues

(Sawicki, 2018). The Affordable Care Act also expanded protection to “any health care item or service furnished for the purpose of causing, or for the purpose of assisting in causing, the death of any individual, such as by assisted suicide, euthanasia, or mercy killing”

(hhs.gov/conscience/conscience-protections). In December 2016, the courts expanded this to objection to transgender treatments (Weber, 2016), though not consistently (Meyer, 2019).

As CO coverage expanded, it was accompanied by an increase in calls for its elimination and demands for punishment (Charo, 2005). Over 90% of papers discussing CO specifically were published since 2005 (PubMed, 2020). In the opinion of those who would eliminate CO,

CO is contrary to a healthcare professional’s duties which makes them unfit for the profession

(Howard, 2020) what Wicclair (2011, p. 33) calls the “incompatibility thesis.”

Many who oppose CO in medicine state that it has to follow the “military example” to the letter, though again they ignore the fact that the military accepts the possibility of CO, even when its personnel are volunteers (Army Public Affairs 2020). But why? Terms can be modified over time or depending on the circumstances. For example, the definition of marriage has change radically over the last decade. In 1996, the Defense of Marriage Act (DOMA) was passed defining marriage as between one man and one woman (H.R. 3396). In 2015, with the decision

18 on Obergefell v. Hodges and three related cases, the definition of marriage was changed to include two men or two women (Obergefell vs Hodges, 2018). By emphasizing the difference between CO in the military and CO in healthcare, critics are thus able to ignore the main similarity: being opposed to the intentional killing another human being.

Some have suggested that there be medical tribunals to determine the sincerity of the conscientious objector’s faith based on how “reasonable” the objector’s objections are and if the objection will cause harm (Card 2014). Mere threat of feeling guilty is not enough. After all, we can feel guilty for all the wrong reasons. But this is dismissed as impractical (Cowley, 2016) or that one cannot prove the sincerity of the objector (Fiala and Arthur, 2017). Legally the courts have been reluctant to do that job. In Employment Division, v. Smith, the courts ruled:

“[W]hat principle of law or logic can be brought to bear to contradict a believer’s

assertion that a particular act is ‘central’ to his personal faith? Judging the centrality

of different religious practices is akin to the unacceptable ‘business of evaluating the

relative merits of differing religious claims.’… it is not within the judicial ken to

question the centrality of particular beliefs or practices to a faith, or the validity of

particular litigants’ interpretation of those creeds … courts must not presume to

determine the place of a particular belief in a religion or the plausibility of a religious

claim” (Employment Division v. Smith 1990).

Chapter 4. Conscience

Conscientious objection obviously relates to conscience. But there is controversy as to what constitutes conscience or even if defining it is necessary. ACOG defines it as “the private, constant, ethically attuned part of the human character” (ACOG 2007, #385). Stahl and

Emmanuel (2017) merely refer to objections that are “sincerely held” (Stahl and Emmanuel,

2017). Cook (2006) and Schuklenk (2018) calls it “moral and spiritual convictions” with

Schuklenk agreeing that this is what motivates one to act (Schuklenk, 2018). Fiala and Arthur reduce conscience to “non-verifiable personal beliefs” (Fiala and Arthur, 2017). Savulescu just says a physician’s conscience has no place in medicine and that it can be an excuse for vice or to avoid performing a duty (Savulescu, 2006). A summary is in Table 2.

Wicclair in his book makes an attempt by looking at the various way conscience has been defined. He calls conscience a faculty that discerns moral truths, right versus wrong, and makes ethical judgements. There are those who consider it epistemological, knowable, and rational. He refers to Joseph Butler who called it a superior principle that passes judgement on one’s self. It has also been called the capacity for moral choice or moral agency, the search for ultimate meaning, an internalized set of moral norms and conventions, or a person’s beliefs sincerely held

(Wicclair, 2011, pp. 1-3).

In religious epistemology, it is the discerning of God’s will. In Gaudium et Spes, a document produced during Vatican II in the Roman Catholic tradition, for example, it says that we detect a law we did not impose on ourselves that tells us “do this, shun that” (Gaudium, 1965,

#16). It is a law written by God in our “most secret core and sanctuary.” There we are alone with

God whose voice echoes in our depths. We are thus fulfilled by love of God and neighbor and

20 joined with humanity to search for truth and genuine solutions to problems (Gaudium,1965, #16).

It is created out of our relationship between our freedom and God’s will (Veritatis Splendor,

1993, #54). In this, we find true freedom (Gaudium, 1965, #17).

Others say that conscience is not epistemological. It can be something that occurs after a moral judgement or application or a disposition to act in accordance with one’s beliefs with a corresponding emotional result and sense personal integrity. Jeff Blustein called it prospective action in relation to self and character (Wicclair, 2011, pp. 3-4).

In the end, Wicclair sees it as something that is integral to one’s understanding of self. It involves core moral beliefs, those that matter most to the person. To act contrary to that is selfbetrayal. It tends to be stable, changing only when there are significant life events but otherwise resistant to outside influences. It is a set of core beliefs, even if the person is unable to articulate them (Wicclair, 2011, pp. 4- 5). If the institution creates constraints that make it impossible to do the right thing, it causes moral distress (Wicclair, 2011, p. 9).

While conscience itself has been ignored, especially by those who at best reluctantly support conscientious objection, Daniel Sulmasy (2008) writes on how conscience is defined and why it is so important. In his opinion, most definitions in recent publications have been vague or unhelpful. He defines conscience as an act of the will, an assent to truth to act morally, and a fundamental commitment to act morally.

Sulmasy divides conscience into two parts. There is the retrospective and judicial conscience which, when disturbed by what one has done or failed to do, leads to appropriate guilt. He uses the example of when a physician says something that is later found to be offensive.

Guilt is necessary in that case. If one has underdeveloped guilt that leads to an underdeveloped

21 conscience (Sulmasy, 2008). Ratzinger states that guilt can disturb the false calm of conscience and against a self-satisfied existence. He says that if one does not experience guilt, then it is a spiritual illness, more dangerous than having guilt (Ratzinger, 2007, p. 18). A fully undeveloped conscience makes one a psychopath, unable to feel any guilt at all regarding the harm done to others.

The other type of conscience is a prospective and legislative conscience which is where one anticipates doing or not doing a particular action. This is under which most decisions in bioethics fall (Sulmasy, 2008).

What Sulmasy is definite about is that, while “feeling” is associated with conscience, conscience itself is not a feeling. It is not a motive that makes us act in a right or wrong manner.

Nor is it directed to a particular normative system, theory, or principles, but it is the result of a particular normative system, theory, or principle (Sulmasy, 2008). In other words, there is not one underlying moral value system that defines one’s conscience but one’s conscience can be defined by a particular system. And for the believer, the formation of conscience is ultimately what leads to heaven or hell.

Conscience is therefore not “an infallible whispering voice.” Nor is it an intuition since each person’s intuitions differ. There are certain intuitions that appear universal, such as one should act doing good and avoiding evil (Sulmasy, 2008). The problem occurs because the definitions of good and evil differ based on different moral systems or principles. But it is a universal intuition that one should act according to one’s conscience (Sulmasy, 2008).

Conscience is related to specific moral acts, a meta-judgement for a particular moral problem that a future or past act violates a “fundamental moral commitment” (Sulmasy, 2008).

This means acting with understanding accompanied by either satisfaction or guilt. It arises from a “fundamental commitment or intention to be moral” (Sulmasy, 2008) leading to integrity. This leads to a meta-moral commitment to uphold one’s “deepest self-identifying beliefs” (Sulmasy,

2008), discern as best as possible the correct course of action, maintain emotional balance, and make a decision and act on it. It requires judgement and prudence. These acts of conscience

“unite one’s powers of reason, emotion, and will into an integrated moral whole” (Sulmasy,

2008) secondary to one’s fundamental principles and identity. It becomes our witness to our own

“faithfulness or unfaithfulness…to the law” (Veritatis Splendor, 1993, #57).

While intuition, also called synderesis, states that we should commit to morality and act according to one’s judgement of good and evil by gathering information and obeying the rules of a moral system, conscience is the willful acceptance of what synderesis says is true and the judgement as to whether a particular action violates it (Sulmasy 2008). While synderesis is a fundamental disposition (Ratzinger, 2007, p. 4), conscience is what makes us fully human

(Sulmasy, 2008), the guarantor and expression of human freedom (Ratzinger, 2007, p.9). To silence conscience results in dehumanization and moral danger (Ratzinger, 2007, p. 21).

Obviously, we do not always follow the dictates of our conscience. We knowingly do what we know is wrong or try to deceive ourselves into believing. This could be due to a gap in knowledge or willingly doing acting secondary to the influence of others or under the influence due to strong emotions (Sulmasy, 2008).

Since our conscience is not infallible, it can fall into error. Great evil has been performed by persons with a clear, sincere but erroneous conscience. It can be due to ignorance of “proper moral values.” It can also be due to ignorance of the facts or moral commitments or premises. It

23 can also be due to faulty reasoning, unbalanced emotions, or poor judgement. It can also be due to bad example of acts done by others, a mistaken idea regarding the autonomy of conscience, rejection of legitimate authority, or unwillingness to change. However, while conscience is not infallible, it is still binding (Smith, 2010; Sulmasy, 2008). One is not morally culpable for following one’s conscience, even if it is erroneous.

Even though one acting according to an erroneous conscience not morally culpable, there are still moral consequences (Smith, 2010). It does not cease to be evil just because someone subjectively thinks it to be true (Veritatis Splendor, 1993, #63). A physician who sincerely believes that it is permissible to lie on an insurance form should not be surprised if the insurance company no longer believes anything that physician bills for and drops that person from its plan.

Nazi physicians were hanged even though they sincerely believed in eugenics and that Jews, among others, were genetically inferior and deserved to be eliminated from the gene pool.

Therefore, there is an obligation to form one’s conscience. While one can error without losing their human dignity, that cannot be said about one who “cares little for truth and goodness” or “grows sightless” due to habitually acting immorally (Gaudium, 1965, #16). One is culpable for not doing due diligence and working to inform one’s conscience by acquiring accurate knowledge and adopting moral principles (Sulmasy, 2008). It requires a continuous conversion towards truth and goodness (Veritatis Splendor, 1993, #64). But how should that be done? Especially in a multicultural secular society with widely differing interpretations of the good and moral. Unless one can go to the original source, knowledge is obtained through a filter.

On the other hand, moral principles are learned in one’s community. But as Cardinal Ratzinger

(Ratzinger, 2007, p.9) pointed out, even those principles can become disordered without a higher

Guarantor of them. For him, conscience is formed by the shared experience of the community,

24 reality itself, and God’s (the Guarantor) revelation. There can be no moral norms if everyone can determine their own morality. This leads to those with greater power to impose unchecked their morals on weaker, more vulnerable members of society which becomes the “dictatorship of moral relativism.

There is no morality without conscience. But since our moral knowledge is imperfect, conscientious persons will inevitably disagree. Sometimes, it is due to faulty reasoning or erroneous facts. That can be opens the possibility if coming to an agreement once the air is cleared. On the other hand, if it is a difference in first or fundamental principles, then no agreement is possible (Sulmasy, 2008). For example, there is a huge divide between the Catholic ethical understanding that the human fetus should be treated as a person (Catechism, 1994,

#2270) and the pro-abortion stance which denies fetuses personhood and therefore treats them as property.

For Sulmasy, this is where tolerance comes in. It is not the modern secular view of affirming the decision of another but allowing the other to make decisions even if one believes it to be wrong. According to Sulmasy, tolerance must be the mutual respect for the conscience of one another (Sulmasy, 2008). A willingness to respect the conscience of the other person, not only upholds their human dignity, but also challenges us to re-examine our own basic moral principles. We can grow complacent with our own worldview and hold on to values that are erroneous. Again, conscience is not infallible. It can also become, as Ratzinger states, merely a superficial consciousness, making us totally dependent on the prevailing viewpoints of the day, a pseudo-rational certainty woven together by self-righteousness, conformity, and lethargy. It becomes a mechanism for rationalization of evil (Ratzinger, 2007, p. 21). It is the excuse, “I was just following orders.”

Tolerance means that we should give each other a wide berth regarding their ethical decisions and be careful when it comes to coercing enforcement of boundaries. Too many boundaries create repression, too few, license. One should exhaust every other alternative before imposing a certain viewpoint. One must ask if the imposition would undermine or contradict the meaning of tolerance. Is there a substantial risk of harm, especially death, to those who do not share that particular moral viewpoint? Are we forcing someone to act against their conscience which he sees as worse morally than preventing (Sulmasy, 2008)? Perhaps Engelhardt says it more succinctly when he says that we have to decide to tolerate the amount of evil with which we are willing to put up (Engelhardt, 1996, p.16).

Since we live in a society with multiple moral values, we need to cooperate since humans are finite both morally and intellectually. It is unavoidable to completely avoid complicity with evil since we need to live in society and cooperate with each other (Sulmasy, 2008). Therefore, we are always to some extent materially involved with ideas we may disagree with, sometimes even considering the action to be evil, and must come to terms with it. We make mistakes, individually and collectively. We pay taxes for unjust wars. We may work for institutions that either support or are opposed to abortion, depending on your view. The Tuskegee Institute study was paid for with taxpayer money (U.S. Public Health Service Syphilis Study at Tuskegee, 2020).

The question is, how complicit one is to the action to which one objects. This requires prudence—practical wisdom regarding imperfect choices. If one is too strict, then one becomes scrupulous (Sulmasy, 2008) and finds it impossible to act. But if the boundaries are too lax, then one may allow great evil. We need to find Aristotle’s “golden mean” which is a matter of conscience. People can differ on what this is (Sulmasy, 2008). But if one does act, it becomes

26 what is called “material cooperation” since the intent is not shared, as opposed to “formal cooperation” where it is approved.

Sulmasy suggests that that several questions should be asked to test the limits of cooperation. The first is how necessary is one’s cooperation for the act? Will it occur anyway?

The more likely the action will occur any way, the more likely material cooperation will be justified. How proximate is one’s actions to the act, not only space and time but also in the chain of events? The closer, the more complicit. Is duress involved such as loss of livelihood or threat of violence? The greater the duress, the less complicit one is. How likely is this to become habitual? Is this a regular occurrence? Next, is there the potential for scandal in the sense that others viewing the action think, “Well, if HE thinks it’s OK…”? Finally, will there be a proportionate moral good that will occur due to one’s material cooperation? (Sulmasy, 2008).

But society must have limits, or else face anarchy, so there are limits to the exercise of conscience, including in medicine, assuming that we are willing to accommodate it. What are the limits to our tolerance? Or saying it another way, at what point is the allowance of CO too evil?

Chapter 5. Limits of Conscience in Medicine

For those who argue for accommodation of CO, there are several items in common. First,

CO should be based on facts, not false medical beliefs (Wicclair, 2011, p. 93). For example, one cannot refuse to give vaccines in general because of CO against using aborted fetal tissue in the creation of vaccines when a particular vaccine is not made that way. The problem though comes when a conscientious objector may have a different interpretation of the data. For example, while there are those who say that oral contraceptives do not cause abortions, others will say that there is good to very good evidence that they do based on “evidence obtained from well-designed cohort or case-controlled analytic studies” (Larimore and Stanford, 2000 based on Berg, 1998).

Part of this is in the difference how pregnancy and conception are defined. If pregnancy is established at implantation (Chung, 2012), then oral contraceptives do not cause abortions, but if it is defined as starting at fertilization, then they do. As Walter Larimore and Joseph Stanford point out, this is important because many women define the start of pregnancy as fertilization, not implantation (Larimore and Stanford, 2000).

CO, as with all medical care, should be nondiscriminatory (AMA Code of Medical Ethics

1.1.2; Wicclair, 2011, pp. 92-98). For example, a physician should not perform abortions on minority women but not Caucasian women. While some consider that it is discrimination against women ipso facto to not perform abortions or prescribe contraceptives (Fiala and Arthur, 2017) or that CO in and of itself is discriminatory (Savulescu, 2006), others more rightly state that it is not discriminatory as long as the objector is willing to provide care in other areas. In other words, the physician is willing to provide essential goods and services for the treatment of diseases such as hypertension or polycystic ovarian disease no matter how morally objectionable the physician

28 may find the patient’s lifestyle or decisions. A willingness to provide care in other areas is evidence that this is moral disapproval not discriminatory (Wicclair, 2011, pp. 93-98).

If the physician has objections to certain procedures or treatments, then the employer needs to be made aware (Wicclair, 2011, p. 119) as with any possible limitations such as an obstetrician/gynecologist (OBGYN) not wanting to do obstetrics or a pediatrician wanting to work part time so that the appropriate accommodations can be made if possible. After all, one cannot expect an abortion facility to hire someone who will not perform abortions. And knowing that certain procedures and treatments are ethically controversial, the employer should make known its expectations as well so a physician will not be surprised if a Catholic institution prevents a gynecologist from doing IVF, a urologist from doing vasectomies, or a palliative care doctor for assisting in PAS. Or if another institution insists that a woman requesting an elective abortion be only referred to an abortion facility and not a crisis pregnancy center.

But at what point in the physician/patient relationship should a physician’s objections be broached? Certainly, if a patient makes an appointment for say, contraception, the patient should not be led to believe that this service will be performed. Wicclair and the AMA state, however, state that a physician should state what services that “the patient might otherwise reasonably expect” (AMA Code of Medical Ethics 1.1.7), preferably before the start of the physician-patient relationship (AMA Code of Medical Ethics 1.1.7; Wicclair, 2011, p. 115) or at least at the very beginning if not at the first meeting (Wicclair, 2011, p. 115). They make the assumption that the patient will “reasonably” make the request when they may never do so. It legitimizes what the objector objects to while placing the objections in a negative light. Starting a relationship is always a bit stressful and adding negativity to the mix has negative consequences, including the possibility of raising stress hormones and causing changes in the amygdala and lateral

29 orbitofrontal cortex (Alia-Klein, 2007; Hariri, 2002) Why not allow the objector to say/advertise: “I will treat the fetus as a person” or “I only work with natural methods of family planning?” Or have the pro-abortion doctor say, “I believe that pregnancy does not begin at fertilization and that the fetus is not to be treated as a person”?

The physician has a duty to tell the truth since the patient depends on the physician to provide reliable information regarding their healthcare needs and interests, though not to perform the service (Wicclair, 2011, pp. 103, 105). This obliges the physician to inform the patient of all legal options if medically relevant (Wicclair, 2011, p. 103). Telling the truth also recognizes the dignity of the person that is the patient. To be true to oneself, one must be true to others.

Patients deserve the truth, even if it is uncomfortable for either side. To properly counsel patients, one must know about the medications and procedures one objects to and be able to explain why these are objectionable. It is also important to build trust between the physician and patient. If the patient does not trust the physician, then he or she are unlikely to consider the alternatives.

And this may be the only time that the alternatives are discussed. For those who hold religious values, to not tell patients the truth would also go against the commandment “Thou shalt not lie.”

But what is truth? If an OBGYN believes that pregnancy begins at implantation (even though most do not (Chung, 2012)) and there are women who do believe that it begins at fertilization, shouldn’t that be mentioned? Truth should be evidence based and it behooves the physician to know how strong the evidence is. For example, using the Grading of

Recommendations, Assessment, Development, and Evaluations system to assess data quality, the vast majority of the recommendations for the treatment of transgenderism were based on lowest levels of evidence which means a high likelihood that new data will change them (Hruz, 2020).

Fiala and Arthur (2017) mention case studies of severe complications due to not performing an immediate abortion for previable premature rupture of membranes (PPROM) as long as the fetus has a heartbeat. But abortion has serious consequences as well which are known in general, but not when performed for PPROM in particular. And only the physical complications are discussed. Since these are “wanted pregnancies” and studies have shown emotional and psychiatric sequelae in women who have had abortions for fetal anomalies

(Korenromp et al., 2005; Korenromp et al., 2007; Korenromp et al., 2009; McCoyd, 2007), any comparison should include not only the physical complications for the pregnant woman but the emotional consequences for her as well. Perhaps a pregnancy loss where the woman waited and did not abort is emotionally easier to handle because she “tried everything” to save her baby’s life versus one who terminated. Or is there no difference since the woman knew that her baby was probably going to die either way. And since it is a “wanted pregnancy,” giving the fetus value, we must consider the morbidity and mortality of the fetus. Without all of this information, we are just giving anecdotes.

Wicclair states that someone who refuses based on conscience should make clear that it is not because it is “medically unsuitable’ (Wicclair, 2011, p. 105). More accurately would be to state that it is not “legally unsuitable.” ACOG states that the physician should not argue or advocate their position. Nevertheless, it would be difficult, if not impossible for conscientious objectors not to at least imply by their very refusal that they disapprove. And the physician has a duty to explain to the patient the reasoning behind one’s objection to a procedure, even if legal, even if supported by various professional organizations, so that the patient understands that the refusal is not being done in an arbitrary or ad hominem manner, just as in any other circumstance where the physician and patient disagree on what is the proper treatment.

In an emergency, medical care must be provided (Sulmasy, 2008; Wicclair, 2011, p.99;

AMA 1.1.1), but there may not always be a bright line as to when a situation is emergent (Fiala and Arthur, 2014; Wicclair 2011, p. 99) which complicates matters. While Wicclair states that includes a “life-saving abortion” (Wicclair 2011, p.99), others would state that abortion is never medically necessary. Instead, one can induce labor if infection is present without intending the death of the fetus (as in an abortion) but knowing that the fetus may not survive (AAPLOG

Practice Bulletin #3 2017).

In general, therefore, the standards that are being held up for the conscientious objector in the areas of reproductive medicine and end of life care should also be observed by those who accept those values.

Table 3 Limits of Conscience 1. Advice based on facts, not false medical beliefs 2. Care should be nondiscriminatory 3. Objections to the employer’s or patient’s values should be known to the employer and patient, insofar as such transparency does not itself lead to discrimination against the objector 4. Care should be provided in an emergency

Chapter 6. Referrals vs Transferring Care

There are times in a physician-patient relationship when there comes a parting of the ways due to irreconcilable differences. The patient can at that point transfer care either for just that particular service or find another provider whose beliefs in general are more compatible.

While the records belong to the provider, the information they contain belongs to the patient. As such, the patient has the right to request transfer of records as under any other condition. During the period of transfer, the treating physician/nurses/facility should continue to provide symptomatic treatment so long as it is not a problem for conscience (Sulmasy, 2008). This respects the patient’s autonomy and dignity. Patients can choose heaven or hell. They have the right to make their own mistakes. Otherwise, the patient is an object under the control of the physician.

The National Catholic Bioethics Center has a protocol for patient transfers stating that

“the patient is an independent moral agent who is free to decide where and from whom he or she will seek care” (NCBC ethicist, 2015) by providing a “general list of other providers or institutions based on geographic vicinity or even area of specialty might be provided; however, the list may not be developed based on the criterion of whether they are known or believed to offer the immoral procedure. In practice, this means that the list must include an providers or institutions that fit the chosen criteria (geography, specialty, both, or other) and also oppose the immoral practice” (NCBC ethicist, 2015).

This is different from referral which is what Cowley, Wicclair, and the AMA recommend

(AMA Code of Medical Ethics 1.1.7; Cowley, 2016; Wicclair, 2011, p. 109-115) arguing that the referring physician is not responsible for the free actions of others (Cowley, 2016). But the

AMA also states that the physician transfer care while “offer(ing) impartial guidance to patients about how to inform themselves regarding access to desired services” (AMA Code of Medical

Ethics 1.1.7). Wicclair thought states that it is the referring physician’s responsibility to send the patient to someone who is competent to perform the morally objectionable procedure in a timely and efficient manner even if delegated to others. The patient should not be expected to assume that responsibility (Wicclair, 2011, p.115). There is an obligation to refer since the profession is responsible “to make every legal intervention available” (Blythe and Curlin, 2018).

While it is true the referring physician is not responsible for “the free actions of others,” to refer for the purpose of facilitating the performance of an immoral act does make one complicit in that action. Even Savulescu and Schuklenk concede that point (Savulescu and

Schuklenk, 2017) and the AMA accepts that possibility (AMA Code of Medical Ethics 1.1.7).

That is because it gives the appearance that what is being objected to must not be that bad if the objector is willing to refer to have someone else do it. After all, if a woman came asking the physician to kill her partner and the physician refused but gave the name of Jimmy the Snake, we would say the physician was part of the conspiracy to commit murder.

Chapter 7.The Telos and Ethos of Medicine

What is the meaning of medicine? What is its purpose, its desired end, its telos? And how does it relate to its ethos, the spirit and culture of medicine?

Medicine is an applied science. It is different than biology or physiology which are pure or exact sciences. Unlike medicine, it does not always matter to pure science whether the subject of the experiment lives or dies. Medicine takes the findings and principles of the pure sciences and applies them to medical care (Panda, 2006). Medicine, on the other hand, is the restoration and maintenance of health. For that, one must define health. To do so, one must use values. All decisions in medicine, therefore, are value based.

But what is health? The Oxford Dictionary defines it as “the state of being free from illness or injury” and “a person's mental or physical condition” (Oxford Dictionary). The World

Health Organization (WHO) defines it as “a state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity” (Constitution of the World Health

Organization). In the Ottawa Charter of 1986, WHO further defined it as “a resource for everyday life” (Ottawa Charter for Health Promotion, 1986). Thus, health can be defined in a positive or negative sense.

In the US, health has traditionally been looked at from a negative sense, as in the absence of disease (HQROL Concepts, 2018). This is true for classical medical research as well

(Brussow, 2013). It is easier to describe the presence or absence of a disease and health merely the alternative to it. In fact, medical textbooks can be called a “massive catalogue of diseases” that do not even try to define health (Brussow, 2013).

But there are problems with the positive sense. The WHO definition has been described as “quasi-religious,” that complete well-being can only be found in an ideal messianic world

(Brussow, 2013). The definition also conflates happiness with health (McCartney, 2019) or even hedonism (Brussow, 2013). The most recent proposed definition is a “structural, functional, and emotional state that is compatible with effective life as an individual and as a member of society”

(McCartney, 2019). But what is “compatible?” A person fighting racism within a society may not be considered “compatible” within that society. And who decides what is “effective?” The individual? Healthcare system? Society? And how effective is a child? Thus, other than the

WHO definition, we have no standard definition. But even then, we argue about the words within the definition.

For the negative sense of health, we still use values to determine treatment. For example, how many must one treat to prevent a second myocardial infarction, that is, a second heart attack, when giving a statin? Considering the severity of the consequences, we say that it is worth treating 33-100 people to prevent one event (Rosenson et al., 2020).

It becomes more problematic when the determination of values and health is applied to well-being. There is no objective difference between an uncomplicated pregnancy that goes to term versus one where the woman desires an abortion. For those who requested physician assisted suicide, the top five reasons in 2019 were related to well-being (loss of enjoyment of life, loss of autonomy and/or dignity, being a burden, loss of bowel and bladder control) with only one-third listing inadequate pain control or concern about it (emphasis by me) (Oregon

Health Authority, 2020). For gender dysphoria, it is solely based on a patient’s internal beliefs

(Hruz, 2020) with normally functioning reproductive organs and endocrine system.

It is therefore easier to measure the objective, observable negative definition of health such as whether or not a patient has had a myocardial infarction than the subjective positive definition of health as in happiness and joy.

The values of medicine go to its ethos which determines how the why is applied. What is the spirit and culture of medicine? How is it to be determined? Who ultimately determines how to apply scientific and technical knowledge?

Medicine is more and more an emphasizing technical production and bureaucratic administration. As a technological production, it has a faith that science solves all human problems. It assumes a hierarchy of experts who organize scientific knowledge. It is the mechanistic, reproducible, and measurable production of a bureaucracy. It needs componentiality, where the process can be taken apart and put back together again at will. In the end, the physician becomes just one of many anonymous and interchangeable medical components needed to preserve reproducibility and predictability, becoming the means to its ends. Under this vision, physicians become providers and medical practice a health care service, all organized into a healthcare industry. (Blythe and Curlin, 2018). It is a commodity subject to economic forces.

As a commodity, the practice of medicine becomes an instrument for use and profit

(Elliot, 2016, p. 520). The physician/patient relationship becomes a contract where a service is expected and performed. While the contract is a mutual agreement, it is one where the physician and patient meet as strangers, each looking out for their own best interests, supplying wants as well as needs. It is an amoral exchange of goods and services, emphasizing patient rights but not

37 responsibility (Suits, 2006). It involves production “by individuals acting in their own interests” selling “to those who wish to consume them” (Friedeman, 1991).

Commodities need bureaucracies to establish the hierarchy and determine standards.

They become an external agency where one’s perspective on one’s actions are subverted entirely to another’s (Giebel, 2017). Bureaucracy satisfies the needs of bureaucracy in a never-ending expansion, not attached to individual holders or clients. The skills needed for production not linked to the moral features of the end of the process (Blythe and Curlin, 2018). It introduces into medicine the principles of mass production (Elliott, 2016 p. 526).

Hospitalists are good example of this. On the national society’s own website, they emphasize how they free up primary care physicians to see more outpatients, reduce length of stay, improve patient flow by maximizing throughout, and take on hospital leadership positions, all commodity-based values. Only one of the five reasons they give—improving patient safety and quality of care—could be seen otherwise, but even then, they talk about it in terms of external demands to reducing patient errors and changing end of life care (Society of Hospital

Medicine, 2020). An online article written for patients who may be asking why their primary doctor is not seeing them lists convenience, efficiency, financial strains on primary care doctors, patient safety, cost-effectiveness for hospitals, and need for more specialized and coordinated care for hospitalized patients as reasons (Nabili, 2020). Hospitalists were, therefore, formed for the efficiency and satisfaction of the medical bureaucracy, not to improve the relationship between physician and patient.

Under the commodity view, the physician must be subjected to the external forces of not only the supply of services but to the external agency of bureaucratic forces. It is more focused

38 on the technical of what can we do, not what should we do. CO has no place in medicine because differences in personal and religious values intrude and threaten reproducibility making it different to make standards and to measure results. Moral stability assumes reproducibility

(Blythe and Curlin, 2018).

Traditionally, medicine was considered to be a vocation and the practice of medicine an art. At a time where there was little a physician could do technically, it emphasized care and comfort (Panda, 2006). As a vocation, it was a calling to a person who responds and becomes responsible for something higher than mere standards. While it depended on science as it developed, it was also interpretive of that science (Blythe and Curlin, 2018).

As an art, it recognizes the dignity of each patient as a person and the need to act as a patient advocate for each individual patient. It values cares and cures, helping and healing over patching and preventing. It is sensitive to the other’s worldview which evolves from the persona as care giver. It requires compassion and a caring attitude (Panda, 2006). Above all, it is relational.

It considers art and pure science as interdependent and inseparable (Panda, 2006). It is an internal morality “not closed to insights from history, literature, and science” which “can illuminate the existential nature and realities of medicine” (Mangino, 2017). The physician who sees medicine as a vocation takes what is known from science and the values of society and the profession, first analyzes and critiques them and then internalizes them into the practice of the art of medicine when dealing with the particular situation of the particular patient.

Therefore, while enjoying the externals of prestige and pay, a physician’s fulfillment comes from intrinsic value of the work itself. It is not just a job description (Cowley, 2016).

Being a physician becomes inseparable from who one is, what one is called to be. They see the practice as a complete whole where ends and means align (Blythe and Curlin, 2018). Ultimately, its ethos is to restore physical function and relieve suffering (Mangino, 2017) or at least ease them as much as possible. It is based on the human goods and dignity that underly the four principles of medicine: autonomy, beneficence, non-maleficence, and justice. Finally, it recognizes the patient’s perception of good, both the immediate proportionate and disproportionate ends as well as the ultimate end of spiritual goods (Mangino, 2017). It is the difference between taking care of children in a daycare and parents caring for their children within the home or working as a chef versus cooking for the family. In other words, work for pay versus household production for love of family (Friedman, 1991). In the end, physicians are enchanted with medicine (Blythe and Curlin, 2018).

For a physician of faith, this calling means that one responds to the Caller as an autonomous decision that one is free to accept or reject. A Christian physician has the added obligation because, on the Day of Judgement, one will be judged as taught in the parable of the sheep and the goats (Matthew 25:31-46) where the treatment of others is the same as treating

Jesus himself. When a physician looks at a patient’s face, one must see the face of Jesus.

CO is a good example of the ethos of medicine as a vocation. A conscientious objector is acting in accord of what is deemed truly good, judged on merits (Mangino, 2017). It is based not just on one’s internal morality based on one’s conscience, but also what is being requested is against the very ethos of the calling and nature of medicine. CO believe that they are being asked to act against their presumptive interest in patient well-being (Blythe and Curlin, 2018).

Therefore, there are deep differences between the two ethos of medicine. The commodity view is an externalistic ethics basing integrity on rules created by a bureaucracy which can change that are to be followed by anonymous, interchangeable physicians. It narrows the diversity of thought and views of the telos of medicine to produce a reliable product. This is opposed to the internalistic view of medical ethics of medicine as vocation based on a telos where the physician’s self is a moral agent and active participant. It recognizes that, in this secular, multicultural society, there are multiple contrasting views of the good. It is reflective of the rules and regulations by assessing the externals of science, technology, and professional morality, critiquing it against one’s own values and morals, and then internalizing them. This then affects how one looks at the basic medical principles of autonomy, beneficence, nonmaleficence, and justice.

Both views can have a respect the autonomy of the patient and understand its limits.

While the older view of medicine as a vocation is considered to be ipso facto paternalistic where physicians would use their power to impose on the patient, at its best, it was more paternal where the physician would teach patients to take responsibility for themselves, recognizing human weaknesses without offering unfettered choice (Suits, 2006). The limits to autonomy come from the physician’s view of beneficence and the particular good of the individual patient.

But the commodity view can be paternalistic as well. It can do so either in the excessive paternalism of the bureaucracy acting on its parts (Giebel, 2017) or in the manipulation of the contract with a vulnerable patient. After all, it is the bureaucracy of the healthcare system that holds the ultimate power in what goods and services it will make available to its customers/patients in a way that maximizes its profits. It allows for elective abortions but refuses

41 to blind a patient who makes the autonomous decision that being blind is a good and in one’s best interests.

Beneficence, acting for the patient’s good, under the commodity view is determined ultimately by the bureaucracy of medical professional societies and employers. It is measured in the aggregate in terms of patient satisfaction. It measures improvement of patient good in terms of quality measurements such as rehospitalization rates for heart failure or Hgb A1C in diabetics.

While in medicine as a vocation, the physician looks for the good of the individual patient, understanding that the physician’s view of the patient’s immediate and ultimate good may be different than the patient’s. After all, a patient addicted to narcotics feels that the immediate need of getting a prescription for narcotic is his/her definition of a good. Improving the health of society is done by improving the health of each individual patient, not by looking for low hanging fruit to make one’s quality goals.

Non-maleficence under the commodity view is reducing and then measuring the reduction of human error while medicine as a vocation wants to prevent individual patient harm.

Finally, the commodity view of medicine sees justice in terms of distributive justice. It measures improvement of numbers and evaluation for the good of the aggregate, that is, society.

It sees fairness as how groups of patients are treated. While medicine as a vocation sees how each individual patient is treated as a person. Treating each person justly will ultimately heal society as a whole, one patient at a time.

Table 4 Ethos of Medicine as Commodity vs Vocation Commodity 1. Emphasizes technology, what can be done

2. Quality measures 3. Contractual exchange of goods and services 4. Requires componentiality and reproducibility 5. Physician an anonymous, interchangeable employee 6. Externalistic, values/goals imposed by external bureaucracy 7. Distributive justice

Vocation 1. Emphasizes care and comfort, what should be done 2. Uses scientific knowledge for the good of the individual patient 3. Relational 4. Requires compassion and caring 5. Physician called, inseparable from who one is 6. Internalistic, reviews external values/goals and applies them based on one’s own values/goals 7. Justice for the individual

Chapter 8 Medical Decisions and Values

The language used by those who oppose CO in medicine make it clear. The commodity view of medicine is the one that should prevail with its externalistic goals and values.

Conscience in general, and especially consciences that differ from theirs, has no place in medicine.

Savulescu and Schuklenk see medicine as an amoral contract where the physician is trained and hired merely to follow the legal niceties and do what is requested by an autonomous patient or surrogate. The physician should be tolerant as in allowing and facilitating even if the physician believes the intervention to be immoral. One instead should try to push for change within the system all the while providing the immoral service (Savulescu and Schuklenk, 2017).

The physician is not seen as a particular moral agent and therefore, there is no place in medicine for one’s particular judgement (Blythe and Curlin, 2018). Health care professionals must do whatever the bureaucracy of medicine tells them to do as long, as long as it satisfies the demands of the patient (Giebel, 2017)

According to them, it is the role of society to decide what healthcare services are important and then has a duty to make sure that people are selected who will follow them, but then condemn the Nazis for doing the same thing (Savulescu and Schuklenk, 2017). But what they will not consider is perhaps that reason that societies allow for CO because these societies

44 have decided that differing religious and moral sensibilities and the need for professional integrity are important and, therefore, should be accommodated.

While stating that CO does not meet the military standard of CO (Fiala and Arthur, 2014;

Stahl and Emmanuel, 2017), they forget that soldiering is not just simply following orders. A good soldier’s commitment to good soldiering means that one personally carries them out according to one’s best judgement. A good soldier does not mean that one is “checking one’s moral judgement at the door” (Blythe and Curlin, 2018). A good soldier disobeys immoral orders. For example, Savulescu and Schuklenk laud a nurse who disobeyed her orders to force feed a prisoner in Guantanamo Bay (Savulescu and Schuklenk, 2017), even though it was approved by military authorities.

In Scandinavian countries where 70-90% support legalize abortion (Salazar and Starr,

2018), it may be easier to reach consensus. But in US where abortion is more controversial, there is a more even split between those who say that they are pro-life vs pro-abortion with just over

50% of women identifying as pro-life (Gallup, 2018). Therefore, one could be expected to tolerate both point of views. Yet Stahl and Emmanuel (2017) and Fiala and Arthur (2014) instead apply to professional societies and med examining boards to do an end run around CO laws and declare it unprofessional.

Stahl and Emmanuel state that it is because the AMA and ACOG both approve of abortion. Therefore, we have reached consensus. But what is consensus? To have reached consensus, one would expect general agreement among members of the profession. There are three problems with their assumption, especially where the AMA is concerned. First, only about

25% of physicians are members of the AMA (Graham, 2016). Second, policy is determined, not

45 the by the membership in general, but the annual House of Delegates where a resolution developed by the Council on Judicial and Ethics Affairs (CEJA) and presented to the House becomes policy if over 50% vote for it (Developing AMA Policies, 2020). Finally, even within the AMA, 44% of physicians are pro-life where it comes to abortion (Lawrence and Curlin,

2009). What it therefore comes down to is that, for Stahl and Emmanuel, consensus is where

50%+1 of the representatives of the HOD approve of a procedure in an organization that represents a minority of physicians and where even among its own members, a large minority are against it. And then they want to impose this decision on the majority nonmember physicians.

Stahl and Emmanuel state that the ethics of PAS is still controversial based on the fact that some states allow it and some do not. Yet if we are not to take into consideration culture or politics and must listen to the will of the national professional organizations (Stahl and

Emmanuel, 2017), can an AMA physician member still assist in it since the AMA has a policy against it? A policy which was confirmed again in 2019 (Frieden, 2019). Or as the AMA states, individuals can still follow their consciences (Frieden, 2019), even though Stahl and Emmanuel label that policy as “inconsistent” when it comes to abortion and contraception (Stahl and

Emmanuel, 2017)?

While Stahl and Emmanuel appeal to Rawlsian reflective equilibrium, they forget that it is, by definition, unstable. It is an account of justification, not truth, whereby testing parts of a belief system against other beliefs, the widest coherent set of beliefs is possible in a shared, wide equilibrium. It bears the burdens of judgement born by complexity, uncertainty, and variations of experience combined with conditions of freedom protected by the principles of justice and fairness which lead to an unavoidable pluralism (Daniels, 2020). And a pluralism of beliefs is not what Stahl and Emmanuel want.

Savulescu and Schuklenk (2017) state that physicians of faith cannot be autonomous since they are serving a higher power who controls them, taking away their freedom. Physicians of faith therefore are not ideally situated for medicine. They cannot make informed choices. But that is assuming that religious people have no free will to assess what that higher power is calling them to do. Savulescu and Schuklenk also forget that, as the saying goes, no one is an

(autonomous) island. We all live in communities which form us and educate us in the values we choose to hold. We cannot help but be influenced by it. By living within a culture, we cannot help but be influenced by it. Their belief system did not arrive de novo. Even they agree with this by demanding that only their version of ethics be taught in medical school (Savulescu and

Schuklenk, 2017).

Therefore, they all see medicine as a commodity under the control of an external authority. We can no longer disagree on the nature and goals of medicine (Sulmasy, 2008).

There is no need for accommodations since there is no recognition that it goes against the objectors calling and their understanding of medicine (Cowley, 2016). Objectors are no longer practicing medicine (Giebel, 2017), but “failing to provide effective, ethical, and standard treatments” and “dereliction of duty” (Stahl and Emmanuel, 2017). There is a lack of trust where judgement of others is assumed inadequate (Giebel, 2017).

There is a disdain for religious beliefs and alternative views, sometimes thinly veiled, and sometimes not. Personal and religious beliefs are threats “to be annihilated for the sake of maintaining efficient technological production and stable, comprehensive bureaucracy” (Blythe and Curlin, 2018). They fear moral diversity, making sweeping statements (Fiala and Arthur,

2017).

Thus, the telos of medicine becomes concern over well-being as defined by themselves and the patient to produce a reliable product and its ethos the following of their external commands. Physicians are no longer ends in themselves, but a means to an end, merely an anonymous set of competencies. There is no place for judgement (Blythe and Curlin, 2018), especially when it conflicts with the good as defined as Stahl and Emmanuel. The technological good is threatened by the ethically engaged because it goes against the pretense that medicine is mainly, if not only, a science (Blythe and Curlin, 2018). There is no room for CO since legal is moral and only certain medical societies are chosen to the ones to follow. Not only that, but CO interferes with the efficiency and consistency required for a commodity (Savulescu, 2006) as well as access to its services (ACOG, 2007; Savulescu, 2006; Savulescu and Schudlenk, 2017;

Schudlenk, 2018; Wicclair, 2011, p. x). Bureaucracy’s values are the only ones that represent the basic values of medicine with a significant minority who differ being not only not recognized, but specifically targeted for elimination. It is a battle over who defines the good of medicine

(Mangino, 2017).

Chapter 9. Harms

It is obvious that those who oppose right of individual physicians to practice according to values with which they disagree see nothing but advantages to their removal. They concerned that it only causes harm where patients are concerned (Blythe and Curlin, 2018) and therefore need to limit it. CO acts against their view of presumptive interest in patient well-being (Blythe and Curlin, 2018) though its effect on physical lives is sometimes mentioned (Fiala and Arthur,

2017). Savulescu and Schuklenk are blunt. If certain interventions lead “to feelings of guilty remorse or dropping out of the profession, (then) so be it” (Savulescu and Schuklenk, 2017).

Ideally, with a little punishment and humiliation along the way.

Even Wicclair, while seeing CO as perhaps good for the physician in particular and perhaps society in general, sees the need to protect the patient from so-called (but never defined)

“harm.” But what will be the harms if physicians are required to report to an external force that may disagree with their professional judgement?

Harms to Physicians

Physicians who conscientiously object are put in an unenviable position when they have but four choices: (1) to go against their conscience and be quiet; (2) to stay and risk being publicly humiliated as being unprofessional and for causing patient harm if they continue (even if it is just the harm of inconvenience); (3) to go against their conscience while fighting within the healthcare system and hope for change as envisioned by Savulescu and Schuklenk (2017); or

(4) leave medicine, because their particular view of medicine interferes with the status quo.

They will be forced to make this decision even if what they object to is but a small part of their practice (Cowley, 2016) because of externally placed obligations where medical knowledge is being used for patient wellbeing, not disease (Sulmasy, 2008).

The first victim will be the loss of physician autonomy. Constraints on allowing the exercise of conscience are also constraints on autonomy (Wicclair, 2011, p.28). Physicians will be told that their personal views are not to be trusted, that their ability to practice medicine and make judgements according to their moral standards is considered inadequate (Giebel, 2017).

And this is to be done not because they refused to treat disease but because of a different view of wellbeing. Instead, the assumption will be a happy physician populace as long as they are well paid.

Stahl and Emmanuel (2017) would allow physicians to privately believe whatever they wish, but not to put it into practice which would result in the violence of splitting personal from professional (Blythe and Curlin, 2018). Schuklenk (2018) would allow diversity of discussion but not practice. In the good old days, we would call those persons hypocrites.

Physicians must submit to the paternalism of external agents (Blythe and Curlin, 2018) by using the principles of mass production. They will be dehumanized. There will now be teams of specialists and groups of large corporations with grid guidelines and reimbursement set by distant managers (Elliot, 2016, p. 526). Physicians will be valued mainly for scientific knowledge and technical competence (Blythe and Curlin, 2018). It will be their ability to meet predetermined quality goals, not their enchantment with medicine that will rule. Each physician is now an interchangeable widget. It will blind physician to excellences uniquely open to one in particular clinical situations (Blythe and Curlin, 2018).

They are so distrusted that they are not even allowed to discuss with patients their concerns. Thus, where the fetus’ value and what the woman as agent thinks and wants to do, the taking of the fetus’ life becomes either “medical” or “murder” depending on woman’s beliefs and desires. The fetus no agency, and physicians must externalize theirs according to the woman’s

(Giebel, 2017). They would deny physicians their legitimate right to influence a patient’s decision (Beauchamp and Childress, 2013, pp.138-140) while allowing for themselves that right to do so when it comes to opposition to their morals by trying to convince a reluctant family to donate their excess embryos or deceased loved one’s organs (Savulescu and Schuklenk, 2017).

While those who oppose CO in medicine want objectors to leave, there is a question regarding the effect on the voluntariness of the decision considering the background conditions of choice and value offered. They may also be taking advantage of one’s desperation to stay in medicine (Elliot, 2016, p. 521). People are more willing to suborn their values when they think that they are doing so for the good of others (Gino, Ayal, and Ariely, 2013). Then there is also the consideration of financial coercion, the threat of losing the ability to support one’s self and family.

The result is that it will make self-correction more difficult. Correction can only occur when physicians are allowed to follow their conscience, uniting reason, emotions, and will into an integrated whole based on foundational moral principles and identity. Conscience willingly accepts them, giving them first place in its deliberations. It is an act of the will, a commitment to morality as well as judging the morality of specific acts. Conscience is not based on intuition, but on moral knowledge (Sulmasy, 2008).

The excessive paternalism of the external agency of authority over the agent (Giebel,

2017) undermines the ability of the physician to be parental, training the patient to take responsibility while recognizing human weakness. Patients do not have unfettered choice and the physician does not have the paternalistic right to impose. Patients still remain free to accept or reject that advice (Suits, 2006).

Integrity is a universally valued goal for the Christian and non-Christian physician alike.

Integrity is seen as the net core of moral beliefs and disposition to act in accordance with the resulting in a devastating loss with feelings of guilt and shame and a general decline in one’s moral character (Wicclair, 2016, p. 25-26). But removal of CO would lead to the loss of integrity. The standard of care will be more important than personal morality. The external agent will silence conscience which is not a promising technique to foster high standards of ethics and integrity (Giebel, 2017). While Savulescu and Schuklenk (2017) claim not to have seen it in

“enlightened, progressive, secular” countries where there is no room for CO, they were also looking for it in Scandinavian countries which are more morally homogenous, especially when it comes to abortion (Salazar and Starr, 2018).

And not only loss of integrity among those who practice medicine, but it will be more difficult to recruit people of integrity (Wicclair, 2016, p.29). After all, they will be told that their moral values are of no consequence and must be put aside, not because of changes in empirical scientific data, but because their beliefs are now considered wrong, even if it was “moral” the day prior. They will be entering a profession where they are being paid to produce, not to think.

Physicians will self-police to avoid reprimands (Blythe and Curlin, 2018) or even loss of their career but also due to the human tendency to want to get along. Conscience must now agree with an external force, even though the majority of physicians believe that one should not be forced to do what they consider morally wrong (Lawrence and Curlin, 2009). Also, those who submit to an external force and allow themselves to be dishonest to their conscience will find it easier to do so the next time. It is the first dishonest episode we need to prevent (Garrett, et al.,

2017). Finally, while Savulescu and Schuklenk (2017) grant those who may morally disagree the right to politic to change policy, actions speak louder than words. It would be difficult for say a physician who is performing or referring for abortions to credibly stand before lawmakers and make a case as to why this is wrong.

The end result of considering the practice of medicine as a sort of “fixing-people production line” (Ariely and Lanier, 2015) will be increased burn out by reducing the physician to merely a highly compensated employee. Medicine is already a career with asymmetric rewards, where one mistake can ruin a career. And the increase in external control and decrease autonomy only worsen the situation (Ariely and Lanier, 2015). External controls by distant managers lead physicians to be less happy and more demoralized. In general, physicians do not enter medicine thinking that it is a business of buying and selling, but a profession with a larger

53 moral purpose (Elliot, 2016, p. 526). Seeing medicine as a calling helps to protect the physician from burn out (Jager, Tutty, and Kao, 2017).

Harms to Profession

While those who want to eliminate CO from medicine don’t care about harm to physicians, saying “so be it” (Savulescu and Schuklenk, 2017), they don’t consider that how we view physicians will harm the profession. And it is more serious than considering the possible loss of numbers.

It is “quite strange” for med schools to pick medical students for diversity, then make them accept “bland, denuded version of professional role morality (Blythe and Curlin, 2018).

Only externals such as gender, race, and sexual orientation would be allowed while moral diversity would be lessened (Blythe and Curlin, 2018; Wicclair, 2011, pp. 28, 173) or even eliminated. Moral diversity forces one to re-examine and/or defend one’s beliefs. We need it “to uncover different interests and discover different interpretations” (Blythe and Curlin, 2018).

Removing moral diversity will lead to a more malleable, compliant work force. But we will have lost the goods of a “diverse body of ethically engaged and morally perceptive practitioners”

(Blythe and Curlin, 2018). Physicians will be a monolith in a multicultural society with a variety of viewpoints and values.

Medical standards will be based on majority rule by medical societies (Stahl and

Emmanuel, 2017) where values are concerned as opposed to areas in medicine guided by empirical science. This will be imposed even if the physician is not a member or by whatever society tells physicians to do (Schuklenk, 2018). Consensus will be enforced by eliminating the

54 opposition. It will boil down to whoever has the greatest political power of the moment. One day a moral position will be acceptable, the next day it becomes “bigoted, discriminatory medicine”

(Savulescu, 2006) or “idiosyncratic moral convictions” (Savulescu and Schuklenk, 2017). And it need not be at a high level of evidence, merely expert opinions—and they pick the experts.

Medical values and ideals will be based on the morality of the moment. Stahl and Emmanuel

(2017) would make medicine even more insular by upholding only what the AMA and ACOG support as far as abortion is concerned, not considering the “political and cultural” debates in the society surrounding it.

But today’s standards are tomorrow’s outrages. Remember that he Tuskegee Experiment was supported not only by the U.S. Public Health Service and the local (white) chapter of the

AMA, but also the Tuskegee Institute (a historically black college) and the local chapter of the

National Medical Association for black physicians (U.S. Public Health Service Syphilis Study at

Tuskegee, 2020). The Willowbrook Study, where mentally disable children were purposefully infected with hepatitis, had papers published in the Journal of the AMA (JAMA) (Laventhal, et al, 2012). Eugenics started as a positive improve humanity by improving maternal health and decreasing infant mortality but then developed into better babies and fitter family contests whose winners were invariably white Northern Protestant Europeans (Seldon, 2005) to the negative eugenics of forced sterilization (Lomardo, 2003) to the Holocaust. One could argue that by killing defective children, something that was argued even in this country as late as 1942

(Kennedy, 1942), the Germans were only doing antenatally what we do prenatally with preimplantation genetic testing and abortion. Future generations may respond with the same horror at our treatment of human embryos and fetuses as we do regarding the experimentation on disabled children or poor black men.

Medicine will lose the “imaginative empathy and epistemic humility” needed in “sincere attempt to understand with whom one disagrees” (Blythe and Curlin, 2018) and that disagreements in a multicultural society are inevitable (Sulmasy, 2008). Epistemic humility accepts the possibility that one could be wrong and rejects dogmatism (Wicclair, 2011, p. 29).

While one can agree with Savulescu and Schuklenk (2017) that conscientious objectors do not have a monopoly on compassion, it is much more difficult if one believes as they do, that acting according to one’s religious beliefs leads to “evil consequences.” Those who hold idiosyncratic moral convictions will not only be disdained, but there will be no reason to attempt to consider their reasoning beyond ad hominin opinions.

Stahl and Emmanuel (2017) claim that the profession self-corrected. But what to do in the meantime? Should a gynecologist continue to do forced sterilizations at the time the medical community supported it and were legal as late as 1979 (History.com Editors, 2020)? How can the profession “self-correct” if those who oppose to policies based on their view of the human dignity and the value of the person at that time were removed from medicine and their opposing view considered immoral? There can be no reflective equilibrium when only one point of view is allowed. It results in the loss of a safeguard against unethical acts when one is forced to act in a manner that one considers incongruent with the ends of good medicine (Blythe and Curlin,

2018). Sometimes the only way to correct a systemic injustice that is immune to legal and institutional safeguards is to conscientiously object (Pruski, 2020).

Patient Harms

But it is the healing of the patient that is central to medicine. So, one should concern be about the harm to them if CO removed from medicine. And changing how we view the profession of medicine including the elimination of CO harms the patient.

Patients may appreciate at one level being able to go to any medical practice and be assured of the same service wherever they go, just like Walmart or McDonald’s. But if the practice of medicine is merely a contract between two autonomous persons, then it is buyer beware. There is nothing to prevent a physician in an attempt to achieve “quality goals” and obtain bonuses to go from influencing and framing to self-serving nudging. Easy to do and difficult to distinguish between them (Simkulet, 2018).

There will be a blurring of the roles of patient versus consumer (Elliot, 2016, p.520). In the end, patients will be victimized since they are not consumers but afflicted persons. In the case of serious or chronic illnesses, they are forced to deal with their mortality in a way they have not had to prior. They are dependent on their physician who is the expert scientifically.

This makes them vulnerable. They are not able to make “product choices” or protect their

“investment” or otherwise act as smart consumers. They are not equal partners (Suits, 2006).

Patients do not feel cared for when they are treated as a number (Blythe and Curlin, 2018).

What will it do to the physician/patient relationship? This relationship is based on trust.

And trust is built on sensitivity to another world view evolving from the persona of the caregiver

(Panda, 2006). Patients may not always agree with the decision but can at least take comfort that the professional was attempting to act in their best interest. But this trust is broken when patients realize that medical professionals are bound to follow only what their professional societies tell

57 them to do, even if they believe it is wrong and are under a gag order not to tell. They will also realize that when they are at their most vulnerable, their physician is so not to be trusted and that an external force is necessary to which the physician must be willing to subordinate his or her deepest moral convictions (Blythe and Curlin, 2018) since objectors risk not only ridicule but expulsion. Their physician must be willing to follow those claims even when not backed by strong evidence-based science but expert opinions and the experts’ values.

Patients will be less compliant. They will listen to what the physician is saying but at the same time wonder why the physician is saying it. Is their physician just making recommendations or are they being psychologically nudged (Simkulet, 2018) into making a certain decision so that the physician can make certain quality measures? Does the physician truly have their best interests in mind or just following orders? And because they will not trust what is being told, they will be less likely to follow through.

If only one point of view is ethically allowed and all others disdained to the point that those who publicly and professionally hold those views are so beyond the pale that they are no longer allowed in the profession, then the profession of medicine will become less tolerant and more dogmatic. If alternative views are taught as bigoted and discriminatory, what will the opinion of physicians be towards patients who hold those views?

There have already been harms under the rubric of quality of life. Laws have been passed when physicians placed do not resuscitate orders without parental consent (Ostrowski, 2017).

Studies show that healthcare professionals value the extremely premature newborn less than children and adults with the same prognosis and only slightly more than those with dementia

(Janvier, LeBlanc, and Barrington, 2008). At the same gestational age, premature infants are three times more likely to survive in Japan than the US (Mercurio 2009). They are considered

58 replaceable unless the woman has a history of infertility or is older (Janvier, Bauer, and Lantos

2007). Some health care professionals may not seem harm in these actions, but the surviving family member may, especially since preemies are seen more negatively by healthcare professionals than the parents (Haward, 2017). Justice demands that equals be treated equally

(D’Angio and Mercurio, 2008). A recent study used intentionally impregnated poor Mexican women, then flushing out their embryos and aborting those that managed to implant to try out a fertility technique that would be used by wealthier women from first world countries (Munne, et al., 2019). And in Texas, Michael Hickson, a disabled black man was denied treatment and food over the wife’s objections because, in the physician’s opinion, he had no quality of life (Catholic

News Agency, 2020).

Table 5 Harm to Physicians 1. Loss of autonomy 2. Loss of integrity 3. Increase in burn out Harm to Medical Profession 1. External diversity valued over internal 2. Decreased ability to correct mistakes 3. Decreased tolerance of opposing viewpoints Harm to Patient 1. Patient seen as consumer, not vulnerable person 2. Loss of trust between physician and patient 3. Patient’s values disdained if different from that of medical profession 4. Patients harmed by increased difficulty of medicine to correct its mistakes

Conclusion

Opponents to CO sincerely believe that they give us a vision of a better world whereby making medicine a reliable product and eliminate the harms caused by inconvenience or possible complications caused by interventions of which they disapprove. But they are wrong. The cleansing from the practice of medicine of persons who object morally to using their knowledge for certain conditions will have harmful consequences, not only for the physician but the medical profession as well. And since both are ultimately concerned with the care of the patient, patients will suffer harm as well.

The state, professional societies, and even institutions have the right to determine laws and policies. They can even punish those who, in their opinion, act unprofessionally as long as they don’t violate the Constitution, laws, and policies that regulate them. They can be like

Sweden where CO to abortion is not protected by law (Sweden, 2017) or go back to the days of

Buck v Bell allowing forced sterilization of women since it was never overturned (Buck v Bell,

2019). And those so punished should be willing to accept the penalty of breaking an unjust law

(Howard, 2020; Childress, 1985) while at the same time using all legal defenses and appealing to

60 the court of public opinion without resorting to violence (Childress, 1985). But one can appeal to the public values of the community, be it medical or the community at large, without having to welcome negative consequences to prove one’s sincerity. And those considering the removal of

CO need to consider the consequences of their decisions: not only the benefits, but also the harms. Just because they can do it, does not mean that they should do it. Tensions are best reconciled by respecting both interests. It may take time, effort, and even creativity and require costs and sacrifices on both sides (Wardle, 2009).

One must also recognize that the loudest voices are from outside the United Sates (Fiala and Arthur, 2014; Fial and Arthur, 2017; Savulescu, 2007; Savulescu and Schuklenk, 2017;

Schuklenk, 2018) and some are not even physicians, but philosophers (Savulescu, 2007;

Savulescu and Schuklenk, 2017; Schuklenk, 2018) who have theoretical but no practical experience treating patients. This did not arise from within the United States medical profession even if it has been echoed by some within (Stahl and Emmanuel, 2017) and without (ACLU,

2017). There has been no corresponding groundswell of demand.

What is at stake is how medicine is to be practiced against the different and differing moral expectations and consideration of the role of physician and patient. Contractual?

Relational? We meet as moral strangers, but do we continue to act that way?

Humans should be treated as ends, not means. Silencing conscience dehumanizes us

(Ratzinger, 2007, p. 21). And that includes physicians. As Marx wrote, workers become alienated from not only from their product but themselves when they lose control over its design and development. While this was not published until 1932 (Simon, 2018), the popes had been publishing their concerns since the 1800’s. In Rerum Novarum, Pope Leo XIII stated that

61 employers should treat their employees with the dignity as persons (Rerum Novarum, 1891, #20).

This developed over the years into Catholic Personalism, where the idea that one can be used solely or mainly as an object, a means, a “blind tool,” is against human nature and where the opposite of “love” is “use” (Wojtyla 1981, p. 28).

Thus, turning physicians into means to an end, where they are not allowed to let their personal values guide their behavior, guarantees this alienation resulting in increase in burn out, dishonesty, and manipulation. While external control can make help keep a person honest, internal controls where one is reminded of one’s values are more effective. In fact, internal controls are stronger than monetary ones (Mazar, Amir, and Ariely, 2008).

It is the enchantment of medicine, the delight in the privilege of caring for fellow human beings, the ideal of it as a vocation and calling, that makes the practice of medicine worthwhile.

Losing it results in the loss of the importance of “proximity and particularity to acts of caring,” a distinction between the care of the vulnerable sick and provision of goods and services. Care for patients requires dealing with “concrete humanity in all of its embarrassing particularity.” The idea of leaving one’s personal values at home, “eviscerates the very heart” of medicine with “real relationships at the potential loss of discrepancies.” Then anonymity required by bureaucratic fairness results in the stunting of relationships (Blythe and Curlin, 2018). Seeing medicine as a calling with a Caller helps to deal with the messiness of human life that physicians are called to deal with.

This is especially true in the practice of medicine “where in the service to life the voice of conscience is daily invoked” (Samaritanus Bonus, 2020). Conscientious objectors do not reject the values invoked by the likes of Stahl and Emmanuel among other, because of private religious

62 conviction, but because they reasonably assert the “inalienable right essential to the common good of the whole society” (Samaritanus Bonus, 2020). They think that in fact these values

“undermine the very foundations of human dignity and human coexistence rooted in justice”.

Therefore, “healthcare workers should not hesitate to ask for this right as a specific contribution to the common good” (Samaritanus Bonus, 2020).

With medicine based on contracts and not trust, for the patient as a mere customer, it will be “buyer beware.” Physicians will be forbidden to discuss their concerns with patients. Being dogmatic is not only practiced by conscientious objectors. When the law and medicine agree, when other views of the human person and wellbeing are not allowed, and when patients are being harmed, it will be very difficult to correct those mistakes. An ethical barrier is eliminated when opposing voices are silenced. A will to power takes over (Elshtain, 2008). Diversity of thought is actually necessary for Rawls’ reflective equilibrium that Stahl and Emmanuel trumpet so highly.

Both the autonomy of the physician and patient will be limited by external experts who will not need strong empirical evidence to proclaim their decisions. It will be the experts’ values that rule. They can ignore the fact that powerful emotions are sometimes due to powerful truths.

Where the medical profession sees a woman with a (replaceable) fetus, the woman may see herself as a mother with a baby. One can have differing interpretations of the science based on one’s values. There can be complications no matter what intervention is chosen.

The harms caused by inconvenience do not overrule the harms caused by loss of integrity.

To deny conscientious objection denigrates the importance of conscience in medical decisions regarding the value and dignity of the human person. We need to find the reasonable proper

63 balance between the competing consideration such as duty to care for the patient and the physician’s moral objections (Card, 2013). Granted, that can be difficult. Fiala and Arthur

(2017) are correct that there is no measurable test for values, but that must include their own set of values. And one must have stronger evidence of serious physical harm beyond anecdotes since complications are a risk no matter what intervention is chosen. Remember Kermit Godsell, the abortionist who was convicted of infanticide (Crimesider staff, 2013).

When medicine is seen as a commodity and not a calling, it is degraded. There are some things that need to stay out of the marketplace to preserve its integrity. Consider the difference between sex in the loving embrace of a couple who are fully open and vulnerable to each other versus the sex trade. Or it is changed into something else like when awards are based not on achievement but are bought and sold. Consider what the Nobel prize would be like if it were sold to the highest bidder (Elliot, 2016, p. 521).

Removal of CO threatens the attainment of excellence of good medical care which requires refusal to engage in practices that one believes contradicts good medicine (Blythe and

Curlin, 2018). Physicians do not enter medicine interested in the business buying and selling but a profession with larger moral purpose, contrary to spirit of today’s medicine (Elliot, 2016 p.

526). Science is not to blunt a physician’s humanity or ignore ethics. It requires compassion and a caring attitude, art as caring and comfort (Panda, 2006). It is internal, being professional, not external as a profession.

Therefore, removing the right to CO will lead to profound changes in medicine leading to multiple harms for the physician, the profession, and most of all the patient. It will be degraded to a commodity. It will be less tolerant and more dogmatic, not allowing physicians with a diversity

64 of opinions to propose but not impose by framing their arguments. Rather those in control will impose, making it less able to correct the inevitable mistakes, especially when decisions are based more on subjective wellbeing than objective data. As physicians and part of the medical profession, we should allow robust discussions regarding our differing views of the dignity of the human person and what that looks like in the practice of medicine, balancing the possible harms of each decision. Correction within the profession can only occur when someone with a different perspective is allowed to point out our errors, to hold up a mirror that makes us reflect and perhaps reconsider. It was the conscientious objectors of the past combined with medicine’s epistemic humility that allowed mistakes to be corrected.

This is not a call for accommodation where one is granted the leeway to act even if others determine their action to be “unprofessional” (Howard, 2020). Objectors do not expect others to do their “moral dirty work” (Howard, 2020). It is an argument for recognition that this is a defense of the objector’s fidelity to the ethos of medicine, that they are acting with fidelity to their professional role while acting contrary to certain standards (Howard, 2020) as argued by

Stahl and Emmanuel and others. It is a reforming mechanism via the refusal to participate

(Howard, 2020) in what the objector determines to be an immoral act done at the individual level, lighting one candle at time. It a call for true tolerance, where alternative views are respected, even when we disagree.

Objectors can ask that CO be accommodated as a way of respecting individual rights, guard against moral distress, and recognizing diversity. To have the right to act in a way that others perceive as wrong. Toleration, not necessarily vindication (Howard, 2020). They are not acting unprofessionally by doing so, but civilly disagreeing as presently allowed by law and professional standards.

In this thesis, I have endeavored to show that CO should be allowed because of its inherent benefits to the physician, medical profession, and most importantly of all, the patient whose welfare is our primary focus. When a diversity of views is tolerated which have at their basis in a sincere and profound care and respect for the human person, all are enriched, and risk of harm is minimized. Secularist arguments to remove CO, in contrast, are extremely harmful and contradict the fundamental ethos and telos of medicine as a vocation. It turns medicine into a commodity and the physician into a mere purveyor of services. Physicians should be allowed to practice medicine with integrity according to their consciences as long as there is no evidence- based reason to show that they are causing significant harm. Removing the enchantment of medicine will only lead to further disillusionment and burn out. Therefore, CO is an essential part of the practice of medicine and a legitimate medical decision.

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