The Right to Refuse
Cathleen Kaveny May 4, 2009 - 10:21am
Do health-care providers have a right to refuse to be involved in medical procedures that they believe to be immoral? If so, how broad is that right? These are the questions raised by the eleventh-hour decision of the outgoing Bush administration to enact a federal regulation confirming a right of both individual and corporate health-care providers to refuse involvement in some procedures they believe to be immoral. The regulation is under review by the prochoice Obama administration, which has expressed concern about its breadth.
Three federal laws have long tied the receipt of government funding to respect for the consciences of both corporate and individual health-care providers. The Church Amendment (1973) protects the right of hospitals and individuals to refuse to participate in abortion or sterilization procedures on moral grounds, and safeguards conscientious objectors from discrimination. The Coats-Snowe Amendment (1996) prohibits discrimination against medical training programs and medical students refusing to participate in induced abortions. The Hyde/Weldon Amendment (2004) protects health-care entities, including insurance companies, from being forced to perform, pay for, and refer for abortions.
The Bush administration claimed its December 2008 regulation was merely an interpretation of these laws. Supporters, such as the Catholic Health Association, claim the regulation is necessary because faith-based providers are under increasing pressure to provide or refer for morally objectionable services, such as abortion. Their rights need to be clarified and enforced. Opponents, such as the American Academy of Pediatrics, argue that the regulations are not mere clarifications; they unacceptably broaden the law in at least two ways. They broaden the services to which one can conscientiously object, covering not only abortion and sterilization, but also contraception. And they expand the class of people who can object, covering not only those directly involved in patient care, but also ancillary workers, such as receptionists and operating-room custodial staff.
It will be tempting for some people to treat this controversy as another partisan skirmish accompanying a shift in political power. But that would be a mistake. In our society, both increasingly pluralistic and increasingly centralized, questions of conscience are bound to become more prevalent and to cover a wider array of topics. We need to grapple with the underlying moral and political issues.
Those claiming conscience-clause protections must ask themselves a basic question: Am I committed to protecting conscience for its own sake, or simply because it’s the best fall-back option in what I consider to be a fundamentally immoral, even evil, legal and political situation? Many prolife arguments for abortion conscience clauses take this form: “A decent society ought to ban abortion, but at the very least, it ought to protect those morally courageous doctors who refuse to perform it.” This appeal to conscience is provisional. When we are in political power, we will try to ban abortion, when we are out of power, we will claim the protections of conscience. Needless to say, that argument will not persuade prochoicers, who think their own position is about respecting the consciences of pregnant women.
In evaluating laws to protect conscientious refusals, we also have to think about the implications for cases in which we believe refusals to perform certain professional responsibilities are morally unjustified. A broad right to refuse to perform any medical procedure based on sincere moral or religious objections will protect an Evangelical or Catholic doctor who refuses to perform an abortion. But it will also protect a biblical fundamentalist nurse who refuses to give anesthesia to a woman in labor on the grounds that the Bible condemns all women to suffer in childbirth. Are we prepared to honor that personal decision as well?
Sound legislation will also need to consider to what degree the conscientious objector has a duty to avoid the conflict. We sympathize with the moral plight of a drafted pacifist, but we think a pacifist who voluntarily joins a combat unit in Iraq has created her own moral problem. What, then, do we say to the analogous argument that people who morally object to abortion or euthanasia simply shouldn’t go into medicine? Here the argument inevitably shifts from the nature of conscience to the nature of the medical profession. Prolifers will need to defend the proposition that medicine can simply never be defined in a way that mandates intentional killing.
Finally, sound legislation needs to take into account the interests of vulnerable third parties. Recently, Muslim cab drivers at the Minneapolis airport objected to transporting passengers who carried alcohol in their luggage. In this case, as far as the law is concerned, the vulnerability of travelers trumps the consciences of cabbies. Analogously, we need to ask whether there are cases in which the vulnerability of a patient trumps or qualifies the conscience of a health-care provider.
I think we ought to protect the doctor who refuses to perform the abortion, but not the nurse who refuses the anesthesia to a woman in labor. Why? I’m not sure. I can identify some important theoretical questions, but I can’t yet answer them fully. These questions need sustained attention from practitioners and scholars, including but not limited to Catholic theologians and lawyers.
About the Author
Cathleen Kaveny teaches law and theology at the University of Notre Dame.