Competing Rights: Exploring the Boundaries of ‘Conscientious Objection’

Earlier this month, Joyce Arthur and Christian Fiala argued in a piece for Rewire that clinicians should not be permitted to claim "conscientious objection" as grounds for refusing to provide abortion or contraception, taking issue with any tolerance of it. Global Doctors for Choice thinks differently on both philosophic and strategic grounds.

From the human rights perspective, we see the ability to exercise conscience as fundamental to individual integrity. Stethoscope Constitution via Shutterstock

Earlier this month, Joyce Arthur and Christian Fiala argued in a piece for Rewire that clinicians should not be permitted to claim “conscientious objection” as grounds for refusing to provide abortion or contraception. They take issue with any tolerance of conscientious objection as expressed by Global Doctors for Choice in a white paper, and by the other authors of a set of articles published in the December special issue of the International Journal of Gynecology and Obstetrics. Global Doctors for Choice thinks differently on both philosophic and strategic grounds.

We are all concerned that conscience-based refusal to provide contested components of reproductive health care exacerbates limited access to such care and thus threatens women’s health and rights. Where we differ with Arthur and Fiala is in our analysis of the issues at stake. We believe that there are competing rights here, and that resolution of such tension is primarily a societal, not individual, responsibility. We also differ in our pragmatic assessment of how best to proceed.

From the human rights perspective, we see the ability to exercise conscience as fundamental to individual integrity. In fact, allegiance to this principle undergirds our collective defense of the individual woman’s right to autonomy in reproductive decision-making. The international and human rights covenants cited all concur that the individual’s right to hold and manifest beliefs and religion are essential, and subject only to limitations necessary to protect the fundamental rights of others. International and national professional associations have similarly defended the individual clinician’s right of conscience while also asserting that it should be circumscribed by the primary duty to the patient, including requirements to disclose, refer, and impart accurate information, and provide care in cases of emergency.

The obvious tension here is when the rights of individuals collide: the objecting clinician’s right to refuse, another clinician’s conscience-based commitment to providing that care, the woman’s right to follow through on her conscientiously chosen course of action. In a secular society, we consider it the state’s responsibility to negotiate the boundaries of these competing rights. This means that the health-care system is obligated to assure that all patients have access to legal services and thus to implement systems for oversight, staff, and resource allocation in order to make that a reality.

We do have areas of agreement: that conscience-based refusal to provide specific elements of reproductive health care is a topic of concern, because in some contexts it aggravates limited access to needed health services and thus most threatens the health and rights of those with least access to care. As described in thwhite paper, conscientious objection too often is ill defined, unregulated, and inconsistently practiced. The white paper examines conscientious objection to prenatal diagnosis, assisted reproductive technologies, care of ill pregnant women, care in cases of inevitable spontaneous abortion, as well as to induced abortion and contraception. However, reproductive health care is not the only area of medicine affected, as end-of-life palliative care and hematologic/oncologic and other treatments involving stem-cell therapies are other areas of medicine where conscientious objection has been invoked. Nor are physicians the only group claiming this right, as nurses, midwives, and pharmacists have invoked it as well.

We also concur that we should collectively think through whether health care has unique features that distinguish it from other domains where conscientious objection is invoked. Some argue that state licensure gives clinicians a monopoly over essential universally needed services and thus confers a special level of obligation. The white paper outlines a range of regulatory efforts by health systems and professional organizations such as requiring registration, specifying performance of abortion as a job criterion, or conditioning specialty certification on proficiency in all components of care. Again, we agree that health-care institutions have an obligation to provide all components of care and to define the limits of refusal as outlined above, but we disagree about whether that obligation rests primarily at the practitioner or the institutional level.

This brings us to the strategic and pragmatic. Definition, oversight, and enforcement of regulations on conscientious objection in health care are rarities, limited mostly to a few European countries. The white paper reviews the evidence about the patchy nature of monitoring and regulation in most of the world and highlights the practical difficulties in advancing such systemic supervision and responsibility.

Moreover, health systems officials and studies report that many clinicians do not fully understand the concept of conscientious objection and might provide at least some of the components of sexual and reproductive health care if other systemic supports were in place. They argue that provider attitudes are often fluid and that it would be most useful to concentrate on educating them about the law, patients’ rights, providers’ obligations, and teaching technical skills. Global Doctors for Choice considers this type of engagement with clinicians and health systems a key strategic approach; we appeal to clinicians’ primary fiduciary duty to patients and their aspirations to provide care in keeping with the highest professional ethical and evidence-based standards.

Given the messiness, limited infrastructure, and lack of consensus characterizing the real world, how would the ban proposed by Arthur and Fiala be implemented? Would such a ban advance our shared overarching goal of providing good access to high-quality sexual and reproductive health care for all? Might it have the inadvertent consequence of worsening access by hardening the opposition of those who might be incrementally persuaded to provide these services?

We consider these to be thorny issues as conscience, integrity, and autonomy are critically important to all the players involved—to those refusing, to those providing, and to those seeking reproductive health care. We think it useful to broaden the frame beyond the individual and charge pluralistic diverse societies with the task of honoring dissent while limiting its negative impact on others.