Conscientious objection in the health professions
_{A peaceful defence of moral convictions}

Gonzalo Herranz.
Emeritus Professor.
department de Humanities Biomedicas, University of Navarra.
Published in Aceprensa, 4 October 1995.

Increasingly, many medical professionals find themselves faced with obligations that they consider incompatible with the dictates of their conscience. The disparity of ethical convictions in our society and the idea that the physician must bow to the wishes of the patient increase the potential for conflict. In this situation, claiming conscientious objection to certain practices is "more than just a mechanism for survival in an ethically fractured society, it highlights many positive ethical values. So writes Gonzalo Herranz, director of department of Bioethics at the University of Navarra, in the journal Scripta Theologica (May-August 1995), from which we select a few paragraphs. The article pays special attention to conscientious objection to decriminalised abortion.

What characterises conscientious objection (CO) is its peaceful and non-violent character; its religious-moral rather than political basis; and its intention to bear witness against conduct which, although socially permitted, is considered inadmissible or perverse by the objector. The objector does not intend by his action to immediately subvert or change the prevailing political, legal or social situation. He is simply trying to exempt himself peacefully from certain actions, without having to suffer discrimination or renounce rights as a result.

There are not many actions to which health professionals have opposed odc and which, to a greater or lesser extent, have been recognised as legitimate by legislation, professional regulation or simple custom. They include induced abortion; contraception, especially post-coital contraception and voluntary sterilisation; assisted reproduction, destructive embryo research and preconception sex selection; euthanasia, medical cooperation in suicide and withholding medical treatment; force-feeding of hunger strikers, cooperation with the police in obtaining information, and participation in the execution of capital punishment; blood transfusion and organ transplantation; certain psychosurgical interventions; and certain experiments on humans or animals.

Public opinion is divided on the issue of CODE. Some believe that once certain actions, such as abortion or sterilisation, have been decriminalised, it is unfair for doctors to refuse them to those who request them, especially when they are among the health services offered, and even subsidised, by the public health services. Others argue that, in an advanced society that cares for the rights and freedoms of its citizens, no one can legitimately be compelled to perform an action that is seriously repugnant to his or her moral conscience.

Objectors discriminated against

Not only is there discussion: seriously unjust and discriminatory rulings are made against objectors. Intolerance of objection occurs in nations that consider themselves to be very liberal and advanced in the promotion of civil rights. Just a few examples. In Sweden and in 1993, the right of doctors, nurses, pharmacists and students to conscientiously object to abortion was still pending legal recognition: there, objectors form a professional underclass with fewer rights and opportunities.

In the UK, excluding Northern Ireland, where abortion has not been decriminalised, serious abuses have been reported, some of which have been examined by the House of Commons Social Services Committee. It has been found that, contrary to the 1967 Abortion Act, objectors, especially nurses and junior doctors, are severely hampered in their careers, and reluctant candidates have been barred from medical schools.

In the United States, the American Medical Association and the Joint Commission on Accreditation of Hospitals are developing standards to make the learning and practice of abortion a prerequisite in the training of future specialists in obstetrics and gynaecology [see Service 26/95].

In Spain too, there has been a lot of talk recently about the odc of health professionals. The reason is well known: the socialist government's advertisement of its decision to send to the Spanish Parliament a project bill on "Voluntary Interruption of Pregnancy", whose text contains a vague threat to doctors specialising in obstetrics and gynaecology who, for reasons of conscience, refrain from performing abortions. This legal project has been strongly opposed both by the management committee of the Spanish Society of Obstetrics and Gynaecology and by the Spanish Medical Association (Organización Médica Colegial).

The health odc includes a specific statement on the intrinsically ethical nature of the health professions. It affirms that, in the professional of integrity, there is an indissoluble link that intertwines his or her technical skill with his or her moral convictions. The objector not only refuses to be a moral puppet operated by those who legislate or command, but, while objecting, proclaims that ethics is at the heart of his or her work.

Regulated in the codes of ethics

The objection externalises emblematic ethical-professional contents, such as the utmost respect for life in the deontological tradition, the area of legitimate freedom of prescription, individual independence in the face of fashions, and resistance to medical consumerism.

The treatment of odc in medical codes of ethics is very different. Some of them completely silence the topic, thus implying that the legal rules and regulations eliminates the need for deontological regulation.

The most frequent situation, however, is the inclusion in codes of ethics of an article proclaiming the physician's right to refuse to participate in certain interventions and outlining the conduct that the physician must follow when objecting. The same is true of the deontological regulations of the nursing and pharmacy professions.

In Spain there is no legislation on health odc, and, according to Constitutional Court ruling 53/1985, it does not appear to be necessary. The Spanish Constitution sample, at least in theory, is very generous in prohibiting any discrimination on ideological grounds and in guaranteeing the privacy of all citizens, as no one can be forced to declare their ideology and convictions, nor can they be discriminated against for it. This being the case, the deontological rule is particularly important.

Article 27.1 of the Code of Medical Ethics and Deontology states that "it is in accordance with medical ethics for a physician, on the grounds of his ethical or scientific convictions, to abstain from the practice of abortion or in matters of human reproduction or organ transplantation. He shall promptly inform the physician of the reasons for his abstention and, if necessary, offer appropriate treatment for the problem for which he was consulted. He shall always respect the freedom of the persons concerned to seek the opinion of other physicians".

For science and conscience

Deontologically, the objection cannot be a whim or a tactical and changing, opportunistic position: it must have a solid basis of ethical reasons and professional criteria. It is not difficult for the objector to refuse, as part of his professional work, abortion with a double argument: one ethical (the injury of the maximum respect due to human life); the other scientific (abortion is not a solution to certain medical problems).

The ethical argument can be opposed to all legal "indications" for abortion (vital risk, foetal malformation, gestation following rape of the woman, hypothetical socio-economic necessity), but only the first two can be posed as problems requiring genuinely medical knowledge. The scientific-professional argument has to be applied, on the one hand, to the so-called therapeutic abortion; (...) and, on the other hand, to eugenic abortion, which seeks to eliminate the foetus affected by infections or serious malformations.

The good doctor owes an equal duty to his two patients: the pregnant woman and the unborn child. Today, given the formidable advances in the clinical attendance of diseases that can put the pregnant woman's life at serious risk, no truly competent doctor is obliged, on scientific grounds, to accept that abortion is the treatment of choice for any illness of the mother, i.e. that it is such a superior and advantageous intervention compared to other therapeutic alternatives that not to perform it would mean inflicting deliberate harm on the pregnant woman, and thus seriously violating the medical precept of doing no harm. Without the need to invoke moral objection, the physician, based on the medical art of the moment, can refuse so-called therapeutic abortion on instructions strictly scientific grounds, since he can offer valid treatment alternatives that also respect the life of the unborn.

On the other hand, abortion is excluded as a treatment for the sick foetus, because the eugenicist idea that human beings must be free of imperfections is alien to medicine. The physician cannot be an agent of the "tyranny of normality": for him, all lives are equally worthy of respect.

Corporate protection of objectors

Deontologically, CO is not only a private, individual problem of the objecting physician. It is in the interest of the entire medical profession.

The medical profession must defend physicians against any action that diminishes their freedom or discriminates against them, out of loyalty to ethical standards and to ethical principles that they have seriously matured and sincerely lived. It does so not only because medicine must also contribute to a dignified social life, but also to fulfil the statutory duty to defend the independence and dignity of physicians, as follows: "Physicians must not be conditioned by actions or omissions outside their own freedom to declare themselves conscientious objectors. The Medical Associations shall at all times provide him with the necessary advice and financial aid " (Art. 27.2 of the Code of Medical Ethics and Deontology).

To merit such institutional support, the objector's conduct, as such, must be of a piece, unimpeachable, committed, non-opportunistic, proportionate in dignity and cleanliness to the ethical prestige of the objection. On occasions, when abortion objection is discussed in the media, reference is often made to the duplicity of some doctors who object during their working hours in public services but do not do so when they are in private practice. This is an extremely serious allegation, which has never materialised in formal complaints to the medical profession or to the administration of justice. In the unlikely event of such conduct, those who engage in it would be subject, not to the moral support and counselling promised in the Code, but to severe moral censure, even to a very severe disciplinary transcript .

In the hierarchical relationship

In practice, the odc often presupposes a situation of inequality: the objector usually occupies a position of dependence. Sometimes because he or she is a subject, subject to the permissive laws of a country; sometimes because he or she is a subordinate, a member of a hierarchical team, receiving orders that may create conflicts of conscience. The problems of odc are most acutely and frequently encountered by health workers in dependent situations (young doctors, applicants for certain jobs, nurses and auxiliary staff).

The governing body of group should distribute roles and responsibilities in a manner that respects the conscience of all. The same conduct must govern relations with those who perform the necessary auxiliary functions alongside the physician. The ethical respect due to nurses and auxiliary staff implies respect for their freedom, their moral autonomy and their professional skill . Therefore, no one should be excluded from the right to object. In the United Kingdom, according to case law, those who are not immediately and directly involved in the abortion surgery do not have this right.

Whoever governs the group will provide that the work is redistributed in such a way that respect for odc does not produce unfair situations, neither of punishment nor of privilege, for objectors or non-objectors. Respect for consciences should never create resentment. It would be unacceptable cynicism for anyone to invoke the OCD to avoid part of the workload they have to bear.

Institutional conscientious objection

It is an interesting question whether, in a free society, not only individuals but also health care institutions are able to invoke odc, that is, whether a hospital, public or private, or a health insurance system publicly proclaims its attitude towards abortion (or any other practice that provokes moral disagreement).

Although there are contradictory opinions on topic, the most widespread view among those who have studied it is that the hospital, at least the private hospital, has the right to constitute itself as a collective moral subject. This enables the hospital to create an internal moral atmosphere, an ethical microclimate, in which both internal tensions and external pressures are regulated and integrated into an institutional credo, a professional style and a publicly proclaimed and voluntarily assumed ethical conscience.

As far as the hospital's odc is concerned, and by virtue of a long tradition mainly in Catholic hospitals, it is accepted as a cultural and social fact that hospitals have the right to declare the practice of abortion as contrary to their institutional spirit, according to their own governing rules, from agreement .

An uncertain future

abortion is not a right that is exercised peacefully. Despite the strong implantation of the dominant principle of autonomy in contemporary medical ethics, the general impression is that the autonomy of the woman who wants to have an abortion takes precedence, in the minds of many health managers, judges and bioethicists, over the right of the doctor and nurse to refuse to perform an abortion for reasons of science and conscience.

It has been publicly acknowledged that OCD can close off doctors and nurses from jobs, whether it is their first job or a move up the academic or professional ladder. The adoption of project by the American Medical Association and the Joint Commission on Accreditation of Hospitals to make training in the practice of abortion and abortifacient contraception mandatory in training programs for obstetrics and gynecology residents would set a precedent of extraordinary gravity, given the global leadership role of both institutions.

The objector's conduct towards the woman requesting the abortion

Conscientious objection (CO) to abortion has a specific purpose: to express the utmost respect for the life of the unborn. What the objector rejects is the moral evil of abortion, with which he cannot agree. He does not reject the person who requests it, whom he must respect and help. He must help to overcome biological and moral ignorance, but he can never insult or despise.

True to his or her ethical and scientific convictions, the objecting physician will calmly, compassionately and clearly explain to the pregnant woman the reasons why he or she cannot perform an abortion as a treatment for the illness, or distress, that afflicts her. Even in public institutions licensed to perform abortion, the physician can expect that his or her reasons will be understood and that the request for abortion will be withdrawn. It is at the heart of the informed consent or forethought that many decriminalisation laws include among requirements for abortion that the physician describe to the woman requesting the abortion what the abortion operation objectively consists of, and show her the human values embedded in respect for prenatal life.

This subject of information, so congruent with the ethics of medicine, has been considered by some as conduct not only unbecoming of the physician, but bordering on moral torture of the woman requesting the abortion. This has been the interpretation made by the Supreme Court of the United States. The physician, agreement under the doctrine imposed by that court, is not permitted to obtain truly informed consent. To lessen the trauma of abortion, the Supreme Court paternalistically prevents disclosure of the reality to applicant, who can then make her grave decision in ignorance. Abortion is the only medical intervention preceded by ignorant consent.

The objecting physician is repugnant to all violence. He cannot prevent the pregnant woman from deciding to seek another doctor who will respond to her wishes. But he is not obliged, precisely by virtue of his odc, to advise her about colleagues or institutions that would not have difficulties in performing the abortion, since this would be tantamount to cooperating, even remotely and indirectly, in an action that he considers morally unacceptable. The objecting physician must refrain from the moral duplicity of considering that it is morally permissible for other colleagues to perform actions that he or she considers morally reprehensible.