Unjustified Asymmetry: Positive Claims of Conscience and Heartbeat Bills

Abstract

In 2019, several US states passed “heartbeat” bills. Should such bills go into effect, they would outlaw abortion once an embryonic heartbeat can be detected, thereby severely limiting an individual’s access to abortion. Many states allow health care professionals to refuse to provide an abortion for reasons of conscience. Yet heartbeat bills do not include a positive conscience clause that would allow health care professionals to provide an abortion for reasons of conscience. I argue that this asymmetry is unjustified. The same criteria that justify protecting conscientious refusals to provide abortion also justify protecting positive conscientious appeals regarding abortion. Thus, if the law provides legal exemptions for health care professionals who, as a matter of conscience, refuse to provide abortions where it is legal, it should also provide exemptions for health care professionals who, as a matter of conscience, feel obligated to provide abortions where it is illegal.

KEYWORDS:

• Abortion
• conscience
• conscientious objection
• health policy
• heartbeat laws

This article is referred to by:

Conscience Clauses and Ideological Bias

Putting the Asymmetry Debate in Its Place

Conscience Claims and Cost: Tribunals and the Asymmetry Debate

Justifying Positive Appeals to Conscience: The Debate We Can’t Avoid

What Makes Conscientious Refusals Concerning Abortion Different

Medical Disobedience and the Conscientious Provision of Prohibited Care

Finding Our Balance in the Asymmetry Debate

The Wrong Argument for a Bad Law

Does Medicine Need to Accommodate Positive Conscientious Objections to Morally Self-Correct?

ACKNOWLEDGEMENTS

I am grateful to audiences at the 2019 Western Michigan University Medical Humanities Conference and the University of Mississippi Department of Public Policy Leadership for helpful feedback and discussion. Thanks also to Dan Miller for comments on an earlier draft. I am especially grateful to two anonymous referees for The American Journal of Bioethics and to Sara Kolmes for reading multiple drafts and offering suggestions that significantly improved the quality of the paper.

Notes

1 Conscientious refusals to provide treatment are also protected at the federal level, at least when it comes to abortion. The US Department of Health & Human Services (HHS) lists The Church Amendments (42 U.S.C. § 300a-7 et seq.), The Public Health Service Act (42 U.S.C. § 238n), The Weldon Amendment, and even the Affordable Care Act (see § 1303(b) (4)) as providing such protection. This compounds the problem of inconsistency, but because heartbeat bills are being passed at the state level, I focus on the asymmetry of state policy.

2 I limit my discussion here to abortion, though the asymmetry of legally recognized conscience clauses may be applicable in other areas of medicine as well. For instance, Wicclair (2013) writes, “In 2011, two states, Alabama and Georgia, enacted laws (HB 56 and HB 87, respectively) that prohibit ‘concealing, harboring, or shielding’ undocumented immigrants” (189). Yet neither law includes an exemption for health care professionals, so depending on the interpretation of the law, providing health care to undocumented immigrants might violate the law. Since each area of medicine raises its own distinct issues, I take no stand here on whether other asymmetries are unjustified.

3 Just before publication of this article, The Journal of Clinical Ethics published three articles discussing whether there is an unjustified asymmetry between positive and negative claims of conscience (see Brummett 2020; Giubilini 2020; Wilkinson 2020). These articles may be an indication that the topic will see more attention in the future.

4 Brummett (2020) criticizes Wicclair’s argument that the asymmetry is unjustified. Yet Wilkinson (2020) and Giubilini (2020) compellingly respond to Brummett’s criticisms, suggesting that the asymmetry is unjustified, at least in many cases.

5 Even those who oppose conscientious objection in healthcare allow that there could be some place for it. Savulescu writes, “When a doctor’s values can be accommodated without compromising the quality and efficiency of public medicine they should, of course, be accommodated” (2006, 296). And Savulescu and Schuklenk allow that “when the stakes are high, and their conscience is right,” doctors should act on their conscience (2017, 167).

6 I assume, of course, that as in Yasmine’s case above, the patient wants an abortion and the HCP is acting in accordance with the patient’s wishes. The HCP must respect the patient’s autonomy and the value of consent.

7 Thanks to an anonymous referee for suggesting this response.

8 Thanks to an anonymous referee for raising this objection and pressing me to answer it.

9 Thanks to an anonymous referee for suggesting this line of response.

10 Thanks to an anonymous referee for pressing me on this point.