Conscientious objection and professionalism

Protection of conscience

Many influences in individuals’ social and intellectual development shape their conscience. Protection of rights to act according to one’s conscience, and to decline participation in activities offensive to conscientious convictions, has been recognized as a basic human right. The Universal Declaration of Human Rights, formulated in 1948 by the United Nations, recognized freedom to behave in accordance with one’s conscience as central to individual liberty and integrity. The International Covenant on Civil and Political Rights, one of the key international treaties giving human rights embodied in the 1948 Declaration the force of law, states in Article 18(1) that:

“Everyone shall have the right to freedom of thought, conscience and religion… [and] to manifest his religion or belief in worship, observance, practice and teaching.”

The separate recognition of freedom of conscience and of religion is appropriate, since conscience can be based on nonreligious convictions. Religion has no monopoly on conscience but many conscientious convictions are derived from religious beliefs. This is particularly true regarding reproductive health services, where religion fuels conscientious objection to participation in abortion procedures and/or contraceptive sterilization as well as prescription or supply of emergency contraception, or even other contraceptive products. Opposition to these medical services may extend to opposition to medically assisted reproduction, for instance by variants of IVF.

Human rights laws protect not only the right to manifest one’s religious faith, whether by positive acts of observance or objection to participate in lawful procedures offensive to one’s conscience, but also the right not to suffer discrimination on account of such observance and/or objection [1]. Hospitals and similar employers of medical service providers cannot exclude applicants from appointment or promotion because of their religion, although applicants for appointment must be able and willing to satisfy the job description, for instance to serve in an abortion or IVF clinic. The human right to nondiscrimination may challenge healthcare institutions inspired by a mission to observe a religious faith, as they may be unable to limit recruitment to staff who adhere to that faith.

Limits of conscience

While important, the right to conscience is not absolute. Article 18(3) of the International Covenant provides that:

“Freedom to manifest one’s religion or beliefs may be subject only to such limitations as…are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”

The right of conscientious objection is an important freedom, but those who invoke it must show the same respect for other’s rights and freedoms as they require for their own.

The equilibrium between physicians’ rights and those of patients is maintained through objecting physicians’ legal and ethical duty to refer their patients who request lawful services to physicians who do not object. Religiously based claims of complicity in procedures, conducted by physicians to whom patients are referred, have neither legal nor ethical substance. Referral does not constitute participation in any discussions that referred physicians have with patients, or in any procedures upon which such physicians and patients agree. Physicians do not share in any fees paid to the physicians to whom they refer their patients, nor in any liability that physicians may incur for any form of malpractice.

Membership of the medical profession, and of the staff of a hospital or clinic, makes physicians morally complicit, to some degree, in lawful professional and institutional functions [2]. The argument that referral amounts so directly to complicity in a particular procedure as to justify refusal to refer is rejected in the response by medical professional authorities that [2]:

“A physician can refuse on personal moral grounds to follow a patient’s direction, but must be willing to transfer the patient to another provider who will follow the patient’s requests.”

This professional duty coincides with a legal duty and can be satisfied not only by a personal referral but also by providing the patient with names of accessible willing providers or of a medical board or an association able to provide such names (see later).

The duty to refer applies within an existing physician–patient relationship but not between physicians and individuals asking to become their patients. Physicians can decline to become caregivers to applicants for nonemergency services without assuming the ethical, legal or professional duty to refer these nonpatients to other practitioners.

The challenge of professionalism

Holders of medical qualifications, such as degrees from medical schools, are not usually allowed to practise as physicians by virtue of that qualification alone. They must also be licensed by a governmental or quasi-governmental medical registration or licensing authority. In addition to their academic qualification in medicine, they must also satisfy professional ethical requirements relating to their personal character and commitment to maintain standards of conduct approved by their professional peers.

On graduation and admission to professional practice, many physicians pledge themselves to comply with modern variants of the historical Hippocratic Oath. The variant established by the World Medical Association (WMA), the Declaration of Geneva, includes the commitment that [3]:

“The health of my patient will be my first consideration.”

The WHO’s Constitution, accepted by all WHO members, describes ‘health’ as a state of “physical, mental and social well-being” [4]. Physicians employ their medical knowledge and professional skills to serve their patients’ health interests, bearing in mind how the satisfaction of patients’ reproductive preferences contributes to their “mental and social well-being”. The WMA recognizes that a physician may have legitimate grounds to withdraw from a patient’s treatment, such as conscientious objection, but then requires that “the physician should help the patient find another suitable physician” [5]. The WMA’s Declaration of Lisbon on the Rights of Patients reinforces the duty of appropriate referral, noting that [6]:

“The patient has the right to self-determination… [and] to the information necessary to make his/her decisions.”

In many healthcare systems, licensed medical professionals enjoy a legal monopoly over the delivery of medical services. Where professionals invoke conscientious objection to such an extent that patients’ access to lawful health services is obstructed or their health is compromised, however, the legal monopoly cannot be ethically maintained. Barriers to patients’ access to medical professional care compel governmental health authorities to empower others, with appropriate training, to deliver care. In South Africa, for instance, the Choice on Termination of Pregnancy Act 1996 allows registered midwives to perform first trimester abortion and a subsequent amendment to the Act authorizes trained nurses to do the same.

Experience of so-called ‘task shifting’, meaning the allocation of tasks in health-system delivery to the least costly health worker capable of performing that task reliably [7], shows that medical assistants can undertake minor surgery successfully with appropriate training [8] and even more major surgery [9]. Where physicians are unavailable or refuse to undertake abortion or, for instance, sterilization procedures, these tasks may be shifted to appropriately trained and registered midwives, nurses or comparable medical assistants. Medical professionals and their associations may resist such task shifting on the ground that patients’ safety may be compromised. This may occasionally be the case but they cannot justifiably complain of violation of their legal monopoly over medical services that a substantial number of physicians object or otherwise fail to provide.

If procedures undertaken by approved midwives, nurses, medical assistants, or indeed unapproved, unlawful actors cause patients to need urgent medical attention, all physicians are bound by their professional ethics to be appropriately engaged. This ex post facto intervention does not make them participants in the procedures that have triggered the emergency. The WMA’s International Code of Medical Ethics states that [10]:

“A physician shall give emergency care as a humanitarian duty unless he/she is assured that others are willing and able to give such care.”

Indeed, in countries that have restrictive abortion laws, many hospital emergency and gynecology departments regularly undertake care of patients suffering from unskilled attempts to induce abortion. As an aspect of professionalism, the care of such women should be provided nonjudgmentally.

A physician who invokes a religiously based or moral objection of conscience to participation in procedures in a public hospital but undertakes them in a private clinic is clearly not acting in good faith and is betraying patients who trust the physician to act conscientiously in the public hospital, according to professional ethics.

Conscience outside clinical care

Physicians often have more than, or other than, clinical responsibilities affecting patient care. Physicians may, for instance, have administrative responsibilities as well as, or instead of, clinical care duties in the healthcare facilities in which they are engaged. This raises the concern of their responses to administration of services they object to undertake, on grounds of personal conscience, in clinical physician–patient settings.

A physician who acts in a senior management position, for instance as a hospital’s Chief Executive Officer or department head, who bears public accountability for the institutional ethos of the hospital or department, professes its values and speaks publicly on its behalf, may identify personal values with those of the institution in pursuit of a common mission. If the hospital is affiliated with a religious faith or tradition, the physician is likely to share its beliefs and mission. However, as a corporation, that is, an artificial legal person, a hospital is not recognized to adhere to a religious faith. In terms of the Roman Catholic tradition, for instance, a hospital has no soul to be protected against the mortal sin of abortion. Accordingly, a healthcare facility such as a hospital cannot invoke conscientious objection to refuse to provide lawful services when a community has been induced to rely upon it for such services.

Where residents of an area have convenient and financial access to different facilities, some may decide to specialize by not providing particular services and their staff will refer applicants for care they do not provide to other accessible facilities that do provide such care. However, where a facility induces a community to rely upon it alone for general services or is appointed by the government as the sole or principal public facility to serve a community’s needs, it cannot decline to undertake medical services on grounds of its staff members’ claims of conscience.

This issue was addressed in February 2008 in a significant ruling of the Constitutional Court of Colombia, which acted consistently with internationally recognized human rights laws to condemn hospitals’ and their administrators’ refusal and failure to provide legally authorized abortion care to a 13-year-old rape victim, who, on diagnosis of pregnancy and venereal infection, had attempted suicide [11]. The hospital provided by the governmental health authority responsible for her care refused to accommodate the procedure because of its staff members’ objections and referred her to another hospital. That hospital and a further three other hospitals to which she was referred similarly refused. She was thus compelled to complete her pregnancy.

The Constitutional Court held that the patient’s constitutionally protected human rights had been violated and ordered the governmental health authority to pay her compensation, to which the physicians who failed to make appropriate, timely referral should contribute. The Court held that, in adopting their physicians’ personal conscientious objections as their own, the hospitals were claiming a right of conscientious objection, to which, being institutions, they were not entitled. Their duty was to have access, through their staff members or otherwise, to physicians able and willing to provide the necessary lawful service. Further, hospital personnel acting in administrative capacities are not direct participants in procedures and cannot decline to arrange for them to be lawfully undertaken in their facilities on the grounds of their personal conscience.

The contrast between objection in one’s private life and in one’s professional service upon which others reasonably depend has been recognized in, for instance, the European Court of Human Rights. Pharmacists in a small, isolated French town refused to fill prescriptions for contraceptive products on grounds of their conscientious convictions and were convicted of violating the Consumer Code. They finally appealed to the European Court, which held their appeal for protection of their religious rights to conscience inadmissible. The Court ruled that [12]:

“The applicants cannot give precedence to their religious beliefs and impose them on others as justification for their refusal to sell such products, since they can manifest those beliefs in many ways outside the professional sphere.”

Similarly, hospital or other healthcare facility administrators who would decline particular medical procedures in their private and family lives that offend their conscience, and would not perform them in any clinical practice of medicine they undertake, cannot decline to accommodate such procedures in their administrative capacities. Arrangement of medical procedures does not constitute participation in them and valid objection can only be to direct participation, for instance as a surgeon, anesthesiologist or a comparable assistant such as a surgical nurse. Further, as medication (i.e., nonsurgical) abortion becomes more widely available, physicians may decline to prescribe the pharmaceutical products required, provided that they refer their patients in good faith to accessible alternative sources of prescription.

Access to nonobjecting practitioners

The duty of referral that objecting physicians owe their patients, and that hospitals owe members of the communities they serve, requires identification of and patients’ reasonable access to physicians (or other qualified health service providers) able and willing to undertake the lawful procedures that objectors find offensive. Referral must be made in good faith, since objecting physicians cannot ethically or lawfully practise deception or evasion to compel their patients’ involuntary compliance with objectors’ own religious or moral beliefs [13].

Similarly to hospitals, medical schools are institutions that cannot claim rights of conscience, for instance to fail to train medical students in safe techniques of uterine evacuation that can be applied to induce abortion. Such techniques may be necessary to employ in circumstances not amounting to induced abortion, such as safe removal of a dead fetus. Further, where referral is not feasible and a woman’s life is in jeopardy from continuation of pregnancy, a physician may be required to induce termination despite personal objection to induce abortion in nonemergency cases. The religiously accepted philosophical doctrine of ‘Double Effect’ would render this a lifesaving procedure and not an abortion as such [14,15].

Under human rights principles of nondiscrimination, embodied in international law, many national constitutions and most, if not all, countries’ legislation, nonobjecting physicians cannot be denied equal eligibility for staff membership or treating privileges, even in hospitals associated with religious institutions opposed to abortion, contraceptive sterilization and comparable procedures. That is, nonobjecting physicians cannot lawfully be excluded from practice because of their willingness to undertake such procedures. Whether they practise within or outside such hospitals, they are the practitioners to whom hospitals and/or objecting practitioners should refer their patients.

Where hospitals and objecting practitioners cannot reasonably be expected to know the identities and locations of nonobjecting qualified providers, governmental health authorities, medical licensing boards and/or medical associations will be expected to collect, update and provide such information. Hospitals and objecting practitioners in private practice who are unable to discharge their duty by direct referral can then refer their patients to such institutions for timely access to practitioners who undertake the services requested. Identities and addresses of nonobjecting providers should be available to hospitals and objecting practitioners but not necessarily to the wider public, lest they and/or the patients who attend them may become targets of harassment, assault or worse. Furthermore, patients to whom their identities are given should be required to preserve the same confidentiality as they expect for their own identities.

Financial & competing interests disclosure

The author has no relevant affiliations or financial involvement with any organization or entity with a financial interest in or financial conflict with the subject matter or materials discussed in the manuscript. This includes employment, consultancies, honoraria, stock ownership or options, expert testimony, grants or patents received or pending, or royalties.

No writing assistance was utilized in the production of this manuscript.