Medical conscience exemptions

After listening to a talk by Christopher Kaczor, and the ensuing discussion, I want to offer a defense of a moderate position on the state not compelling healthcare professionals to violate their conscience, even when their conscience is unreasonably mistaken. I think a stronger position than the moderate position may be true, but I won’t be defending that.

This is the central insight:

1. It is a significant harm to an individual to violate their conscience, even when the conscience is irrationally mistaken.

One reason that (1) is true is the Socratic insight is that it is much better to suffer wrong than to do wrong, together with the Conscience Principle that to act against conscience is always wrong.

My argument will need something a bit more precise than (1). For convenience, I will stipulate that I use “grave” for normative considerations, goods, bads and harms whose importance is at least of the order of magnitude of the value of a human life. The coincidence that “grave” not only means very serious but also place of burial in English—even though the etymologies are quite different—should remind us of this. When you read the following, whenever you read “grave” and cognates, don’t just read “serious”, but also imagine a grave.

Then what I need is this:

2. It is a grave harm to a conscientious individual to gravely violate their conscience, even when that conscience is unreasonably mistaken.

(I suspect this is true even if one drops the “conscientious” and “gravely”, but I am only defending a moderate position.) The reasons for (2) are moral and psychological. The moral reasons are based on the aforementioned Socratic insight about the importance of avoiding wrongdoing. But there are also psychological reasons. A conscientious person identifies with their conscience in such a way that gravely violating this conscience is shattering to the individual’s identity. It is a kind of death. It is no coincidence that the Catholic tradition talks of some sins as “mortal”.

Next, here is another reasonable principle:

3. Normally, the state should not require a healthcare professional to provide care when the care is likely to come at a grave cost to the professional.

For instance, the state should not require a healthcare professional to donate her own kidney to save a patient. For a less extreme case that I will consider some variations of, neither should the state require a professional who has a severe bee allergy to pass through a cloud of bees to help a patient when allergy reaction drugs are unavailable and when other professionals lacking such an allergy are available.

In order for (3) to be useful in pracice, we need some way of getting rid of the “Normally” in it.

Notice that (3) is true even when the grave cost to the professional results from the professional’s irrationality. For instance, normally a healthcare professional who has a grave phobia of bees should not be required to pass through the cloud of bees, even if it is known that the professional would not be seriously physically harmed. In other words, that the cost results from irrationality does count as an abnormality in (3).

Under what abnormal conditions, then, may the state require the professional to offer care that comes at grave cost to the professional? This is clearly a necessary condition:

4. The need is grave.

But even if the need is grave, if someone else can offer the care for whom offering the care does not come at a grave cost, they should offer it instead. If the way to save a patient’s life is for one doctor to pass through a cloud of bees, and there is a doctor available who is not allergic to bee stings, then a doctor who is allergic should not be made to do it. Thus, we have this condition:

5. There is no way of meeting the need without someone being required to take on a likely grave cost.

We can combine these two conditions into a neater condition (which may also be a bit weaker than the conjunction of (4) and (5)):

6. If the care is not provided by this professional, a grave harm will likely result to someone.

This suggests some principle like this:

7. Unless failure of this professional to provide this instance of care will likely result in a grave harm, the state should not require a healthcare professional to provide care when the care is likely to come at a grave cost to the professional.

Now we go back to (2), the claim about the grave cost of violating conscience. Let us charitably assume that most medical professionals are conscientious, so that any given medical professional is likely to be conscientious. Then we get something like this:

8. Unless failure of this professional to provide this instance of care will likely result in a grave harm, the state should not require a healthcare professional to provide care that gravely violates their conscience, even when that conscience is unreasonably mistaken.

But this cannot be the whole story. For there are also conditions that render one incapable of doing central parts of one’s job. For instance, someone with a grave phobia of fires should not be allowed to be a fire fighter. And while a fire fighter with that grave phobia should not be made to fight a fire when someone else is available, if they had the phobia at the time of hiring, they should not have been hired in the first place. And if they hid this phobia at the time of hiring, they should be fired.

We have, however, a well-developed societal model for dealing with such conditions: the reasonable accommodations model of disability legislation like the Americans with Disabilities Act. It is reasonable to require an office building to put in a ramp for an employee in a wheelchair who is unable to walk; it would be unreasonable for a bank to have to hire a guard specially to watch a kleptomaniac teller. What is and is not a reasonable accommodation depends on the centrality of an aspect of a job, the costs to the employer, and so on.

So my moderate proposal says that we handle the worry that a particular conscientious objection renders a professional incapable of doing their job by analogy to the reasonable and unreasonable accommodations model, and qualify (8) by allowing in hiring or licensure the requirement that the accommodations for a conscientious restriction on practice would have be reasonable in ways analogous to reasonable disability accommodations. A healthcare professional who has only one hand could, I assume, be reasonably accommodated in a number of specialities, but likely not as a surgeon.

The disability case also should push us towards a less judgmental attitude towards a healthcare professional whose conscientious objections are unreasonably mistaken. That an employee became a paraplegic from unreasonable daredevil recreational activity does not render the employee uneligible for otherwise reasonable accommodations.

What about the worry about the rare cases where a healthcare professional has morally repugnant conscientious views that would require discriminatory care, such as refusing to care for patients of a particular race? Could one argue that if patients of that race are rare in a given area, then allowing a restriction of practice on the basis of race could be a reasonable accommodation? We might imagine an employee who has panic attacks triggered by a particular rare configuration of a client’s personal appearance, and that does seem like a case for reasonable accommodations, after all.

Here I think there is a different thing to be said. We want our healthcare professionals to have certain relevant moral virtues to a reasonable degree. Moral virtues go beyond obedience to conscience. Someone with a mistaken conscience may not be to blame, for the wrongs they do, but they may nonetheless lack certain virtues. The case of the conscientious racist is one of those. So it is not so much because the conscientious racist would refuse to care for patients of a particular race that they should not be a healthcare professional but it is because they fail to have the right kind of respect for the dignity of all human beings.

One may think that this consideration makes the account not very useful. After all, a pro-life individual is apt to be accused of not caring enough for women. Here I just think we need to be honest and reasonably charitable. Caring about the embryo and fetus has human dignity does not render it less likely that one cares about women. Compare this case: A vegan physician believes that all higher animal life is sacred, and hence refuses to prescribe medication whose production essentially involves serious suffering of higher animals. Even if such a physician’s actions might cause harm to patients who need such (hypothetical?) medication, the belief that all higher animal life is sacred is not evidence that the physician does not care about such patients–indeed, it seems to render it more likely that the physician thinks the patients’ lives to be sacred as well, and hence to be cared for. There may be specialties where accommodation is unreasonable, but the mere fact of the belief is not evidence of lack of relevant virtues.