The issue of conscientious refusal by healthcare professionals has been re-actualized during the last decade. The background for this is complex: medical advances and legal changes offering new and controversial procedures on the menu of health services, increasing pressure of “lean” resource allocation and strict line organizations rather than informal collegial leeway within a system with some elbow room, and the increasing and systematic use of the law and the legal system to attempt to instigate political change. In this article, we focus on the last of these aspects and on the ethical underpinnings of specific legal aspirations with regard to conscientious refusal. Specifically, we argue that the notion of a legal (rather than a moral) right of healthcare professionals to refuse to perform procedures that they are instructed to perform by their employer, or to obtain employment on the condition that they will refuse to perform such procedures, is poorly understood from an ethical standpoint. In the attempt to close this gap, we point to a number of elementary ethical provisions that make the idea of a legal right to conscientious refusal in this area quite complicated to justify. We also address the possibility that advocates of such suggestions might confuse legal rights to conscientious refusal for healthcare professionals with moral ones or related moral or political issues pertaining to conscientious objection to specific medical procedures.
To exemplify, we will refer to the case of voluntary employment in the healthcare profession, such as the case of a person who decides to become a physician, a nurse, or a midwife, and the medical procedure of legal abortion in a pro-choice jurisdiction. Our conclusion is that claims of conscientious refusal in this case enjoy extremely weak support because of two factors: generally accepted constraints on valid reasons for acceptance of conscientious refusal in general, and specific ethical constraints on justifiable legal statutes. Footnote 1 The argument we develop goes beyond the claim made by Jonathan Montgomery that “formal conscientious objection clauses should be reduced to a minimum and regularly revisited,” Footnote 2 and questions even such limited legal rights. Although this would probably add to the force of our argument, we here omit discussion of legal conscientious refusal by healthcare institutions and businesses, Footnote 3 and concentrate exclusively on the case of individual legal rights.
Provisions and Example
To exclude from our discussion the wide international consensus on some legal room for conscientious refusal in the case of compulsory services, such as military conscription, the provision of voluntary employment is made here. We also assume a standard legal labor background, including a conditional legal obligation of employees to abide by the instructions of their employers, as long as these are lawful. This background means that refusal to carry out such instructions is normally taken as a legitimate ground for penalty and, in severe cases, dismissal. Likewise, if persons applying for a position announce that they will refuse to comply with some such instructions should they be hired, this is a valid reason for an employer not to hire them, no matter what their other qualifications may be. Moreover, the same legal background means that no one has the right to force anyone into employment, and that any employee has a right to resign an employment at any time for any reason. Footnote 4 Although it could be argued that scarcity of jobs may make a formally voluntary employment involuntary, we assume that this does not hold for healthcare professionals, as their job market in general is favorable.
These assumptions already contain the provision that employees are only obligated to carry out legal employer instructions. Standard labor law thus provides ample room for refusal to carry out illegal instructions. Footnote 5 Leeway to avoid performing actions that conflict with one’s conscience is also created by the optional nature of parts of labor law; that is, if an employee is displeased with some aspects of the work, the employer may choose to transfer this person to another area of work. For example, a head of a clinic or hospital may grant the wishes of physicians or nurses to be transferred to a ward or unit where they will not be requested to assist in the performance of some procedure to which they object. This, however, will depend on the room available for such accommodations, given the conditions of the workplace and the effects on the quality of services and productivity. Granting such requests is not an employer’s duty, and, therefore, it is not a legal right of the employee, although such accommodations do occur at times. Likewise, an employer may grant conditions of a similar sort as part of an employment contract; however, having such conditions granted is not a right of people applying for jobs. Footnote 6
The example of a jurisdiction that is pro-choice regarding abortion and of a legal abortion procedure within such a jurisdiction has been chosen because several cases of activism pushing for a legal right to conscientious refusal are in this area. Footnote 7 Also, existing legal rights to conscientious refusal regarding this particular procedure in some jurisdictions, such as Italy and the United Kingdom, have recently been called into question. Footnote 8
The question we are concerned with is the following: provided that a healthcare professional’s work includes involvement in the performance of legal abortion, should it be a legal right for this person to refuse such involvement? Footnote 9
Legal Rights versus Moral Rights versus Ethical Legal Reasons
Our analysis only concerns the issue of legal rights to conscientious refusal by healthcare professionals in legal abortion-related practices, or, more precisely, whether or not there should be a formal exemption from the general legal obligation of employees to abide by employer instructions in such cases. The answer to this question will not determine whether there are moral reasons for a person to conscientiously refuse employer instructions. As will be discussed shortly, there may very well be some such reasons, but none of these support the notion of a legal right to the same effect. Footnote 10
We leave open the issue as to whether the fact that a person holds an action or omission to be morally required is a reason in favor of the moral permissibility of this action or omission. We do find the idea highly controversial that the mere belief in a moral norm would make this norm plausible, and doubt that it is genuinely advocated by anyone supporting a legal right to conscientious refusal. Even if such a principle were defensible, it would still leave open the question of whether or not this would be ground for exemptions from otherwise applicable legal statutes. It is far from uncommon that instances of legally banned actions may be morally permissible, without this being seen as reason against said bans. Footnote 11 To make a case for the introduction of a legal right to conscientious refusal, further reasons are needed. The argument developed subsequently deals with which criteria such additional reasons need to conform to in order to be plausible.
Even further from our focus here is the idea of a moral right of healthcare professionals to refuse abortion-related activities in the form of civilly disobedient political action. It may, we concede, be considered compatible with one´s civic moral duties to act against legal provisions in order to protest against what one believes to be wrongful political decisions or laws. However, such civil disobedience is normally taken to imply acting against the law and facing the ensuing legal consequences. This means that if there were to be a legal right for healthcare professionals to conscientious refusal of prescribed abortion-related activities, refusing to participate would not be civil disobedience. Conversely, if there is a moral right to conscientious refusal in the form of civil disobedience in this area, there cannot be a legal right to the same effect, as the right to be civilly disobedient assumes that no legal right of this sort exists.
Granted, even if there is no legal right to conscientious refusal, there could be valid moral reasons against the practice to which one is objecting, in this case abortion, or against the law that allows or prescribes it. However, although this might be taken to show that such laws should be changed, it does not follow that one should be exempted from these or other related rules as long as they are legally valid statute. Even less does it follow that the fact that a person holds such a law to be immoral makes it obligatory to legally allow this person not to abide by this or related laws. Again, to reach the conclusion that a legal exemption should be created for such cases, further argument will be needed, and our reasoning in this article regards requirements to which such arguments need to conform.
The Legal Ethics of Conscientious Refusal
We now return to our main question. Provided that a healthcare professional’s work includes involvement in the performance of legal abortion, should it be that person’s legal right to refuse such involvement? More specifically we are asking about the justifiability of the following legal rule.
Abortion Healthcare Professional Conscientious Refusal: Any healthcare professional morally opposing abortion, and having abortion-related activities among his/her assigned tasks, has the legal right to refuse to perform such activities without facing penalty or dismissal.
The literature presents two main grounds for supporting healthcare professionals’ conscientious refusal: freedom of conscience and freedom of religion. Footnote 12 The former of these relates to the political importance of citizens’ moral agency: The state should provide some leeway for citizens to follow their own consciences because otherwise the citizens would feel (or be) disrespected. Furthermore, this notion also involves the idea that the state has an interest in protecting and promoting citizens’ capacity for moral reflection. The latter (religious freedom) produces other arguments. Following Samuel Scheffler’s notion of “the normativity of tradition,” Footnote 13 Daniel Weinstock points to the “very great interest that human beings have in being able to situate themselves within temporal contexts that transcend their own individual lives.” Footnote 14 Religious traditions are one example of such a transcending “temporal context.” Preserving such a context may then be grounds for conscientious refusal.
Based on these two types of grounds, Weinstock puts forward four reasons for granting healthcare professionals room for conscientious refusal. In our rephrasing:
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• The “agency and self-respect” reason: the status of being a moral agent and deliberator implies “…a certain amount of space to express itself.”
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• The “benefit to institutions” reason: rights of conscientious refusal benefit healthcare institutions by fostering the moral agency of healthcare professionals necessary for such institutions to run properly, and institutions benefit from having moral agents capable of engaging in critical dialogue internally as well as vis-à-vis other institutions and the public.
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• The “reasonability” reason: “when we recognize healthcare professionals’ right to refuse, we are not just giving away to whim—we are expressing the fact that though we as society may have decided to accept a certain practice, we nonetheless respect the moral agency of those who hold reasonable dissenting views.”
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• Pragmatic reasons: conscientious refusal enables healthcare professionals to dissent when external pressures lead to wrong policies or procedures.
All of these reasons are subject to countervailing factors. For example, conscientious refusal must be compatible with the overall functioning of the healthcare institution in which it is exercised, and must not prevent patients from accessing its health services. This idea can be generalized to all sectors where conscientious refusal may be pondered. Policies making room for such refusal must not threaten the functionality of important social institutions of any sort. Although civil liberties may be valued highly, they are always subject to such constraints, as a society exists for the common good of its members, none of whom has the authority to hold the rest hostage, forcing them to bend to the “refuser’s” own personal idea of how society should be.
Weinstock himself does not advance the idea that these reasons provide grounds for a legal right to conscientious refusal, and the reasons may apply to many levels of interaction beyond the political or legal one, such as the personal interactions between people who hold opposing moral views. The reasons may support the idea of employers making allowances for some extent of conscientious refusal in line with what we mentioned in the second section, and certainly for employees to express dissent and voice objections to policy decisions. The reasons, moreover, speak against any form of compulsory enrolment or continued employment of healthcare professionals in cases of conscientious refusal, and may also motivate seeking opportunities for reassigning an employee to resolve a dilemma he or she experiences. It may even be put into legal statute that employers have a duty to explore such solutions. Footnote 15 None of this, however, amounts to a legal right of healthcare professionals to conscientious refusal within the assumptions made in this article.
We do find one of Weinstock’s reasons problematic. The idea that conscientious refusal is a benefit to healthcare institutions is based on the assumption, first, that it is necessary to ensure desirable critical dialogue and, second, that the conscience of a healthcare professional underlying his or her conscientious refusal will tend to help institutions to run properly. As mentioned, the first of these assumptions seems to lack support (freedom of expression is sufficient for a critical dialogue). It may even be argued that the “do as I say, or else” sentiment expressed by the conscientious refusal stance impedes such dialogue by issuing an ultimatum rather than extending an argument. The second assumption is based on the idea that the healthcare professional’s conscience must have benign content with some constructive potential to it, which seems to be blatantly false. This leads to our own main point.
For any plausible legal right, duty, or other rule, certain conditions need to be met, grounded in basic ethical requirements of justified law, regarding the rule of law and equality before the law. These requirements are expressed in varying ways in different jurisdictions and legal traditions; however, formulations such as human dignity, equal treatment, and nondiscrimination are familiar terms used to express these thoughts. The ideas pointed to can be formulated succinctly in the form of three basic requirements for the justifiability of any legal rule, R.
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1) R applies uniformly and equally to all legal subjects of the jurisdiction.
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2) The official reasons Footnote 16 motivating R do not support another rule that applies more widely than R. Footnote 17
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3) Qualifications and clauses within R do not in any other way violate basic tenets of impartiality or nondiscrimination.
None of these three requirements, either on its own, or jointly, are capable of justifying any particular legal statute. They are constraints on the justifiability of otherwise well-founded legal rules. Therefore, if the reasons Weinstock proposes (or some other reasons) speak in favor of a legal right for healthcare professionals to conscientious refusal of legal abortion, such a rule needs to conform to all three requirements to be justified. If flaws in this respect are identified, the rule needs to be adjusted accordingly, and the reasons for the rule need to remain valid in the face of such changes. The legal ethics of the issue of a legal right to conscientious refusal, therefore, involve the extent to which these necessary conditions can be met.
A rule permitting conscientious refusal only for healthcare professionals and only in the case of refusing legal abortion-related activities would fail this test, as its restricted applicability would in a number of ways violate the three requirements. It would cover only healthcare professionals, only the procedure of legal abortion, and only the particular content of a conscience opposing abortion.
Revising the rule to guarantee that these flaws are avoided, results in the following rule.
General Conscientious Refusal: Any employee has the right to refuse any employer instruction based on any type of conscientious opinion, without facing any sort of penalty or dismissal.
General conscientious refusal would support abortion healthcare professional conscientious refusal, and may itself be given some weak support by the reasons proposed by Weinstock. However, this support is undermined by the fact that this rule creates a profound threat to the functionality of healthcare services and, indeed, of society as a whole, thus forcefully activating the countervailing factors mentioned earlier.
The threat to health services is illustrated by a satiric reaction of a Swedish medical doctor to the cases of healthcare professionals pressing for abortion health care professional conscientious refusal, in which he announced that, as he was against religion, he would from now on refuse to treat religious people. Footnote 18 Similarly, biased healthcare professionals whose conscience tells them not to provide care for this or that group of people can reserve the right not to do their jobs based on the color, language, or garb of patients. And, of course, healthcare professionals who believe that current treatment standards should be changed will be free to administer to patients whatever their conscience tells them is right, without fear of sanction. And we could extend such possibilities to other professionals, such as police, firefighters, judges, or attorneys. Imagine all of these professionals enjoying a legal right to randomly apply whatever sort of moral ideas they might entertain whenever they prefer. This would create a society that would fail at its core to guard and promote the common good.
Nonetheless, general conscientious refusal is the legal rule that needs to be justified in order to justify abortion health care professional conscientious refusal in light of the three requirements listed. Stated differently, granting the latter without granting the former would amount to unequal and disrespectful treatment of all employees other than healthcare professionals and of all holders of moral opinions other than the specific one against legal abortion. If all citizens are to enjoy equal treatment before the law, statutes cannot justifiably treat employed professionals differently, or moral views (or consciences) differently, unless there is an independent reason for making such distinctions.
What Are the Reasons for Limiting General Conscientious Refusal?
What reasons might there be for limiting a legal right to conscientious refusal, so as to avoid the absurdity of general conscientious refusal? We will consider two common ideas to this end, one claiming that religious conscience has a special standing, and another making a similar case for the area of healthcare.
Weinstock addresses at some length the issue of basing specific cases of conscientious refusal on a rule of freedom of religion; and, as was mentioned, he concludes that religion is a special case of cultural identity. However, religious freedom (as usually construed) includes neither any right to receive or hold any particular employment, nor does it imply the privilege of not being bound by legal rules applicable to all citizens (such as labor laws). However, the following argument may be attempted. Freedom of religion includes a right to nondiscrimination, and this may very well apply to labor-related issues. In a just work market, religious believers hold legitimate expectations to be hired (or not) based on a fair estimate of merits and capacity to be productive, and not because of what their religious conviction demand (or do not demand). Moreover, in the workplace, such people have a right not to be discriminated against on the basis of religion; that is, they have a right to hold, express, and practice religious beliefs (or lack of them) within the same boundaries as mentioned (the efficiency of the institution), and to be treated equally to other employees in this respect. The argument, then, could be that by not granting special legal rights of conscientious refusal in the case of religiously based consciences, religious people are discriminated against. Therefore, general conscientious refusal can be limited to avoid absurdity, and abortion healthcare professional conscientious refusal can be shown to satisfy the three requirements listed previously.
This argument misfires. First, willingness to perform common work tasks is an indicator of one’s contributing to the efficiency of the institution, and this holds equally whatever the background is (religious or secular) of such willingness or unwillingness. And the same holds when a person is already employed; employees’ performing work tasks is necessary to ensure that the institution runs well, and this holds equally for all employees, no matter the background explanation for why they do, or do not do, their jobs. The only case in which this would not hold would be if religious people were specifically forced to hold jobs in which the work tasks conflicted with their religious convictions. Seen in this light, it is obvious that the attempt to appeal to nondiscrimination to support conscientious refusal on religious grounds exclusively is itself discriminatory and violates the basic ethical legal tenets of the equal standing of all.
Moreover, suppose that we did accept the argument and therefore the following legal rule:
Religious General Conscientious Refusal: Any employee has the right to refuse any employer instruction based on a conscientious opinion grounded in a religious belief, without facing any sort of penalty or dismissal.
Would this escape the obvious implausibility of general conscientious refusal, considering the wide variety of what may be involved in religious beliefs, and moral opinions formed on their basis? Far from it. Readers who have problems finding arguments for this claim may consider religious communities and practices such as: Daesh, Wahabist Islam, Norse religion, Satanic worship, the Ku Klux Klan, The Church of Scientology, Witch-hunting, animal and human sacrifice, or bodily mutilation of children.
The other common idea of how general conscientious refusal could be limited to avoid absurdity is the contention that a legal right to conscientious refusal should apply only to healthcare professionals, based on an idea of healthcare as a “special case,” ethically, legally, and societally. Footnote 19 We admit that healthcare is special in the sense that it requires the involvement of qualified people (healthcare professionals), who enjoy special legal privileges and responsibilities not accessible to other professionals or to citizens at large. Much of this special standing links to the breach of somatic integrity involved in healthcare Footnote 20 and how this connects to the quality and length of life of the patients who put their trust in the competence, discretion, and judgment of healthcare professionals. Can this special standing justify the idea that healthcare professionals should also enjoy exclusive rights to conscientious refusal, as per the following revised principle?
Healthcare Professional General Conscientious Refusal: Healthcare professionals have the right to refuse employer instructions based on a conscientious opinion without facing any sort of penalty or dismissal.
If so, this special right and its background motivation might help to make abortion healthcare professional conscientious refusal conform to the three requirements listed previously.
As special as we admit healthcare to be, however, it is far from alone in being an area of service and professionalism profoundly affecting the basic conditions of the length and quality of peoples’ lives. Professionals usually mentioned as specially privileged and responsibility burdened in a similar way as healthcare professionals for this very reason include police, firefighters, military combat personnel, and commanders of sea or air vessels. However, on reflection, the potential for profound influence is found in several other areas. For example, elementary school teachers are entrusted with handling small children during a major share of their formative years, potentially making a huge difference, for better or worse, over the course of the rest of these children’s lives. Other professions profoundly impact people not primarily through immediate physical handling, but through power and decisionmaking authority, as in the case of judges and officers of public agencies. Once we realize this wide dependence of most of us on the good will of a great many professionals, thoughts start wandering further to the role of train and bus drivers, construction workers, garbage collectors, bank and shop clerks, and others. Again, therefore, the attempt to limit general conscientious refusal fails. As much as all the mentioned professional areas may have their own special legal privileges and responsibilities, none of these motivate a legal right to conscientious refusal in one profession more than in any of the others. In effect, healthcare professionals general conscientious refusal can conform to the three requirements only in as much as general conscientious refusal (or something very close to it) is plausible.
Concluding Discussion
We have argued that healthcare professionals voluntarily employed in units where their work may involve actions related to the performance of legal abortion should not be granted a legal right to conscientious refusal. The argument developed in support of this conclusion has nothing to do with the morality of abortion, rights to civil disobedience, or moral reasons for following one’s conscience or acting against perceived or actually immoral policies. Rather, it is grounded in a few elementary ethical requirements on justifiable legal statutes related to basic principles of rule of law, nondiscrimination, and equality before the law. This argument extends to all special claims of a legal right to conscientious refusal with regard to religious convictions, or healthcare professionals in general. Any such exemption would lack support in its underlying ethical justification or in any legal principle, and thus would constitute a case of unjust discrimination of other groups of employees. We have argued that a general legal right to conscientious refusal enjoys very weak support in view of presented positive arguments and, not least, the presence of powerful countervailing factors (such as the danger of undermining the basic functionality of healthcare systems and of society as a whole). We have not presented any defense of the three legal ethical requirements cited earier, as we rest assured that these, or very similar, ideas are shared by all those who, from time to time, advocate legal rights to conscientious refusal. In case they are not, we are happy to review any suggestion to the effect that legal requirements should be arbitrary, discriminatory, and apply only to some.
We conclude by suggesting five possible explanations for claims typically made in support of legal rights to conscientious refusal in healthcare. First, the naïve idea that a legal right to conscientious refusal can be reserved for only some specific types of conscientious content (or moral opinions). Second, disregard of the voluntariness of employment and the linked opportunity for any employee to act on his or her conscience by not accepting or resigning from an employment. Third, similar disregard of the fact that agreements between employers and employees may accommodate opinions, without necessarily appealing to the idea of conscientious refusal, to the extent that such accommodations will not undermine the functionality of the workplace. Fourth, the moral rights and reasons mentioned in the section Legal rights versus moral rights versus ethical legal reasons are confused with arguments for a legal right to conscientious refusal. Fifth, the advocates of legal rights to conscientious refusal are interested neither in legal nor in ethical arguments, but cynically use law and ethics as an instrument to undermine public policies to which they are opposed. The respective influence of these and other possible factors could be the subject of forthcoming empirical bioethical research.
