Abstract
Access to abortion services in the United States
continues to decline. It does so not because of significant
changes in legislation or court rulings but because fewer
andfewer physicians wish to perform abortions and
because most states now have "conscientious objection"
legislation that makes it easy for physicians to refuse to
do so. We argue in this paper that physicians have an
obligation to perform all socially sanctioned medical
services, including abortions, and thus that the burden
ofjustification lies upon those who wish to be excused
from that obligation. That is, such persons should have
to show how requiring them to perform abortions would
represent a serious threat to their fundamental moral or
religious beliefs. We use current California law as an
example of legislation that does not take physicians'
obligations into account and thus allows them too easily
to declare conscientious objection.
The ethics committee at a county hospital in
California recently faced the following dilemma:
The county had a state-mandated legal obligation to
provide abortion services for two population groups -
those incarcerated in the county penal facility and
those deemed incompetent to make their own
medical decisions. The county had chosen to provide
these services through its public hospital, which had,
in turn, subcontracted with a local private obstetrician
to perform most of the abortions.
When this obstetrician's services became unavailable,
the hospital searched in vain for another private
physician willing to cover the service. Realizing this
meant that his staff would have to fill the void, the
chair of the hospital's obstetrics and gynecology
department approached the ethics committee,
looking "to relieve the residents and faculty of this
burden". Discussion revealed that of the eight
residents on staff, only one was willing to perform
elective abortions. And, according to the chair, none
were qualified to perform an unassisted second trimester procedure. Compounding this shortage
was a reluctance on the part of the faculty, a reluctance
that ranged from "flat refusal" to "strong
distaste".
After obtaining the relevant facts, the committee
proceeded to provide the chair with information
from California's "conscience clause" legislation.
This legislation allows health care workers to opt out
of providing abortion services if they sign a written
declaration stating they hold "a moral, ethical, or
religious objection". This information solved the
chair's dilemma; he and all the members of his staff
promptly submitted the appropriate statements and
were thereby legally excused from the obligation.
But now the hospital was unable to fulfil its legal
duty. That is, the hospital, as the county agency providing
state-mandated health care, was obliged to
maintain abortion services but had no one willing
and qualified to do so. A local clinic agreed to take
the incompetent patients but not the inmates,
fearing the presence of women in shackles being
guarded by an armed deputy sheriff would intimidate
their other clients.2 The only other option was
to transport the inmates to a clinic in a major metropolitan
area some two hours away. But this proved to
be prohibitively expensive, given the need for transportation
and guards.
In short, the hospital and the county were legally
stuck between a rock and a hard place. They had one
state law mandating that they provide abortion
services and another state law resulting, in practice,
in an absence of physicians willing to perform them.
That there were not enough physicians willing to
provide abortion services is not unique to this
hospital. Although the demand for abortions
remains fairly constant, fewer and fewer physicians
are willing to perform them or even to learn the
relevant skills; indeed, as of 1991, "eighty-three per
cent of US counties [had] no abortion provider".3
Thus, while the committee was able to resolve the
problem in this case - through creative arrangements
with the clinic and through hiring a faculty member
willing to perform abortions - it will undoubtedly
arise again, if not at this hospital then at some other
public facility.
It will arise again because California's conscience
clause, like similar clauses in other states,4 places the
dilemma solely in the context of competing rights,
with no inclusion of concomitant obligations. That
is, the law sees the problem only as an example of a
conflict between the right of physicians5 freely to
choose which procedures they can morally tolerate
versus the right of access to abortion services. An
analysis of these rights is no doubt important. But
such an analysis will come up short if it does not also
include consideration of how obligations, particularly
status or role-engendered obligations, weigh
against these rights.
In this paper we thus provide a critique of the
California conscience clause and thereby also
attempt to address the general issue of when it is
appropriate for physicians to declare conscientious
objection. While we strongly support the right of an
individual to opt out of participation in activities she
or he finds morally repugnant, we do not believe the
California conscience clause provides appropriate
means for doing this. We argue that the law is
seriously flawed because, first, it does not take
adequate account of physicians' moral obligations to
provide services and, second, because it simplifies
the process of moral decision-making to the point
where it is rendered, at best, trivial. After considering
the benefits enjoyed by US physicians, we
contend that they have a prima facie obligation to
provide services, including abortion services, and
thus that the burden of proof lies upon them to
justify being exempted from this duty. We conclude
with some suggested changes to the conscience
clause, changes that would include consideration of
physicians' duties, show greater respect for moral
decision-making, and still protect genuine conscience-based
moral decisions.
The issues raised here clearly extend beyond
abortion and beyond California. We focus on
abortion and California's conscience clause because
we believe the problems raised in our case serve best
to exemplify the extent to which physicians have an
obligation to provide care beyond that typically
acknowledged. The provision of abortion services
represents a paradigm example of the conflict
between individual rights and community needs.
That is, it involves the conflict between an individual's
right to avoid participating in activities she
deems morally repugnant and the right of the
community to have socially sanctioned medical
services made available. While similar consciencebased
dilemmas exist in such issues as right to die
and living will statutes,6 the provision of care to
Medicaid patients,7 and the use of physicians to
provide lethal injections in capital punishment,8
none of these carry with them such a direct conflict
between physician rights, patient rights, and physician
obligations.9
Also, the number of physicians willing to perform
abortion services has declined, in part, because it has
become increasingly risky to do so. As the cases of
David Gunn and John Britton'? reveal, there is a
genuine, if unlikely, threat to personal safety. And
there is an even greater threat of harassment and
intimidation, including anonymous calls and
mailings and picketers at both work and home. Thus
if an obligation to provide services can be established
on this issue, it would clearly extend to other, less
risky but still undesirable - to some - medical procedures.
Finally, the problem is exacerbated in California,
and a number of other states, by conflicting laws. In
addition to the conscience clause, there are additional
laws and regulations which require counties
(and thus typically county hospitals) to make such
services available to certain populations.
CONFLICTING LAWS AND REGULATIONS
While US federal courts continue to tinker with the
precise meaning of the reproductive and privacy
rights emerging from Griswold," and Roe,'2 the
issues have, for twenty-plus years now, been fairly
well settled in California. California law provides
both a negative right against governmental interference
in activities deemed to fall under privacy
protections,'3 and a positive right, at least for certain
population groups, to medical services, including
those related to family planning."'
California thus gives explicit constitutional and
regulatory protection to both a negative right of
privacy and a positive right of autonomy. The state
also thereby explicitly guarantees, at least in theory,
that abortion services will be made accessible to
persons in the protected classes. Through these
guarantees the state also acquires the corresponding
obligation to ensure the availability and timely
provision of such services.
In competition with these rights, however, is the
right of physicians to declare conscientious objection
to engaging in medical procedures that run contrary
to deeply held moral or religious scruples. Hence the
rub. On the one hand, California grants individuals
the right to determine, without state interference,
their own family planning activities and further
strives to secure access to the appropriate health
care services for its otherwise compromised citizens;
on the other hand, California also allows health
care workers to declare conscientious objection to
providing abortion services, thereby creating the
possibility, and in our case the reality, that such
services would not be effectively available.
THE OBLIGATION TO PROVIDE SERVICES
Part of the reason the county had no means of fulfilling
its duty was because none of the physicians
involved believed they had an obligation to perform
abortions. In their minds they were free to choose
which activities they wished to practise, so long as
there were no laws or regulations to the contrary and
so long as in doing so they did not directly endanger
others. The principle of liberty, this argument holds,
should be the guiding principle, binding unless one
justifies its violation.'5
Our contention is that the liberty principle is not
paramount here because an appeal to it ignores the
crucially important social roles and resources that
shape contemporary US medicine and society. We
believe, in fact, that physicians have a prima facie
obligation to provide services. Thus the burden of
proof lies with those who wish to be excused from
that obligation.
Physicians have this obligation, we contend,
because the image of them as unbeholden free agents
is a myth. Physicians are, in fact, deeply indebted to
society, an indebtedness that brings with it a strict
obligation to provide vital and socially sanctioned
medical services.'6 With this obligation comes the
need to justify why one should be exempted from
providing such services.
The obligation to provide service comes from two
sources: 1) The ways in which physicians receive
extraordinary social benefits, and 2) The social
harms that would be suffered should the service not
be provided. Addressing the second reason first,
while we acknowledge that our society has not
reached anywhere near unanimity of opinion on
abortion rights, there has long been a strong majority
opinion that women should have the right to determine
the course of their pregnancies, at least within
certain, mainly developmental, parameters. There
seems also to be a consensus, confirmed in recent
court rulings,'7 that undue obstacles should not be
placed in the path of women attempting to exercise
their reproductive rights. Should abortion services
become wholly unavailable to certain segments of
society, particularly for relatively trivial reasons, an
undue burden clearly would be present, and thus a
substantial social harm would accrue.
With regard to the extraordinary social benefits
physicians currently enjoy, there are at least five
worth noting. First, all physicians trained in the
United States receive considerable support in
taxpayer-provided educational dollars. For example,
in 1990 the US Department of Health and Human
Services alone provided $236,300,000 in funding
for college and postgraduate programmes in health
and professional training.'8
Second, as the California Business and Professions
Code explicitly states, professional licensure is a
"privilege", not a "right" or "entitlement".'9 And, as
a privilege, it is subject to appropriate state oversight
and regulation.
Third, in part because of the state licensing
process, physicians have been granted a monopoly
on most types of medical care. With such a
monopoly comes an enhanced obligation to provide
those services society has deemed valuable. In the
case of abortion, as our example acutely reveals,
women have no alternative source for treatment
should physicians succeed in acquiring exemption.20
Fourth, physicians enjoy both economic benefit -
in 1994 the mean net annual income for obstetricians
in the United States was $221,800 5-18 - and
lofty social status. With this wealth and prestige
comes a special commitment to the society that
confirms, and pays for, those advantages.
And fifth, in this case the physicians were all
employed at a taxpayer-funded institution; ie, they
received their salaries, in part, from some of the very
women they refused to treat.
While not all physicians work for public hospitals
or clinics and not all receive compensation in the
range of a quarter of a million dollars a year, all do
nonetheless receive social benefits far beyond those
of the average person. We therefore propose that
there must be correspondingly powerful justifications
given in order to be exempted from the obligation
to provide socially valued and legally sanctioned
medical services, including abortion services.
Accepting this does not negate physicians' right to
make free, conscience-based choices regarding what
types of care they shall provide and to whom. Our
claim is simply that the burden falls upon the physician
to show that her conscience is indeed threatened.
It is she who appeals for exception to an
otherwise existent duty and thus it is she who must
justify her position.
PROBLEMS WITH THE CONSCIENCE CLAUSE
We contend that California's conscience clause has
three fundamental flaws. The first is that the clause
does not acknowledge physicians' obligations to
provide abortion services. Rather, it appears to be
grounded in the sort of "free agent" myth discussed
in the previous section, ie, that physicians should be
able to do whatever they wish. The arguments in the
previous section, we hope, reveal why this approach
is misguided.
The clause's second flaw is that it makes the
process of declaring conscientious objection so
simplistic as to trivialise moral decision-making.
Recall the requirements of the law: If a health care
worker wishes to declare conscientious objection she
need only sign a form stating "a moral, ethical, or
religious objection" to the procedure. She does not
have to give reasons to show that this belief is consistent
with other beliefs she holds and practises.
Nor is she challenged, made to justify her stance.
Rather, she need only do the equivalent of stating
that she holds an opinion that the activity is wrong.
The implication of this approach is that, at least
on the question of abortion, all beliefs are equally
valid. Accepting this subjectivity of values produces,
as Langdon Winner argues, "a loss of attention paid
to shared reasons for action. When values are looked
upon as subjective, ... when basic moral and political
ideas are bypassed with such alacrity, any hope of
finding a rational basis for common action vanishes.
... [This inevitably results in] a scandalous incompetence
in dealing with fundamental, recurring
questions of human existence: How are we to live
together? How can we live gracefully and with
justice?"2"
We readily grant there is no moral consensus on
abortion. We grant also that requiring justification
for beliefs implies that valid standards exist for evaluating
that justification. And we acknowledge the
clear danger that exists in appealing to such
standards, ie, that in practice they will simply be the
ones held by the society's powerful elite. But to
retreat therefore, as we believe the conscience clause
does, to the position of no standards, to the view that
any moral position is as good as the next, is both to
deny the importance and difficulty of careful,
rational decision-making and to denigrate our nature
as moral agents.
Our culture's rejection of a subjective approach to
ethics is revealed, ironically, in the federal law
allowing a declaration of conscientious objection to
participation in violent military activities.22 This
statute is considerably more demanding than the
California conscience clause; it includes strict guidelines
as to what counts as a justifying belief and it
demands substantial proof from the petitioner as to
the actual existence of this belief. For example, the
code specifies that the belief must be strictly religious
and may not include "essentially political,
sociological, or philosophical views, or a merely
personal moral code". And on the question of proof,
the courts have uniformly held that each conscientious
objection applicant must persuade the draft
board that his religious beliefs are personally and, in
essence, passionately held. Merely belonging to a
religion which holds that war is immoral is insufficient
justification.23 Instead, the applicant must
articulate the basis for his scruple and must demonstrate
"sincerity" of belief and consistency in being
opposed to all war, not merely this or that war.24
No similar test, indeed no test at all, exists in the
California conscience clause. No actual justification
need be given, only a bare statement that one
possesses a scruple against abortion. One need not
even specify whether that scruple is moral or religious.
Rather, all one must do, in essence, is just
say no
Indeed, this simplistic process of declaring conscientious
objection leads to the clause's third major
flaw - that it is too easy to import mixed motives,
thereby circumventing the original intent of the law
and also thereby enhancing the potential for the legal
"Catch 22" described in our case.
The clear, and we believe appropriate, intent of
the conscience clause is to protect health care
workers from having to perform services which truly
would violate their conscience. It is not intended to
protect those who would avoid providing abortions
out of economic considerations or mere distaste. In
practice, however, the bill's broad language allows
exactly these kinds of considerations to play a predominant
role.
In the case described above, the committee heard
a variety of justifications given for why the physicians
did not wish to perform abortions, none of which, in
our minds, satisfy the intent of the law. For example,
one physician viewed participation as creating a
potential economic conflict for his private practice in
fertility; he worried that his private patients would
question his commitment to their goal of producing
a child if he was at the same time willing to end the
life of another. A second physician saw himself, and
wish to be perceived, as a specialist in gynaecology
rather than obstetrics. A third candidly admitted
that he did not wish to be considered an abortion
provider since such services are typically not lucrative.
The only protest that came close to meeting the
law's intent was the comment that second trimester
abortions are "complex and frankly ugly. They are
most unpleasant for everyone involved". Even here,
though, while there is a hint of a conscience-based
scruple lurking in the background, the complaint is
presented as an aesthetic, rather than as a moral,
objection.
We do not mean to suggest that these physicians
were venal, manipulative, or deceitful. They all
sincerely did not want to perform abortions and, as
the above comments reveal, they were quite candid
as to their reasons. The broad language of the
conscience clause allows that such a negative desire,
combined with a written statement using the
statutory language, was all they needed.
A NEW MODEL FOR JUSTIFYING EXEMPTION
Given these weaknesses in California's conscience
clause, a new model is needed which would allow
physicians to declare conscientious objection when
there is a true crisis of conscience, but which would
at the same time take into account both the obligation
to provide services and the importance of
careful moral decision-making. According to this
model, then, a determination of whether an exemption
claim is justified would involve a process of
ascertaining and weighing the duties and goods
extant in the situation. In our case, the cost of
allowing exemption entailed both an abrogation of
the physicians' obligation to treat and the practical
negation of a socially and legally recognised right, a
right whose fulfilment, or lack thereof, had the
potential for profound impact upon many persons'
lives. Thus, we believe, there needed to be a correspondingly
profound justification given by those
wishing to declare conscientious objection.
While other conscience-based exemptions from
social obligations rely upon an institutional process
for scrutiny, the existing conscience clause provides
no mechanism for determining whether a particular
exemption claim is justified. Borrowing, in part,
from the guidelines established for the draft board,
we therefore recommend a review board be established
to evaluate claims of moral objection to
providing abortions.
We recognise that different groups have different
means for communicating that a belief is profoundly
held; thus the board should be structured so as to
represent a diversity of racial, ethnic, and religious
beliefs and academic training. Furthermore, so as to
reduce the potential power asymmetry between the
board and petitioners, it should also include a range
of disciplines - medicine, nursing, mental health,
social services, chaplaincy - and representatives
from the community, including, hopefully, lawyers
and ethicists.
The process should begin at an informal level.
The board, or perhaps a committee of the board,
would meet with the petitioner to discuss the basis
and reasons for the claim of exemption. Should the
committee not agree, or should the petitioner be dissatisfied
with the outcome, the matter would be
taken up formally by the full board, at which point
the petitioner would have the option to use professional
counsel. Finally, in cases of serious dispute,
the board's decisions would be reviewable by a court
of competent jurisdiction.
We believe such a process would allow for a valid
evaluation of petitioners' claims, while also protecting
a genuinely conscience-based right to exemption.
To assure uniformity, review boards would need a
consistent set of criteria, specific enough to provide
guidance, yet with sufficient flexibility to allow for
the range of religious and moral beliefs. We, tentatively,
propose the following25:
1. The applicant must have a sincere scruple-based
objection to the procedure;
2. That scruple must fit within an otherwise
coherent system of moral or religious beliefs;
3. The scruple must be consistent with other beliefs
and actions with respect to, in particular, activities
related to the taking of innocent life;
4. The scruple must be a key component of the petitioner's
moral or religious framework, such that its
violation, and the concomitant violation of her
autonomy, represents a greater moral harmn than
would the corresponding restriction of abortion rights;
5. All reasonable alternatives must be explored, for
example, finding another physician to perform the
procedure, with the petitioner merely providing subsequent
care and follow-up; and
6. Especially in those cases of public employment,
and perhaps in all cases, when exemption is granted
some alternative form of public-benefiting professional
service should be substituted.26
We recognize this is an extensive list, one that
requires the petitioner to have and to be able to articulate
a well developed and sophisticated moral
position. Given the competing rights at stake, we
nonetheless contend that the petitioner should be
able to satisfy these criteria if her claim of exemption
is in fact based on a true crisis of conscience.
We recognise also that the process will likely result
in a reduction of the number of health care practitioners
who would otherwise claim exemption. Our
case suggests that such a result would hardly be
unfortunate, since few of the physicians involved
appeared to have genuine moral or religious objections.
But for those who did, requiring them to articulate
the basis of their position seems a minimal
imposition, one clearly outweighed by the competing
goods at stake.
