HCM310 Discussion 3

Special Section: Conscientious Objection in Healthcare:
Problems and Perspectives
How to Allow Conscientious Objection in
Medicine While Protecting Patient Rights
AARON ANCELL and WALTER SINNOTT-ARMSTRONG
Abstract: Paradigmatic cases of conscientious objection in medicine are those in which a
physician refuses to provide a medical service or good because doing so would conflict
with that physician’s personal moral or religious beliefs. Should such refusals be allowed in
medicine? We argue that (1) many conscientious objections to providing certain services
must be allowed because they fall within the range of freedom that physicians have to
determine which services to offer in their practices; (2) at least some conscientious objections to serving particular groups of patients should be allowed because they are not invidiously discriminatory; and (3) even in cases of invidiously discriminatory conscientious
objections, legally prohibiting individual physicians from refusing to serve patients on the
basis of such objections is not always the best solution.
Keywords: conscientious objection; medicine; discrimination; rights; law
Guadalupe Benitez and her partner wanted to have a child, but they could not
do so without the aid of artificial insemination. Seeking help, they went to the only
fertility clinic in the area that accepted their insurance. Under the care of Dr. Christine
Brody, Benitez took ovulation-inducing medication and made several attempts to
self-inseminate, all of which failed. Eventually it was determined that trying intrauterine insemination (IUI) should be the next step. However, Dr. Brody refused to
provide IUI to Benitez because Benitez’s partner, Joanne Clark, was a woman, and
Benitez and Clark were not married. Dr. Brody said that her religious convictions
precluded her from performing IUI on Benitez. After one of Dr. Brody’s colleagues,
Dr. Douglas Fenton, also refused on religious grounds, Benitez was referred to a
different fertility clinic. Benitez did eventually become pregnant via in vitro fertilization provided by the other clinic. However, because the other clinic was not
covered by her insurance, Benitez had to pay for the expensive procedure out of
pocket. Nearly a decade later, Benitez was finally compensated after successfully
suing the clinic on grounds of discrimination in a case that rose to the Supreme
Court of California.1
Should conscientious objections of the sort made by Drs. Brody and Fenton
be legally prohibited? We argue here that they need not be, at least if certain
other conditions are met. This is not to say that we agree with the objections of
Drs. Brody and Fenton—quite the opposite. Nor is it to say that we do not think
that what Drs. Brody and Fenton did was morally wrong—we think what they
did was egregiously unjust. Nonetheless, we are not convinced that the best
solution to this injustice is to legally forbid individual physicians from engaging
We thank the organizers and participants of the Conscience and Conscientious Objection in Healthcare
conference at Oxford Martin School for their many helpful questions and comments on an earlier
version of this article. This article also benefited greatly from detailed written comments provided by
Katrien Devolder and Angela Ballantyne. Walter Sinnott-Armstrong is grateful to the Oxford Martin
School for support.
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Cambridge Quarterly of Healthcare Ethics (2017), 26, 120–131.
© Cambridge University Press 2016.
doi:10.1017/S0963180116000694
Conscientious Objection in Medicine and Patient Rights
in invidious discrimination. We propose a compromise solution that allows for
conscientious objections while at the same time protecting patients from suffering
undue burdens because of them.
The framework we propose is not supposed to be a universal solution to conscientious objection. Our aim is far more limited. First, our framework is primarily
intended to operate within a context such as the United States, where healthcare is
largely privatized rather than provided under a national system such as the United
Kingdom’s National Health Service (NHS). Second, our framework is not intended
to handle all cases of conscientious objection. One task of the first part of the article
is to distinguish several different kinds of conscientious objection, each of which
we think requires independent consideration. Furthermore, part of our message
here is that blanket policies on conscientious objection are not the best choice.
Policies regulating conscientious objection must be sensitive to the social and
political context in which they are to be enacted and the consequences that they
are likely to produce.
Should There Be a Blanket Prohibition on Conscientious Objection in
Medicine?
Paradigmatic cases of conscientious objection in medicine are those in which a
physician (or other medical service provider) refuses to provide a medical service
or good because doing so would conflict with the physician’s personal moral or
religious beliefs. Such cases are distinct from those in which a physician refuses
to provide a service because the service is illegal, unsafe, medically inappropriate,
or a violation of clinical norms.2
The refusal of Drs. Brody and Fenton to provide IUI to Benitez is one example
of conscientious objection in medicine. The physicians cited their religious beliefs as
their reason for refusing to provide a safe and legal service that was likely to benefit an
informed patient who requested it. Should such refusals be permitted in medicine?
One possible answer is “No, because conscientious objections of any kind should
(almost) never be permitted in medicine.” Julian Savulescu has defended a
version of this answer. He argues that “a doctor’s conscience has little place in the
delivery of modern medical care,”3 and that doctors have a moral obligation “to be
willing and able to offer appropriate medical interventions that are legal, beneficial, desired by the patient, and a part of a just healthcare system.”4 People who
are unwilling to offer such services because of conflicts with their values, Savulescu
says, “should not be doctors.”5
For reasons we will discuss shortly, we deny that doctors have such a general
moral obligation. However, our ultimate concern here is with whether there should
be a legal prohibition against conscientious objection in medicine. Savulescu does
not take a clear stand on this point, but some of his remarks point toward support
for a legal ban. He writes, “Conscience… can be an excuse for vice or invoked to
avoid doing one’s duty. When the duty is a true duty, conscientious objection is
wrong and immoral. When there is a grave duty, it should be illegal.”6 We are
unsure what Savulescu means by “grave duty”; however, it is clear that he believes
that physicians have a weighty duty to provide any medical service that is legal,
beneficial, desired by the patient, and part of a just healthcare system. If this duty
constitutes a grave duty, then it follows from Savulescu’s position that conscientious objection in medicine ought to be illegal in (almost) all cases.
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Aaron Ancell and Walter Sinnott-Armstrong
Whether it entails such a legal prohibition or not, we believe that Savulescu’s
position is untenable. Consider a particular medical service, such as Mohs surgery—a
procedure used to remove cancerous skin cells. This service satisfies Savulescu’s
criteria of legality, benefit, and justice. On Savulescu’s view, this means that physicians are morally obligated to provide it. But which physicians? Certainly not all
physicians. Heart surgeons and ophthalmologists are not required to treat skin
cancer. Nor even are all dermatologists; they are free to subspecialize in acne or
psoriasis if they please, and even dermatologists who have chosen to provide
Mohs surgery as part of their practice are generally not morally obligated to continue providing it. They are free to shift the focus of their practice to provide other
services within their competence instead. Therefore, although Mohs surgery meets
Savulescu’s criteria of legality, benefit, and justice, a physician who chooses
not to provide it as part of his or her practice is not generally violating any moral
obligation. This physician is simply exercising the freedom to define the scope of
his or her own practice.
Of course Mohs surgery is not a service that many people morally object to.
However, the same point applies to more controversial services such as abortion.
Medical students preparing to enter the profession are not morally obligated to
specialize in obstetrics and gynecology, and those who do are not morally obligated
to become abortion providers—they are free to subspecialize in ovarian cancer
or infertility if they please. Even an obstetrician-gynecologist who does provide abortions is not usually under a moral obligation to continue providing them.
Such a physician may choose to stop providing them for self-interested reasons,
such as to avoid the costs and risks of doing so. This is especially true in the United
States where abortion providers are often subject to harassment, threats, and
violence.7 In these circumstances, providing abortions involves taking on considerable costs and risks that no physician should be required to take on simply
as a requirement of specializing in general obstetrics and gynecology. Therefore,
although abortion meets Savulescu’s criteria of legality, benefit, and justice, physicians who choose not to provide it as part of their practice are not necessarily
violating any moral obligation.
What does this have to do with conscientious objections? Consider two
physicians:
Physician A: An obstetrician-gynecologist who believes that women ought to
have access to an abortion, but refrains from offering abortion services as part
of her own practice because of the significant costs and risks involved.
Physician B: An obstetrician-gynecologist who believes that abortion is murder
and should never be permitted, and, therefore, refrains from offering abortion
services as part of her own practice.
Physician A’s refusal to offer abortions does not constitute a conscientious objection,
whereas Physician B’s does. However, if Physician A is free to refrain from offering
abortions, then Physician B must be as well. One cannot prohibit Physician B’s conscientious objection while at the same time allowing Physician A to choose whether
or not to take on the additional costs and risks involved in providing abortions.
These examples show that Savulescu’s view is incompatible with the moral and
legal freedom that physicians are, and should be, afforded to define the scope of
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their own practices. In most healthcare systems, physicians are generally free to
specialize and subspecialize as they please, and even within a specialty, they are
free to choose which services they will offer within a reasonable range. Often these
choices are based on personal preferences and interests. For example, psychiatrists
may limit their practice to a particular mental health issue that they are most interested in, for example, eating disorders, thereby refusing to offer a wide range of
other psychiatric services. Physicians may also choose not to offer certain services
that involve taking on greater liability or costs. As Mark Wicclair notes, “health care
professionals can refuse to provide a good or service for a variety of self-interested
reasons—broadly understood to include concern for one’s own health and wellbeing as well as of persons one cares about.”8
If physicians are free to refrain from offering a service on the basis of their
personal preferences or interests, then physicians must also be free to refrain
from offering that service on the basis of moral or religious objections to it. The
fact that a physician declines to offer a particular service for moral or religious
reasons rather than for self-interested reasons cannot make a difference to
whether that physician is permitted to refrain from offering it. Therefore, many
instances of conscientious objection must be allowed simply because they fall
within the range of freedom that physicians have to define the scope of their
practices. No blanket prohibition against conscientious objection in medicine
is tenable.
Of course physicians do not have unlimited freedom to choose which services
they offer. They are subject to several constraints that preclude certain choices,
including certain choices based on conscientious objections. We will briefly discuss
just three such constraints here.
First, the extent to which physicians are free to determine the scope of their own
practice varies across different health systems. A physician working in a private
practice in the United States has much greater leeway to decide which services to
offer than a physician employed by a public health system such as the United
Kingdom’s NHS. This is because physicians within the NHS have certain contractual obligations incurred upon accepting their employment. These obligations may
preclude some conscientious objections. If a physician voluntarily signs a contract
that requires the physician to provide abortions, then the physician cannot refuse
to provide abortions without breaching his or her contract. However, this does not
mean that any physician without such a contractual obligation is morally obligated to provide abortions. Nor does it show that any physician is required to
enter into such a contract, or that the NHS must or should include such requirements in its contracts.
Second, even in private practices, physicians do not, and should not, have
unlimited rein to decide which services they will offer. Certain services are so
essential to the practice of medicine, or to the practice of a particular specialty, that
offering them is never within a physician’s discretion. For example, a primary
care provider may not refuse to offer physical examinations. This rules out
some conscientious objections. For example, a male gynecologist cannot refuse
to treat women on the basis of a religious objection to intimately examining members of the opposite sex. Someone with such an objection should not become a
gynecologist. However, this religious objection should not preclude him from
becoming a physician. He could choose a specialty, such as psychiatry, where intimate physical inspections are generally unnecessary.
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Third, in emergency situations, physicians may be required to provide services
that they are competent to provide but have chosen not to offer as part of their
regular practice. This constraint has limited import here because the cases that are
usually at issue in debates about conscientious objection are not emergencies.
Granted, there are exceptions to this generalization, such as cases where an abortion is necessary to save a mother’s life. In such cases, the obligation to provide
life-saving treatment may include the obligation to provide an abortion.
These constraints show that physicians’ freedom to choose which services they
offer is not unlimited. However, these constraints do not amount to an obligation
to provide any service that meets Savulescu’s criteria. Nor can they be grounds for
a general prohibition against conscientious objection in medicine. As long as physicians are allowed some range of freedom to determine the the scope of their own
practices based on their preferences and interests, they must also be allowed to
make choices within that range on the basis of their moral and religious values.
What About Discrimination?
So far, our argument has emphasized the freedom that physicians have to determine which services they offer. Now we ask, to what extent are they also free to
choose which patients they will offer those services to?
At this point we must distinguish two different kinds of refusals:
1) Cases in which a physician refuses to provide a service because of the nature
of the service itself (e.g., abortion or euthanasia).
2) Cases in which a physician refuses to provide a service to a particular
patient because of some characteristic of the patient (e.g., being gay or
unmarried).
In cases of type 1, the identity and characteristics of the patient are irrelevant. The
physician deems the service itself to be immoral regardless of whom it is performed on. In contrast, the identity and characteristics of the patient are what
matter to the physician in cases of type 2. The physician would willingly provide
the service to some patients but not to other patients. Of course, these reasons are
not exclusive; therefore, we could construct a case in which a physician has both
kinds of reasons. Nonetheless, the reasons are still distinct.
One might wonder whether this distinction can be drawn for sex-specific procedures? The answer is yes, because the distinction has to do with the reasons the
physician has for objecting. If a physician objects to abortion solely because of the
nature of the procedure (such as that, in that physician’s view, it involves killing
an innocent person), then the fact that all abortion patients are women is irrelevant
to this physician’s reasons for refusing to perform the procedure. This physician
would refuse to perform an abortion on a male who somehow became pregnant
(do not ask how). Because the gender of the patients is not the basis of the physician’s objection, this case would be considered type 1 rather than type 2. This is
not to suggest that all objections to abortion are of type 1. We grant that explicit or
implicit sexist attitudes and beliefs may explain much of the opposition to abortion that presently exists in the United States and elsewhere. However, this does
not show that no refusals to perform abortions are purely of type 1, even if most
are of type 2 or a mix of both types.
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Conscientious Objection in Medicine and Patient Rights
Returning to our main argument, so far we have shown that many conscientious
objections of type 1 must be allowed because they fall within the range of freedom
that physicians have to define the scope of their practices. But does this freedom
also cover conscientious objections of type 2? Are physicians free to choose which
patients they will provide services to just as they are free to choose which services
they will offer?
To some extent, they must be. Many of the choices that physicians make about
how to specialize are in essence choices to work exclusively with a particular
patient population. For example, those who enjoy working with children are free
to become pediatricians and treat only children, and those who want to treat only
women can become gynecologists or seek employment in a women’s hospital. Of
course such choices are rarely, if ever, made on the basis of moral or religious
objections to treating adults or men. But if physicians are free to choose to work
with a particular patient population on the basis of their personal preferences and
interests, must not they be free to make such choices on the basis of their moral
and religious beliefs as well?
Consider the case of Benitez that we described at the outset. This is clearly a case
of type 2. Drs. Fenton and Brody had no objection to IUI as a procedure. What these
physicians objected to was performing that procedure on an unmarried lesbian.
Why was it wrong for them to restrict their practice on the basis of these religious
beliefs? Why could they not simply define their practice as providing fertility
treatments to married heterosexual women?
We suggest that the answer has nothing to do with conscientious objection per
se. The problem is not that the physicians brought their religious values into medicine. Rather, the problem is that in doing so they engaged in invidious discrimination. And physicians, like everyone else, have a moral duty not to invidiously
discriminate. The American Medical Association Code of Medical Ethics is explicit
on this point:
The creation of the patient-physician relationship is contractual in nature.
Generally, both the physician and the patient are free to enter into or
decline the relationship. A physician may decline to undertake the care of
a patient whose medical condition is not within the physician’s current
competence. However, physicians who offer their services to the public may
not decline to accept patients because of race, color, religion, national origin,
sexual orientation, gender identity, or any other basis that would constitute
invidious discrimination.9
To what extent does this obligation rule out conscientious objections in
medicine?
First, the obligation not to engage in invidious discrimination does not seem to
preclude conscientious objections of type 1. If a physician’s reasons for refusing to
provide active euthanasia are based solely on the procedure, then those reasons
seem not to discriminate against anyone or any group. Admittedly, cases of type 1
still might have discriminatory effect on one person or group. If all or a large number of physicians refuse to perform abortions, resulting in inadequate or unfair
health services for women, then one can say that there is discrimination against
women at the level of the system—that the system fails to adequately provide a
service that many women need. Still, as long as the individual physicians refuse
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Aaron Ancell and Walter Sinnott-Armstrong
because of the nature of the procedure rather than because of the gender of the
patients, the grounds for the individual physicians’ refusals are not invidiously
discriminatory.
What about cases of type 2? Not all cases of type 2 are invidious discrimination.
Physicians at women’s hospitals do not provide services to men, but such hospitals are not guilty of invidious discrimination against men. Why not? Because
invidious discrimination necessarily involves a negative attitude or judgment
about the person or persons being discriminated against, and physicians at women’s hospitals do not base their refusal to serve men on such negative attitudes or
judgments. There are also men’s health clinics that specialize in treating men’s
health issues. The refusal of such clinics to provide services to women is not invidiously discriminatory because that refusal is not based on negative attitudes or
judgments about women.
Of course physicians who choose to work in women’s hospitals or men’s
health clinics do not typically do this on the basis of conscientious objections
to treating members of the opposite sex. But what about physicians who do
conscientiously object to providing certain services to members of the opposite
sex? For example, a survey conducted in the United Kingdom found that 36
percent of Muslim medical students objected in principle to performing intimate
inspections of patients of the opposite sex.10 Do such objections constitute
invidious discrimination? Not necessarily. Some might insist that the Muslim
doctrines that forbid inspection of members of the opposite sex are themselves
invidiously discriminatory, but we will not get into that debate here. We assume
that at least some Muslim physicians object to intimately inspecting members
of the opposite sex while still respecting and valuing them and their rights. On
that assumption, and given that it is permissible for women’s and men’s health
clinics to provide services only to one gender of patients, it is difficult to see
why it would be impermissible for Muslim physicians to provide services only
to patients of their own sex. For example, a female Muslim physician could
choose to practice in a women’s health clinic where intimately inspecting members of the opposite sex is unnecessary. The fact that she cites religious reasons
for her choice does not magically transform a practice that is not invidiously
discriminatory—providing services only to women—into an invidiously discriminatory one.
Now consider a more restricted set of cases:
3) Cases in which a physician refuses to provide a service to a particular patient
because of some negative attitude or judgment about some characteristic of the
patient.
Are cases of type 3 necessarily cases of invidious discrimination? No. Although a
negative attitude or judgment is necessary for invidious discrimination, it is not
sufficient. Suppose that a physician refuses to treat an admitted, active pedophile
for erectile dysfunction because that physician correctly judges that the pedophile
is highly likely to reoffend. This is a negative judgment about the patient, but
refusing to treat in this case is not invidious discrimination, in our opinion. Of
course there are difficult questions about exactly what sort of care may be withheld from patients whom a physician justifiably fears may commit a crime,11 but
we set those aside for now.
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Conscientious Objection in Medicine and Patient Rights
To isolate cases of invidious discrimination we need to add one more word:
4) Cases in which a physician refuses to provide a service to a particular patient
because of some unjusti?ed negative attitude or judgment about some characteristic of the patient.
The case of Benitez is an example of type 4. Drs. Brody and Fenton held unjustified
negative attitudes towards Benitez’s sexual orientation and marital status. Those
negative attitudes were the primary reason that they refused to provide IUI to
Benitez. This was invidiously discriminatory, and physicians, like everyone
else, have a moral duty not to engage in invidious discrimination. Drs. Brody and
Fenton violated this moral duty. Therefore, although we have argued that many
kinds of conscientious objection do not violate physicians’ moral duties, this does
not include the religious objections of Drs. Brody and Fenton. What Drs. Brody and
Fenton did was wrong. But should it be illegal?
Should Discriminatory Conscientious Objection Be Against the Law?
Just because an action is morally wrong does not entail that it ought to be illegal.
To determine whether it should be illegal, it is important to ask whether it is a
legitimate domain for the law to become involved in and whether making it illegal
is

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