Ferguson, Kyle

Kim, Eric J.

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Full Terms & Conditions of access and use can be found athttps://www.tandfonline.com/action/journalInformation?journalCode=uajb20The American Journal of BioethicsISSN: (Print) (Online) Journal homepage: https://www.tandfonline.com/loi/uajb20Does Medicine Need to Accommodate PositiveConscientious Objections to Morally Self-Correct?Eric J. Kim & Kyle FergusonTo cite this article: Eric J. Kim & Kyle Ferguson (2021) Does Medicine Need to AccommodatePositive Conscientious Objections to Morally Self-Correct?, The American Journal of Bioethics,21:8, 74-76, DOI: 10.1080/15265161.2021.1940362To link to this article:  https://doi.org/10.1080/15265161.2021.1940362Published online: 27 Jul 2021.Submit your article to this journal View related articles View Crossmark dataThis invites hard questions about when, why, and howto vindicate conscientious provision, what shape exemp-tions might take, and how broadly they should sweep.The answers to these inform my longer law review articlethat develops, defends, and applies a conceptual frame-work for medical disobedience. Should protections belimited to job loss and tort liability, or cover criminalindictment too? Should they take shape in explicit, up-front permission via statute or common law? Orunspoken, back-end forgiveness via prosecutorial discre-tion or jury nullification? Should they sweep broadly, orbe narrowly specified? The reproductive health contextalone features a range of contested procedures: from sexselection, female genital cutting, and gag rules on inform-ing patients about birth control and other family plan-ning measures, to in vitro fertilization for same-sexcouples, emergency contraception or sterilization foryoung, unmarried, or childless women, and advancedirectives that comatose women left to forgo life-sustain-ing treatment even if they are pregnant. Outside of repro-ductive health, examples I consider include opioidrestrictions to manage chronic pain for non-cancerpatients and state bans on conversion “therapy” for sex-ual orientation or gender identity.REFERENCESArkansas Save Adolescents from Experimentation Act. 2021.H.R. 1570, 93rd Gen. Assemb., Reg. Sess.Cervantes, L., W. Mundo, and N. R. Powe. 2019. The statusof provision of standard outpatient dialysis for USundocumented immigrants with ESKD. Clinical Journalof the American Society of Nephrology 14 (8): 1258–60.doi:10.2215/CJN.03460319.Child Abuse Amendments of 1984, Pub. L. 98-457, 98 Stat.1749.Dickens, B. M. 2014. The right to conscience. In AbortionLaw in Transnational Perspective: Cases andControversies, ed. R. J. Cook, J. N. Erdman, and B. M.Dickens, 210–38. Philadelphia, PA: University ofPennsylvania Press.Joffe, C. E. 1995. Doctors of Conscience: The Struggle toProvide Abortion Before and After Roe v. Wade. Boston,MA: Beacon Press.Morris v. Centura Health Corp. 2019. No. 2019-CV-31980(Arapahoe County District Court, Colorado).People v. Brown. 2001. 109Cal.Rptr.2d 879 (Cal. Ct. App.).People v. Kevorkian. 1991. No. 90-390963-AZ (Mich. Cir.Ct.), 119–20.Texas Heartbeat Act. 2021. S. 8, 87th Leg.Wicclair, M.R. 2009. Negative and positive claims of con-science. Cambridge Quarterly of Healthcare Ethics 18(1):14–22. doi:10.1017/S096318010809004X.THE AMERICAN JOURNAL OF BIOETHICS2021, VOL. 21, NO. 8, 74–76https://doi.org/10.1080/15265161.2021.1940362OPEN PEER COMMENTARIESDoes Medicine Need to Accommodate Positive Conscientious Objections toMorally Self-Correct?Eric J. Kim and Kyle FergusonNYU Grossman School of MedicineThe controversy around the accommodation of con-scientious objections (COs) in medicine persists, espe-cially for such contentious services as abortions. COs aretypically considered in their negative form—that is, whendoctors refuse to perform a legal and medically indicatedservice for moral reasons. However, the recent attemptsby several states to pass “heartbeat” bills (Lai 2019),which would prohibit the abortion of embryos withheartbeats, raise the question of whether positive COsshould also be accommodated if some types of abortionsare once again made illegal. By positive COs, we refer todoctors who insist on performing a medically indicatedbut illegal service for moral reasons.In “Unjustified Asymmetry,” Fritz (2021) observesthat there has been little discussion about positive-COaccommodations and argues that the disparate treat-ments of negative and positive COs are unjustified.Indeed, Fritz claims, “whatever criteria justify protect-ing negative appeals to conscience regarding abortionalso justify protecting positive appeals regardingabortion” (47). Fritz focuses on Wicclair’s appeal tointegrity argument: Refusals to perform abortions forCONTACT Eric J. Kim erickim213@gmail.com NYU Grossman School of Medicine, New York, NY, USA 2021 Taylor & Francis Group, LLC74 OPEN PEER COMMENTARIESmoral reasons should be accommodated becauseintegrity is intrinsically valuable, and because its losscan lead to significant moral distress and deteriorationof moral character (Wicclair 2011, 25–27). Fritz rea-sons that because providers may feel just as morallyconvicted to perform medically indicated abortions,their integrity may similarly be jeopardized by theprohibition of abortions. Moreover, he claims that anyburdens that may arise from positive-CO accommoda-tions would be no more than those arising from nega-tive-CO accommodations. Thus, Fritz concludes, it isinconsistent to accommodate negative COs while pro-hibiting positive COs.Wicclair’s integrity-based justification of negative-COaccommodations is important and well known.However, Wicclair exhibits the same tendency as manyothers who offer reasons for accommodating COs inmedicine—namely, framing the question and seeking itsanswer at the individual level. These bioethicists fixateon features like personal moral integrity, individual lib-erty, or private virtues, and they go on to argue thatthose person-sized goods are so significant that the pro-fession must accommodate them.We think they are looking in the wrong place. Webelieve the most compelling reasons to accommodateCOs in medicine are found not at the level of individualobjectors but rather at the level of whole systems.Under our view, CO accommodations are a system-levelor institution-sized design feature that is necessary forpreserving the profession’s ability to morally self-correct.By protecting members who object to medicine’s poten-tially unethical positions, policies, and practices, theprofession remains reformable from within.We limit justifiable accommodations to what wecall Nature of Medicine COs (NoMCOs), in whichdoctors refuse to provide a service because theybelieve it is against the nature of medicine and itsethic such that no doctor qua doctor should provideit. For example, a doctor who refuses to performabortions because she believes it is against the natureof medicine to end or assist in ending any human lifewould be performing a NoMCO. On the other hand,a doctor who refuses to perform abortions in virtue ofher idiosyncratic moral beliefs (religious or otherwise)that she would either not universalize to all doctors ornot commit herself to qua doctor is not makinga NoMCO.Our position is based on what we call the ReformArgument (Kim and Ferguson, forthcoming). Here isa distilled version:1. The medical profession should be epistemicallyhumble and self-critical about potentially uneth-ical policies so that it can morally self-correctwhen necessary.2. NoMCOs criticize potentially unethical policies inan appropriately universalizable manner and fromthe relevant perspective.3. Policymakers give the greatest consideration tothose who are most directly impacted by theirdecisions—in this case, patients and active doctorsin the relevant specialties.4. Without NoMCO accommodations, objectingdoctors would likely switch specialties or leave theprofession altogether.5. Without NoMCO accommodations, policymakerswould give less consideration to objections to cur-rent policies. [3, 4]6. Therefore, the medical profession should accom-modate NoMCOs to preserve its ability to morallyself-correct. [1, 2, 5]The Reform Argument departs from traditionaldefenses of CO accommodations because of its sys-tem-level approach. It is therefore worthwhile to con-sider how our argument might apply to positive COsand whether Fritz is correct about the allegedly unjus-tified asymmetry between negative- and positive-COaccommodations.It does seem that positive COs can meet theNoMCO criteria, for a doctor can reasonably judgethat an action, despite its illegality, is one that anydoctor qua doctor should perform. But according tothe Reform Argument, NoMCO status is necessarybut not sufficient for warranted accommodation.What is missing is a story about how positive-COaccommodations contribute to reformability.A key feature of the Reform Argument is that nega-tive-CO accommodations are necessary to maintain themedical profession’s reformability: A medical professionthat fails to accommodate NoMCOs is thereby less ableto morally self-correct. Just as science achieves its statusas a “self-correcting enterprise” by making any of itsclaims revisable (Sellars 1963, 170), and just as socialand intellectual progress remain possible by protectingfreedom of expression and ensuring the right conditionsof discussion (Mill 1859), medicine’s capacity for moralself-correction requires the accommodation ofNoMCOs. But does this also, as Fritz would suggest,apply to positive COs? Would positive-CO accommoda-tions also be necessary to preserving reformability?THE AMERICAN JOURNAL OF BIOETHICS 75Consider what would happen if positive-COaccommodations were not in place. Some doctorswould continue to provide the illegal service in ques-tion when medically indicated and requested by acompetent patient. Those objectors would be punishedfor their illicit activity; consequences would rangefrom a financial fee or professional censure to therevoking of their medical licenses or even imprison-ment. The more severe punishments would removethose objectors from the medical profession, and eventhe less severe punishments might push some of thoseobjectors to switch specialties or to leave the profes-sion altogether. Thus, the objectors might lose stand-ing and receive less consideration from policymakersas per the Reform Argument. From this perspective,the medical profession may need to accommodatepositive COs to preserve reformability.What of the doctors who wish to provide the illegalservice but ultimately decide to obey the law? Doctorswho find abortions morally repulsive can avoid moralinjury and burnout by leaving their specialty—andthereby avoid performing abortions—but those who feelthat distress due to the inability to perform abortionswould be no better off if they were to leave their specialty.Thus, while Wicclair’s individual integrity-based defensewould apply to such objectors, the Reform Argumentdoes not justify accommodating their COs.So, the Reform Argument might justify positive-COaccommodations for the sake of protecting objectorswho would be willing to perform the service evenillicitly. However, it does not apply to those objectorswho would obey the law and refrain from providingthe illegal service since their moral injury and burnoutwould not undermine the profession’s ability to mor-ally self-correct. Thus, the Reform Argument justifiespositive-CO accommodations to a lesser extent thannegative-CO accommodations. So, pace Fritz, at leastsome asymmetry is justified.However, it might be that a more thoroughgoingasymmetry is justified from another perspective. As Fritzhas framed the issue, CO in medicine is fundamentally aquestion about the law—namely, conscience clauses inlegislation. But an alternative framing focuses on themedical profession rather than the state. From this per-spective, the central question is: Should the medical pro-fession accommodate its members who conscientiouslydeviate from its norms? Here, the answer is not to befound in how lawmakers or voters force the profession’shands, but rather in how the profession decides to governitself. The Reform Argument maintains that the profes-sion should design itself—not that the society shouldgovern the profession—in such a way that preserves itscapacity for moral self-correction. From this perspective,negative-CO accommodations are something the profes-sion can autonomously decide and implement, but posi-tive-CO accommodations are not. The profession cannotdetermine whether the state will enforce its laws (namely,the laws one breaks when performing an act of positiveCO); it lacks the power and authority to unilaterallyaccommodate positive COs. Thus, the asymmetry is abso-lute and not arbitrarily so.This is not to say that positive COs are morallyworse than negative COs, which would, as Fritzobserves, beg the question. Rather, it is to say that theprofession is a community within a community, andnot all communities are alike. Fritz writes, “it isimportant to emphasize that granting exemptions forHCPs with conscience-based objections is itself acommunity-level decision. As a community, we decide…” (55). We agree. But the issue changes shapedepending on which community perspective oneadopts. From within the medical-profession commu-nity, positive-CO accommodations are off limits eventhough negative-CO accommodations are on the table.So, even if Fritz is right that the asymmetry is unjusti-fied from the external point of view, the asymmetry isinevitable from within.ORCIDEric J. Kim http://orcid.org/0000-0001-8032-2090Kyle Ferguson http://orcid.org/0000-0001-9285-4975REFERENCESFritz, K. G. 2021. Unjustified asymmetry: Positive claims ofconscience and heartbeat bills. The American Journal ofBioethics 21 (8):46–59. doi:10.1080/15265161.2020.1863514.Kim, E. J., and K. Ferguson. Forthcoming. Conscientiousobjections, the nature of medicine, and the need forreformability. Bioethics.Lai, K. K. R. 2019. “Abortion bans: 9 States have passedbills to limit the procedure this year.” The New YorkTimes, May 15, 2019, sec. U.S. https://www.nytimes.com/interactive/2019/us/abortion-laws-states.html.Mill, J. S. 1859. Of thought and discussion. In On liberty.London: Penguin Classics.Sellars, W. 1963. Empiricism and the philosophy of mind.In Science, perception and reality. New York: HumanitiesPress.Wicclair, M. R. 2011. Conscientious objection in health care:An ethical analysis. Cambridge: Cambridge UniversityPress.76 OPEN PEER COMMENTARIES

Does Medicine Need to Accommodate Positive Conscientious Objections to Morally Self-Correct?

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Does Medicine Need to Accommodate Positive Conscientious Objections to Morally Self-Correct?

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