Should women’s healthcare needs take priority over doctors’ beliefs?

Jennie Bristow, editor of Abortion Review, comments on an important new report on conscience and refusal clauses.

Health Care Refusals: Undermining Quality Care for Women, a report recently published by the US National Health Law Program’s Standards of Care Project examines the apparent proliferation of health care refusals based on ‘ideological and political justifications’, and their impact upon the health care received by women in the United States. (1)

The report notes that the ‘basic principles’ of modern health care delivery are ‘evidence-based practice, patient centeredness, and prevention’ – which, taken together, ensure quality care. The authors acknowledge that ‘these principles may be compromised by a range of structural factors such as lack of insurance, restricted geographic access, cost, language barriers, and immigration status’, and argue that current political movements are attempting to address these structural barriers. The recent debates over Barack Obama’s healthcare reform bill indicate that the high levels of sensitivity within the USA to the existing inequalities in access to healthcare, and the degree of political will that exists to address some of these.

However, the National Health Law Program argues that unlike these structural factors, ‘ideological restrictions are not being addressed in the current health care debate; they will not be resolved by current reform proposals; and, in fact, there is a serious risk that these restrictions will be institutionalised without careful evaluation of their public health impact’. Consequently, the report evaluates the potential impact on access to health care of ‘those health care refusals and denials of care rooted in political ideology or institutional or personal religious objections’.

The use of refusal clauses, or ‘conscience clauses’, to limit women’s access to reproductive healthcare is a problem that has gained increasing attention over the past few years. In the USA, it has been widely noted that the concept of ‘conscientious objection’ has expanded beyond its original intention – to prevent doctors from having to perform procedures, such as abortions, that conflict with their personal conscience. Now ‘conscience’ has been appropriated as a basis for refusal clauses by entire institutions, such as Catholic hospitals, and applied to a wider range of healthcare procedures, for example pharmacists refusing to fill prescriptions for contraception or emergency contraception, and doctors refusing to give fertility treatment.

Jon O’Brien, president of Catholics for Choice, has made a powerful argument against the trend for institutions to adopt the notion of ‘conscience’ as the basis for the practice of conscientious objections. Such institutions have, he states, ‘clearly gone beyond the bounds of exercising a reasonable conscience objection. Instead they are using the rhetoric of conscience to impose their morality on individuals, Catholic and non-Catholic alike, and depriving them of their right to conscience, as well as their right to a timely and complete medical service.’ (2)

The problem of ‘institutional’ conscientious objection has been less marked in the UK. But here too there have been issues raised in relation to pharmacists refusing to issue patients with medication prescribed by their doctors, and questions raised about the extent to which personal or religious beliefs may be accorded too much protection by the healthcare profession, when this has major consequences for the patient – such as unplanned pregnancy, resulting from the inability to access emergency contraception.

The report Health Care Refusals: Undermining Quality Care for Women provides a useful overview of the uses and possible abuses of refusal clauses in the USA, illustrated with some chilling examples of the negative health consequences that have faced women unable to access abortion or emergency contraception as a result. However, in challenging the use of conscience and refusal clauses, the report adopts a potentially difficult position, of prioritising women’s ‘right to health’ over and above judgements made by healthcare professionals on the basis of conscience and morality.

The report situates the growth of refusal clauses in the context of ‘political trends that have favoured ideology over science’. Its core argument is that medical treatment should follow standards based on scientific evidence about what is best for a patient’s health, and the principle that a patient should make their own decisions based on a process of ‘informed consent’. This is counterpoised to the ‘paternalistic’ model based on doctors’ judgements, which, in the view of the report’s authors, is what gives rise to the problematic use of refusal clauses.

The report’s authors explain their argument as follows:

‘Analyses of health care denials traditionally construct the issue as a conflict of rights within the provider-patient relationship: the health care provider’s right to exercise individual conscience vs. the patient’s right to exercise her autonomy. The question becomes how best to balance the rights and obligations within the relationship. This framework, while a common starting place, fails to attend to the special context in which the debate is occurring: health care. The moral contest framework fundamentally obscures the impact on patients’ health.’

They go on to explain that ‘health care is not like other fields’. The field is highly regulated, to protect patients from harm caused by untrained practitioners, and ‘the provider-patient relationship is inherently unequal’. In this context, the authors argue, the problem with focusing on ‘philosophical issues of balancing patients’ rights and providers’ beliefs’ is that this framing ‘fails to address the real life consequences refusals and denials of care have for patient health.’ They explain: 

‘Refocusing on medical quality and standards of care prioritises a patient’s health over the provider’s personal beliefs and raises the visibility of institutional policies that prohibit health professionals from providing certain care, even when they themselves do not object to such care.’

In other words, the authors seem to be arguing that the use of conscience clauses is problematic for two key reasons. Firstly, because of the inequality of the doctor-patient relationship, such clauses allow for an abuse of the clinician’s power, because ultimately it is his decision that will affect the health care that his patient can access. Secondly, because the consequences of refusing to treat a woman by, for example, performing an abortion when carrying the pregnancy to term will adversely affect her health, are grave and borne by the woman alone, her right to healthcare should trump the clinician’s right to exercise his conscience in relation to refusing treatment.

These are compelling arguments, and should certainly act as a warning against the promiscuous use of conscience or refusal clauses. But such arguments raise some difficult questions about how far it is acceptable to pose adherence scientific standards, or to patients’ wishes, as an approach that should necessarily take priority over a doctor’s individual conscience or even a healthcare institution’s value system.

Medicine is not a technical system, but a human practice. While science clearly provides the underpinning to medical practice, and standards and protocols are developed on the basis of clinical research, doctors – like their patients – are individuals, with their particular skills, attitudes and beliefs. To deny doctors the right to follow their consciences in relation to performing certain procedures, such as abortion or fertility treatment, would sideline this crucial human element of medicine. The goal of better health outcomes for women, and support for women’s choices, is a worthy one; but we do have to ask whether that justifies comprising a doctor’s personal sense of integrity and morality, and what might be lost by pushing doctors to practise against their core beliefs.

A similar argument could be made in relation to forcing a woman to have a procedure such as an abortion or a blood transfusion against her will, because it is the best thing for her health. In such cases, it is generally understood that scientific evidence is clear on the best course of action, and that a woman who refuses to follow this course of action may well die – but her ability to make that decision according to her own conscience is more critical than the fact of keeping her alive.

These are real-life situations in which the ‘philosophical’ discussions of rights and beliefs become crucial. To demand that a woman must obey the law of science when it comes to decisions about her own body would be received by many as uncomfortable. Yet this is the logical consequence of accepting that doctors should obey scientific evidence about what is best for health, even when it flies in the face of their own consciences. If it is accepted that scientific evidence operates in a different, higher, realm to human medicine, both the doctor and the patient find their autonomy compromised and their judgements impaired.

The use of refusal clauses by entire healthcare institutions, rather than individual doctors, raises a number of questions about women’s ability to access the treatment that they want and need. But again, for those attached to the principles of choice and liberty, there is something unpalatable about a notion that institutions should be somehow required to conduct procedures that run counter to their stated values. It would be unreasonable to expect an abortion clinic to employ a priest, so why would it be reasonable to expect a Catholic hospital to perform abortions?

The proliferation of refusal clauses in healthcare is not a benign development. Women forced to carrying pregnancies to term because they cannot find a doctor, or a healthcare institution, prepared to perform an abortion are denied the ability to control their fertility. In this context it is crucial that they are referred to doctors or institutions who will perform abortions – and reports such as that of the National Health Law Program are extremely valuable in indicating the extent to which referrals do not always happen, with serious consequences for the women affected.

But however frustrating it seems, the way to resolve the issue of doctors and institutions exercising their conscientious objection to abortion, contraception and fertility treatment will not be at the level of enforcing subservience to a scientific evidence base. It will be achieved by continuing to engage with principled debates about autonomy, rights, conscience and morality. If there are too many doctors and hospitals opting out of abortion provision, the onus is on those who support choice to make the moral case for abortion, and highlight the immorality of forcing women to carry unwanted pregnancies to term. 

(1) Health Care Refusals: Undermining Quality Care for Women. National Health Law Program Standards of Care Project, May 2010

(2) ‘Presenting the case for conscience’, by Jon O’Brien, in Abortion Review Special Edition 1: Abortion, Ethics, Conscience and Choice. Download this Special Edition for free here.