Five Observations About Conscientious Objection in Health Care

This connects a little bit to a post not long ago, by my Canadian bioethics colleague Udo Schuklenk on his Ethx Blog, on the topic of conscientious objection in health care. The reason why I have started to think about this is that my country's rapidly shrinking Christian Democrat party has just elected itself a new leader – Ebba Busch Thor (see image to the left) – and the echo of the affirmative acclamation at the party's national congress had barely silenced before she made her first move to plug the many leaks of voters, members and sympathisers by declaring that health care staff should be given the legal right to conscientiously object to participate in the performance of legal abortion. This follows attempts in two public health care counties earlier this and the last year, initiated by single midwifes backed up by "pro-life" lobby organisations, to have the counties grant them such a legal right. Busch's Thor's move is obviously tagging onto these initiatives in an attempt to stop the flight of fundamentalist Christians from the party and mark a shift from the former party leaders more liberal and secular version of Christian Democrat ideology (whatever that is). At the same time, in both of the cases, the motions on behalf of the midwifes were denied by the county councils, albeit in one of them after some brief shuffling. In addition health care professional organisations (including the union of midwifes) have publicly stood up strongly against this sort of idea (see here, here, here), among these the Delegation for medical ethics of the Swedish Society of Medicine, of which I am an appointed member. More precisely, this delegation dismissed generally the notion of a right to conscientious objection for health care staff, no matter the procedure or background motivation. On top of that, given the very strong support of the liberal-feminist Swedish abortion legislation (in place since 1975 and giving all pregnant women a positive right to have an abortion performed by public health care, at barely no cost, up to the end of the 18th week of gestation, no questions asked), while Busch Thor's move might lure some of the lost fundamentalists back into the Christian Democrat pen, it will probably scare off even more of the more liberal and secular minded of the party's supporters. So far so good.

However, when discussing this issue with people in general and colleagues within both ethics and health care, and both in Sweden and internationally, I have encountered five very common confusions, which I will set out briefly in this post. If you feel yourself attracted to the notion of a legal right to conscientious objection, you may want to consider these before settling on a more precise opinion on the matter.

First, as in the case of Busch Thor's suggestion, there often seems to be an assumption that a legal right to refuse performing professional duties can be reserved for only some such duties and some professions. However, given basic principles of equality before the law, legal security and rule of law, this is an impossibility. I'm here assuming a situation where employers are granted a basic (civil) legal right to direct the content and form of the work supposed to be carried out by employees (as long as it is not illegal through some other statute), something that is the case in all jurisdictions I know of. This basic general principle implies, that if one category of employees are to be granted an exemption from the employee (civil) legal duty to follow employer instructions (or resign or be dismissed), the same exemption will have to hold for all other employees of other employers as well, as long as no special reasons tell otherwise. The same reasoning can be repeated for the sorts of tasks involved in a profession. In effect, if there is to be a legal right to conscientious objection by health care staff, this will by default have to affect all staff and all tasks, and it would moreover be a reason to grant similar rights to other professions. This, then, is the level at which any discussion of legal rights to conscientious objection will have to be conducted. For sure, there may then be arguments advanced to restrict the right to certain areas, but you cannot start the discussion by randomly cherry picking some professional area or task to discuss in isolation. The stand taken by the Delegation for medical ethics referred to above is based on this observation: you cannot just discuss conscientious objection in relation to an isolated health care procedure and profession, you have (at least) to discuss it regarding health care in general, including all procedures and categories of staff.

Second, there seems to be a repeated mistaken perception that if a legal right to conscientious objection is denied, the potential conscientious objectors will automatically be legally forced to perform the tasks to which they conscientiously object. Often this confusion is multi layered as it is cloaked in the form of an accusation of infringing the freedom of religion (by forcing people to act against their own faith). However, this is false in two ways. The fact that an employee doesn't have the legal right to decide what tasks his or her employment are to direct him or her to perform, is perfectly compatible with the fact that an employer exercises its right by finding room for the employee in the organisation where he or she will not be faced with the task to which he or she objects. Such accommodations are continuously and routinely arranged throughout the Swedish health care system, as it is – I presume – in other professional areas and jurisdictions. If that is not practically possible, most professional areas present opportunities of finding alternative employment more fitting to one's conscience. And if that proves difficult, there are a great many other areas to explore on the work market. That is, the conscientiously objecting employee have several alternatives to explore, so he or she is not forced in that way. Moreover, the fact that several of these alternatives may mean that he or she may have to change her work situation (including employer, pay, and so on) is no reason to regard his or her liberty to be restricted, as it is the responsibility of the employee his- or herself to have accepted employment where he or she may have to perform tasks to which he or she conscientiously object. With this falls also the claim that denial of a legal right to conscientious objection infringes religious freedom – the believer is and continues to be free to seek and obtain whatever work he or she chooses and no one has a right to stop that, but that does not imply that anyone has a duty to provide work accommodating anyone else's religious (or other) beliefs.

Third, to be denied a legal right to conscientious objection is perfectly compatible with the claim that it may be morally permissible or even required by a professional to refuse employer instructions – thus washing one's hand off whatever evil deed is being suggested. The particular confusion that this is not the case is very common among health care staff, not least doctors, in my experience. Presented with the issue, they often object that it is a frightening thought that one would have no right to refuse or even sabotage immoral instructions from employers – usually the case of Nazi Germany and recent examples of torture is brought up as examples. This, however, is to confuse two legal issues with each other and, in addition, these two with two (also confused) moral issues. Suppose, first, that your employer orders you to do something that is immoral and also illegal. In this case, you have a right to refuse, as the boundary of the employer's right to direct the content and form of the work has been overstepped – thus, you need no legal right to conscientious objection. Now, change the example, and assume that the immoral thing you are ordered to do is, in fact, legal. In this case, the employer's default right to order you to do this thing will hold, and you will be legally bound to comply (or find alternative solutions as indicated above under confusion no. 2). This, however, is perfectly compatible with the claim that you are morally permitted – indeed required! – to refuse the order, or, as said, even sabotage its execution. That is, you have a moral right to refuse a legal obligation, and this you will continue to have with or without a legal right to conscientious objection. In addition, denying such a legal right is also compatible with the claim that the legal provision of the ordering of the immoral task is morally unjustified, so the fact that you lack a legal right to conscientious objection will not undermine whatever moral reasons there are against the law (legally) obligating you to do it either. At the same time, both these moral reasons are, of course, separate – your reason to refuse the order is a reason for that, but the reason to have the law changed is not necessarily a reason for the former. My impression is that also this distinction is left unnoticed in debates on conscientious objection, and that it is often assumed that if there are moral reasons for changing a law, there is a moral reason to refuse its provisions. This, however, is an elementary fallacy. In any case – lack of a legal right to conscientious objection will not in any way undermine the moral reasons for or against single professional tasks or legal statutes relating to these.

Fourth, the moral right to refuse to do immoral things cannot be equated with a moral right to follow one's conscience. This is otherwise a surprisingly common confusion among religious advocates of the legal right to conscientious objection. What seems to be assumed is that a person's conscience will only tell this person certain things – in particular the moral messages embraced by the advocate of conscientious objection in question. But of course – and who should be more aware this than a devout follower of the Christian faith? – a person's conscience may relay messages from whatever source – spiritual or otherwise. Ergo, there is no moral right to follow one's conscience (and this seems to hold for whatever ethical theory is assumed). It may thus be suggested that many supporters of legal conscientious objection rights have simply confused these, with their perceived moral right to act on the morality they themselves embrace (a perception which may, of course, be mistaken).

Fifth, and finally, if there is a legal right to conscientious objection, this right will thus not be restricted to certain contents of consciences. This simple point seems to be almost always overlooked by conscientious objection advocates, and was made in the recent Swedish debate, by a medical doctor who satirically, in response to Busch Thor's declaration, went public to declare that he would henceforth refuse to treat religious people. Perhaps a bit ham-handed, this provocative move still illustrates one of the most basic problems with the idea of a legal right to conscientious objection: such a right cannot be restricted to any particular conscience. While it may provide a legal right for doctors and nurses honouring their professional ethos to refuse, e.g., participating in torture – should this have been made legal – or the right of those who find that objectionable to refuse participating in legalised assisted dying procedures or abortions, at the other end of the scale it would equally protect the rights of the vile, hateful racists or misogynist to refuse to assist in, e.g., the care of Jews or Roma people or "immigrants", or disabled, or others that such a person's conscience may tell him or her should not be included in public health care services. By implication, we may also imagine a hateful anti-religious doctor, who would be convinced that religious people should be denied privileges extended to others, and this person's right to execute this denial would then be protected by law – as would an imagined Josef Mengele leaving disabled babies to perish and die in the maternity ward where he works. So, while there is an often repeated rhetoric suggesting that a lack of a legal right to conscientious objection will open the door for Nazis and similar horrid figures to reign freely (dealt with above in confusion no. 3), it is in fact the very existence of such a legal right that opens this door – if there is a "Nazi argument" on this topic, it speaks against, not for, legal conscientious objection rights. On a grander scale, this illustrates, of course, that the upshot of a legal right to conscientious objection is nothing less than potential anarchy and arbitrariness – again the very opposite of what is required of the basic principles of the rule of law and legal security.

Luckily, for anyone conscientiously objecting to whatever task included in his or her work description, there are many easy solutions: Talk to your employer about changing role and, if that doesn't help, find a job where the task you object to is not on the menu. But first of all, do not take jobs where there are tasks to which you conscientiously object!

Some Further Developments on Brian Leiter and the PGR, following the September Statement and the Advisory Board Letter that Urges his Resignation

This is following up on the events a week or so back, which resulted in two posts here and here. A string of unprovoked* harassments, bullying and threats towards various academic colleagues online by Brian Leiter, famous philosophy blogger and coordinator of the Philosophical Gourmet Report (a sort of home-cooked, informal ranking of English-speaking philosophy departments based on mutual appraisal or lack of such by said departements), finally led to a storm of protests. These were especially strong in support of Leiter's latest victim, Carrie Ichikawa Jenkins and documented in the September Statement (to date signed by 613 academic philosophers in North America and overseas and called a "smear campaign" by Leiter himself). This letter urges academic philosophers to recline serving the PGR with any type of input as long as it is linked to Leiter. As a subsequent reaction, 30 out of 56 of the PGR's advisory board – basically what makes the PGR radiate any sort of academic authority in the first place – wrote to Leiter, asking him to hand over the management of the PGR to new regime. A more detailed update to this request was sent on October 1, and today, Leiter posted a reply on his blog, where the essential info is this:

two of the options mentioned in the letter, both involving my immediate departure from the PGR, were unacceptable:  I have already invested hundreds of hours in correcting and updating the spread sheet with more than 550 evaluators, as well as the spread sheet containing more than one hundred faculty listings.  Any report based on that work is a report I have at least co-edited.

I have also informed the Board that I am still considering the third proposal, namely, proceeding with the 2014 PGR (with Brit Brogaard as co-editor) while simultaenously committing to turn over any future PGR to others.  I am also considering two other possibilities:  (4) proceeding with the 2014 PGR (again, obviously, with Brit as co-editor) and postponing any decisions about the future of the PGR until after the 2014 PGR and after the current controversy; or (5) simply discontinuing the PGR altogether.

My analysis: Leiter dares the gang of 30 (thereby daunting the gang of 613) to a game of chicken, where the opening play is "I do whatever I want with my baby". Possibly he does, the question is who actually cares about the baby in the long run, when he has had it drained of fat, so to speak. To be frank, although regularly having students and post docs who gravitate towards seeking foreign contacts, careers or training opportunities across the anglophone philosophy world, I never did, as my Canadian bioethics colleague Udo Schuklenk has made clear that he doesn't – classifying the PGR as a "gossip document", where "people affiliated with pre-selected programs evaluate the quality of people in pre-selected programs based on ... well, apparently, whatever criteria they choose to evaluate quality". To find good departments is easy, you look up what people publish in the field you're interested in, read it and assess it and check how it's flying in the collegial discussion, and possibly chart a bit how the seminar programs look like and what the funding situation looks like – easy enough these days.

I did and do, however, care lots about the horribly bad example set by Leiter's behaviour towards colleagues – in particular, women colleagues, as it seems – and the effects that this has on these persons. That was reason enough for me to sign the September Statement. Whether or not Leiter runs his PGR baby into the ground is not really any concern of mine, although I do think, as Udo seems to do, that it might actually do the English-speaking academic philosophy world a bit of good to get rid of at least one layer of the many layers of the mutual academic back-scratching club.

*) Addition on October 6, 2014: As can be seen by the comments below, Brian Leiter thinks that the word "unprovoked" here (as in my earlier posts) is factually incorrect. In light of the evidence he has provided and the further comments following Leiter's two posts below, I have nevertheless decided to let it stay, but with the following addendum: 

It is clear to me that BL felt strongly provoked by some complex process of events around the PGR and that he at the time, for some reason, saw Carrie Jenkin's blog post as part of what he  perceived as a "smear campaign" against him. Taking, BL's word for it, he later received information that he himself was among the philosophers, whose behaviour Jenkins distanced herself from in her post. However, to my eyes, this just confirms what I have written. The fact that someone is filled with strong negative and resenting affect, caused by some phenomenon, does not make that phenomenon into a provocation. The fact that Leiter in retrospect allegedly finds some information that, had he known it at the time, would have made the phenomenon into a provocation doesn't change this situation. But, I'd go some steps in Brian Leiter's direction and make the assumption that indeed Carrie Jenkin's had Leiter in mind as one of the philosophers she thought about as exhibiting unprofessional behaviour, and that Leiter at the time knew this to be the case. Does that in any way constitute sensible cause to do what Brian Leiter did? I cannot see how it would under any minimally reasonable standard of professional academic conduct. Thus, even then, no provocation for the actual actions of Leiter would exist – this is my position. I'm aware that Brian Leiter holds a different position on this matter, but that in itself is no reason for me to change my mind.

Old AJOB Rut re. Prenatal Dex Picks up New Steam as Undisclosed Double Loyalties and Dependencies of Now Editor Skip Nelson are Suggested

Amended 2014-04-18: see bottom of this post!

I'm sure several readers remember a long series of posts across 2011-12, connected to a series of internal troubles in the management of the American Journal of Bioethics. One of the roots of all that mess was a controversy that eventually led to the resignation of Hilde Lindemann from the AJOB editorial board in protests of its managerial operations, followed by other weighty ones later by, e.g. Udo Schuklenk and John Lantos. Eventually, after much external pressure, following a less than elegantly handled stepping over to private business by then editor-in-chief, Glenn McGee (later to become CEO of the now defunct stem cell banking, cosmetics and therapeutic business RNL Europe), the drop-out of the AJOB operation of both him and his wife Summer Johnson McGee, who had initially been appointed to advance to co-editor with the new EiC appointed to succeed McGee.

The last post with any substance out of this mess was this one, and the entire series is found here.

The affair leading to the resignation of Lindemann connected to a critical scrutiny, and eventual letter to the FDA, signed by a large number of bioethicists, regarding some unresearched, non-evidence based, experimental off-label prenatal drug treatment at the Mount Sinai hospital with regard to congenital adrenal hyperplasia. This led to a long series of complicated controversies involving AJOB, later leading up to the developments summarised above, and one of those concerned the possible conflict of interests of several centrally placed AJOB managerial figures. Among those involved was Robert “Skip” Nelson, now editor-in-chief of the AJOB Empirical Bioethics journal, at the time ethicist linked to the FDA (he still is, as a matter of fact), who sent a letter to the Office for Human Research Protections on the Prenatal Dex case, as it came to be known, clearing the accused doctor of having broken any FDA regulations. Now it is reported that, apparently, Nelson at the same time had close and live ties, to AJOB and the people in the management who were deeply involved in one side of the controversy. That is, it is argued in a recent post by Alice Dreger and Ellen K Feder (who belong clearly to the other side, it must be added), one of the prime expert sources had hidden loyalties and dependencies that remained undisclosed and is now holding a gallant EiC title in the AJOB family of journals.

The whole story and argument is told much better than I ever could by Alice Dreger and Ellen K. Feder themselves at the superb Canadian Impact Ethics blog.

Amendment:
Skip Nelson contacted me personally after posting the first version of this report, and made clear that he finds nothing new in what is described by Dreger and Feder, that no payments to him from AJOB have ever been involved in his service as EiC, that he performs this job as part of his FDA assignment, and that what he claimed in his letter to the OHRP regarding Prenatal Dex remains true (Dreger's and Feder's view on that is set out here). Nelson also told me that he has no plan to respond publicly to Dreger and Feder. This post has been amended in the light of that in a few places above.

This Was Philosophical Comment 2013

Time once again to make a bit of a summary for this blog during a year which will soon end – last year's summary is here.

The trend mentioned last year of a seemingly (after my recovery from illness) continuously increasing popularity (in terms of reads) seems this year to have initially continued and then leveled out somewhat after last year's extremely positive surge. The monthly figures have in 2013 been residing rather steadily between over 6 000 and over 9 000 reads, with 9 549 as the top figure for September and today the total number of reads ever passed 188 000. There will, however, be a notable dip in reads for this the last month of the year, as with a few days left the figure is still only at slightly more than 3 600 (click the image to see a larger version).

I have also noticed a tendency of a less secured minimum number of monthly hits during autumn, although I've had a few posts that have attracted more than the average attention to make for good monthly figures in the end. A main explanatory factor for this development, as it seems, is that Blogger has chosen to move its Blogs of Note page, where Philosophical Comment has been featured and thus widely displayed at the top since August 2012, into archive mode, favouring instead the increasing integration with the Google+ platform and its blog function. During the year, I've also – albeit with some reluctance due to my dislike of the increasing dominance of Google and what that means to make for a less dynamically evolving internet – finally chosen to integrate Philosophical Comment with Google+, although much remains to be done on that front to have impact on read numbers. I have to say, I do prefer to have the quality and attraction of posts to determine readership over strategic marketing tricks like these. But I can't deny the world around me, so here we are, we'll see next year if I managed to conjure the energy to maximize exposure in this new environment, or found the time and inspiration to post more regularly.

So, over to the posts themselves. This is the all time high statistics of the blog so far (click the image to see a larger version):

Compared to last year, some significant changes have occurred. First, after several years at the top, the WikiLeaks piece is now third, with my musings over various less impressive sides of the new online landscape of academic publishing is at the top. There are still a few posts connecting to my comments on the many strange moves connecting the the management of the American Journal of Bioethics up there, but as that affair is now a thing of the past, I expect these to gradually be pushed down and eventually off the list by fresher and more relevant material. A few posts that made last year's all time high list have been so pushed off, to be replaced this year by a rather sarcastic piece commenting on a scandalous and eventually officially declared unlawful police registry of roma people in south Sweden, a lament over my academic colleague Adrienne Ash, who sadly passed away this year, a brief pointer to a post by my colleague Udo Schuklenk on his Ethx Blog regarding how to reason around the idea of a military intervention in Syria and, finally, a cross post and referral to a nicely indexed eminent series of posts on moral responsibility, free will and such matters by John Danaher on his Philosophical Disquisitions blog. Not that John really needs the assistance, but I'm nevertheless happy to have been able to thus helped a few people find their way to one of the better philosophy blogs around. Off the list fell, most notably, my comment on how to assess the possible criminal insanity of Norwegian mass murderer Anders Behring Breivik. It may also be noted that while last year it took about 650 reads to make the list, a post this year needs to get above 840, another indication that the leveling out of reads numbers mentioned above has more to do with a less stable minimum than decreased numbers of the top hits of this blog.

Finally, as tradition dictates, a look at the geographic source of the total readership (click the image to see a larger version):

 

The USA readership is increasing its dominance further, and in all the main reader of Philosophical Comment continues to be anglophone or European, although China has this year made the top ten country of reader list. The full span of the geographic home of readers, however, is better displayed by this image from the ClustrMap function attached to this blog (where larger red markings indicate a larger concentrated number of unique readers of the blog – click the image to see a larger version):

This function displays statistics starting later than Blogger's own, and also counts only unique hits on the entire site (thus not number of readers of individual posts or number of reads). As you can see, Philosophical Comment has a notable readership also in South America, Asia and, albeit still weaker, throughout Africa. Go here to inspect the numerical relations in more detail!

So, that's it. As usual, I wish to thank all you people who read Philosophical Comment, who follow the blog in the various ways available, who comment on the posts, like them on Facebook and other places, +-click, tweet, cross-post and refer to them in other ways. A happy new year and a very best 2014 to you all!