New-look Inquisitions want to call doctors in for a little chat

In a world without objective truth, why should governments recognise a right to conscientious objection?

This summer, Canada’s well-known doctor shortage almost got worse. A portion of doctors in Canada’s largest province started scouting for jobs elsewhere, expecting that Ontario would soon require them to violate their conscience. The College of Physicians and Surgeons of Ontario, the licensing body for Ontario doctors, had drafted a policy that required doctors to refer for procedures with which they disagreed on moral or religious grounds.

The public reaction was loud and furious. Religious groups and opinion writers were quick to point out the authoritarian nature of such a policy. But the decisive blow came from within the profession itself: the Ontario Medical Association, the professional organization of Ontario’s doctors, released a scathing condemnation of the policy and openly urged the College to abandon it. The OMA said: “We believe that it should never be professional misconduct for an Ontarian physician to act in accordance with his or her religious or moral beliefs.” 

In the end, the College gave in and enacted a vague and watered-down version of the original draft. The storm passed over. But in the ensuing calm, Ontario doctors still have grave reason for concern. The public debate revealed that the College of Physicians had produced the policy in response to suggestions by the Ontario Human Rights Commission. This notorious organ had indeed provided the College with two detailed submissions which asked the College to adopt the OHRC’s troubled understanding of doctors’ rights and duties.

The OHRC clearly expects doctors to inform patients about all legal treatments, and to refer for these treatments regardless of their moral or religious objections. In their view, a doctor’s “denial of services or refusal to provide a woman with information relating to contraception or abortion… would be discriminatory”. In fact, the OHRC has entirely reconstructed the doctor’s role. It says: “It is the Commission’s position that doctors, as providers of services that are not religious in nature, must essentially ‘check their personal views at the door’ in providing medical care.” So much for conscientious objection.

Any citizen can bring a human rights complaint against any doctor in Ontario, at public expense – and the doctor, who must pay out of pocket for his own defense, can brace for judgment by the OHRC’s new standard. Ontario doctors are not out of the woods. And the fire is spreading. The doctors’ college of Manitoba has indicated plans to model its own policy after the Ontario College’s first draft, and the doctors’ college of Alberta is circulating a new draft policy that may indicate a duty to refer.

Things aren’t heating up only in Canada. In the United States, a fierce debate is being waged about proposed federal regulations that would protect doctors who work in federally funded medical facilities from being forced to violate their conscience. The “Provider Conscience Regulation” issued by the US Department of Health and Human Services is intended to protect doctors who object to abortion or sterilization – some also believe the language could extend to contraception.

Many see this bill as a needed response to the tightening anti-conscience stands of prominent medical organizations like the American College of Obstetricians and Gynecologists. It is also a response to the emergency contraceptive laws that have been passed in 16 states, which require hospitals to provide sexual assault victims with information about emergency contraception and in some cases, to dispense it on demand. In the words of HHS Secretary Mike Leavitt, “Doctors and other health care providers should not be forced to choose between good professional standing and violating their conscience.”

The government of the state of Victoria in Australia may not agree. There, the lower house of parliament has just passed a bill that would require doctors to refer for abortion regardless of their religious or moral objections. If the bill gets through the upper house later this month, Victorian doctors could be stripped of their freedom of conscience by Christmas. Catholic hospitals are considering shutting down their maternity and emergency departments rather than comply with this law. 

Like in Canada, the Australian medical profession is split on this issue. The Royal Australian and New Zealand College of Obstetricians and Gynecologists supports the bill, but the Australian Medical Association has taken a stand against it. In a letter to Victoria’s premier the AMA Victoria president said: “Respect for a conscientious objection is a fundamental principle in our democratic country, and doctors expect that their rights in this regard will be respected, as for any other citizen.”

What are the intellectual roots of this assault on the conscience rights of physicians? Until only a few years ago, the popular opinion of conscience seemed to be favourable. Many proudly appealed to their conscience in using the Pill to prevent overpopulation or to avoid the Vietnam War; while theologians cited their conscience as they developed dissenting teachings. But these days, when conscience comes up in the media, the debate is mostly about whether its exercise should be suppressed. Why has the conscience become unpopular?

One reason may be that objective truth and morality are weakening their foothold on our society. In a world where conscience is believed to reflect only a subjective personal ethics, where an individual’s right and wrong is considered to have no truth value beyond the individual’s own mind, it makes supreme sense to suppress the capricious exercise of arbitrary personal values. Anything else would sink such a radically autonomous world into chaotic anarchy. Social order, in this kind of world, can only be achieved by the uniform enforcement of legally recognized rights.

In the medical field specifically, conscience may also have become more inconvenient because over the past few decades, courts and governments have legalized procedures that many doctors believe to be deeply unethical. The result: an exponential escalation of conflict between the law and doctors’ consciences, and so between patients and doctors. If the only doctor in a small town refuses to prescribe emergency contraception, a woman may well lose her window of opportunity to use it. The law says this contraception is her legal and human right – while from the doctor’s perspective, to prescribe or refer would be to participate in the killing of an innocent human being. This is a zero-sum game: there is no good compromise. Someone’s got to lose – today, it is the doctor (and the embryo).

Finally, doctors may be facing more pressure to comply because their role in society has quietly but dramatically shifted. With the advent of the Pill, abortion and reproductive technologies, doctors have come to play a crucial role in helping millions of people plan and direct their reproductive lives. This is not the traditional role of doctors, who have always been concerned with sickness and disease. The state has now made them the exclusive providers of elective services that are based not on medical need but on personal preferences.

These reproductive services are self-prescribed, meaning that it is the patient who decides whether they are “needed”. The doctor’s expected role is that of a mere technician who administers these services on demand. Since doctors are the only people with a license to provide these services, legal scholars like R. Alta Charo now argue that the medical profession is “a kind of public utility obligated to provide service to all who seek it”. This is not the kind of medicine that many doctors signed up for when they entered medical school.

The irony is that doctors are being subjected to a viewpoint Inquisition by the very society that constantly pays homage to tolerance. That comes as no surprise to many who have already experienced the intolerance of some parts of our society for truly divergent views, especially those that challenge today’s reproductive freedoms. There is still some lip service to the importance of conscience – but in the end it is bulldozed as a necessary sacrifice for the new social agenda.

So much is obvious even from many of the various opinions expressed last week before the President’s College on Bioethics in Washington. This eminent body is now considering the conscience issue, and has just published a number of fascinating presentations on its website. Last week, Dr Ann Lyerly, Chair of the Ethics Committee of the American College of Obstetrics and Gynecology, began her presentation by acknowledging that many people believe in the critical value of a doctor’s conscience, “independent judgment” and “moral integrity” for good medicine, and in the importance of conscience for “democracy, bioethics, humanity”.

But then she went on to address what to her are clearly more important concerns. The first was the health and welfare of the patient. Non-controversial? She described how women’s welfare was reduced when they were denied sterilization during a C-section, or denied emergency contraception after rape. Lyerly’s second concern was “fairness”, which to her meant not placing a “disproportionate burden on disenfranchised women”. Her example: lesbians should not be refused artificial insemination. Lyerly’s final concern was “respect for autonomy”, which she defines as respecting the “bodily dominion” of women by not refusing them certain treatments such as abortion. In her opinion, the freedom of conscience of doctors needs to be “balanced” (read: limited) by these considerations.

The desire to limit doctors’ conscience rights in order to ensure easy access to reproductive services for patients appears to be gaining traction. Even if their conscience rights do not end up limited by law, a number of physicians’ professional and regulatory bodies are being attracted to such policies. Might things get worse before they get better?

One thing is clear: doctors are not the only ones who will have to fight for their conscience rights. We’ve already seen some of the same arguments made about pharmacists, with regard to their right to refuse dispensing the morning-after pill. In Canada, the Ontario Human Rights Commission has also stated that marriage commissioners must “check their personal views at the door” – they are expected to perform gay marriages regardless of personal views about homosexuality. In fact, the Commission seems to believe that all providers of “secular services” have this duty to leave their morality at the doorstep of their workplace.

Secular services… like say, medicine, education, law, and most other areas of ordinary work. If medicine falls, these might just be the next dominoes.

Lea Singh graduated from Harvard Law School in 2003. She works for a nonprofit organization in Ottawa, Canada.