Great new Perspectives piece by Lisa Harris out in NEJM on the need to recognize that conscience can compel action, not only refusals to provide certain types of care (including abortion). Elizabeth Sepper makes a similar argument in her forthcoming article in the Virginia Law Review.
First, let me just say that I couldn’t agree more – it is essential to recognize both sides of the coin. As I’ve argued elsewhere, both ought to be respected and protected, to a point, but the issues raised by conscientious refusal versus conscientious action are distinct in some important ways. The primary problem with refusals is that they can burden patients by creating barriers to care, if not managed appropriately. On the other hand, conscientious action would make care available to patients – and what could be wrong with that?
In many cases, I think the answer is nothing. So long as conscientious actors are providing services that are within the realm of legal permissibility, they should generally be protected in their jobs, licensure, access to funding, etc., even if other people would prefer for those services were inaccessible or illegal. But Harris raises an interesting point, referencing recent laws in Georgia and Arizona that ban abortion after 20 weeks’ gestation, with no allowances for providers who feel conscience-bound to offer care after that limit. The clear implication of Harris’ argument is that such allowances should be made in order to accommodate conscientious actors, just as there are exceptions made for conscientious refusers. The problem with this reasoning, at least in this example, is that conscientious refusers are not asking for an exception to any legal requirement per se. There is no law saying they must perform abortions, and the protection they seek is from employers or funders demanding that they do something that the law permits. The conscientious actor, on the other hand, would be asking for an exception to what the law requires - namely, refraining from performing abortions past 20 weeks.
Imagine that someone felt compelled by conscience to end the suffering of a horribly impaired newborn or elderly patient, to provide medical marijuana outside a jurisdiction where doing so would be legal, or to perform female genital cutting so that a little girl’s family wouldn’t take her somewhere less safe to get the procedure done. We might sympathize with the conscientious actor in some or all of these cases – but nonetheless, the actor would have broken the law. And providing an exception to the law so that conscientious actors can abide by their conscience would actually change the very nature or threshold of what is legally permissible and what is not. The conscientious refuser’s behavior does not have that affect (unless, perhaps, his refusal creates such a barrier to access that the service in question might as well be illegal, in which case his refusal is unacceptable).
Ultimately, laws have to set limits – and those limits (are supposed to) reflect social agreement as to which actions are permissible and which are not. If someone feels compelled by conscience to act outside those limits, they have an obligation to convince others and change the law. Then, they can abide by their conscience in providing various types of medical care – and refusers can abide by theirs in not doing so. Note that the key here has to do with limits; refusers seek to avoid doing something the law would permit (or perhaps compel) them to do, whereas conscientious actors might seek to do something beyond the limits of what the law allows.
Finally, let me just provide a bit of information on the types of legal protection currently available to conscientious actors who seek to provide services that are legal permissible. While this is an oversimplification, the federal Church Amendments prohibit any entity that receives federal funding under certain statutes from discriminating against health care personnel in employment, promotion, termination of employment, or extension of privileges because the individual performed or assisted in the performance of sterilization, abortion, or any lawful health service or research activity, or because he or she refused to do so. There are similar protections against discrimination against applicants to training programs because of the applicant’s reluctance or willingness to participate in abortions or sterilizations. It is true, however, that the vast majority of conscience laws are focused on protecting refusers.
So what do you think – have I gotten this all wrong? Should conscientious refusals and conscientious actions be equally accommodated?