Conscience, Rights of
CONSCIENCE, RIGHTS OF•••
The phenomenon of a right of conscience arises only in a society that takes seriously the autonomy of individual persons. Philosopher James Childress has described appeals to conscience as "a person's consciousness of and reflection on his own acts in relation to his standards of judgment." (Childress, 1979) Rights of conscience are political rights that protect people's ability to do what they believe is morally best: they are political autonomy rights. Common scenarios for the exercise of a right of conscience in healthcare include seeking an exemption from mandatory vaccination and, for physicians, refusing to participate in morally controversial procedures like abortion.
To understand the political role of rights of conscience, it helps to think of the activities a person might engage in as falling into one of three political categories: (1) prohibited, (2) permitted, or (3) required. In Western societies, the vast majority of possible activities are permitted, meaning people may engage in that activity if they wish (it is not prohibited), but they do not have to engage in that activity (it is not required). A person may exercise autonomy, then, in deciding whether to engage in the activity. Likewise, some activities (e.g., murder, robbery) may be prohibited, and some activities (e.g., military service in times of war) may be required.
An autonomy right ensures that protected activities are not unduly prohibited or required. For example, one prominent autonomy right protects the practice of religion: the autonomy right of freedom of religion means that a person's religious practice cannot be unduly prohibited or required. This allows a person to practice religion, but also allows a person to decide not to practice a religion. Thus, the practice of religion is neither prohibited nor required, allowing a person to exercise autonomy in the practice of religion. Other examples of autonomy rights include freedom of speech (which protects against state prohibition of the expression of opinions, but does not require a person to express their opinion), freedom of assembly (which protects against state prohibition of people's ability to assemble), and, in the United States, the right to own firearms (which protects a person's ability to own a gun).
The Focus of Autonomy Rights
In Western societies, most political autonomy rights focus on ensuring that certain activities are not unduly prohibited (thus protecting a people's ability to engage in that activity if they should choose). This can be seen in the way such rights are normally phrased:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (Bill of Rights, U.S. Constitution, Amendment I)
Rights of conscience, however, protect a person from mandatory participation in an activity if the activity in question threatens the fundamental values of an individual person. This focus can be seen in the way conscience clauses are typically phrased: "No person shall be required to …" In a clinical context, rights of conscience are exercised against a backdrop of a professional duty to treat a patient once a provider-patient relationship is established. Thus, rights of conscience claim an exemption to participation in activities that one would otherwise be expected to undertake. The most common example is a claim to be exempt from participation in abortion procedures.
Conditions of a Right of Conscience
The primary conditions necessary for the legitimate exercise of a right of conscience consist of: (1) the lack of harm posed to others by the exercise of a right of conscience; and (2) strength and sincerity of beliefs that are the basis for a claim of conscience. The exercise of a right of conscience does not require a demonstration of the truth of beliefs that are the basis of a right-of-conscience claim, as requiring the truth of a belief to be demonstrated would trivialize the right itself. The first of these conditions represents a straightforward balancing of the rights of individuals through recognition that autonomy rights must be restricted when significant harm is posed to others. Thus, for example, a right to freedom of speech does not include a right to shout "Fire!" in a crowded theater. Similarly, seeking an exemption from mandatory vaccination is restricted in circumstances of epidemic disease, where failure to be vaccinated could pose a threat of harm to others.
Such a balancing of autonomy rights and social harm was clearly recognized in the U.S. Supreme Court case of Jacobson v. Massachusetts. Henning Jacobson argued that he should not be forced to receive a vaccination during a smallpox epidemic because "compulsory vaccination is … hostile to the inherent right of every free man to care for his own body and health in such a way as to him seems best." The Supreme Court rejected this argument in the context of an epidemic, however, stating, "The liberty secured by the Constitution of the United States does not import an absolute right.… There are manifold restraints to which every person is necessarily subject for the common good" (Jacobson v. Massachusetts ).
The second condition listed above is less commonly required for the exercise of an autonomy right. It requires that rights of conscience only be exercised on the basis of values that are central to one's life. As Childress describes it, "In appealing to conscience I indicate that I am trying to preserve a sense of myself, my wholeness or integrity … and that I cannot preserve these qualities if I submit to certain requirements of the state or society" (Childress, p. 327). To legitimately exercise a right of conscience, one must show that participation in the required activity would threaten values that play a central role in the way one has chosen to live.
Because the majority of people in Western societies are religious, and their religious convictions normally represent their most fundamental values, claims to rights of conscience most commonly arise in the context of religious convictions, though rights-of-conscience claims need not be based upon religion. The most prominent example is conscientious objection to participation in war. During the Vietnam War era, the U.S. Supreme Court ruled that a person may qualify for an exemption to participation in war if the person's opposition stems from "moral, ethical, or religious beliefs about what is right and wrong, and that these beliefs be held with strength of traditional religious convictions" (Welshv. U.S. ).
The type and significance of harm to others that might negate the ability to exercise a right of conscience, as well as the abstract notion of strength of conviction necessary to qualify for a right of conscience, represent the key points of contention in how to distinguish legitimate from illegitimate claims to a right of conscience. The most prominent debate in the literature concerns the consequences of recognizing rights of conscience relevant to access to abortion services. In some areas, conscientious refusal by physicians to participate in abortion services has limited access to abortion services, or made them unavailable. Use of this type of harm to negate rights of conscience, however, is met with substantial skepticism. The argument requires that the conscience of a woman seeking access to abortion takes precedence over that of a physician, and also assumes that a right to not be prohibited from having an abortion is tantamount to a right of access to abortion services. These issues remain at the center of this ongoing debate.
A second type of harm that is discussed in the literature consists of psychological and moral harms associated with the necessity of transfer of care from a provider a patient has chosen, due to that provider's refusal to participate in a particular treatment plan. The significance of this should not be overlooked: while transfer of care leaves a patient with continued access to care in the abstract, the patient may not feel as comfortable with the caregivers to whom he or she is transferred. Thus, one should only necessitate such a transfer if the values threatened are significant.
The Exercise of Rights
Recognition of the types of harms described above is closely tied to attempts to outline the scenarios in which a right of conscience should (and should not) be exercised. While it is desirable to recognize rights of conscience in matters of central moral importance to a person, rights of conscience should not be used, for example, to discriminate against a racial or ethnic group by refusing services to that group, or to undermine informed consent by pressuring a patient to agree to a treatment plan through threat of transfer of care. Conscience clauses that offer blanket protection and simply require transfer of care fail to address these concerns, so criteria to distinguish when a right of conscience is appropriately exercised become important.
Most of the literature recognizes that entering into a profession imposes some level of moral duty that may at times conflict with a person's own judgment. While it is important to recognize moral diversity within a profession, and thus allow for some cases of conscientious objection, it is also important to recognize the weight of professional obligations, such as respect for patient autonomy and informed consent. Because professional obligations to respect informed consent do carry moral weight, rights of conscience are, in general, more appropriately exercised over patient requests for services than over patient refusals, since objection to a patient's refusal fails to respect that patient's evaluation that the treatment does not offer desired benefits (this is a general guideline, however, and may admit of exceptions). So, for example, a physician's right of conscience (for refusal of services) is appropriately exercised over a patient's request for an abortion or for assistance in committing suicide (physician-assisted suicide). A right of conscience is not appropriately exercised, however, over a patient's refusal of a ventilator. Similarly, it is widely recognized that rights of conscience should not be exercised over simple disagreement with a patient's treatment choice. These general guidelines still leave a lot of gray area, however. For example, does a request by a Jehovah's Witness for surgery without blood products constitute a refusal of blood products or a request for a specific surgical procedure (one that does not involve the use of blood products)?
Professional obligations of nondiscrimination are also important in formulating criteria for the legitimate exercise of a right of conscience. The conscientious objection in question should not be based on who is to receive the treatment or procedure. Instead, conscientious refusal should be based on the type of treatment or procedure in question, rather than, for example, provision of this treatment or procedure to members of a particular racial or ethnic group. Here, too, the general guidelines leave room for debate; such as when an objection is based on the fact that a procedure is particularly dangerous for a certain segment of the population (e.g., organ transplant recipients, elderly patients).
While several points of debate continue to remain contentious, some general observations can be made concerning the appropriate exercise of a right of conscience. First, such rights should only be exercised if doing so does not pose a threat of significant harm to others. Second, the exercise of a right of conscience should be based upon values that play a central role in the life of the person claiming a right of conscience. Related to this, rights of conscience should not be exercised on the basis of simple disagreement about a treatment plan. Third, conscientious objection to patient requests will be, in general, more appropriate than objection to patient refusals. Finally, professional obligations to respect patient autonomy and to avoid discriminatory practices should be weighed against the exercise of a right of conscience. In this context, conscientious objection should be exercised only when based upon an objection to the type of activity in question.
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