Refusing to refer: thus conscience doth make cowards of us all

In the Australian state of Victoria next week a proposal to make abortion legal in certain circumstances is due to be voted on by the upper house. Some doctors, as well as the Catholic church, have attacked one clause in that legislation, as it is said to deny doctors the right to conscientiously object to abortion. But what is the proper role of the doctor’s conscience in medical care, and how should it be taken into account when it conflicts with the conscience of the patient?

If the proposed legislation is passed abortion will become legally sanctioned in Victoria for the first time, though it has been widely available for several decades. There will continue to be many in the community who are opposed to abortion, but those who are not opposed will be able to legally access it. This is in accordance with both democratic and liberal principles. But what then should a doctor who is morally opposed to abortion do if faced by a request from a patient for a termination of pregnancy?

The proposed legislation states

8(1) If a woman requests a registered health practitioner to advise on a proposed abortion, … and the practitioner has a conscientious objection to abortion, the practitioner must…  (b) refer the woman to another registered health practitioner in the same regulated health profession who the practitioner knows does not have a conscientious objection to abortion.

This is the clause that has caused contention, since some have argued that it then would make doctors accessories to a morally questionable act. Why should the mores of society be imposed upon the doctor?

There are good reasons for permitting doctors to elect not to take part in abortion if that is contrary to their personal beliefs. But does a doctor’s right to conscientiously object to a practice include the right to refuse to refer?

It is not clear that acting in accordance with Clause 8 would make the doctor morally responsible in an important way for an abortion that subsequently takes place. The referring doctor’s intent is not to secure a termination of pregnancy – only to provide the patient with the full range of alternatives that are legally available to them. (The legislation does not require that the patient is referred for an abortion, only referred to another doctor who does not have a conscientious objection to abortion.) So it may be permissible within the remit of the doctrine of double effect. And they do not actually carry out the abortion. Their role is at most contingent participation in the causal sequence that leads to termination.

And there are good reasons for thinking that the doctor should not weigh this more strongly than the autonomous wishes of the patient. The patient’s conscience is also at stake here, since the woman has come to a conscientious decision to enquire about abortion (she may not even have decided yet to have one). A refusal by the doctor to even refer the patient on to another health care provider imposes the doctor’s moral viewpoint upon the woman in a way that weighs their conscience more heavily than the patients.

Although it may be possible for a woman on her own to find another doctor who is willing to provide advice or assistance with terminating a pregnancy, there are some reasons why conscientiously objecting doctors should not force her to do so. Firstly, this imposes an extra burden upon women as a consequence of the doctor’s conscience. If there is to be a cost of exerting conscience, it should usually be borne by the individual exercising their conscience – not by others. Secondly, in some settings it may be difficult for a woman to find another health practitioner who is willing to help her with her decision. For example in many areas of rural Victoria patients may have to travel long distances to see a doctor. There may be no other doctor in a town for a patient to see, and without any point of reference it may be difficult for her to find another. Third, some women seeking abortion or advice about whether or not to continue their pregnancy will already be in a position of significant emotional and psychological vulnerability. A refusal to provide a woman with information about all of the options available to her (including information about where she could seek advice about termination) may cause her significant distress, and may impair her ability to seek medical advice elsewhere.

Finally, a refusal to refer because of a desire not to ‘cause’ an abortion may actually lead to a worse outcome. Since many of those opposed to abortion believe that abortion is more morally serious when it takes place later in pregnancy, they should take seriously the following paradox. Their refusal to refer a patient will not deter some women from procuring an abortion. However it is likely to make those terminations occur at a later time point, and thus may be morally worse. They may then have a contingent causal role in a late(r) abortion.*

Doctors should be allowed to conscientiously object to practices with which they have strong moral objections. But there are limits to that right. They should not withhold information from patients about legally available and medically appropriate alternatives and about where those can be obtained. They should not abuse their position of power to manipulate or coerce the patient. In time-critical, particularly life-saving, settings they may be obliged to provide that service in any case despite their misgivings. If these requirements cannot be reconciled with the conscience of an individual doctor, then they must do as their conscience directs – and seek alternative employment.

* The same paradox applies to refusal to provide emergency contraception, since it may lead to a subsequent abortion

Doctor anger against abortion laws grows The Australian 1/10/08

Support for abortion bill looking shaky Sydney Morning Herald 23/9/08

Abortion law reform bill 2008

Charter 36 vs abortion Charterblog 30/9/08

Experiences of Women Refused National Health Service Abortion J Biosocial science 1980

The Celestial Fire of Conscience Charo NEJM 2005

The Case for conscience Catholics for choice

Comments

[Dennis Tuchler]

One alternative is for the medical association or society to keep a list of physicians who are willing to advise on abortion and, if the abortion is called for, perform it. So, the physician may refuse to aid the patient. But, how does the patient know about the medical society's list? If the physician mentions it, I suppose she is as complicit as she would be if she referred the patient. On the other hand, if the physician with scruples against the procedure tells the patient that she will not help her because of personal concerns (not legal ones), at least the patient is informed that the procedure is lawful and other physicians can perform the procedure. Would it be enough for the statute to require that all physicians have a sign in their waiting room informing the patient of the physician referral service of the medical society?

[Dominic Wilkinson]

Thanks Dennis,

you are right - there may be ways of providing patients with lists of doctors who do not conscientiously object to abortion. For example, there could be a website listing all such doctors and a search mechanism to allow women to find the closest doctor to them, or a toll-free telephone number providing the same information.
But, as you point out, the contact number or website would need to be made available to women who present to a conscientiously objecting doctor. (That could be posted on the wall of the waiting room. But the visually impaired or non-English-speaking patient would need to be told about it) And some may feel that even providing that limited information makes them complicit in an act of which they cannot approve.
There are two points to make here. The first is that I think that it is simply mistaken to think that providing this sort of information makes the doctor morally responsible or complicit in a subsequent termination in an important way. Would a taxi driver who drives a patient to a clinic seeking pregnancy advice be morally responsible for an abortion that subsequently ensues? They would play a contingent causal role in the sequence of events that led to termination - but it is implausible that they have any significant responsibility for it.
Secondly, even if doctors were thereby morally responsible in some minimal way for the subsequent course of events, they nevertheless are are obliged to provide information about the full range of choices available to a patient by virtue of their professional role. The doctor has a professional responsibility to provide the patient with information about the alternatives, even if some of those alternatives they would not personally espouse. To fail to provide that information would be a form of medical paternalism of the sort that cannot be endorsed.

cheers
Dom

[carle]

Very interesting discussion. I Googled "doth make cowards of us all" because I had forgotten the object: Conscience. It led me here. It was an action. If we take an action we are responsible for its consequences; and that also applies for inaction (wherein the lack of one will lead to imminent and sequential results). I am no logician or ethicist but it occurs to me you can parse this thing down to the Nth degree and still find SOME scale at which SOME person will find for the case for refusal. So it must stop with the Hypocratic Oath: First, do no harm. And that would be to the patient's physical body. The doctor can assume no duties to a foetus because it is unknown if the mother will ever bring the child to the doctor for treatment. The doctor's only responsibility must then be the woman. Always stick to first principles, I think it was Marcus Aurelius who said that. Or Hannibal Lechter.