Journal of Medical Ethics article defends conscientious objection on the same grounds on which has been heavily criticised: abortion provision
Under the provocative title of Questionable benefits and unavoidable personal beliefs: defending conscientious objection for abortion, an article in the Journal of Medical Ethics (JME) has defended the conscientious objection of medical professionals in the key area of abortion provision, precisely where the predominant utilitarian “ethics” maintains an adamantine position.
Conscientious objection (CO) in healthcare has come under heavy criticism on two grounds recently, particularly regarding abortion provision.
- First, critics claim that CO involves a refusal to provide a legal and beneficial procedure requested by a patient, denying them access to healthcare.
- Second, they argue that the exercise of CO is based on unverifiable personal beliefs. These characteristics, it is claimed, disqualify CO in healthcare.
In current state of affairs, the authors of the aforementioned article defend CO in the context of abortion provision, showing that abortion has a dubitable claim to be medically beneficial, is rarely clinically indicated, and that CO should be accepted in these circumstances. They also show that reliance on personal beliefs is difficult to avoid if any form of objection is to be permitted, even if it is based on criteria such as the principles and values of the profession or the scope of professional practice.
Given the length of the article we, at the Bioethics Observatory at the Catholic University of Valencia, have selected some excerpts of the text that we find particularly interesting. As in the original paper, this article is structured into sections and we have maintained the same section titles.
The authors begin by quoting the claims of the critics of CO, beginning with Schuklenk and Smalling, who state that ‘medical professionals have no moral claim in liberal democratic societies to the accommodation of their individual conscientious objections’. They continue with Fiala and Arthur, who “maintain that CO is not a right, but rather an unethical refusal to treat and should be more accurately termed ‘dishonourable disobedience’”, considering CO as ‘an abandonment of professional obligations to patients’. They finish their review with Savulescu and Schuklenk, who claim that ‘individual values ought not to govern delivery of healthcare at the bedside’.
In response, “[the authors] demonstrate that, in the majority of scenarios, abortion is arguably not medically beneficial, is not clinically indicated, and therefore refusal to provide abortion in these situations could be reasonably described as what Montgomery terms conscientious discretion, not CO. Although this might be abrogated by the scope of practice, [they] argue that CO should be permitted in these circumstances. [They also] show that reliance on personal beliefs is difficult to avoid if any form of CO is to be permitted—objections that appeal to the principles and values of the profession as their basis are still contingent on personal beliefs.”
Nevertheless, the authors support some of the criticism levelled at CO: “clearly, if any legal and beneficial treatment can be opted out of on the basis of an appeal to conscience, this could be significantly detrimental to patient care. Additionally, as Savulescu points out, there are some beliefs that should not be permitted to be used as the grounds for CO, such as discriminatory or bigoted beliefs regarding which patients should be treated.” The authors are not defending CO in general here, but CO in a specific scenario: abortion provision.
Is abortion beneficial?
“Critics of CO to abortion emphasise that it involves the denial of a beneficial medical procedure that women are legally entitled to receive. Fiala and Arthur state that ‘if the treatment is legal, within the [healthcare provider’s] qualifications, requested by a mentally healthy patient, and primarily beneficial (which abortion is), there is simply no excuse to refuse’. Giubilini believes patients should receive ‘the legal and beneficial medical treatment they request or that is in their best interest’. Savulescu similarly refers to ‘medical interventions that are legal, beneficial, desired by the patient’. These writers assume or claim that abortion is a beneficial medical procedure, but provide no evidence that this is so, warranting examination. Additionally, in the case of pregnancy, it is important to distinguish between ‘beneficial’ and ‘clinically indicated’. That an abortion might have socioeconomic benefits or minor health benefits does not entail it is clinically indicated: if this were so, abortion would be clinically indicated for all pregnancies, which is absurd. In [their] view, pregnancy would need to pose a substantially elevated risk above the normal risks of pregnancy to be clinically indicated. In the UK, this is rare: the statutory grounds for abortions are recorded on Form HSA, which lists five categories, and in 2018, there were 145 abortions out of 200 608 performed in England and Wales on ‘Ground A’ and ‘Ground B’. These are based on risk to the pregnant woman’s life, and prevention of
grave permanent injury.”
The authors usefully divided requests for abortion into four categories:
- pregnancies that pose a threat to the life of the mother;
- pregnancies involving severe fetal deformities;
- pregnancies resulting from rape or incest;
- low-risk healthy pregnancies, often termed ‘social abortions’.
“Abortions in the first category are generally uncontroversial and are both medically beneficial and clinically
indicated because they are necessary to preserve the woman’s life. Mental health grounds are often used to justify abortions
in other categories. It is by no means clear, however, that abortion positively impacts mental health or that denial of abortion
has a long-term negative impact. Numerous studies have indicated that induced abortion may actually be harmful to mental
health, while others have suggested abortion has little or no impact. Importantly, though, as Fergusson et al. state, there is
no clear evidence that abortion reduces mental health risks. It might be objected that in cases of severe fetal deformities
and pregnancy resulting from rape or incest, abortion is more likely to positively impact mental health. Steinberg’s review
found that women who have later abortions for fetal anomaly have similar mental health outcomes to those who give birth
to children with severe mental or physical conditions. [The authors] are unaware of studies comparing the mental health outcomes of the victims of rape. Currently, there is no firm evidence abortion contributes positively to mental health in these scenarios, and so it is doubtful that abortion is clinically indicated. The final category—‘social abortions’—are not clinically indicated by definition. In the UK, over 97% of abortions are recorded as being carried out under ‘Ground C’, which requires that ‘the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the
physical or mental health of the pregnant woman’. About 99.9% of these are recorded as being on the grounds of risk
to mental health. Given there is no clear evidence that abortion reduces mental health risks, it seems likely that these abortions fall into the ‘social’ category. Indeed, surveys of women seeking abortions confirm this: Chae et al. identified that the
most frequently reported motivations for seeking an abortion were socioeconomic concerns or a desire to limit childbearing— health concerns were not an important motivating factor. [The authors] conclude that abortion is of no clear medical benefit with regard to mental health, and that in the vast majority of cases, patients are not seeking abortions for health reasons. One possible objection, however, is to claim that abortion carries significantly less risk to a woman’s physical health than pregnancy and childbirth. For example, Raymond and Grimes report that mortality rates for childbirth are 14 times higher than
induced abortion. However, Calhoun responds by arguing that this claim is ‘unsupported by the literature and there is no credible scientific basis to support it’. He identifies a number of methodological factors that make measuring maternal mortality difficult: for example, deaths attributable to abortion are often only recorded as resulting from the immediate cause of death rather than abortion. To further complicate matters, a recent systematic review showed that different pregnancy outcomes—miscarriage, induced abortion and childbirth—were associated with significant differences in long-term mortality rates. When compared with childbirth, induced abortion was correlated with an elevated mortality rate for several years, even when controlling for psychological factors and economic status. Induced abortion was shown to reduce overall life expectancy, while childbirth had a positive effect, although the causal mechanisms remain unclear. It seems fair to say that currently, there is no conclusive evidence that an induced abortion carries a significantly lower risk than completing a pregnancy, ceteris paribus.”
Professional discretion or medical deontology
“That the overwhelming majority of abortions arguably provide no significant medical benefit, are not clinically indicated and are not requested for health reasons is of considerable import in this debate. Montgomery notes that English law ‘has consistently rejected the idea that healthcare law is a matter of consumer rights, in which patients demand and receive the service that they want’. Clinicians have broad conscientious discretion to decide what will provide the most clinical benefit for their patients. Indeed, in the UK, the General Medical Council advises that ‘the law does not require doctors to provide treatments or procedures that they have assessed as not being clinically appropriate or not of overall benefit to the patient’. This suggests that, if, in their clinical judgement, an abortion offers negligible medical benefit to a patient, doctors are prima facie entitled to decline to provide one. This is what Sulmasy refers to as ‘professional discretionary space’, which is necessary for the practice of good medicine. In Montgomery’s view, professional discretion is respected in healthcare law because of the belief that it provides ‘a reliable protection for patient interests’. He notes that the UK’s 1967 Abortion Act is explicitly framed to enshrine professional discretion by referring to evaluation of risk of injury to physical or mental health as a determining factor.”
The authors return to the claim that “CO to abortion involves the denial of a beneficial medical procedure. It is clear that in the majority of cases this is arguably not the case, and this severely undermines arguments against CO predicated on this claim. In fact, if a procedure is not beneficial, then given the broad conscientious discretion that Montgomery discusses, conscientiously objecting to abortion provision is strictly unnecessary in most cases—based on the available evidence, a doctor could reasonably conclude in most cases that abortion is not clinically indicated and exercise their professional discretion to decline the procedure.”
The article continues by asking how CO opponents might respond. In a recent paper, “Savulescu, writing with Schuklenk, adds the additional claim that doctors are obliged to conform to their ‘scope of professional practice’. They consider that this scope of practice—which they consider is ultimately determined by society—includes abortion provision. Again, Savulescu and Schuklenk implicitly assume abortion is beneficial, and so they focus on the claim that doctors should not be able to conscientiously object to requests for abortion that are legal and within the scope of practice. Obviously, their argument is weakened if abortion is not beneficial in the majority of cases, as [the authors] have argued. However, it raises the question, if abortion is not obviously medically beneficial, not clinically indicated, but is desired by the patient and is within
the scope of professional practice, should doctors’ professional discretion be overridden and they be obliged to provide an abortion if it is requested? Savulescu and Schuklenk could argue that since the profession has clearly accepted abortion provision as part of professional practice, then a decision regarding professional discretion has already been made. Perhaps this has some validity, but their argument is regarding conscientious objection, not discretion. While the scope of professional practice provides a prima facie reason to request doctors to supply abortions when sought by patients, there seems no compelling reason to force doctors to do so if they strongly object on conscience grounds, and the abortion is not clinically indicated. To do so would mean privileging patient autonomy over the moral integrity of doctors, which seems unjustified when alternatives are available. In Toni Saad’s words, ‘if a procedure does not conform to the goals of medicine, then it is unclear that it is a medical practitioner’s duty to do it’. According to Saad, the goals of medicine are the ‘restoration and maintenance of health’. Savulescu similarly states that the ‘primary goal of a health service is to protect the health of its recipients’.”
After extensively discussing a further three relevant areas—which our Observatory cannot address here due to space constraints—the authors reiterated their two important objections to CO with respect to abortion provision. “Contrary to critics of CO who claim that it involves a refusal to provide a legal and beneficial procedure requested by a patient, and that the exercise of CO is based on unverifiable personal beliefs, [Blackshaw and Rodger] have shown that abortion has a dubitable claim to be considered medically beneficial in the vast majority of cases, and is rarely clinically indicated. [They] argue that doctors should be able to CO in these circumstances. Most critics agree that some form of objection should be permitted in certain scenarios, and they attempt to distinguish CO based on unverifiable personal beliefs from objections based on criteria such as the values and principles of medicine. [The authors] have shown that these also depend on personal beliefs, particularly regarding the nature of harm, and conclude that reliance on personal beliefs is difficult to avoid and not a valid criticism of CO. The alternative criterion of the scope of professional practice is also problematic. More broadly, [they] suggest that if a procedure or treatment within the scope of practice is not clinically indicated, then it should qualify for CO.”
Bioethics Observatory – Institute of Life Sciences
Catholic University of Valencia – Spain