military analogy Archives - Protection of Conscience Project Library

Medical Acts and Conscientious Objection: What Can a Physician be Compelled to Do?

Nathan K. Gamble, Michal Pruski

Abstract
A key question has been underexplored in the literature on conscientious objection: if a physician is required to perform ‘medical activities,’ what is a medical activity? This paper explores the question by employing a teleological evaluation of medicine and examining the analogy of military conscripts, commonly cited in the conscientious objection debate. It argues that physicians (and other healthcare professionals) can only be expected to perform and support medical acts – acts directed towards their patients’ health. That is, physicians cannot be forced to provide or support services that are not medical in nature, even if such activities support other socially desirable pursuits. This does not necessarily mean that medical professionals cannot or should not provide non-medical services, but only that they are under no obligation to provide them.

Gamble NK, Pruski M. Medical Acts and Conscientious Objection: What Can a Physician be Compelled to Do? New Bioethics 2019 Sep; 25(3): 262-282. DOI:10.1080/20502877.2019.1649871

How special is medical conscience?

David S. Oderberg

Abstract
The vigorous legal and ethical debates over conscientious objection have taken place largely within the domain of health care. Is this because conscience in medicine is of a special kind, or are there other reasons why it tends to dominate these debates? Beginning with an analysis of the analogy between medical conscience and conscientious objection in wartime, I go on to examine various possible grounds for distinguishing between medicine and other professional contexts (taking law and accountancy as examples). The conclusion is that no principled difference exists between the military and medical cases, nor between the health professions and other professions. Nevertheless, there are practical reasons why medical conscience has distinctive importance, mainly concerning the rapid advance of medical technology. Medical conscience will, for these reasons, continue to drive the debate over conscientious objection, even though legal protection should in principle extend to all professions.

Oderberg DS. How Special is medical conscience? New Bioethics. 2019 Sep; 25(3): 207-220, DOI:10.1080/20502877.2019.1651078.

Conscientious objection to vaccination

Steve Clarke, Alberto Giubilini, Mary Jean Walker

Abstract
Vaccine refusal occurs for a variety of reasons. In this article we examine vaccine refusals that are made on conscientious grounds that is, for religious, moral, or philosophical reasons. We focus on two questions: first, whether people should be entitled to conscientiously object to vaccination against contagious diseases (either for themselves or for their children) second, if so, to what constraints or requirements should conscientious objection (CO) to vaccination be subject. To address these questions, we consider an analogy between CO to vaccination and CO to military service. We argue that conscientious objectors to vaccination should make an appropriate contribution to society in lieu of being vaccinated. The contribution to be made will depend on the severity of the relevant disease(s), its morbidity, and also the likelihood that vaccine refusal will lead to harm. In particular, the contribution required will depend on whether the rate of CO in a given population threatens herd immunity to the disease in question: for severe or highly contagious diseases, if the population rate of CO becomes high enough to threaten herd immunity, the requirements for CO could become so onerous that CO, though in principle permissible, would be de facto impermissible.

Clarke S, Giubilini A, Walker MJ. Conscientious objection to vaccination. Bioethics. 2017 Mar;31(3):155-161.

Conscientious Objection and Medical Assistance in Dying (MAID) in Canada: Difficult Questions – Insufficient Answers

PG Brindley, JP Kerrie

Canadian Journal of General Internal Medicine

Abstract
“Conscientious objection” typically implies refusal to participate in an action based on strongly held ethical beliefs. It is historically associated with refusing to fight on the grounds of personal conscience or religion.2 Like other military allusions such as collateral damage or life in the trenches, its usage has spread into wider societal use. Conscientious objection is now used in regards to opposing euthanasia in Canada. Euthanasia, in turn, is now referred to by the less emotive term, Medical Assistance in Dying (MAID). Most medical practitioners and hospitals that object do so in part because of their disagreement or discomfort with the act of killing. As such, the analogy is not wholly unjustified. What is less clear is how this construct, and this terminology, will ultimately affect patients, practitioners, administrators and politicians.

Brindley PG, Kerrie JP. Conscientious Objection and Medical Assistance in Dying (MAID) in Canada: Difficult Questions – Insufficient Answers. Canadian Journal of General Internal Medicine. 2016;11(4):7-10.

Conscientious objection in healthcare, referral and the military analogy

Steve Clarke

Abstract
An analogy is sometimes drawn between the proper treatment of conscientious objectors in healthcare and in military contexts. In this paper, I consider an aspect of this analogy that has not, to my knowledge, been considered in debates about conscientious objection in healthcare. In the USA and elsewhere, tribunals have been tasked with the responsibility of recommending particular forms of alternative service for conscientious objectors. Military conscripts who have a conscientious objection to active military service, and whose objections are deemed acceptable, are required either to serve the military in a non-combat role, or assigned some form of community service that does not contribute to the effectiveness of the military. I argue that consideration of the role that military tribunals have played in determining the appropriate form of alternative service for conscripts who are conscientious objectors can help us to understand how conscientious objectors in healthcare ought to be treated. Additionally, I show that it helps us to address the vexed issue of whether or not conscientious objectors who refuse to provide a service requested by a patient should be required to refer that patient to another healthcare professional.

Clarke S. Conscientious objection in healthcare, referral and the military analogy. J Med Ethics 2016;0:1–4. doi:10.1136/medethics-2016-103777

Conscientious objection in healthcare: why tribunals might be the answer

Steve Clarke

Clarke S. Conscientious objection in healthcare: why tribunals might be the answer. J Med Ethics Feb 25. 2016;1-4.

In defence of medical tribunals and the reasonability standard for conscientious objection in medicine

Robert F Card

Extract
Cowley has recently objected to the idea of using a medical tribunal to make determinations regarding conscientious objections and has criticised using reasonability as a standard for any such tribunal. . . . I argue that Cowley’s discussion sells the idea of medical tribunals short and illustrates serious misunderstandings regarding how the reasonability standard should be deployed in practice.

Card RF. In defence of medical tribunals and the reasonability standard for conscientious objection in medicine. J Med Ethics 2016 Feb;42(2):73-5. doi: 10.1136/medethics-2015-103037

Striking a Balance Between Faith and Freedom: Military Conscientious Objection as a Model for Pharmacist Refusal

Maria Teresa Weidner

Lexis Nexis Summary
Pharmacists who have subscribed to this movement assert that they have a “right” to refuse to fill valid patient prescriptions whenever doing so might violate their own religious or moral beliefs. … The governments of Arkansas, Florida, and South Dakota sought to both endorse and shield from liability instances of religiously motivated pharmacist refusal to dispense family planning products. … Such expectations, as demonstrated in the policy positions set forth by organizations like the American Pharmacists Association (APhA) and Pharmacists for Life, harm the profession by undermining its credibility while underscoring the need to preserve the regulating power of liability as a tool to protect patient interests. … These factors, compounded with the profession’s own struggle for professional legitimacy and insistence on recognition of the practitioners’ “clinical role” in the provision of medication to patients indicate that a defense against alleged malpractice based on a free exercise theory would not succeed both based on the secular nature of the profession and as a matter of existing free exercise jurisprudence. … South Dakota’s legislature has already demonstrated as much by including a provision in its pharmacist refusal clause permitting pharmacists to refuse to dispense palliative drugs that might be used to hasten death, clearly a measure that can affect women and men alike

Weidner MT. Striking a Balance Between Faith and Freedom: Military Conscientious Objection as a Model for Pharmacist Refusal. J Gender, Race & Just. 2008 Jan;11(2):369-408

Conscientious Objection and Medical Tribunals

Alberto Giubilini

Extract
Professionals have a prima facie obligation to do what their profession requires. This is an uncontroversial principle. Equally uncontroversial is that our conscience is essential to our moral integrity. On any account of conscience (whether religious, philosophical or psychological), conscience encompasses core and self-identifying moral beliefs. Therefore, there is also a prima facie duty to respect conscience. The issue of conscientious objection in healthcare is the issue of whether and how to strike a balance between these two prima facie duties when they conflict with each other, for example, when doctors have a conscientious objection to abortion.

Giubilini A. Conscientious Objection and Medical Tribunals. J Med Ethics. 2016;42(2):78-79.

The Invention of a Human Right: Conscientious Objection at the United Nations, 1947-2-11

Jeremy K Kessler

Abstract
The right of conscientious objection to military service is the most startling of human rights. While human rights generally seek to protect individuals from state power, the right of conscientious objection radically alters the citizen-state relationship, subordinating a state’s decisions about national security to the beliefs of the individual citizen. In a world of nation-states jealous of their sovereignty, how did the human right of conscientious objection become an international legal doctrine? By answering that question, this Article both clarifies the legal pedigree of the human right of conscientious objection and sheds new light on the relationship between international human rights law and national sovereignty.

Kessler JK. The Invention of a Human Right: Conscientious Objection at the United Nations, 1947-2-11. Columbia Hum R Law R. 2013;44(753-791.