The topic of “conscientious objection” (CO) in reproductive
health care is a fascinating one that has given me much food for thought. My
position on CO is fairly well-developed and I’ve written or co-authored a
number of pieces about it. In this piece, I discuss or expand upon a few
aspects that have come up in informal discussions with researchers and
academics, mostly around philosophical and epistemological issues.
First, my position on CO
“Conscientious objection” is the refusal by a health care
professional (HCP) to provide a legal medical service or treatment for which they
would normally be responsible, based on their objection to the treatment for personal
or religious reasons.
I believe that instances of true CO are relatively rare in
health care (more on that later). The majority of so-called “conscientious
objection” is exercised today in reproductive health care and is not really
about protecting the right to conscience. It’s about a person in a privileged position
of authority (there by choice) imposing their personal beliefs on a vulnerable
other in a dependent position (not there by choice). That is, physicians have a
monopoly on the practice of medicine, and they voluntarily entered a profession
that fulfills a public trust. They know they have obligations to provide care
to patients without discrimination, and that patients are completely reliant on
them for essential health care and can’t go elsewhere. These factors make the exercise
of CO in reproductive health care a violation of medical ethics and an abuse of
HCPs' position of trust and authority. It is also discrimination because it
mostly affects women and the LGBTQ community.
The entire argument for CO in reproductive health care fails
once it’s understood that the “conscience” excuse is a subterfuge that
justifies class privilege and the “right” to control others. “Conscientious
objection” is a propaganda term, not much different than “pro-life” in
the abortion debate. CO is actually “Dishonourable Disobedience." It’s really
unfortunate that the medical and human rights communities have been bamboozled
by the CO term to the extent that allowing CO in reproductive health care is now
considered a “consensus” position. They’ve accepted an anti-choice term as the
starting point, which is the reason things are in such a mess today in terms of
rampant CO abuse around the world and the near-impossibility of regulating and
For further information on my position, please check out my
previously published articles on CO, summarized and linked at the bottom of
this article. (Most are co-authored with my colleague Dr. Christian Fiala of
Is CO ever justifiable in health care?
Contraception and abortion comprise the vast majority of
health care services objected to, usually on a blanket basis – that is, an
objecting HCP refuses to do any abortion for anyone under any circumstances.
There are some valid cases where an HCP may conscientiously
refuse to provide a legal treatment that is requested by the patient, but this should be done in the context of
honouring their professional obligations and medical ethics (and not the
opposite, which is what most CO in reproductive health care does). Doctors can
refuse treatment on the principle of “beneficence” or “non-maleficence”
to ensure the patient is helped or at least not harmed. However, this only
applies in limited circumstances, such as a patient who requests a risky
experimental treatment, or a mentally disturbed patient who wants an
unnecessary procedure such as an amputation.
We (Dr. Fiala and I) also support refusal by HCPs if they
are asked to perform illegal or quasi-legal activities that injure people and
violate their rights, such as torture or genital mutilation of children (including circumcision of male infants
, which likely has no health benefits but has plenty of harms).
Since such practices are not legitimate medical treatments and are not requested by the
patient, they cannot be called CO.
give an example of a Jewish doctor refusing to operate on a
patient with a swastika tattoo. I would support that doctor’s exercise of CO as
a true example of CO, and I would also support an abortion provider who refuses
to do an abortion on a patient who calls him a murderer and treats him with
contempt – even though other providers in the same situations might decide to
Such cases would be far rarer than a refusal to do any
abortions for anti-choice reasons. I believe true CO should be limited to
specific patients for a specific unique reason as in these examples, not a
blanket CO policy that says no abortions for anyone. The latter is
discriminatory because the burden is borne only by women and some trans people.
Similarly, HCPs cannot generally refuse to treat black people, gay people,
obese people, smokers, or other similar groups they may disapprove of, because
that would be harmful and discriminatory (even if some such groups are not
specifically protected under anti-discrimination laws).
It’s possible that CO could be tolerated to some degree in
some circumstances, depending on the particular treatment, how common it is,
how it’s typically delivered, and how many objectors there are. For example,
physician-assisted suicide is an interesting area that may become more of a CO issue in the future for Canada
. It's likely, however, that a doctor will need to
opt into training if they want to participate, and if they don’t opt in they
won’t have to participate directly, except to refer – and I certainly think they
should be required to refer appropriately. This illustrates a key difference with
reproductive health care: Doctor-assisted suicide won't be that common,
so we only need a relatively small number of willing doctors to provide it. This makes CO almost a non-issue and much more manageable with little or no harm to
patients (although still wrong in principle). That’s not the case in reproductive
health care, which comprises very common and basic services that are medically
necessary for a majority of the population.
Another key reason why CO is not justifiable as a blanket
policy in reproductive health care is because it tends to become too broadly
used, with providers citing CO for reasons other than a supposed moral
objection, such as stigma, distaste, fear, personal preference, money, etc. I
say “supposed” moral objection because the evidence is overwhelming and
conclusive that safe legal abortion saves women’s lives and benefits their health
and that of their families. The vital public health interests in keeping
abortion accessible (as well as contraception) decisively trump any supposed
moral concern for fetuses. Actually, I think it can be shown quite persuasively, by citing evidence on anti-choice policies, laws, etc., that anti-choice beliefs
in general are not motivated by the desire to “save babies” but by the desire to
control women’s sexuality and childbearing role. So treatment refusals in
reproductive health care really do come down to harmful gender discrimination (see more below),
and are not true CO because they’re based on a false ethical framework.
Of course, most anti-choice HCPs would claim they’re
motivated by “respect for unborn life” or whatever, but that raises the issue
of how we can’t trust peoples’ stated justifications anyway, since one’s personal
or religious beliefs cannot be verified or falsified on a rational basis, including
how genuinely such beliefs are held. It is also inappropriate and impossible for courts or governments to "decide" whether someone's religious beliefs are valid or sincere. Therefore, one reason that allowing CO is a bad idea is
because it leaves us unable to challenge peoples’ justifications – we have to accept
them at face value regardless of the harms they may cause to patients.
many personal or religious beliefs are indeed empirically false or unethical in
light of scientific evidence or accepted human rights standards (such as the inaccurate
belief that some forms of contraception are abortifacients). Any justification
of CO should therefore not rely on what individual HCPs claim, but instead on a
broader social recognition of the benefits of the treatment in general and the
harms of refusal (or perhaps vice versa in some cases). This means that true CO
can happen only in unique individual cases as described above, or in cases
where the patient would be harmed more with the treatment than without it, or
at least not helped (the beneficence or non-maleficence principle).
Is CO in reproductive health care really discrimination?
Because the vast majority of CO takes place in sexual and
reproductive health care, and because this care involves biological gender and
sexual aspects that differently affect women, men, and LGBTQ communities in a
way that’s not true for most other forms of health care, refusals of treatment constitute discrimination
on the basis of sex/gender or sexual orientation. I believe that discriminatory
treatment is by definition harmful, and can never be justified by evidence or
Some might claim that discriminating by refusing to treat a
class of persons is different than refusing to do a particular treatment like
abortion – therefore, CO in reproductive health care is not discrimination. Or
at least, the discrimination is an unintended byproduct of the objection to the
treatment, and so is too indirect or removed to really be discrimination.
However, when that treatment is something only women and some transgender people
need, then it is indeed discrimination because it has a discriminatory effect.
The legal definition of discrimination in Canada is not
about intention, but effect. The Supreme Court of Canada
has defined it
as (emphasis added): “a distinction, whether intentional
but based on grounds relating to personal characteristics of the
individual or group, which has the effect of imposing burdens, obligations,
or disadvantages on such individual or group not imposed upon others
which withholds or limits access to opportunities, benefits, and advantages
available to other members of society. Distinctions based on personal
characteristics attributed to an individual solely on the basis of association
with a group will rarely escape the charge of discrimination, while those based
on an individual's merits and capacities will rarely be so classed.”
It should also be clear that when objectors are not allowed
to refuse treatment, they do not suffer discrimination themselves – they are prevented from discriminating
. HCPs are free to hold and practice their beliefs in
private, but their agreement and obligation to fulfill a public trust means
they can’t bring their beliefs into their work and impose them onto patients (as
per the principle of “public accommodation
Should patients’ rights be “balanced” with providers’ rights?
It’s sometimes implied by CO supporters (academics and doctors) that patients and
doctors are on some kind of equal footing, so each bear some responsibility in
cases of refusals and we should “balance” their rights. For example, the
provider should refer appropriately while the patient is “responsible” for
going to another practitioner. Or, the provider and patient have an equal obligation
to be “respectful” of diverse views and values. (These examples come from a
private email conversation I had in July 2014 with Dr. Owen Heisler, Assistant
Registrar of the College of Physicians and Surgeons of Alberta.)
But this is absurd. Patients have an unquestioned right to
health care and are in a dependent position with their doctor, so they bear zero
responsibility for any supposed moral conflict or its consequences. And the
patient’s values are irrelevant – they are there simply to obtain a required
medical service, which might even conflict with their own values. The responsibility for CO is 100% on the objector, who
should bear the burden of any refusals. Currently however, all or most of the
burden falls on the patient, while the objector rarely has to answer for it and
often even benefits from the refusal (e.g., by avoiding stigma, or freeing time
for more lucrative health care). The harm to patients of allowing CO always outweighs
any harm to doctors of disallowing CO – if there even is any.
Organizations and professionals that
support CO often confidently state that providers have a right to conscience
and patients have a right to health care. (For example, here
But which is it? These two things are
entirely incompatible because when a provider refuses treatment, the patient
has lost their right to health care, period. Giving doctors a blanket right to
refuse treatment on questionable CO grounds contradicts the whole purpose of
medicine – to care for patients. It usually also violates the fundamental values and policies
of the medical organizations
that espouse CO, with all their noble talk about physicians’ commitment to
patient care and interests, evidence-based medicine, comprehensive care, and so
on. But if you allow
CO, health care is no longer comprehensive, it’s no longer based on science and
evidence, it’s no longer in the patient’s best interests, and doctors are no
longer committed to any of the above.
Can we really prohibit CO?
The solutions proposed by the organizations and
professionals who want to allow CO, but who are nevertheless well aware of its
systemic harms, seem (to me) to be clear evidence of the inherent unworkability
and contradiction of allowing CO in the first place. The general objective in these
proposals (such as those by Global Doctors
is to limit the injustice of CO as much as possible by requiring
objectors to refer appropriately, impart accurate information on all treatment options,
treat patients respectfully, and in urgent situations, provide the treatment
they object to if no-one else is around to do it. The problem is that such concessions don’t work very well in practice because they assume that objectors will be
rational and agree to compromise their stance against a particular treatment at some point in the process. But
why should they, when they’ve already been given the right to practice “faith-based”
medicine? It’s impossible to draw a line between that and evidence-based
medicine, because they have nothing to do with each other.
It is difficult for me to understand how medical groups and
professionals can clearly see the many problems with CO in reproductive
health care, but instead of recognizing that it is fatally flawed, they just
want to put band-aids on the serious (often intractable) problems caused by CO,
and continue to insist there is a provider’s right to refuse treatment on the supposed
basis of conscience. Frankly, I don’t see any reason for this other than to
protect the power and privilege of doctors over patients. But doctors are public servants, basically. They
are no longer the paternalistic figures whom patients should just defer
to when it comes to important life decisions.
I believe that a general ban on CO in reproductive health care
is not only the right thing to do, but also would be simpler and much more
doable than trying to accommodate and regulate CO on an ongoing basis. Empirically-based
criteria could be developed that would be ethical and fair to all parties, with
no need to navigate subjective aspects such as trying to decide if an objector’s
reasons are valid. It also does not involve “forcing” doctors to do abortions,
which is a red herring fear about banning CO. Below is my suggested protocol
for carrying it out:
objectors from entering certain disciplines at the medical school level (e.g.,
all Obstetrics/Gynecology applicants must be willing to provide abortions; all
Ob/Gyn and family medicine applicants must be willing to prescribe birth
guidance to objecting students in terms of acceptable disciplines or
specialties where their objection won’t be a problem.
medical schools, provide compulsory training in contraception provision for all
students in family medicine, and compulsory training in abortion techniques for
all those in Ob/Gyn (and perhaps other things like vasectomies etc.).
existing objectors to enroll in a Continuing Education course on the need for reproductive
health care services (especially abortion) and why women request abortions.
Expose them to patients requesting the services, educate them on the negative
effects of CO on patients, and provide a clear understanding of their fiduciary
duty to patients. This should decrease the number of objectors because many are
arguably just misinformed, uncertain, or using the excuse of CO for the wrong
those who continue to object, assist them and incentivize them to move to other
disciplines or areas where their objection won’t be a problem.
the burden on those who want to stay and continue objecting, with the goal of
encouraging them to eventually transfer or quit. These measures would become
mostly unnecessary over time as CO becomes rarer. For example, medical
organizations like the Colleges of Physicians and Surgeons, or the Canadian
Medical Association could:
all remaining objectors to register so they can be monitored.
all objectors to file a report every time they refuse services based on their
moral or religious objections.
any inadequate or problematic reports.
conduct regular audits on objecting doctors.
those who violate the policy, and develop a more robust disciplinary policy.
objectors financially liable for any harms done to patients.
existing objectors from working alone, especially in small communities where
they are the only physician.
employers to prioritize hiring of non-objecting physicians.
objecting physicians less (a cut in wages for employed doctors, or a percent
reduction in Medicare fees)
improve public accountability and transparency:
organizations could make the complaint process easier for patients, including
preventing the doctor from learning or discerning the complainer’s identity.
organizations could engage in public advocacy about the right to complain when
doctors refuse care or referrals – e.g., create a brochure for doctors’
offices, publish an op-ed, write a position paper for their website, keep a
permanent prominent link to it on their home page, etc.
could regulate public health systems to guarantee abortion provision, provide
financial aid to hospitals to recruit abortion providers, engage in public
education to reduce abortion stigma, implement buffer zones and various security
measures to support doctors, and other initiatives.
Over time, such measures should reduce or eliminate the
presence of doctors who refuse to deliver health care for which they would
normally be responsible.
Finally, it is crucial to point out that Sweden, Finland,
and Iceland already do not allow CO –
either it’s generally prohibited, or in the case of Iceland there’s so few
objectors that requiring Ob/Gyns to participate in abortion care has not posed
any problems. The assumption that CO is legitimate and must be allowed disregards
the proven reality that it is indeed possible to disallow CO without any
negative impacts on providers. They simply find other jobs or disciplines to
work in, and they can be assisted (and even recompensed) to do so.
One might argue that these Nordic countries are a unique and
unrepresentative case because they have high degrees of secularism and gender
equality, and less abortion stigma. But isn’t that exactly the point? A strong commitment to secularism
and gender equality makes CO unnecessary and even unthinkable, as it should be.
And that’s really what our end goal should be – not trying to accommodate the
ongoing oppression and stigmatization of women under the guise of “conscience.” CO is simply an ideological retaliation against laws that empower women, and it comes mainly from fundamentalist religion. It should not be
defended or tolerated.
My previous articles
on “conscientious objection”:
Synopsis: A comprehensive
paper that uniquely delves into the underlying premises of CO to show that it
is fundamentally contradictory and unworkable, and has nothing in common with
the military CO from which it is supposedly derived. Current laws and practices
in various countries around CO in reproductive health care show that it is
frequently abused, with harmful impacts on women's health care and rights. CO in
reproductive health is not actually Conscientious Objection, but Dishonourable
Disobedience (DD) to laws and ethical codes. It should be dealt with like any
other failure to perform one's professional duty, through enforcement and
Synopsis: A criticism of
the global consensus by secular medical and health organizations and human
rights bodies that “conscientious objection” is a legitimate right of
physicians. All such groups that accept CO simply assume without question that
health care providers have a right to CO, while they contradictorily often
devote considerable discussion and resources to documenting and trying to limit
the systemic harms caused by the exercise of CO. Not a single statement,
article, report, or study by any group that supports CO can cite any benefits
of CO in health care, other than supposedly respecting clinicians’ “right” of
conscience. But all groups fail to see that the term “conscientious objection”
as applied to refusals of reproductive health care is fraudulent, and not true
Synopsis: A response to
our critics, including Global Doctors for Choice. We paraphrase and respond to
eight criticisms, most of which we feel ignored or misunderstood our position.
Synopsis: Policies and practice around “conscientious
objection” in reproductive health care in Canada, and a summary of the
“Dishonourable Disobedience” paper by Joyce Arthur and Christian Fiala to show
what’s wrong with CO.
Synopsis: A critique of anti-choice views on
“conscientious objection”, including in particular the views of the Christian
Medical and Dental Society of Canada, which is suing the College of Physicians
and Surgeons of Ontario for enacting a policy requiring objecting doctors to
refer patients to someone who can provide the services.
Synopsis: We ask the Ontario College to
amend its policy to prohibit or at least strongly discourage the practice of
conscientious objection for contraception and abortion services in particular.
We also ask the College to implement monitoring and enforcement against those
who disobey CO regulations, including disciplinary measures and financial and
legal liability for any patient harms. We provide arguments against allowing
any degree of CO in reproductive health care, on the basis that it is not
genuine CO, is a violation of medical ethics and patients’ right to health care,
and is discrimination on the basis of sex. We also provide arguments against
the typical compromise that requires doctors to refer appropriately, because it
is contradictory, unfeasible, and systematically abused.
Synopsis: The College’s new draft policy requires
objecting doctors to make an “effective referral” to someone who can provide
the service. I draw attention to the negative anti-choice reaction to this and
the likelihood that most anti-choice doctors will flout the policy because they
think referring makes them “complicit.” I urge the College to implement various
suggested monitoring and enforcement measures, and to make the patient
complaint process more accessible and confidential.
Synopsis: I critique the
College’s draft "Conscientious Refusal" policy with similar arguments
as in the above submissions to the Ontario College. (While the latter stuck to
its “effective referral” policy, the Sask. College caved to anti-choice
pressure and weakened its policy so that doctors only need to “make an
arrangement” for the patient to see someone who can refer them to someone who
can provide the service.)
Yes We Can! Successful Examples
of Disallowing ‘Conscientious Objection’ in Reproductive Health Care.
By Christian Fiala, Kristina Gemzell Danielsson, Oskari Heikinheimo, Jens A. Guðmundsson,
and Joyce Arthur. (Just drafted and awaiting publication, October 2015.)
Synopsis: Three countries
– Sweden, Finland, and Iceland – do not generally permit health care
professionals in the public health care system to refuse to perform a legal
medical service for reasons of CO when the service is part of their
professional duties. We investigate the laws and experiences of these countries
to show that disallowing CO is not only workable but beneficial for all
Labels: abortion, Christian Fiala, College of Physicians and Surgeons, conscience clauses, conscientious objection, contraception, Global Doctors for Choice, refusal to treat, reproductive healthcare