In the Australian state of Victoria, there has been debate over a bill to take abortion off the criminal statutes. It appeared possible that the move to decriminalize abortion would fall, not because of opposition to abortion, but over the question of conscientious objection. Clause 8 in the Victorian legislation states that “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… 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.”
Although the bill was ultimately passed by the Victorian parliament, this clause in particular attracted heated and acrimonious controversy.
How should we view Clause 8?
The Victorian legislation protects the right of doctors to conscientiously object to performing abortions while requiring doctors who choose to conscientiously object to refer patients seeking an abortion to another health care provider. In the United States, on the other hand, recently proposed regulations from the Department of Health and Human services would support doctors who refuse to refer on grounds of conscience. The regulations would bar organizations or individuals in receipt of federal funds from discriminating against employees on the grounds of their refusal to “provide, refer for, or make other arrangements for abortion.”
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? Some people argue that referral would make doctors accomplices to a practice that they oppose. In Ontario, where a requirement to refer was recently removed from draft guidelines from the College of Physicians and Surgeons, a local Rabbi responded that “If you're opposed to these things, referring is the same as taking part in the evil.” The Australian Medical Association, the Catholic church, and some civil libertarians opposed the Victorian conscience provisions.
The first point to make is that it is not clear that referring a patient to another doctor 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 in Victoria 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. The doctor’s intention would be to provide information about legally available alternatives, though they may foresee that an abortion may ensue. And the referring doctor does not actually carry out the abortion. Their role is at most contingent participation in the causal sequence that leads to termination. 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 a subsequent abortion? They would play a contingent causal role in the sequence of events that led to termination – but it is implausible that they bear any significant responsibility for it.
Second, even if doctors were thereby morally responsible in some minimal way for the subsequent course of events, they nevertheless may be obliged to refer a patient by virtue of their professional role. The doctor has a responsibility to provide the patient with information about the alternatives, even if they would not personally espouse some of those alternatives. It is important that doctors do not impose their moral perspective upon patients. After all, doctors are medical experts and not moral experts. Doctors should respect patients’ own judgements about what is best for their own lives. A doctor’s role is not to decide for the patient, it is to provide expertise, advice, and assistance with the process of decision-making. But at the end of the day, patients must be allowed to choose medical procedures of which doctors disapprove. The alternative is to return to old-fashioned medical paternalism.
What would we think of a doctor who has a religious objection to blood transfusion refusing to refer an anaemic patient to another doctor who did not object to blood? Most people would accept the rights of individuals to refuse treatment for themselves on religious or any grounds but would find it unacceptable for individuals, including doctors, to refuse it on behalf of others.
Women may be harmed by refusals to refer. Although a woman may still be able to find another doctor who is willing to provide advice or assistance with terminating a pregnancy, there are reasons why conscientiously objecting doctors should not force her to find the doctor herself. First, it imposes an extra burden on 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. Second, in some settings it may be difficult for a woman to find another health practitioner who is willing to help her with her decision. In rural areas, for example, 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 emotionally and psychologically vulnerable. 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. Fourth, the poorest and least educated will be least likely to know of or be able to seek out alternative services. Such a policy of nonreferral may exacerbate existing disadvantages.
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.
A recent U.S. study illustrates the importance of refusals to refer. Researchers found that when faced with patients requesting a legally available medical procedure to which they had a religious or moral objection, 14% of doctors would withhold information from patients about some treatment options, and 29% stated that they would not refer patients on to another doctor who could provide such options. This means that more than 20 million American women would potentially be denied access to, or information about, legally available treatment in the event that they needed it. It is plausible that at least some of these, perhaps many, will not have the knowledge and skills to access such treatments without referral.
If health care workers are required to refer patients on to others who do not have conscientious objections, it will doubtless cause some to experience discomfort. But there are better responses to personal moral conflict than to curtail the rights of patients. The first is to question the reasons for our sense of moral conflict and to understand the values that are at stake. We should also try to understand the reasons that others have for their different points of view. Doctors are free, and should be encouraged, to participate in public debates about the legality and morality of practices that they oppose. There may be certain circumstances in which doctors feel obliged to exercise their right not to perform procedures that they cannot reconcile with their conscience.
But there are limits to that right. Doctors 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 and particularly in 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.
Dominic Wilkinson is a neonatologist and Nuffield medical research fellow at the University of Oxford.
Julian Savulescu is Uehiro Chair Practical Ethics at the University of Oxford.