Emmanuel and Stahl: Physicians, Not Conscripts — Conscientious Objection in Health Care

Emmanuel and Stahl: Physicians, Not Conscripts — Conscientious Objection in Health Care

11 Comments:

Stephen Kershnar December 1, 2024 at 11:23 AM
WHO WILL WATCH THE WATCHERS?
Here is what Stahl and Emanuel say.

"Health care professionals work within a matrix of legal, institutional, and professional constraints and obligations, but the primary commitment to patients remains the foundational responsibility of health care. Thus, collectively, the profession — not politicians, judges, or individual practitioners — sets its contours. Defending professional integrity means limiting conscientious objection to professionally disputed interventions and rejecting conscience clauses that target patient populations."

Objection #1: No Justification (Consent/Best Regulator)
(1) Rights. There is no connection between (a) a healthcare worker’s primary duty being owed to the patient and (b) the profession determining the boundaries of permissible care.
(2) Consequences. Emanuel provides no evidence that a profession does a better job of regulating itself than would the government or the free market.
(3) Reject Conclusion. If (1) and (2), then it is false that conscientious objection should be limited to, and only to, professionally disputed treatments.

Given the AMA's self-interested restriction of medical schools and physicians, I wonder why we think they should regulate themselves. I suspect we don't think that judges, lawyers, police officers, or politicians should regulate themselves. Similarly, the car, financial, and sugar industries probably should not regulate themselves.

Stephen Kershnar December 1, 2024 at 11:24 AM

ARGUMENT FROM ANALOGY

Objection #2: Self-Regulation
(1) Other Fields. The education, legal, and military professions should not be self-regulating (because of externalities or respect for rights).
(2) Medical Field. The medical professions is similar to the education, legal, and military professions.
(3) Analogical Reasoning. If (1) and (2), then the medical profession should not be self-regulating.

Stephen Kershnar December 1, 2024 at 11:26 AM

DO NOT LIMIT CONSCIENTIOUS OBJECTION TO PROFESSIONALLY DISPUTED TREATMENT

Objection #3: Other Means of Conscientious Objection (Clear Labeling / Money Exemption)
(1) Other Means. If the healthcare profession should regulate itself, then it should require either clear labeling or conscientious objection with a payment-specific penalty clause.
(2) Reject Conclusion. If (1), then it is false that conscientious objection should be limited to, and only to, professionally disputed treatments.

David H December 2, 2024 at 4:04 PM

Steve,
Why should there be payment specific penalties for conscientious objection? It is not like breaking a contract. Or is it in your view? Do you see soldiers as taking an oath to carry out military orders (when just) and they are violating their oath and should be penalized?

Stephen Kershnar December 1, 2024 at 11:28 AM

ANALOGY #2 - THE MILITARY

Regarding the military, we don't think conscientious objection should be limited to professionally disputed matters. Similarly, we should not limit conscientious objection in the context of medicine.

Objection #4: Military Analogy
(1) Military. Premises (P1) and (P2) apply in the same way to voluntary members of the military.
(2) Military Conscientious Objection. If (1), then military-related conscientious objection should be limited to, and only to, professionally disputed treatments.

David H December 2, 2024 at 3:54 PM

Steve,
I like this point. We don't allow the Pentagon or military branches to limit CO to what is not settled military ethical doctrines. That would be rather silly and might mean at times of consensus (perhaps short-lived) that there would be no CO. And if military CO was to apply to where there is not settled views, why not include those who work on military ethics, not just those in the military.

I wonder if there is more consensus on the goals of the military than the goals of medicine. I am not familiar with military ethics' literature but I wonder if there is not agreement on the broad aims of the military - to protect the homeland. Medicine's goals seem far more contentious. I certainly don't think it is just to increase patient well-being. Surely, the well-being must be far more constrained. I take this up in a post below #1

I also I wonder if it is also just a mistake of Emmanuel and Stahl to push the analogy between military and doctors. I suppose at some very abstract level they are both cases of conscientious medicine and so have something in common. But the five specific differences don't seem that important. See my post #3 below wondering if one is even true and two others couldn't easily be adopted by medical CO

David H December 2, 2024 at 3:33 PM

1. The goal of medicine is not to raise patient well-being, pace Emmanuel and Stahl’s’ claims

Emmanuel and Stahl (henceforth “E & S”) claim the aim of medicine is to improve patient medicine. Doctors who put their own values before patient well-being by conscientious refusals are unprofessional. But the aim of medicine can’t be enhancing patient well-being. That is too broad. Imagine an army doctor is treating an enemy combatant or an Islamic terrorist. The patient’s well-being is improved if the doctor enables him to return and join his fellow soldiers or terrorists. Or imagine that his well-being will be raised if the doctor convinces him to convert to Christianity or become secular. It is not hard to imagine that there is much else the doctor can do to raise his patient’s well-being to increase but that is not part of his job.

It is plausible that the doctor’s role is to increase the patient’s medical well-being. That comes closer to saying the doctor’s role is to make the patient healthy or approximate health. In other words, medicine is pathocentric. When patient’s request is to have a pathology induced – hasten his death, be sterilized, contracept, sexual organs removed, elective abortion - the doctor (nurse or pharmacist) can refuse to do it while escaping E & S’s charge of being unprofessional. They are not appealing to personal religious or idiosyncratic moral views, but are objecting qua doctor, qua nurse, qua pharmacist, not qua Christian. Or if they are objecting qua Christian, they don’t have to, they can object qua Christian. (But see claim #6 below for some qualifications.)

So, what Emmanuel and Stahl require is an account of well-being restricted to the medical setting that is not pathocentric, but includes using the doctor’s anatomical knowledge and technical skills to help them change their bodies in ways they think will increase their well-being; perhaps those practices qualified for acceptable and standard according to the AMA

My argument for the nature of medicine being pathocentric appeals to semantic intuitions. If someone only used their knowledge of bodies and drugs and surgical techniques to do plastic surgery or abortions or sterilizations or CIA interrogations or state executions, many of us would not call such a person a doctor. But if someone only sought to prevent pathology, cure disease, and minimize the effects of pathologies that couldn’t be cured, we would be quite willing to say that person was a doctor. So pace Boorse, it doesn’t matter that doctors in ancient times prescribed abortifacients or contraceptives and in modern times used anesthesia to prevent non-pathological pains of childbirth etc. much of the non-pathocentric activities of health professionals are not essential but contingent.

An analogy would be an army is good given their resources and chain of command at helping during a natural disaster or the navy is helpful in a search and rescue mission. But if the so-called armed forces only helped up with natural disasters or searches at sea, and never were willing to fight other countries threatening the homeland, then such institutions were not armies or navies

I would also distinguish between practices that induced pathologies from practices that weren’t directed against pathologies. Euthanasia induces a pathology, some cosmetic lotions that enhance appearances without damaging bodies just don’t fight pathologies. I. am really concerned with protecting health professionals from getting in trouble if they refused to do the first

David H . December 2, 2024 at 3:34 PM

2. Capture of medical associations by activists.

E & S only permit CO when medical associations have not reached a consensus. I think a minority or activist slim majority could capture a medical association. This may have happened with trans activists and pediatric organizations. Given how political medical organization’s leadership can be, I have some doubts that conscientious objection should be limited to what is recognized as unsettled by the AMA. I think the American College of Ob-Gyns (ACOG )is likewise politicized by abortion activists, though my evidence is from the testimony of the politically partisan pro-life ob-Gyn association – the American Association of Pro-Life Ob-Gyns (AAPLOG)

One bit of evidence that Emmanuel and Stahl give that PAS and Euthanasia is not settled, was that only five states had passed laws. Well, now that Roe is repealed, many states are opposed to abortion. Of course, the national medical associations may still be in favor and that is what really matters to Emmanuel and Stahl.

2B. Turning the Tables on Liberal Prohibitions of CO

Emmanuel and Stahl speak of reflective equilibrium and institutions correcting earlier mistakes. Well, shouldn’t we have protected those doctors who refuse to participate in what is now widely considered a mistake – sterilizing the cognitively diminished and conversion treatments of homosexuals? Or imagine that clitorectomies are in Africa considered standard, expected treatments, and they increase the well-being. Do liberal opponents of conscientious objection really want doctors who refuse to butcher women to leave the field or go into radiology?

3. Is the analogy of medical conscientious refusal a red herring?

Are people today defending medical CO on the basis of it being analogous to military conscientious objection?

I also have doubts about three of the five alleged disanalogies pointed out by E & S The authors highlight that there was a need for proof and alternative service was required in the case of military CO but not medical. It seems that could easily be adopted by medical conscientious objectors

More interesting was the E & S claim that military CO was not selective (all wars were objected to, not just some unjust ones) but medical CO was selective. Perhaps not. If one categorizes medical conscientious of the type that I prefer as opposed to inducing pathologies, then it wasn’t selective but opposed to all inducing of pathologies (at least those that weren’t in the treatment of a worse pathology). If E & S were to object that there is still much of medicine that a CO doctor would do, I would add that there is much of being in the army that a pacifist CO would still do – not every job in the army is trying to kill others. So, I could make the case both medical CO and military CO are selective, or neither are as they are absolutely opposed to, respectively, inducing pathologies and killing.

I would also add that selective CO in war seems unobjectionable to me. Some wars are unjust, and some are not, and with many the justice is not agreed upon. So as a matter of morality, not efficiency, why not allow conscripts to avoid some wars but not others? If so, why not allow MDs to avoid some morally problematic procedures but not others that are not morally troubling?

David H December 2, 2024 at 3:35 PM

4. Is what is described as “Conscientious objection” best labeled “Conscientious Objection” and if so, is it needed?

Steve K will be glad to know that I have not read Rawls’s Theory of Justice since I was a graduate student at NYU. Thomas Nagel advertised a course on contemporary moral philosophy and then on the first day of class said he was just going to teach Rawls’s theory of justice. Perhaps it was less prep for Nagel, who was once Rawls’s UG student at Cornell (I think. Maybe it was later when Rawls was at Harvard). I took it as either sloth or bait and switch. Anyway, if my memory doesn’t fail me, Rawls distinguished between Conscientious objection and civil disobedience in the following way: conscientious objection is exemplified by someone having a view that is contrary to the morality of the society– Quaker pacifists in a society that believes in just war and justified killings. Civil disobedience is when the society is not living up to its own values as when it treat blacks worse than whites, or women worse than men. So, if medicine’s nature is pathocentric, then what is called conscientious objection is really more akin to civil disobedience as health practitioners are falling short of their own values

Anyway, leaving aside my assimilation of Rawls’s categories, I still have qualms with appealing to conscientious objection to make exceptions for health professionals who don’t want to impose pathologies. Once a more general right of conscientious objection is allowed, then female Muslim physicians can refuse to treat naked male patients, or Jehovah witness surgeons can refuse to provide blood transfusions or Jewish MDs refuse to prescribe drugs made from non-kosher gelatins etc. I recall reading of Muslim medical students in England who didn’t want to learn how to treat sexually transmitted diseases.

Perhaps even worse, can a non-Catholic (or dissident, “progressive” catholic) physician appeal to her conscience to do abortions in a catholic hospital or a believer in Physician-assisted suicide help a patient die in states where PAS is illegal? For such reasons, I once thought it better to appeal to the internal morality of medicine than a blanket principle of respecting conscience. If medicine is pathocentric, then CO would just allow health professionals to refuse to impose pathologies (euthanasia, abortion, contraception, sterilization, gender realignment surgeries (assuming these were not cures but pathological response to pathologies), not refuse to treat naked men, or people who are ill because of their vices, provide blood transfusion, non-kosher medicine or not treat LGBT because of disapproval of their lifestyles etc. An internal morality of medicine that priorities treating pathologies and respects doctors’ refusals to impose pathologies, would prevent the above unwelcome abuses of a broader principle of conscientious medicine

David H December 2, 2024 at 3:41 PM

5. Internal Morality of Medicine/Role Morality vs Oath Keeping

An internal morality of medicine is, I think, a sort of role morality. There does seem to be something to the latter as Phil said, I have parental duties that strangers don’t. But taking care of my kids also seems unobjectionable, all things considered, i.e., it is seems true from an impartial moral perspective that I ought to take care of my kids. There are no moral truths that dictated I not take care of my kids. And if I can’t provide for them, perhaps others who are unrelated to my children, not in the role of extended family, should take care of my kids’ significant (e.g. life preserving) needs.

But an internal morality of medicine or a role morality begins to seem more suspect when it is saying certain people shouldn’t do what an objective impartial morality demands. Say, for the sake of example, that capital punishment is deserved, in fact, a duty. (I don’t believe this as I favor a debt/atonement theory and have little faith that the innocent won’t be executed or guilty people who deserve lesser punishments – say life or long terms in prison - may end up in the electric chair or before a firing squad, but I will assume it is true for the sake of argument.) Or imagine the morally correct act is to hasten someone’s death when it would be merciful. If these are objective moral duties, it is odd that someone can appeal to their professional role to refuse to do what is impartially the morally correct duty. Admittedly, there might be other reasons (brutalization, psychic difficulties) to have doctors kill someone in the morning and then save someone in the afternoon.)

So, an alternative to an internal morality of medicine or role morality, is to stress that health professionals have often taken an oath to live up to the principles of medicine. So, if the correct account of medicine is pathocentric – perhaps this can be determined by a semantic division of labor a la Putnam – then the health professional’s promise to live up to the values of a profession that is essentially pathocentric, means that doing the objectively right act – execution or mercy killing – would come at the expense of their promising to do otherwise. That would be an objective, impartial wrong, to break a promise/oath. Such integrity has a non-role based justification.

David H December 2, 2024 at 3:41 PM

6. No need for Christian Conscientious Objection in Medicine

I think, but I am not sure, that there is no need for Chrisitan conscientious objection as an appeal to loyalty to a pathocentric account of medicine will give them what they want. They don’t have to object qua Christian to contraception, abortion, euthanasia, physician-assisted suicide, sterilization, trans surgeries. They could refuse on the basis that this was creating pathologies in their patients. So they refuse qua doctor, qua nurse, qua pharmacist, not qua Christian doctor, qua Christian nurse, or qua Christian pharmacist

What about IVF? Well, if some extra embryos will be made unhealthy by being frozen, or will be discarded, or are less likely to be viable than sexually produced embryos, that might allow a pathocentric refusal. But if there were no greater risks to the embryos, and the appeal was just based on the requirement of conjugal relations, then my account of CO would not give Christians what they want. Likewise, if they refuse to remove a uterine cyst in a lesbian that prevents pregnancy because she will then reproduce via a method the Christian doctor disapproves, then that refusal should not be protected. They are allowing a pathology to remain or worsen just because they don’t want lesbians to have children without sex with their husband

Can anyone think of other Christian cases of conscientious medicine that a pathocentric approach will not deliver?