December 06, 2008

Conscience clauses

So still-President Bush is trying to expand `conscience clause' rules, which permit health care workers (doctors and nurses) to refuse to participate `in any procedure they find morally objectionable'. (See, for more, this widely-linked piece in the LA Times.) The expansions would cover, not just carrying out procedures, but even providing information or advice about, eg, to whom to turn to have the procedure done. The expansion may or may not include pharmacists (you may remember some noise about pharmacists appealing to conscience clause reasoning in refusing to distribute birth control); since I'm going to be talking about this reasoning in general, I see no harm in including them as `health care workers'. Since the two sides of the dispute here should be obvious, I'll skip all that, and go right to the philosophy.

I assume, first, that there is something compelling about the claims made by conscience clause reasoning: if I really do see abortion as the intentional murder of an innocent human being, it's quite ghastly to force me to be materially involved, in pretty much any way, in carrying out an abortion. But I also assume, second, that we have some prima facie obligations to aid others in carrying out their projects, even (in some cases) when we think those projects are morally reprehensible. Such is the price we pay for living in a pluralistic liberal society. The question is: how do we balance these two compelling claims? (Let's just bracket the question of whether or not we're talking about the right of freedom of conscience itself. I find thinking in terms of `rights' to be too absolute for most purposes anyways; how could you possibly balance two conflicting yet equally absolute rights claims?)

Now, I think it's vital to distinguish between conscience clauses that allow individuals to refuse to participate in morally objectionable procedures and conscience clauses that allow institutions the same privilege of refusal. A patient confronting a recalcitrant and unhelpful (in the patient's eyes) physician, nurse, or pharmacist need, in principle, only find another, more helpful physician, nurse, or pharmacist (as appropriate) to achieve her aims while respecting the conscience of the first health care worker. And, except in a very small number of very rural communities or emergency cases (eg, late at night), this shouldn't be that hard to do.

Where this in-principle change of physicians gets fouled is when we move to the institutional level. It's not at all uncommon for all the hospitals in a town or small city to be owned and operated by religious organisations that are opposed to abortion and birth control. And when workers do have health insurance (though it's extraordinarily unlikely to cover either birth control or elective abortion), that insurance is usually tied to one particular local hospital. For the patient, it's no longer a matter of just walking down the hall; in the case of abortion, significant costs may be introduced by the institutional context, including the need to arrange time off work and pay for travel and lodging (not to mention the costs of the procedure itself).

In short, while there's a relatively large power differential between the patient and her physician, it pales in comparison to the power differential between the patient and the bureaucratic institutional context within which she must move. This suggests that the proper place to balance all these competing factors (the two compelling claims I identified above, plus the power differentials I've identified over the last two paragraphs) is at the institutional level. Finally, I assume a certain preference for individuals, namely, that respecting the moral views of whole institutions is less important, in general, than respecting the moral views and projects of individuals. This is especially so when there is a significant power differential between the individual and the institution.

Putting all of these considerations together, the following seems to be a reasonable preliminary compromise: A health care institution (pharmacies, hospitals, clinics, etc.) should be required to at least provide patients with information about where and how to obtain procedures and technologies that the institution itself considers morally objectionable. Individual health care workers need not be required to provide this information, so long as patients still have ready access to it. Larger institutions and oligopolistic institutions (eg, the two chains of pharmacies that have stores in a region, or a large regional system of hospitals) should also be required to actually make the procedures and technologies available, in a reasonable amount of time and for a reasonable fee.

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