Morality and Abortion Providers

8/12/2019 Morality and Abortion Providers

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The NEW ENGLAND JOURNAL of MEDICINE

september 13, 2012

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provision of abortion care is alsoconscience-based. The persistentfailure to recognize abortion pro-vision as conscientious has re-sulted in laws that do not protectcaregivers who are compelled byconscience to provide abortionservices, contributes to the on-going stigmatization of abortionproviders, and leaves theoreticaland practical blind spots in bio-ethics with respect to positive

claims of conscience that is,conscience-based claims for offer-ing care, rather than for refusingto provide it.

Pairing of conscience andantiabortion sentiment is an un-derstandable consequence of theevolution of conscientious objec-tion in health care. The first con-science legislation, the Church

Amendment, arose in 1973 in the wake of Roe v. Wade . It declaresthat a health care worker cannotbe required to perform or assistin the performance of abortion(or sterilization) procedures thatconflict with his [sic] religiousbeliefs or moral convictions, 1 and it prohibits discriminationagainst workers who refuse toprovide care on the basis of theirmoral convictions. It also prohib-

its discrimination against those who do perform a lawful steril-ization procedure or abortion,though it does not recognize thatmoral convictions might drivesuch care. Thus, opposition toabortion, and to fertility controlgenerally, catalyzed the develop-ment of law, theory, and practiceof conscientious objection in med-

icine. Conscientious refusals andopposition to abortion grew uptogether, so to speak.

Over the past 40 years, the ideathat conscience-based care meansnot providing or referring for abor-tion or other contested serviceshas become naturalized. In 2008,the Bush administration extendedthe protections offered by theChurch Amendment to workers

who chose not to participate, evenindirectly, in care that violatedtheir moral beliefs. The Obamaadministration rescinded that rule.Antiabortion groups embracedBushs rule and criticized Obamasrescinding of it; prochoice groups

responded in the opposite man-ner. The result is an ongoing falsedichotomization of abortion andconscience, making it appear thatall abortion opponents support le-gal protections of conscience andall supporters of abortion rightsoppose such protections, with lit-tle nuance in either position.

Whether or not abortion pro-

Recognizing Conscience in Abortion ProvisionLisa H. Harris, M.D., Ph.D.

The exercise of conscience in health care is gen-erally considered synonymous with refusal toparticipate in contested medical services, especiallyabortion. This depiction neglects the fact that the

The New England Journal of MedicineDownloaded from nejm.org by MATTHEW BOBEL on September 12, 2012. For personal use only. No other uses without permission.

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vision is conscientious dependson what conscience is. Most ideasof conscience involve a specialsubset of an agents ethical or re-ligious beliefs ones coremoral beliefs. 2 The conclusionthat abortion provision is indeedconscientious by this standardis best supported by sociologistCarole Joffe, who showed in Doc-tors of Conscience that skilled main-stream doctors offered safe, com-passionate abortion care beforeRoe .3 They did so with little togain and much to lose, facingfines, imprisonment, and loss ofmedical license. They did so be-cause the beliefs that matteredmost to them compelled them to.They saw women die from self-induced abortions and abortionsperformed by unskilled providers.They understood safe abortion tobe lifesaving. They believed theirabortion provision honored thedignity of humanity and was theright even righteous thingto do. They performed abortionsfor reasons of conscience. 3

Though abortion providersnow work within the law, theystill have much to lose, facingstigma, marginalization withinmedicine, harassment, and threatof physical harm. However, doc-tors (and, in some states, ad-

vanced practice clinicians) contin-ue to offer abortion care becausedeeply held, core ethical beliefscompel them to do so. They see

womens reproductive autonomyas the linchpin of full personhood

and self-determination, or theybelieve that women themselvesbest understand the life contextsin which childbearing decisionsare made, or they value the healthof a woman more than the poten-tial life of a fetus, among otherreasons. 3 Abortion providers con-tinue to describe their work in

moral terms, as right and goodand important, 4 and articulatetheir sense that the failure to of-fer abortion care generates a cri-sis of conscience. 5

Persistent neglect of the com-patibility between conscience andabortion provision not only mis-represents their relationship, buthas consequences for law, clinicalpractice, and bioethics. First, U.S.federal and state laws continue toprotect only conscience-based re-fusals to perform or refer forabortion, offering minimal legalprotection for conscience-basedabortion provision. For example,the recent Georgia and Arizonabans on abortion after 22 and 20

weeks gestation, respectively, in-clude no allowances for providersconscience-bound to offer care af-ter that limit. And the globalgag rule forbidding workers atorganizations funded by the U.S.Agency for International Develop-ment to discuss abortion has noconscience exemptions.

Second, the equation of con-science with nonprovision of abor-tion contributes to the stigmati-zation of abortion providers. Ifphysicians who offer abortioncare dont have a legitimate claimto act in good conscience, liketheir counterparts who opposeabortion, the implication is thatthey act in bad conscience orlack conscience altogether. Thisunderstanding reinforces imagesof abortion providers as morallybankrupt. Such stereotypes may

deter doctors from offering abor-tion services, thereby contributingto provider shortages. More im-portant, stereotyping may havedangerous consequences: sociolo-gists confirm that harassmentand violence are extreme exten-sions of stigmatization.

Finally, bioethicists have fo-

cused on defining conditions un-der which conscientious refusalsare acceptable but, with rare ex-ceptions, have neglected to makethe moral case for protecting theconscientious provision of care.Indeed, there is a real asymmetrybetween negative duties (to not dosomething) and positive duties (todo something) and, accordingly,between negative and positiveclaims of conscience. Violationsof negative claims are consideredmorally worse than violations ofpositive ones. 2 However, as bio-ethicist Mark Wicclair argues, themoral-asymmetry thesis does notprovide adequate ethical justifica-tion for current conscience law,

which protects only conscience-based refusals. 2 Moral integritycan be injured as much by notperforming an action required byones core beliefs as by perform-ing an action that contradictsthose beliefs. 2

The moral contours of positiveclaims of conscience require fur-ther elaboration, since they haveimplications for many other are-nas of health care and researchin which workers may be con-science-bound to do something for example, physician-assistedsuicide or stem-cell investigation.Doing something reflects a con-scientious commitment, as legalscholars Bernard Dickens andRebecca Cook would say, and itis a moral gesture, to borrow the

words of bioethicist Laurie Zoloth.Bioethical scholarship, however, is

dominated by considerations ofconscientious refusal, not con-scientious provision.

Abortion opponents may arguethat abortion providers are moti-

vated not by conscience but solelyby political beliefs. Although I dis-agree, this critique indeed high-lights the importance of distin-

Recognizing Conscience in Abortion Provision




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guishing claims of consciencefrom other types of claims. Cer-tainly, if abortion providersconscience-based claims requirescrutiny, so do conscience-basedrefusals, to ensure that refusalsare indeed motivated by conscienceand not by political beliefs, stigma,habit, erroneous understanding ofmedical evidence, or other factors.

Despite nearly four decades ofdebate about conscientious refus-als, we have no clear path for op-erationalizing them no stan-dard curriculum to teach healthcare professionals how to hu-manely conscientiously object, andno clinical standard of care forconscientious refusals althoughthere are presumably good andbad, skillful and haphazard, safeand unsafe ways of carrying

them out. Since we need both astandard curriculum and a stan-dard of care, it is perhaps prema-ture to introduce a whole new setof conscience claims. The termsused in the current debate, how-ever, are inadequate and inac-curate.

Recognizing only negativeclaims of conscience with respectto abortion or any care is akind of hemineglect. Health care

workers with conflicting viewsabout contested medical proce-dures might all be conscientious,even though their core beliefs

vary. Failure to recognize thatconscience compels abortion pro-

vision, just as it compels refusalsto offer abortion care, rendersconscience an empty conceptand leaves us all with no moral

ground (high or low) on whichto stand.

Disclosure forms provided by the authorare available with the full text of this articleat NEJM.org.

From the Department of Obstetrics and Gy-necology, the Department of WomensStudies, the Center for Bioethics and SocialSciences in Medicine, and the Program forSexual Rights and Reproductive Justice,University of Michigan, Ann Arbor.

1. Health Programs Extension Act of 1973(the Church Amendment), Pub. L. No. 93-45, 401, 87 Stat. 91, 95.2. Wicclair MR. Conscientious objection inhealth care. Cambridge, United Kingdom:Cambridge University Press, 2011.3. Joffe CE. Doctors of conscience: thestruggle to provide abortion before and afterRoe v. Wade. Boston: Beacon Press, 1995.4. Poppema SP. Why I am an abortion doc-tor. Amherst, NY: Prometheus Books, 1996.5. Parker W. A perspective on later abortion. . . from someone who does them. Con-science 2012;33:17-9.DOI: 10.1056/NEJMp1206253Copyright 2012 Massachusetts Medical Society.

Recognizing Conscience in Abortion Provision

The Supreme Court and the Future of MedicaidTimothy Stoltzfus Jost, J.D., and Sara Rosenbaum, J.D.

Perhaps the biggest of themany surprises found in the

Supreme Courts June 28 deci-sion on the Affordable Care Act(ACA) was the Courts conclusionthat the laws Medicaid expan-sion scheduled for 2014 was un-constitutional. 1 Attention before

June 28 was focused on whetherthe Court would uphold the indi-

vidual mandate to obtain healthinsurance coverage, but in the

wake of the Courts decision, fo-

cus has shifted to the question of whether states will refuse to par-ticipate in expanding the Medic-aid program, given the Courtsholding that the Secretary ofHealth and Human Servicescannot enforce the expansion as amandate.

Sommers et al. now provide in

the Journal (pages 10251034) aglimpse of the impact of Medic-aid expansion in New York, Maine,and Arizona. Medicaid expansionin these states was associated notonly with improved health carecoverage but also with reducedmortality. The question of whetherthe states wil l expand Medicaid,therefore, is not just a question ofpolitics; it is a question of life,health, and death.

The expansion is one of several

important Medicaid changes inthe ACA. But as Justice Ruth BaderGinsburg noted in her opinion,changes in Medicaid are not new.Medicaid itself was established in1965 as an amendment to the pre-existing Medical Assistance for theAged program. Since then, Con-gress has amended Medicaid at

least 50 times, mandating cover-age of new categories of benefi-ciaries (e.g., low-income pregnant

women in 1988) and dramaticallyexpanding coverage for others(e.g., low-income children in 1989).Indeed, the Social Security Act hasalways reserved to Congress theright to alter, amend, or repeal anyprovision of the Medicaid stat-ute. 2 The ACAs expansion of Med-icaid to cover all nonelderly low-income persons with household

incomes below 138% of the fed-eral poverty level was the latest ina long line of evolutionary pro-gram reforms.

The 26 state challengersclaimed that the ACA Medicaidamendments crossed a constitu-tional line. It is clear that Con-gress cannot force states to par-



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Morality and Abortion Providers