Expert group denounces the refusal to treat under 'conscientious objection'

Participants in panel discussion on conscientious objection. Photo: International Women's Health Coalition/Flickr

For the first time ever, an expert group has arrived at a majority consensus that the practice of so-called "conscientious objection" by health-care professionals should not be allowed. The experts agreed that the practice of refusing to provide legal and essential health care due to a doctor's personal or religious beliefs is a violation of medical ethics and of patients' right to health care. Abortion and other reproductive health care are the most commonly refused services.

Unconscionable: When Providers Deny Abortion Care is the title of the expert group's just-released report with recommendations. It is a product of the first global meeting on the topic of "conscientious objection," which took place in Montevideo, Uruguay in August 2017 because the refusal to treat is a major barrier to abortion access in many Latin American countries.

Organized by the International Women's Health Coalition and Mujer y Salud en Uruguay (Women and Health in Uruguay), the meeting brought together 45 participants from 22 countries, including activists and advocates, health and legal professionals, researchers and academics and policy-makers.

'Conscientious objection' is a misnomer

As the report notes, the term "conscientious objection" has been appropriated by religious anti-choice groups in order to deny health care to patients, primarily women. They have distorted the historical use of the term because it has nothing in common with true conscientious objection as practiced in the military. For example, soldiers are conscripted and powerless, while doctors choose their profession and enjoy a position of privilege and authority. Refusing to treat patients also violates the basic principle of conscientious objection: military objectors must shoulder the consequences of their objection, but health-care workers shift the burden of refusals to patients, while maintaining their positions and salaries.

The term "conscientious objection" in the context of health care is propaganda -- not much different than "pro-life" in the abortion debate. The Uruguay expert group suggests that this practice should instead be called "refusal to provide services," "denial of services," or even "dishonourable disobedience" -- a phrase I coined in 2014.

Unfortunately, many in the medical and human rights communities have been bamboozled by the term "conscientious objection," to the extent that allowing the practice in reproductive health care, albeit with limitations, became a consensus position (such as by FIGO, the International Federation of Gynecology and Obstetrics).

The injustice of refusing treatment for personal reasons

A growing number of health-care professionals, researchers and bioethicists have concluded that refusal to treat under the guise of "conscientious objection" is inappropriate and harmful in health care. My colleague Dr. Christian Fiala and I have published several articles in peer-reviewed journals that set out why refusal to treat for personal or religious reasons is wrong and unworkable. Dr. Fiala attended the Uruguay meeting, as did bioethicist Udo Schüklenk of Queen's University in Kingston, who has written extensively on the ethical problems with treatment refusals.

The harms have been well-documented. Around the world, women needing abortions have been left to suffer serious injury or even die by doctors acting on their "conscience." Even where the harm might seem minimal -- i.e., the refuser refers appropriately and the patient receives services promptly -- denial of care is still damaging. It demeans patients by undermining their dignity and autonomy and sends a negative message that stigmatizes them and the health care they need.

The refusal to treat should be recognized as an authority figure's imposition of their personal beliefs on vulnerable others. Since most care denials involve abortion and other reproductive health care that is largely delivered to women, treatment refusals constitute discrimination on the basis of sex.

Health-care workers should not be allowed to refuse care to disadvantaged groups, in the same way that any business owner or government worker cannot discriminate by refusing services to racialized people or members of the LGBTQ community. In addition, medical codes of ethics preclude health-care professionals from discriminating against people based on their illness or condition. This means that doctors can't refuse to treat people whose actions they might morally disapprove of, such as overweight people, smokers, injured drunk drivers -- or those with unwanted pregnancies.

As members of a regulated profession with a state monopoly on health care, doctors have a special obligation to serve the public. Patients depend on doctors because it's difficult to obtain safe and effective care outside the medical system. When physicians claim the "right" to deny treatment for subjective reasons, they are deliberately refusing to comply with essential aspects of their chosen profession. This represents an abuse of public trust and an abandonment of fiduciary duty to patients.

Laws and policies allow refusal to treat

The very first law to sanction "conscientious objection" in any kind of health care was the U.K.'s Abortion Act 1967. Similar laws were also introduced in the United States shortly after the 1973 Roe v. Wade decision that legalized abortion. They subsequently spread to many countries and crept into other parts of reproductive health care, as well as medical assistance in dying.

Today, over 70 jurisdictions around the world have policies or laws that allow refusal to treat for personal reasons, according to the World Health Organization's Global Abortion Policies Database. Most measures try to limit refusal to treat by requiring objectors to make referrals, impart accurate information, and provide treatment in emergencies. However, these measures are poorly monitored and enforced, if at all. The result has been rampant abuse, with many doctors ignoring the imposed limits. Meanwhile, the impact on patients is widely ignored and has not been studied.

In Canada, doctors can refuse to provide reproductive health care with impunity, and aren't even required to refer appropriately except in Ontario. However, referring a patient to a doctor who can provide the treatment is out of the question for many objecting physicians, who feel it makes them complicit in the treatment they're trying to prevent.

In 2015, a religious doctors' group in Canada plus several individual doctors sued the College of Physicians and Surgeons of Ontario over its "effective referral" requirement, mostly in relation to abortion and medical assistance in dying. The Christian doctors lost their suit in January 2018 but an appeal is underway. The arguments made by the plaintiffs reveal the sheer injustice of refusal to treat because the doctors exhibited a complete disregard for patients and their rights, seemingly unaware of the foundational medical ethic that requires them to put patients first.

As the Uruguay expert group noted, international human rights standards do not require states to guarantee refusal rights to health-care providers. On the contrary, several human rights treaty monitoring bodies at the United Nations (see page 14 of the Unconscionable report) have called for limits on the exercise of conscience claims to ensure that health-care workers do not hinder access to services and infringe the rights of patients.

Moving forward

The expert group's report presents several recommendations to help advocates counteract the practice of care denials for personal reasons (paraphrased):

1. Collect more data on the prevalence and consequences of "conscience" claims against abortion.

2. Hold governments accountable for enforcing existing regulations around refusals, and help shape new laws that don't allow denials of care for personal or religious reasons.

3. Reframe the concept of "conscientious objection" to emphasize that the term is a misnomer, to highlight the harmful health consequences of "conscience" claims in the context of abortion care, and to quantify the costs and inefficiencies in the health-care system as a result of allowing such claims.

4. Ensure that reproductive health-care providers receive training and support, and that those who claim "conscientious objection" are held accountable.

5. Engage in civil society activism to show how refusal to treat exacerbates other inequalities. A reproductive justice framework should focus on the communities most vulnerable to care denials, and alliances across movements should share expertise and develop strategies.

Sweden, Finland, and Iceland do not allow doctors to refuse to provide health care including abortion, which is very accessible in those countries. Thus, prohibiting treatment refusals is not only possible, it improves the standard of care.

Eliminating the refusal to treat for personal reasons does not involve forcing doctors to do abortions. It can be done incrementally over time. Examples of possible measures include: screening out objecting students at the medical school stage, mandatory training in abortion provision for Ob/Gyn residents, "values clarification" workshops to move existing objectors towards abortion provision, helping objectors transfer to other fields, and imposing disincentives on remaining objectors, such as lower pay, lower hiring priority, prohibitions on working alone, financial liability for refusals, and other measures.

The landmark Unconscionable report represents a sea change in how we should think about doctors' refusal to treat for personal or religious reasons. It is not a right, but an abuse of authority. It is not "conscientious," but an unethical way to deny legal, life-saving health care. Virtually all fields of medicine do not allow discriminatory treatment refusals and it's time to extend this standard to people with unwanted pregnancies. The Unconscionable report shows us the way forward.

I would like to thank my colleague Dr. Christian Fiala, whose perspective is reflected in this article.

Joyce Arthur is the founder and Executive Director of Canada's national pro-choice group, the Abortion Rights Coalition of Canada (ARCC), which protects the legal right to abortion on request and works to improve access to quality abortion services.

Photo: International Women's Health Coalition/Flickr

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