This paper seeks to investigate and assess a particular form of relationship between the State and its citizens in the context of the COVID-19 pandemic, namely that of obedience to the law and its related right of protest through civil disobedience. We do so by conducting an analysis and normative evaluation of two cases of disobedience to the law: (1) healthcare professionals refusing to attend work as a protest against unsafe working conditions, and (2) citizens who use public demonstration and (...) deliberately ignore measures of social distancing as a way of protesting against lockdown. While different in many aspects, both are substantially similar with respect to one element: their respective protesters both rely on unlawful actions in order to bring change to a policy they consider unjust. We question the extent to which healthcare professionals may participate in civil disobedience with respect to the duty of care intrinsic to the medical profession, and the extent to which opponents of lockdown and confinement measures may reasonably engage in protests without endangering the lives and basic rights of non-dissenting citizens. Drawing on a contractualist normative framework, our analysis leads us to conclude that while both cases qualify as civil disobedience in the descriptive sense, only the case of healthcare professionals qualifies as morally justified civil disobedience. (shrink)

This past July, five professional societies, whose members together provide the majority of clinical care in the United States, published a statement objecting to “inappropriate legislative interference” with the physician‐patient relationship and reiterated the importance of “putting patients’ best interests first.” Such a collective response is helpful, but given the apparently growing interest among legislators in legislating aspects of physician‐patient communications, individual physicians, too, may have to face this problem. What should a physician do when confronted with a law that (...) attempts to intervene in the doctor‐patient relationship in a way that the physician believes undercuts good medical care? (shrink)

This article attempts to motivate a reorientation of ethical analysis of conscientious objection by physicians. First, it presents an illustrative case from a hospital emergency department for context. Then, it criticizes the standard pro- and anti-CO arguments. It proposes that the fault in standard approaches is to focus on the ethics of the physician’s behavior, and a better way forward on this issue is to ask how the party against whom the physician exercises the CO ought to respond. It connects (...) this question with recent trends in physician employment models, which suggest that CO may become a potential source of conflict in the future. The article then develops a relational account of CO that extends James Childress’ insights about the nature of CO in “Appeals to Conscience”. This relational account characterizes CO as a two-place relation between conscientious objector and expectant party, in which the conscientious objector makes a request of the expectant party, which has implications that will be welcome and unwelcome for both the pro- and anti-CO camps. Finally, the paper applies this relational account of CO to the case when the physician is an employee. This application demonstrates that it is highly context dependent whether or not an employer should accede to the CO requests of physician–employees. (shrink)

This article attempts to motivate a reorientation of ethical analysis of conscientious objection by physicians. First, it presents an illustrative case from a hospital emergency department for context. Then, it criticizes the standard pro- and anti-CO arguments. It proposes that the fault in standard approaches is to focus on the ethics of the physician’s behavior, and a better way forward on this issue is to ask how the party against whom the physician exercises the CO ought to respond. It connects (...) this question with recent trends in physician employment models, which suggest that CO may become a potential source of conflict in the future. The article then develops a relational account of CO that extends James Childress’ insights about the nature of CO in “Appeals to Conscience”. This relational account characterizes CO as a two-place relation between conscientious objector and expectant party, in which the conscientious objector makes a request of the expectant party, which has implications that will be welcome and unwelcome for both the pro- and anti-CO camps. Finally, the paper applies this relational account of CO to the case when the physician is an employee. This application demonstrates that it is highly context dependent whether or not an employer should accede to the CO requests of physician–employees. (shrink)

This article attempts to motivate a reorientation of ethical analysis of conscientious objection by physicians. First, it presents an illustrative case from a hospital emergency department for context. Then, it criticizes the standard pro- and anti-CO arguments. It proposes that the fault in standard approaches is to focus on the ethics of the physician’s behavior, and a better way forward on this issue is to ask how the party against whom the physician exercises the CO ought to respond. It connects (...) this question with recent trends in physician employment models, which suggest that CO may become a potential source of conflict in the future. The article then develops a relational account of CO that extends James Childress’ insights about the nature of CO in “Appeals to Conscience”. This relational account characterizes CO as a two-place relation between conscientious objector and expectant party, in which the conscientious objector makes a request of the expectant party, which has implications that will be welcome and unwelcome for both the pro- and anti-CO camps. Finally, the paper applies this relational account of CO to the case when the physician is an employee. This application demonstrates that it is highly context dependent whether or not an employer should accede to the CO requests of physician–employees. (shrink)

In this paper I defend the Reasonability View: the position that medical professionals seeking a conscientious exemption must state reasons in support of their objection and allow those reasons to be subject to evaluation. Recently, this view has been criticized by Jason Marsh as proposing a standard that is either too difficult to meet or too easy to satisfy. First, I defend the Reasonability View from this proposed dilemma. Then, I develop this view by presenting and explaining some of the (...) central criteria it uses to assess whether a conscientious objection is proper grounds for extending an exemption to a medical practitioner. (shrink)

Recent survey data gathered from British medical students reveal widespread acceptance of conscientious objection in medicine, despite the existence of strict policies in the UK that discourage conscientious refusals by students to aspects of their medical training. This disconnect demonstrates a pressing need to thoughtfully examine policies that allow conscience objections by medical students; as it so happens, the USA is one country that has examples of such policies. After presenting some background on promulgated US conscience protections and reflecting on (...) their significance for conscience objections by medical students, this paper observes that the dominant approach (following the American Medical Association's conscience clause) is to allow exempted students to instead be evaluated on the basis of alternative curricular activities to learn the associated underlying content. This paper then introduces and discusses an example in which male Muslim students who believe it is wrong to touch members of the opposite sex object to performing physical examinations on female subjects in their medical training. This sort of case, it is argued, causes difficulty for a conscience clause that resolves the dilemma by granting reasonable exemptions in the form of participation in alternative curricular activities: there are cases where one must perform the ‘objectionable’ activity itself in order to learn the necessary content and underlying principles. (shrink)

Defenders of medical professionals’ rights to conscientious objection (CO) regarding emergency contraception (EC) draw an analogy to CO in the military. Such professionals object to EC since it has the possibility of harming zygotic life, yet if we accept this analogy and utilize jurisprudence to frame the associated public policy, those who refuse to dispense EC would not have their objection honored. Legal precedent holds that one must consistently object to all forms of the relevant activity. In the case at (...) hand, then, I argue that these professionals must also oppose morally innocuous practices that may prevent pregnancy after fertilization. These results reveal that such objectors cannot offer a plausible and consistent objection to harming zygotic life. Additionally, there are good reasons to reject the analogy itself. In either case, these findings call into question the case supporting refusals of EC based on scruples. (shrink)

This article argues that practitioners have a professional ethical obligation to dispense emergency contraception, even given conscientious objection to this treatment. This recent controversy affects all medical professionals, including physicians as well as pharmacists. This article begins by analyzing the option of referring the patient to another willing provider. Objecting professionals may conscientiously refuse because they consider emergency contraception to be equivalent to abortion or because they believe contraception itself is immoral. This article critically evaluates these reasons and concludes that (...) they do not successfully support conscientious objection in this context. Contrary to the views of other thinkers, it is not possible to easily strike a respectful balance between the interests of objecting providers and patients in this case. As medical professionals, providers have an ethical duty to inform women of this option and provide emergency contraception when this treatment is requested. (shrink)

“It's almost like putting salt in a wound, for this person who's already made a very difficult decision,” suggested Meghan Patterson, a licensed obstetrician-gynecologist whom we interviewed in our qualitative study of the experiences of North Carolina abortion providers practicing under the state's Woman's Right to Know Act. The act requires that women receive counseling with state-mandated information at least twenty-four hours prior to obtaining an abortion. After the law was passed, Patterson worked with clinic administrators, in consultation with a (...) lawyer, to write a script to be used in the state-mandated counseling procedure. She and her colleagues took particular steps to mitigate the effects of what she described as HB 854's “forced language”—such as referring to the “father of the child.” While HB 854 stipulated that patients must be informed of the medical risks associated with the particular abortion procedure as well as those of carrying the child to term, Patterson's script made explicit the magnitude of comparative risks, emphasizing that the risks of carrying a pregnancy to term are substantially greater than the risks of an early-term abortion. She felt that these contextualization strategies helped to facilitate trust and rapport in a clinical care situation that proved relationally and morally challenging. In this article, we take up and expand on this point by elucidating an empirically grounded approach to ethically justified care when health care providers face legal or institutional policy mandates that raise possible moral conflicts. Our approach builds on recent bioethics discourse addressing conscience in the practice of medicine. While the concept of conscience has broad philosophical underpinnings relating to moral judgment, agency, and discernments of right and wrong, debates in bioethics have tended to engage the concept primarily vis-à-vis rights of conscientious objection or refusal. Here, we suggest a broader frame for thinking about claims of conscience in health care. Our approach draws on the feminist bioethics and the ethics of care literatures to highlight how providers may be motivated by matters of conscience, including relational concerns, in the active provision of certain forms of care. What emerges are two possibilities: not only conscientious refusal to comply with a policy mandate but also conscientious compliance—working conscientiously within a mandate's confines. (shrink)

Some medical services have long generated deep moral controversy within the medical profession as well as in broader society and have led to conscientious refusals by some physicians to provide those services to their patients. More recently, pharmacists in a number of states have refused on grounds of conscience to fill legal prescriptions for their customers. This paper assesses these controversies. First, I offer a brief account of the basis and limits of the claim to be free to act on (...) one’s conscience. Second, I sketch an account of the basis of the medical and pharmacy professions’ responsibilities and the process by which they are specified and change over time. Third, I then set out and defend what I call the “conventional compromise” as a reasonable accommodation to conflicts between these professions’ responsibilities and the moral integrity of their individual members. Finally, I take up and reject the complicity objection to the conventional compromise. Put together, this provides my answer to the question posed in the title of my paper: “Conscientious refusal by physicians and pharmacists: who is obligated to do what, and why?”. (shrink)

Suppose a primary care physician practicing in an underserved community orders a treatment for one of her indigent patients under the state’s Medicaid program.

Suppose a primary care physician practicing in an underserved community orders a treatment for one of her indigent patients under the state’s Medicaid program.

A request that an ethics committee or consultant analyze the ethical issues in a case, delineate ethical options, or make a recommendation need not automatically but often does elicit legal information. In a recent book in which ethics consultants described cases on which they had worked, almost all cited a legal case or statute that had shaped the consultation process. During a period of just a few months, case consultation done under the auspices of one university hospital ethics committee involved (...) interpretation of statutes on living wills, durable powers of attorney, competency, confidentiality, guardianship, AIDS testing, and disability. At another hospital, 30% of ethics consultations were thought to involve legal issues. Attorneys at a third hospital estimated that virtually every case involves legal issues. The notion that ethics consultation is an “amalgam” of medicine, ethics, interpersonal skills, and law is gaining currency. Ethics consultation has become a channel through which law enters the clinical setting. (shrink)

The purpose of this paper is to show that conscientious objection to military service is essentially not a dilemma of freedom of conscience versus the duty to obey the law, but above all a dilemma between two conflicting patriotic moral obligations. Furthermore, the paper demonstrates that CO is justifiable on the basis of what is known as moderate patriotism, that is, out of a patriotism which is committed simultaneously to universal and particular values. The paper begins with a critical discussion (...) of theoretical weaknesses in liberal thought of CO. Then, the concept of moderate patriotism is presented, followed by a discussion of the notion of patriotic CO. The next stage presents a step Towards A Theory of PCO to Military Service and shows how it differs from other liberal theories of disobedience. The conclusion is that if CO on patriotic grounds is morally justifiable, it follows that this is an act committed within the framework of legitimate political discourse. Therefore, PCO is politically legitimate even if it is not always legal. In other words, the discussion of PCO offers a theoretical distinction between politicallegitimacy and legality. (shrink)

Doctors hold coexisting ethical duties to avoid causing deliberate harm to their patients (non-maleficence), to act in patients’ best interests (beneficence), to respect patients’ right to self-determination (autonomy) and to ensure that costs and benefits are fairly distributed among patients (justice). In the context of non-directed altruistic kidney donations (NDAKD), doctors’ duties of autonomy and justice are in tension with those of non-maleficence and beneficence. This article examines these competing duties across three scenarios in which general practitioners (GPs) could promote (...) NDAKD to healthy adults. In the first—when a healthy adult patient prompts the GP to discuss NDAKD—the GP is ethically obligated to counsel the patient about NDAKD to respect their autonomy, yet this does not constitute any form of promotion of NDAKD. In the remaining scenarios, healthy adult patients are unaware of the possibility of NDAKD. In the second, it is ethically permissible for GPs to indirectly raise awareness of NDAKD among healthy adults by displaying recruitment campaign material to non-specified groups of patients in their waiting rooms. In the third, it is ethically impermissible for GPs to directly promote NDAKD to individual healthy adults by raising the possibility of NDAKD with such individuals. The major counterarguments raised against this position are problems with kinds of counselling that fail to reach expected professional standards, rather than problems with the ethical claims made in this article. (shrink)

According to current definitions of civil disobedience, drawn from the work of John Rawls and Carl Cohen, eco-saboteurs are not civil disobedients because their disobedience is not a form of address and/or does not appeal to the public's sense of justice or human welfare. But this definition also excludes disobedience by a wide range of groups, from labor activists to hunt saboteurs, either because they are obstructionist or because they address moral concerns other than justice or the public weal. However (...) earlier definitions of civil disobedience were not so narrow. I review the development of the current definition and the circumstances of its acceptance. I argue that the circumstances which help to explain the attractiveness of the Rawls/Cohen formulations in the 1970s are no longer applicable and that the question of civil disobedience should be revisited. I suggest a wider definition according to which at least some types of eco-sabotage would be civil disobedience. (shrink)

This article explores attempts at legalization of the practice of euthanasia and assisted suicide. Although in many countries there have been high levels of public support for euthanasia and assisted suicide, in most of them, no legislative activity has taken place concerning these practices, and there is a lack of clarity about what is permitted and what is not. I argue that accurate definition of the relevant concepts and a clear delineation of the territory of the debate would help draw (...) a coherent roadmap for legalization. To this end, I analyze five legal approaches to the legalization euthanasia: maintenance of the status quo, legal defenses, de-prioritization, de-criminalization, and legislation. I conclude with a discussion of the moral and legal implications of the foregoing analysis. (shrink)

Those arguing that conscientious objection in medicine should be declared unethical by professional societies face the following challenge: conscientious objection can function as an important reforming mechanism when it involves health care workers refusing to participate in certain medical interventions deemed standard of care and legally sanctioned but which undermine patients’ rights. In such cases, the argument goes, far from being unethical, conscientious objection may actually be a professional duty. I examine this sort of challenge and ultimately argue that these (...) acts of conscience done in the interest of reforming professional norms or medical regulations are best understood as episodes of civil disobedience rather than episodes of conscientious objection. In contrast to the private, exempting nature of conscientious objection, civil disobedience is a public breach of a norm or law undertaken with the aim of bringing about a change in governmental policies or professional standards. Consequently, clinicians may have a duty to engage in civil disobedience even while professional societies are right to declare limitations on the ethical appropriateness of conscientious objection. (shrink)

Introduction: Non-violent resistance, carried out by healthcare workers, has been a common phenomenon. Despite this and despite the issues this type of action raises, we know little about the healthcare workers who engage in this action and their perspectives about its justification. This exploratory study sought to address this gap, examining these fundamental questions amongst a sample of healthcare workers who have engaged in acts of resistance, exploring their understanding of non-violent resistance, its justification and the barriers they faced in (...) engaging in such action. Methods: Participants were recruited through Medact's ( https://www.medact.org/ ) member database and directed to an online survey hosted on Qualtrics. While participants were unlikely to be representative of the broader UK healthcare community, participants were in an advantageous position to comment on non-violent resistance. Descriptive quantitative analysis and a content analysis were conducted. Results: The majority of participants felt that non-violent resistance could be justified dependent on its cause and/or the action in question. Within this, most felt that if action were non-violent, that if it didn't harm patients and that if the issue in question had to do with health being compromised, action was often justified. A number of others framed their justification as being a right or duty to engage in non-violent resistance. In relation to barriers to engaging in non-violent resistance, these fell into three categories: personal, professional and broader concerns related to society or the general culture found in healthcare. Within these, time and concerns about registration or the consequences of engaging in action were cited as the greatest barriers. Conclusions: These results suggest that healthcare workers who regularly engage in non-violent action carefully thought through their actions, acknowledging the diversity of actions and issues that could be challenged, for many patient care remained a primary concern. There is a need for clarity from regulatory bodies and in particular the need for dialogue between healthcare bodies and healthcare workers who continue to engage in acts of non-violent resistance. (shrink)