Conscience, Compromise, and Complicity

Abstract

Debate over whether health care institutions or individual providers should have a legally protected right to conscientiously refuse to offer legal services to patients who request them has grown exponentially due to the increasing legalization of morally contested services. This debate is particularly acute for Catholic health care providers. We elucidate Catholic teaching regarding the nature of conscience and the intrinsic value of being free to act in accord with one’s conscience. We then outline the primary positions defended in this debate and respond to critics of Catholic teaching. In so doing, we show how Catholic health care providers’ claims to conscientiously refuse to offer specific health care services are not essentially faith-based, but are founded upon publicly defensible reasons. We also address the question of whether conscientiously refusing health care providers may become complicit in moral wrongdoing or potentially cause scandal by means of disclosure or referral to another provider.

The Reasonable Content of Conscience in Public Bioethics

“…65 However, those clinicians concerned with the moral complicity of effective referrals should offer a generic referral for insurance authorization to any other clinician whose services the patient may seek out on their own accord. 66 These obligations to inform patients that a refusal is based on clinician conscience (not medical indication), provide advance notification, and, when needed, provide a generic referral to authorize insurance payment are the minimum obligations of objecting clinicians on the reasonability view, and pluralistic societies should pursue solutions (e.g., the proposed Ontario system) that bypass the need for physician referral for contested services altogether.…”

Acts and distance—a commentary on Brummett's ‘when conscientious objection runs amok’

“…Formal cooperation can also be classified as implicit or explicit. 16 To return to the example of the pharmacist not returning an unfulfilled prescription for a contraceptive while fulfilling the prescription would be either formal cooperation (if they thought it is a good thing to provide people with contraceptives) or proximate material cooperation (if the pharmacist only did it not to get fired and did not share the intention of the person purchasing the product) 17 with what the Catholic Church views as the evil of contraception, the act of returning an unfulfilled prescription does neither imply formal cooperation (returning it does not per se mean that you want to the patient to seek its fulfilment) nor does it facilitate its fulfilment in a proximate manner.…”

“…There he and Ostertag argue that a referral would only be licit if it was a general referral that a patient could, nevertheless, use to obtain the services of a clinician that would provide the illicit service. 16…”

“…It is noteworthy that Eberl and Ostertag differ in their conclusions on the U.S. Department of Health and Human Services’ opt-out of the contraceptive mandate arrangement offered to accommodate some religious institutions that object to it with the analysis presented by Long. 3,16 While Eberl and Ostertag (quoting Oderberg) support the idea that opt-out mechanisms exist for institutions to avoid cooperation, Long highlights that utilising an opt-out mechanism that facilitates an employee obtaining a service is still a form of illicit act, because it is still an act that ensures that the employee has access to the illicit service. Long's account is purely teleological and he argues that some acts are always directed towards an illicit end (e.g.…”