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Discriminatory Conscientious Objections in Healthcare: A Response to Ancell and Sinnott-Armstrong

Published online by Cambridge University Press:  22 May 2019

KATRIEN DEVOLDER
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Abstract:

Aaron Ancell and Walter Sinnott-Armstrong (A&SA) propose a pragmatic approach to problems arising from conscientious objections in healthcare. Their primary focus is on private healthcare systems like that in the United States. A&SA defend three claims: (i) many conscientious objections in healthcare are morally permissible and should be lawful, (ii) conscientious objections that involve invidious discrimination are morally impermissible, but (iii) even invidiously-discriminatory conscientious objections should not always be unlawful, as there is a better way to protect patient rights. Pursuant to (iii), A&SA propose a framework that legally allows discriminatory conscientious objections, but that shifts the financial costs associated with such objections from patients to the clinics that employ doctors who discriminate against patients. Though their proposal is controversial, it has attractive features, and merits further discussion. In this paper, I remain neutral on the third claim A&SA advance in support of their proposal, but point out a problem with the two first claims. In the light of my criticisms, I propose to modify their proposal so that costs are shifted to clinics in a broader range of cases.

Keywords

Conscientious objectionprivate healthcare systemsdiscriminationpatient rights
Type
Departments and Columns
Information
Cambridge Quarterly of Healthcare Ethics , Volume 28 , Issue 2 , April 2019 , pp. 316 - 326
Copyright
Copyright © Cambridge University Press 2019 

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References

Notes

1. Ancell, A, Sinnott-Armstrong, W. How to allow conscientious objection in medicine while protecting patient rights. Cambridge Quarterly of Healthcare Ethics 2017;26(1):120–31.CrossRefGoogle ScholarPubMed

2. Though the proposal is tailored to private healthcare systems, Sinnott-Armstrong has stressed that their arguments are also relevant for dealing with conscientious objections in public healthcare systems. See this video-interview with Katrien, Devolder and Walter, Sinnott-Armstrong, ‘Walter Sinnott-Armstrong on Conscientious Objection in Healthcare,” The Practical Ethics Channel 2016; available at https://www.youtube.com/watch?v=l0rPb-CRIUs (last accessed 12 Jul 2018).Google Scholar

3. A&SA regularly switch between moral and legal permissibility, and it is not always clear when they are focusing on one or the other, though they do make clear that ultimately they are interested in when conscientious objections should be lawful.

4. See note 1, Ancell, Sinnott-Armstrong 2017, at 123–4.

5. See note 1, Ancell, Sinott Armstrong 2017, at 123.

6. See, for example, Wicclair, MR. Conscientious objection in medicine. Bioethics 2000;14:205–27;CrossRefGoogle Scholar Clarke, S. Conscientious objection in healthcare, referral and the military analogy. Journal of Medical Ethics 2017;43(4):218–21.CrossRefGoogle ScholarPubMed

7. On the one hand, A&SA admit toward the end of their paper that there may be other types of conscientious objections that are morally impermissible, but on the other hand, the combination of their first two claims, clearly narrows down the types of morally impermissible conscientious objections to those that involve invidious discrimination.

8. Note that ‘invidious discrimination’ is an ambiguous concept, the meaning of which is contested by legal (and other) scholars. It could be narrowly defined as discrimination that requires bad intent, or more broadly, as discrimination that is wrongful. See, for example, The Legal Information Institute of Cornell Law School, Definition of invidious discrimination; available at https://www.law.cornell.edu/wex/invidious_discrimination (last accessed 24 July 2018).

9. According to Lippert-Rasmussen, any bias on the part of the discriminator against a salient group, on account of them being members of that group, makes the discriminating direct as opposed to indirect. Lippert-Rasmussen, K. Born Free and Equal? A Philosophical Inquiry into the Nature of Discrimination. Oxford: Oxford University Press, 2013:54–79, at 60–2.CrossRefGoogle Scholar

10. See note 9, Lippert-Rasmussen 2013.

11. Note that the harm involved in disadvantageous differential treatment based on membership of socially-salient groups is likely to spread across individual acts and to accumulate across individual acts. The same is not true of disadvantageous differential treatment based on membership of socially nonsalient groups or individual properties.

12. See note 9, Lippert-Rasmussen 2013.

13. See note 9, Lippert-Rasmussen 2013, at 74.

14. See note 1, Ancell, Sinnott-Armstrong 2017, at 125–6.

15. Devolder, K. Complicity. International Encyclopedia of Ethics. Wiley-Blackwell 2017; available at https://onlinelibrary.wiley.com/doi/abs/10.1002/9781444367072.wbiee832 (last accessed 24 July 2018).Google Scholar

16. Lepora, C, Goodin, RE. On Complicity and Compromise. Oxford: Oxford University Press 2013.CrossRefGoogle Scholar