Committee on Ethics Opinion Number 385 entitled:
The Limits of Conscientious Refusal in Reproductive Medicine
In November of 2007 the American College of Obstetricians and Gynecologists Committee on Ethics published a six page opinion, number 385 entitled: The Limits of Conscientious Refusal in Reproductive Medicine www.acog.org/from_home/publications/ethics/co385.pdf.
The paper targets pro-life physicians insisting that physicians who object to doing abortions should refer patients to doctors who will do them. They also request that pro-life doctors move their practices closer to abortion businesses so women can have a shorter drive to get an abortion when their physicians refuse to perform or refer for one.
Many pro-life organizations and individuals from around the country publicly manifested their disapproval of such a statement and were concerned that the American Board of Obstetrics and Gynecology would use it to require the abortion promotion for certification. This is a flagrant example of how far the pro-abortion leadership in the medical profession is willing to go to impose their ideology on pro-life physicians.
In an effort to clearly highlight the numerous, serious errors in this ACOG document, C. Paul Morrow, MD, the Vice president of the St. Gianna Physician’s Guild, has written the following paragraph by paragraph critique:
Note: C. Paul Morrow is Charles and Helen Langmade Professor of Obstetrics and Gynecology at the University of Southern California Keck School of Medicine.
Comments on the ACOG Committee Opinion #385
INTRODUCTION – GENERAL COMMENTS
1. The authors of the document are not identified and the Committee members are not identified. Thus it is not possible to know what credentials the authors have, other than membership in the ACOG, to address issues of conscience. To my knowledge the document was not approved by the membership of the ACOG.
2. The document does not limit its scope to medical and professional competence, but addresses issues of personal conscience. In my view the ACOG has no standing to officially address moral issues, only professional and perhaps legal issues. Thus the ACOG can promulgate professional standards for their members, which concern the knowledge and skill required to carry out their duties in regard to their patients. The ACOG can also set forth criteria for measuring these abilities, but I do not believe it has the competence or authority to address the conscience of its members or make moral judgments regarding its members’ medical practice.
Although the deliberate destruction of pre-born human beings is currently legal in the United States, the ACOG should not embrace any actions which are in themselves directed to the destruction of innocent human beings. Deliberate or direct abortion should not be adopted as a standard of care in treating any woman, much less when it is entirely elective. The professional careers of the ACOG membership should be devoted to the maintenance, preservation, and increase of human life. Therefore, it is not appropriate for ACOG to stipulate the circumstances under which a deliberate abortion constitutes standard medical care. Nor should it stipulate that all members in good standing are required to perform such abortions or refer to physicians who do perform them. Nevertheless, setting standards for performance of abortion is appropriate because this promotes women’s safety. Since ACOG does not have the right to establish deliberate abortion as a standard of practice, it does not have the right to question, much less view as erroneous, those who object to performing these abortions on moral grounds; that is, against the member’s judgment of conscience.
3. The ACOG does not set Federal and State laws regarding the legality of abortion. As a secular institution it operates within the strictures of a higher law, that is Federal and State law. So it is with individual physicians – the conscience is informed by laws and principles that are higher than the ACOG standards and higher than Federal and State law.
4. Implicit in this document is that there exists no objective moral law. In fact the ACOG statement reduces the morality of acts to such subjective criteria as one’s feelings, personal values and sense of guilt or shame at having performed certain actions.
1. In the opening paragraphs the document assumes that the ACOG Committee has the authority to stipulate when physicians must accommodate the patient’s moral beliefs (i.e., when physicians must accept the patient’s imposition of her religious and moral beliefs on the physician), but not impose their own religious or moral beliefs on the patient. Physicians are not mere functionaries who fulfill every request a patient may make. Certainly, the ACOG would not condone the physician’s compliance with a patient request that is medically inappropriate, or that is illegal. When a physician refuses to comply with a request that violates the physician’s conscience (but not the civil law), the physician’s morality is not being imposed on the patient; rather the physician is exercising the right not to be forced to do something which the physician judges to be immoral. Patients are certainly free to act within the law on the basis of their own ethical judgments or even to be immoral or disobey the law, however, they are not free to make physicians or any other person do something that those individuals view as immoral. Just as there can be no legal right to do what is illegal, there is no moral right to do what is immoral, or to make others do what is immoral.
2. Next the ACOG Committee has the boldness to define conscience, surely a task well beyond the purview of any medical organization. It does so in strictly secular, psychological terms, which are foreign to the traditional understanding of conscience operative in philosophy and theology.
3. The claim that an individual’s conscientious objections to a given action can be overridden in the interest of other moral obligations may be true in some, but certainly not all instances. For example, a person carrying a fatal and contagious disease who refuses to be quarantined can be forced to do so for the protection of the common good. Here the non-absolute right of an individual not to have his free movement impeded yields to the non-absolute right of others not to have their lives put in danger. However, there are absolute moral norms that admit of no exceptions. Every innocent human being has an absolute right not to be killed, which means that everyone else has an absolute duty not to kill any innocent human being deliberately. Although civil law permits violations of this norm, e.g., in abortion, it cannot make such violations morally good. Nor can the ACOG. Patient autonomy requires that patient’s not be impeded in pursuing medical procedures that are legal and available, but it does not include the right to force physicians to violate absolute moral norms.
4. The statement that a physician by “entering the profession of medicine accepts a set of moral values and duties” is an incomplete statement of the facts. First, many or most physicians bring into medicine a well established set of moral values derived from traditional, authentic sources that they would not expect to abandon by becoming a physician; secondly, the “moral” values and duties prevailing in medical practice in the USA and accepted by many physicians at the time they entered medical practice have been substantially changed, some by Federal and State law, some by medical organizations. Many of the changes have not been accepted by physicians because they are diametrically opposed to the core values the physicians had when they entered medical school and into the practice of medicine. Rather it is the medical profession, and specifically in this instance the ACOG that has changed its values or standards. When the deliberate destruction of pre-born human life was illegal in the USA the ACOG did not argue that those physician performing abortions illegally were exercising an acceptable conscientious objection to the law in order to perform a morally acceptable medical procedure.
We can point out that for centuries the Hippocratic Oath was honored by physicians and stood as the most widely acknowledged serious statement regarding the ethical practice of medicine. It explicitly prohibits abortion, referral for such, and euthanasia, among other things. It says nothing about accepting the values of patients that conflict with the Oath.
DEFINING LIMITS FOR CONSCIENTIOUSNESS - POTENTIAL FOR IMPOSITION
1. The opening paragraph of this section puts the basis for argument on a principle that is self-evidently false: “The first important consideration in defining limits for conscientious refusal is the degree to which a refusal constitutes an imposition on patients who do not share the objector’s beliefs.” According to the Committee Opinion, this statement is based on a principle in the practice of medicine referred to as “respect for patient autonomy”, “a principle that holds that persons should be free to choose and act without controlling constraints imposed by others.”
2. The document provides a reference for this, but basically the Committee accepts the principle and then uses it to formulate opinions that might be interpreted as standards of care by the community, the medical profession, lawmakers, etc. It appears that, in the opinion of the ACOG Committee, this is a principle that applies to patients but not to physicians: that physicians cannot choose and act without controlling constraints imposed by others, in this case the patient. So the physician’s moral standards are subject to the patient-to-patient variability of conscience (and that of the ACOG Ethics Committee). This cannot possibly be valid (supra vide).
DEFINING LIMITS FOR CONSCIENTIOUSNESS – EFFECT ON PATIENT HEALTH
1. In the introduction the Committee Opinion lists five examples of medical providers refusing to accommodate patient requests on the basis of conscience, examples that are viewed as egregious, providing the strongest support for the argument that these refusals are harmful to patients and therefore bad medicine. In can be said without knowing all the details that in every case the patient most likely could have obtained the desired services from another physician. Regardless of that, however, the theme here is clearly wrong: that the physician’s conscience is subject to the conscience of the patient (and the emanations of the ACOG Ethics Committee).
2. The issue of sterilization raised in this section is a continuation of the theme that the patient has some sort of right of conscience to force physicians to violate their own consciences. This is not only erroneous, it is unnecessary. As long as the physician, prior to accepting a patient, notifies the patient of the physician’s ethical positions on contraception, sterilization, assisted reproduction, abortion, euthanasia, etc., these circumstances will rarely arise. In exercising their conscience, patients are free to choose their physicians. Even where conflicts arise between the consciences of physicians and patients when choosing another physician might be problematic, e.g. in a small, rural community, the conscience of the physician cannot be violated to satisfy the wishes of the patient. Nearly all problematic “emergency” situations have to do with pregnancy and not with the other issues mentioned above. (With respect to abortion, the question needs to be asked: who is the patient? The human being in the uterus or the human being with the pregnancy? The answer should not depend upon the preference of the pregnant woman or the physician. Both should be considered patients. Certainly in the practice of most of the ACOG membership both are typically patients.)
DEFINING LIMITS FOR CONSCIENTIOUSNESS – SCIENTIFIC INTEGRITY
1. Evaluating the morality of a medical procedure or the use of a particular pharmaceutical agent does require scientific knowledge about their effects: however, the moral truth by which conscience judges is not subject to scientific evidence. Basic moral and ethical principles are not founded upon the medical and physical sciences as implied in this statement, but upon philosophical and theological principles concerning the nature of human persons and the kinds of behavior that truly fulfill them as persons.
2. This section specifically addresses the issue of emergency “contraception” and the evidence that it does not act primarily as an abortifacient. This argument does not address the moral objections to contraception, but it also does not refute the objection that emergency “contraception” (like non-emergency contraception) prevents “pregnancy” in some instances by preventing implantation of the fertilized ovum, i.e. it acts as an abortifacient in such instances. The ACOG Committee in this instance attempts to diminish the objections of pro-life health care providers to emergency “contraception” by arguing that abortion is not the primary mode of action of these agents.
3. This section also briefly addresses the issue of abortion and the association with breast cancer risk. While it is relevant if the objection to abortion is based upon the adverse effects for the mother, it is not relevant to the morality of direct abortion which is based upon the deliberate destruction of an innocent human life.
DEFINING LIMITS FOR CONSCIENTIOUSNESS POTENTIAL FOR DISCRIMINATION
1. The Committee proclaims here that conscientious refusal offends distributive justice with respect to the allocation of the benefits of reproductive technology. Here the Committee uses language with intense emotional content: discrimination, disenfranchised, resource-poor, affluent, options, loss of control, quality of life, vulnerable, etc. In their zeal to support their position they ignore the vast resources available to the indigent through national, state, and local government programs including medical care facilities, as well as private charitable and not-for-profit organizations. There is no serious offense to justice here. In fact the opposite argument is often made that abortion, contraception, and sterilization are being unfairly applied to the poor as a remedy for poverty. Only so-called assisted reproductive technology (in vitro fertilization) is not readily available to these women. (It is not usually covered by medical insurance.)
2. The complaint that some physicians don’t participate in the new morality is credible evidence that this Committee wants to form the conscience and control the behavior of their membership. This document suggests that the Committee has little tolerance for opposition from its membership on these issues, and one might suspect them of being anti-religious. The Committee speaks of morality and ethics but one suspects that the goal is conformity in regard to abortion, contraception, sterilization and perhaps in vitro fertilization.
INSTITUTIONAL AND ORGANIZATIONAL RESPONSIBILITIES
1. The idea of staffing clinics, ERs, etc. only with physicians who have no conscientious objection to providing “services” that are morally or ethically objectionable to some physicians discriminates against physicians who object to these procedures, but who are competent and committed to addressing the majority of emergency room cases. To require ERs to always have on duty some physicians who are willing to provide these “services” seems to have merit in a secular State provided these facilities are governmental, or, if private, are not run by organizations or religions opposed to such services. In this context, it is interesting to note the attempt of a few state legislatures to go beyond even this recommendation of the ACOG. These legislative initiatives require all hospitals, secular or religious, which operate emergency rooms to treat victims of sexual assault and to provide emergency contraception. This leaves no room for the exercise of personal or institutional conscience in this matter. No doubt the enactment of these laws has emboldened the ACOG to be more forceful in its efforts to get its membership to perform abortions.
2. On the other hand, the Committee should have the humility to recognize that their view of ethics and morality may be seriously wrong. The ACOG should have room for, accommodate and respect those institutions and physicians whose moral principles, whether religious or philosophical in origin, principles that have been honored by the medical profession for centuries, do not allow them to deliberately destroy innocent human life.
3. ACOG should also be concerned about assuring that there are enough pro-life providers among its membership to meet the needs of the community. Many women even in large cities are unable to find a pro-life physician to care for them when they are pregnant. Too many pregnant patients are asked at their first pre-natal visit if they want an abortion or if they plan to keep the pregnancy. (This is not a reassuring beginning of a doctor-patient relationship for a pregnant woman.)
1. The first recommendation that the patient’s well being must be paramount is a complex issue. On the face of it, a physician putting the patient’s well-being first seems valid. However, this recommendation implies doing what the patient wants even if it is against the physician’s best medical judgment; furthermore, it is not referring only or even primarily to issues of illness or health. There are rarely any conflicts of conscience between the physical health of the patient and the physician’s conscience. Typically the issue is social or psychological, not strictly medical. The physician’s conscience cannot be set aside simply because it conflicts with what the patient wants. As a general rule the physician does not allow patients to pick the treatment for their illness, nor does the ACOG or any medical organization recommend such a plan.
2. Health care providers must be able to give information appropriate to the situation without violating their conscience provided they tell the patient they cannot counsel them in regard to things that violate their conscience. In these circumstances the patient needs to see a different physician. The ACOG Committee recommendation that the physician must give the relevant medical-scientific information even in violation of conscience is unreasonable.
3. The first part of the recommendation is appropriate – physicians should inform their prospective patients what their practice excludes or includes (“I am a pro-life physician”, for example.) The second part however is not appropriate. There is no reason why a physician should not be able to advocate for their position on the management of a medical problem including the ethical implications. The concept that a physician should not be allowed to discuss these issues as recommended by ACOG is extreme –the Committee seems impelled to control the thinking as well as the behavior of the membership on “reproductive” issues.
4. The “recommendations” that a physician refer patients for services that the physician thinks are seriously immoral is also unreasonable; one could say it is unethical. Nobody on the recommendation of an incompetent authority (in this case the ACOG Ethics Committee which has no standing to arbitrate issues of morality and conscience) can have a duty to do something the person believes to be immoral. It is highly unlikely that the ACOG Committee would recommend that its members refer patients for an illegal procedure. Thus, the Committee appears to hold that the civil law (or the Committee’s opinion) is on a higher plane than the moral law guiding the physician.
5. The emergency situation in which referral in a timely manner is not possible is most difficult to deal with, but one must not lose site of the moral issues faced by both the physician and the patient in addressing many medical problems. There can never be an obligation to perform an inherently immoral act. The ACOG Committee recommendation here is far broader than it needs to be. Emergency situations do not arise with physician assisted suicide, sterilization, in vitro fertilization, or direct abortion. It is rarely an issue with contraception. The most troublesome case is the rape victim, perhaps in a rural area where there may be no choice of physicians. However, here, too, the physician must be free to follow the judgment of his conscience. In this instance there is no moral philosophy that prohibits the administration of a medication that will prevent ovulation, and therefore pregnancy. On the other hand if the medication is given to prevent implantation of an already existing pregnancy, then it is in fact an abortifacient.
6. This recommendation, which advises physicians with moral objections to abortion etc. to practice near physicians who do perform these procedures or have referral processes in place, borders on the fanatical. I assume it is the extremeness of this recommendation that has stimulated much of the adverse reaction to this ACOG Committee Opinion.
7. This recommendation is too generic to critique. However, one has to be concerned that the ACOG Committee means there should be laws passed assuring that their recommendations become legally binding and force physicians to practice according to these recommendations or leave the field of medicine.
To sum up, this ACOG Committee Opinion far overreaches its area of authority and responsibility. The ACOG is certainly within its rights to promulgate standards for its members related to the proper execution of medical procedures. What authority the ACOG has for the policing and enforcement of their standards is not clear but it would seem to be minimal. Perhaps this is the reason the ACOG is attempting to dictate purely subjective limits on the exercise of conscience by its membership. The ACOG undoubtedly has influence with the American Board of Obstetrics and Gynecology, which certifies physicians in this specialty, and the Residency Review Committee (under the AMA) that sets standards, reviews, and approves residency training programs. But the most immediate concern is that the ACOG standards and recommendations will be used to justify law suits against pro-life physicians, and encourage State and Federal legislatures and the judiciary to further restrict the pro-life physician’s ability to practice with freedom of conscience.
C. Paul Morrow, MD
Chino Hills, California