The United Kingdom, along with most Western countries, has a long and distinguished record of allowing conscientious objection in wartime, the First World War being the most notable example. War is almost always a national emergency. Yet if governments can allow conscientious objection even in times of national emergency, why should there be a problem allowing it in other, more specific fields of public life where no such emergency exists?
Freedom of conscience has long been recognised in international law by numerous treaties and conventions, such as the United Nations Declaration on Human Rights and the International Covenant on Civil and Political Rights, to both of which the UK is a party. In addition, there is the Human Rights Act, which directly implements the European Convention on Human Rights into domestic UK law, including Article 9 which protects freedom of conscience. Article 18 of the U.N. Declaration states: ‘Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.’ The right as expressed is broad, covering not just religious belief but conscientious belief in general, such as one’s secular ethical code. Not being compelled by law to act contrary to conscience is a clear corollary of the international legal right.
Liberal societies in particular – those that are diverse, pluralistic, tolerant, and do not profess an official ethical or religious code – should give freedom of conscience a high place in public life. The UK already recognises in domestic law two rights of conscientious objection – the long-contentious issues of participation in abortion and of research or related actions involving the manipulation and storage of human embryos. Apart from that, however, there is no specific statutory or common law protection, and the general international legal right has barely been tested in the UK courts. Although this is a problem across the board, my concern is health care, where the rapid advance of medical technology means that doctors and other health care professionals will increasingly find their consciences challenged as never before.
Critics of conscientious objection in health care – and there are more than a few – tend to think that its promotion is a ruse to restrict abortion or other legally available services. They are wrong. The defence of conscience in health care is not about restricting anyone’s legal access to anything; it is about giving health care workers the right to extricate themselves from actions that violate their deeply held religious or ethical beliefs. If there is a legal right to some treatment or service, there should be full and fair access for anyone seeking it. Defenders of conscience in medicine should not – and, as far as I know, they do not – confuse promoting the right of conscientious objection with campaigning for a change to the legality of the treatment or service. These are two distinct issues. A classical liberal can consistently support the right to some legal medical treatment while at the same time defending the right of an objecting doctor not to be involved on grounds of conscience.
It is, in fact, a mere historical accident that beginning-of-life and end-of-life issues – perennial hot buttons in ethical debate – are the focus of the question concerning conscientious objection. Over time, as technology advances along with its diffusion throughout health care, the issues to which the conscience question may apply will proliferate. Consider transgender surgery, or extreme body modification, or cognitive enhancement, or genome editing – along with so many other practices and treatments just over the technological horizon. Many health care professionals, whether surgeons, or general practitioners, or nurses, or consultants, will – as the Glasgow midwives sadly found out – find their consciences challenged as they are pressured, whether subtly or not, to participate in or assist with activities to which they seriously object on ethical or religious grounds. It is important that assistance – or cooperation – be included in the needed protection. It is ethically incoherent to say, for instance, ‘I morally disapprove of bank robbery but I have no problem helping someone rob a bank’. Similarly, if a doctor believes a certain treatment would require them to violate their sincere, deeply held principles, they will also object to assisting in its provision – at least in a close or ‘proximate’ way.
Who decides what is proximate? And doesn’t freedom of conscience in medicine leave open the possibility of abuse? Should every conscientious objection receive equal protection? These are vital questions, but similar questions do not stop us from legally recognising other basic rights. Why should freedom of conscience be treated any differently? We leave it to legislatures (and international convention drafters) to frame protections with tolerable clarity. And we require the courts to enter into the minutiae of interpretation and evaluation of individual cases. Freedom of conscience is no different. Unreasonable and frivolous demands can, to a large extent, be kept at bay. A body of case law on conscientious objection in medicine can and should develop over time. I submit that the UK needs to be ‘ahead of the curve’ in this area, so as to set an example to other countries of how to structure the fundamental protection of conscience so that legal rights are not denied while objectors are not coerced to act against their principles.
Health care workers should never be regarded as mere state functionaries on one hand, or as personal valets on the other. We require them to make often delicate professional judgments. These will inevitably, in some cases, involve equally delicate matters of conscience. If they are to maintain their professional and moral integrity, health care professionals should be allowed the freedom not to be implicated in activities they believe to be wrong as a matter of principle. They should not be forced out of medicine, denied first employment or later promotion, or made to feel inferior to their peers. Even if a conscientious objector is mistaken in their judgment of a given activity, no society that calls itself liberal should dictate a preferred moral code to that individual, at least on the assumption that the mistaken judgment is honest and reasonable.
Earlier this year, I released a Declaration in Support of Conscientious Objection in Health Care. It has received over four hundred signatures from medical professionals of all kinds as well as from concerned non-professionals. In the Declaration and in supporting materials I offer some details as to how I think legal protection of conscience in health care should proceed. You do not have to agree with the supporting materials or with all the details of my particular way of framing the issue. But if you think the basic outline in the Declaration is worthy of support, perhaps you might consider adding your name.
The author’s short book Opting Out: Conscience and Cooperation in a Pluralistic Society has just been published by the Institute of Economic Affairs and is available for viewing or purchase at the hyperlink.