The landscape of conscientious objection has changed. Back in 2006, when abortion was legal across the United States in the decades after Roe v. Wade, Oxford bioethicist Julian Savulescu made the stirring claim that “When the duty is a true duty, conscientious objection is wrong and immoral. When there is a grave duty, it should be illegal. A doctors’ conscience has little place in the delivery of modern medical care.”
This was a militant challenge to doctors who refused to perform legal abortions and excused themselve by appealing to their consciences on ethical or religious grounds.
However, Roe v. Wade was overturned by Dobbs v Jackson. Now the shoe is on the other foot. There are doctors who feel that they should perform abortions, even though this is illegal in about half of the country. How can this be ethically justified without appealing to a fanciful concept like “conscience”?
This is the question that Professor Savulescu and three other prominent bioethicists, Udo Schuklenk, Francesca Minerva, and Alberto Giubilini, tackle in the Journal of Medical Ethics.
Obviously they do not appeal to the wrong and immoral notion of conscientious objection by abortion doctors. Instead, they point out that professional associations of doctors (including the World Medical Association) support abortion as a form of healthcare. Doctors can be sure that their colleagues have their back when they perform an abortion because it is presumably in the woman’s best interest.
They set out the situation in a post on the Practical Ethics blog.
On the assumption that it is at least reasonable to think that foetuses do not have a moral status that outweighs the value of women’s health and autonomy, the “best medical interest” criterion implies that at very least doctors will be professionally justified in providing abortions to women in jurisdictions where it is illegal, when there is a serious threat either to their life or to their health. As things stand now, professional organizations’ codes recognise the woman as the primary patient, which is consistent with a plausible understanding of the Best Medical Interest standard of professional obligations based on reasonable, defensible ethical arguments.
But even if professional associations approve of abortion, they also urge doctors to operate within the law. “This means that a practitioner who acts against the law, but according to what would otherwise be professional standards (e.g. beneficence) is acting unprofessionally and therefore could lose their licence.”
This puts abortion doctors in an invidious position. If they obey the law, they are acting unprofessionally; if they break the law, they are also acting unprofessionally.
The bioethicists’ solution is to call for the professional associations to stop insisting that doctors operate within the law.
If we think abortion is in the best medical interest of a woman and considerations of women’s interests trump considerations of a foetus’ moral status, then professional codes should remove the explicit professional requirement to operate within the law in their guidelines on abortion. Also, professional organizations should not punish their members and should indeed lobby to protect them against legal sanctions that pertain to the professional sphere, such as the deregistration of professionals that adhere to good standards of medical ethics. After all, they were following professional standards, which is the only thing that falls within the area of competence of professional organisations.
Medical ethics, in other words, should always trump the law.