The Journal of Contemporary Legal Issues


Carolyn McLeod


In this paper, I hope to do two things. First, I want to show that we should take the ability of physicians to act on their conscience seriously, because normally something important is at stake in allowing them to do so. That’s true regardless of what their views are on abortion. There is value in allowing physicians to act conscientiously, whether that action involves the conscientious provision or conscientious refusal of abortions. I will argue that the value of acting conscientiously supports a system that regulates these two types of action symmetrically. Here, I will draw on a theory about the value of conscience that I develop fully in my book, Conscience in Reproductive Health Care.

The value of conscience is not all that is relevant, however, in deciding how to regulate the conscientious refusal and provision of abortions; there are other values at stake. The second main claim that I want to make concerns this fact and focuses on the value of physicians using their power as physicians appropriately. Drawing from a moral theory I defend in the book about the professional role of physicians, I will argue that they abuse or misuse the power they have in this role when they conscientiously refuse abortions; however, this outcome does not obviously occur when they conscientiously provide abortions. Since their conscientious conduct deserves less protection when it involves an abuse or misuse of power, I am led to conclude that the regulation of the conscientious refusal and conscientious provision of abortions should very likely be asymmetrical, in a way that favours conscientious provision. I call this regulatory scheme, the “new asymmetry.”

My recommendation in favor of the new asymmetry is somewhat tentative; I do not support it fully, because the normative issues here are complex. I also very much doubt that unfriendly states would ever adopt it. I doubt, in particular, that they would ever legally protect the conscientious provision of abortion while maintaining that abortion should be illegal. Given that my position is unlikely to have any purchase with them, I close by discussing what sort of conscientious conduct physicians could engage in when faced with such a legal regime (i.e., one where legally-protected conscientious provision is not an option). Ideally, in my view, they should participate in what Matthew Wynia calls “professional civil disobedience,” which is “collective civil disobedience by a professional group” or groups. In this case, the relevant groups could be any number of medical organizations that have spoken out against the abortion bans (e.g., the American Medical Association, the American College of Physicians, etc.).

The paper will proceed as follows. To begin, I will clarify how I am using the terms ‘conscientious refusal,’ ‘conscientious provision,’ and ‘civil disobedience.’ I will then discuss the importance of valuing conscience in medicine. Finally, I will present moral reasons in favor of the new asymmetry, and how ideally physicians should react when the states they live in fail to adopt this regulatory option.





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