Conscientious objection in health care

Protecting reasonable conscientious refusals in health care Abstract Recently, debate over whether health care providers should have a protected right to conscientiously refuse to offer legal health care services—such as abortion, elective sterilization, aid in dying, or treatments for transgender patients—has grown exponentially. I advance a modified compromise view that bases respect for claims of conscientious refusal to provide specific health care services on a publicly defensible rationale. This view requires health care providers who refuse such services to disclose their availability by other providers, as well as to arrange for referrals or facilitate transfers of care. This requirement raises the question of whether providers are being forced to be complicit in the provision of services they deem to be morally objectionable. I conclude by showing how this modified compromise view answers the most significant objections mounted by critics of the right to conscientious refusal and safeguards providers from having to offer services that most directly threaten their moral integrity.

Conscience-based refusal of patient care in medicine: a consequentialist analysis Abstract Conscience-based refusals by health care professionals to provide care to eligible patients are problematic, given the monopoly such professionals hold on the provision of such services. This article reviews standard ethical arguments in support of conscientious refuser accommodation and finds them wanting. It discusses proposed compromise solutions involving efforts aimed at testing the genuineness and reasonability of refusals and rejects those solutions too. A number of jurisdictions have introduced policies requiring conscientious refusers to provide effective referrals. These policies have turned out to be unworkable. They subject patients to a health care delivery lottery, which is incompatible with the fundamental values of medical professionalism. This paper sheds light on transnational efforts aimed at undermining progress made in reproductive health by means of conscientious refusal accommodation claims. The view that the accommodation of conscientious refusers is indefensible on consequentialist ethical grounds, as well as on grounds related to medical professionalism itself, is defended.

Conscience, tolerance, and pluralism in health care Abstract Increasingly, physicians are being asked to provide technical services that many (in some cases, most) believe are morally wrong or inconsistent with their beliefs about the meaning and purposes of medicine. This controversy has sparked persistent debate over whether practitioners should be permitted to decline participation in a variety of legal practices, most notably physician-assisted suicide and abortion. These debates have become heavily politicized, and some of the key words and phrases are being used without a clear understanding of their meaning. In this essay, I endeavor, firstly, to clarify the meaning of some of these terms: conscience, conscientious action, professional judgment, conscientious objection, conscience clauses, civil disobedience, and tolerance. I argue that use of the term conscientious objection to describe these refusals by health care professionals is mistaken and confusing. Secondly, relying on a proper understanding of the moral and technical character of medical judgment, the optimal deference that the state and markets ought to have toward professions, and general principles of Lockean tolerance for a diversity of practices and persons in a flourishing, pluralistic, democratic society, I offer a defense of tolerance with respect to the deeply held convictions of physicians and other health care professionals who hold minority views on contested but legal medical practices.

Brain death: new questions and fresh perspectives

Death, unity, and the brain Abstract The dead donor rule holds that removing organs from living human beings without their consent is wrongful killing. The rule still prevails in most countries, and I assume it without argument in order to pose the question: is it possible to have a metaphysically correct, clinically relevant analysis of human death that makes organ donation ethically permissible? I argue that the two dominant criteria of death—brain death and circulatory death—are both empirically and metaphysically inadequate as definitions of human death and therefore hold no epistemic value in themselves. I first set out a neo-Aristotelian theory of death as separation of soul (understood as organising principle) and body, which is then fleshed out as loss of organismic integrity. The brain and circulatory criteria are shown to have severe weaknesses as physiological manifestations of loss of integrity. Given the mismatch between what death is, metaphysically speaking, and the dominant criteria accepted by clinicians and philosophers, it turns out that only actual bodily decomposition is a sure sign of death. In this I differ from Alan Shewmon, whose important work I discuss in detail.

Controversies in defining death: a case for choice Abstract When a new, brain-based definition of death was proposed fifty years ago, no one realized that the issue would remain unresolved for so long. Recently, six new controversies have added to the debate: whether there is a right to refuse apnea testing, which set of criteria should be chosen to measure the death of the brain, how the problem of erroneous testing should be handled, whether any of the current criteria sets accurately measures the death of the brain, whether standard criteria include measurements of all brain functions, and how minorities who reject whole-brain-based definitions should be accommodated. These controversies leave little hope of consensus on how to define death for social and public policy purposes. Rather, there is persistent disagreement among proponents of three major groups of definitions of death: whole-brain, cardiocirculatory or somatic, and higher-brain. Given the persistence and reasonableness of each of these groups of definitions, public policy should permit individuals and their valid surrogates to choose among them.

When is somebody just some body? Ethics as first philosophy and the brain death debate Abstract I, along with others, have been critical of the social construction of brain death and the various social factors that led to redefining death from cardiopulmonary failure to irreversible loss of brain functioning, or brain death. Yet this does not mean that brain death is not the best threshold to permit organ harvesting—or, as people today prefer to call it, organ procurement. Here I defend whole-brain death as a morally legitimate line that, once crossed, is grounds for families to give permission for organ donation. I do so in five moves. First, I make the case that whole-brain death is a social construction that transformed one thing, coma dépassé, into another thing, brain death, as a result of social pressures. Second, I explore the way that the 1981 President’s Commission tried to establish the epistemological certainty of brain death, hoping to avoid making arcane metaphysical claims and yet still utilizing metaphysical claims about human beings. Third, I explore the moral meaning of the social construction of a definition that cannot offer metaphysical certainty about the point at which somebody becomes just some body. Fourth, I describe how two moral communities—Jewish and Catholic—actually ground their metaphysical positions with regard to brain death in the normativity of prior social relations. Finally, I conclude with a reflection on the aesthetic-moral enterprise of the metaphysical-epistemological apparatus of brain death, concluding that only such an aesthetic-moral approach is sufficiently strong to stave off the utility-maximizing tendencies of late-modern Western cultures.

The human organism is not a conductorless orchestra: a defense of brain death as true biological death Abstract In this paper, I argue that brain death is death because, despite the appearance of genuine integration, the brain-dead body does not in fact possess the unity that is proper to a human organism. A brain-dead body is not a single entity, but a multitude of organs and tissues functioning in a coordinated manner with the help of artificial life support. In order to support this claim, I first lay out Hoffmann and Rosenkrantz’s ontological account of the requirements for organismal unity and summarize an earlier paper in which I apply this account to the brain death debate. I then further support this ontological argument by developing an analogy between the requirements for the unity of an organism and the requirements for the unity of an orchestra. To do so, I begin by examining the role that a conductor plays in unifying a traditional orchestra, and then go on to show that the human organism (at least in postnatal stages) functions like a traditional orchestra that relies upon a conductor (the brain) for its unity. Next, I consider the conditions required to achieve orchestral unity in conductorless orchestras and show that, in contrast to simpler organisms like plants, the postnatal human organism lacks those conditions. I argue, in other words, that although conductorless orchestras do exist, the human organism is not one of them. Like a traditional orchestra without a conductor, the brain-dead body is not a unified whole.

Why psychological accounts of personal identity can accept a brain death criterion and biological definition of death Abstract Psychological accounts of personal identity claim that the human person is not identical to the human animal. Advocates of such accounts maintain that the definition and criterion of death for a human person should differ from the definition and criterion of death for a human animal. My contention is instead that psychological accounts of personal identity should have human persons dying deaths that are defined biologically, just like the deaths of human animals. Moreover, if brain death is the correct criterion for the death of a human animal, then it is also the correct criterion for the death of a human person. What the nonidentity of persons and animals requires is only that they have distinct criteria for ceasing to exist.