Presenting the Case for Conscience

Future of Abortion: Controversies & Care

Jon O’Brien
June 25-26, 2008, London

Jon O’Brien, president of Catholics for Choice, gave a keynote speech to leaders working in women’s sexual and reproductive health and rights at the bpas-sponsored Future of Abortion: Controversies & Care conference. In “Presenting the Case for Conscience,” Mr. O’Brien explored what Catholic teachings say about conscience, how abortion is an issue of conscience for women, doctors and the public, and how to maintain services while respecting the consciences of all.

Today I have been asked to present on the case for conscience. As I will explain, when discussing conscience and the provision of reproductive healthcare, the question quickly becomes one about whose conscience we are talking about. Are we discussing the conscience of the woman seeking the procedure or that of the doctor who will provide the service? Or are we talking about the conscience of the institution in which it occurs? Just whose conscience you are talking about is critical to understanding the case for conscience.

It is also important to understand that conscience is not solely a religious matter. Everyone has a conscience and everyone is compelled to follow it. Some of my comments today will be addressed to the case for conscience from a Catholic perspective because that is my area of interest and because the Catholic hierarchy and their conservative allies play such an outsized role in framing the debate about the morality of reproductive healthcare—especially in the United States. But people of all faiths, as well as those who are not religious, need to be concerned about the role of conscience regarding access to reproductive health services.

What should be especially troubling to those of us who work to ensure women’s access to care is the myriad ways that conscience is being used to limit access to care. This raises the question of the legitimate use of conscience versus attempts to manipulate conscience protections to foist religious ideology on the general public. In the US, this has resulted in women being told that not only would a pharmacist refuse to fill her prescription for birth control, but would not even transfer it to another pharmacy. It has resulted in a lesbian woman being denied artificial insemination by a medical practice that disagreed with her lifestyle. And it has resulted in Catholic hospitals failed to provide emergency contraception to women who have been raped.

Because of the leading role that the Catholic hierarchy plays in framing the debate about the role of conscience in access to reproductive healthcare, it is important to understand the true Catholic teaching about conscience. It is also helpful to understand the limits of the church’s current teaching on the sanctity of life, because this drives much of how it constructs its arguments about abortion and emergency contraception.

The Catholic bishops have become the public face of opposition to abortion in many countries. They have worked very hard to lay down the line that a good Catholic may not dissent from the church’s teaching that abortion is always morally wrong and forbidden because it is the taking of a human life. But the reality is that the picture is much more complicated than the bishops would have Catholics and non-Catholics believe.

Officially, the Catholic church today teaches that abortion is wrong because it is the taking of human life—life, in this case, defined as beginning at the moment of conception. However, as Daniel Maguire, a leading Catholic moral theologian, has noted, there has been a diversity of views on when human life begins and the morality of abortion throughout the history of the church. As a result, says Maguire: “There is no one Catholic view” on abortion.
In the early centuries of the church, St. Augustine held that early abortion was wrong not because it involved the taking of life, but because it separated procreation from sex, which he believed was the only justification for intercourse—even between married couples. In the 11th century, St. Thomas Aquinas postulated that there was no life present in an early fetus and that ensoulment occurred only after “quickening” in the fifth or sixth month when the mother first felt signs of fetal life, so early abortion was not murder.

The view that the early fetus was not a person and that a fetus gained human value as a pregnancy progressed was widely held in science and law throughout history. Most opposition to abortion centered on the fact that it was a way for people to cover up illicit sex, not the belief that it was murder.

In the 17th century, believing that early magnifying instruments had detected the human form in fetal tissue, the church moved toward the belief that life begins at conception. It wasn’t until late in the 19th century, however, that the church actually banned abortion and until the 20th century that it became a cornerstone of church teaching based on the belief that life begins at conception.

Not only has church teaching on when human life begins varied, but the bishops have worked very hard to suppress the primacy that Catholic teaching gives the well-formed conscience when it comes to individual decision-making regarding weighty moral issues. From listening to their rhetoric, you would think that all Catholics are obligated to follow the Vatican’s pronouncements in lockstep. But nothing could be further from the truth. Catholic thinkers from St. Paul through St. Thomas Aquinas to the Vatican’s own 1965 Declaration on Religious Freedom have consistently held that Catholics have a duty to follow their conscience and that no one should be forced to act contrary to their conscience.

In his widely respected book Catholicism, theologian Father Richard P. McBrien sums it up: “If…after appropriate study, reflection, and prayer, a person is convinced that his or her conscience is correct, in spite of a conflict with the moral teachings of the church, the person not only may but must follow the dictates of conscience rather than the teachings of the church.”

For the most part, Catholics do follow their consciences when the teachings of the church conflict with the lived reality of their lives and their own senses of wisdom and compassion. As is well known, in the United States, 97 percent of Catholic women over the age of 18 have used a method of contraception banned by the Catholic hierarchy. Use of modern contraceptive methods is high in many predominantly Catholic countries: 67 percent of married women of reproductive age in Spain use modern contraceptive methods, as do 69 percent of married women in France, and 60 percent of married women in Mexico and 70 percent of married women in Brazil. Clearly these women are following their consciences, which tell them that modern birth control methods are moral and contribute to their health and the health of their families.

Similarly, Catholics are more than willing to disagree with church teaching on abortion. Less than one-quarter (22%) of Catholics in the US agree with the bishops’ position that abortion should be illegal (Belden Russonello & Stewart poll, 2004). And 58% of Catholics believe you can be a good Catholic without following the bishops’ teaching on abortion (National Catholic Reporter poll, September 2005). In the US, Catholic women have abortions at the same rate as women in the population as a whole (Perspectives on Sexual and Reproductive Health, 2002), so clearly they have decided to follow the dictates of their consciences rather than the pronouncements of the church.

It is also important to note that while the Catholic bishops often try to give the impression that Vatican teachings on abortion are infallible, they are not. It is a popular misconception that whatever the pope says on a serious topic is infallible and must be followed—it is not. Infallible statements are only made in very limited and narrow circumstances. The teaching on abortion has never been proclaimed infallible and no serious theologian claims it is. Even Pope John Paul II, who was renowned for his opposition to abortion, tried to find ways to pronounce his teaching on abortion infallible and was unable to do so.

While Catholics the world over clearly follow their consciences on the matter of abortion, the bishops do have an impact on women’s ability to access abortion and other reproductive health services. Especially in the United States, the Catholic hierarchy works through the political process to try and get their minority views enshrined into law. This is clearly a violation of the consciences of Catholics and non-Catholics alike who hold opposing views and not in keeping with Catholic church tradition or teaching. Catholic tradition demands that Catholics respect the views of other faith groups and that the church accept the principle of church-state separation. According to one pastoral letter, “Catholics should recognize the legitimacy of differing points of view about the organization of worldly affairs and show respect for their fellow citizens.” Vatican II clearly recognized that the political community and the church are independent of each other.

As a result of the bishops’ involvement in the political process, the very issue of conscience has become highly politicized in the United States, as well as in some European countries. In the name of conscience, opponents of contraception and abortion have aggressively tried to use the political process to allow healthcare professionals, including emergency room doctors, nurses and even pharmacists, to opt out of providing essential reproductive healthcare services and medications. These refusal clauses, which are called “conscience” clauses by their backers, draw on claims of religious freedom to make the case that healthcare professionals should be allowed to refuse to provide services with which they have a moral disagreement in order to protect their consciences.

The right of individual healthcare providers to refuse to participate in a contentious service such as abortion is well established in most countries. In the United States, such protections were signed into law shortly after the Roe v. Wade decision made abortion legal in the early 1970s. What is different about the conscience protections that anti-choice forces are seeking, and winning, today is that they would dramatically expand the basis of such objections to virtually any healthcare service to which a provider objects—even birth control—often without adequate protection for the rights of patients—and extend conscience protections to institutions as well as individuals.
These refusal clauses manipulate the concept of conscience to raise the anti-choice and anti-contraceptive beliefs of a small minority of healthcare providers over the right of the majority of patients to receive standard medical procedures and prescriptions at their local institutions in a timely manner.

No where is this more clear than in the case of exemptions for the provision of emergency contraception, which the Catholic church has pushed very hard for Catholic hospitals. Many states in the U.S. have moved the mandate that hospital emergency rooms inform rape victims about EC and provide the medication if the woman requests it as a way to increase knowledge about EC and access to it. Catholic hospitals have sought exemptions from these rules because of the church’s insistence—not substantiated by science or medicine but based on the church’s modern view that human life begins at the moment of conception—that EC is an abortifacient. These exemptions would allow Catholic hospital to withhold information about EC from women who have been raped whether or not they are Catholic—even in the form of providing a referral.

Similarly, some conservative Catholic and Christian pharmacists have sought exemptions from providing EC to pharmacy patients. Like refusing to treat rape victims, this is problematic because of the 72-hour window in which EC is effective. In some rural areas in the U.S. were the only pharmacist on duty at the only drugstore in town refuses to fill a prescription for emergency contraceptives, women have no where to turn. Similarly, a woman seeking EC late on a Saturday night or on a Sunday may have limited options or may give up trying to access the medication if she is humiliated by being refused the prescription. This is clearly an instance of religious ideology being allowed to trump patients’ rights and health.

In the United States, 46 states have passed some form of refusal clause for medical professionals and institutions. Of those, 13 allow providers to refuse to perform contraception-related services and 17 protect healthcare providers who refuse to perform sterilizations. Four states allow pharmacists to refuse to provide contraception, including emergency contraception. In a more balanced approach, California allows pharmacists to refuse to dispense contraceptives only if their employer approves and the woman can get access to the contraceptive in a timely manner.
The U.S. Conference of Catholic Bishops and the Catholic Health Care Association have been major backers of refusal clauses in legislatures across the United States. But major medical societies and public health groups have become increasingly alarmed by the proliferation of refusal clauses and their ability to hamper women’s access to reproductive healthcare. The American Medical Association and the American Public Health Association deem refusal clauses appropriate only if a plan is in place to provide adequate referral and the refusal does not disrupt or obstruct a patient’s access to care. The American College of Obstetricians and Gynecologists recognizes a physician’s right to refuse to provide a service, but says it must be balanced against their other values and duties, including the degree to which the refusal imposes the provider’s beliefs on the patient’s autonomy; effects on patients’ health and well-being; whether the refusal is based on proper understanding of scientific evidence; and whether it results, intentionally or not, in discrimination and inequality.

Clearly, the question is not if the consciences of healthcare providers should be protected. The question is how to formulate policies that meet the needs of patients while protecting the beliefs of providers. The goal of any reasonable conscience clause must be to strike the right balance between the right of the healthcare professional to provide care that is in line with their moral and religious beliefs and the right of patients to have access to the medical care they need.
In the case of pharmacists who refuse to fill prescriptions for emergency contraceptives, this may means having another pharmacist on duty with them who will dispense the medication or, if that is not possible, transferring the prescription in a professional and timely manner to a nearby pharmacy that will. To often, however, the goal of some providers seems not to be to strike this balance but to strike a blow for their own radical anti-contraceptive beliefs, such as in the case of the pharmacist who refused to transfer a prescription for oral contraceptives to another pharmacy or the pharmacist who worked for the large retail chain K-Mart who began refusing to fill prescriptions for contraceptives without even informing her employer and attempting to create a seamless backup for pharmacy clients seeking contraceptives (she was subsequently fired and became a major voice in the refusal clause movement).
healthcare providers who wish to exercise a conscience objection have a moral obligation to do so in a transparent manner. In the US, a handful of doctors and pharmacists who object to the provision of contraceptives have started practices that cater to patients who share their views, clearly stating to potential patients the limits of their services.

In the field of medical ethics, the accepted resolution to a conflict of values is to allow the individual to act on his or her conscience and for the institution, be a hospital, clinic or pharmacy, to serve as the facilitator of all consciences. Many backers of refusal clauses are turning the arrangement on its head by claiming a conscience exemption for intuitions themselves—as if a hospital or an insurance company can be said in any meaningful way to have a “conscience.”
As noted, Catholic hospital have sought refusal clauses that allow them to not only withhold emergency contraception from rape victims coming into their emergency rooms, but to even exempt them from the obligation to refer women to another hospital that can provide the medication. Catholic HMOs have sought exemptions from state laws that require insurers to provide coverage for contraceptives—even if the majority of those they insure are not Catholic. Both Catholic hospital and insurers have sought exemptions from providing family planning services to women insured by the government-funded Medicaid program for poor women and girls, again even if the majority of patients are not Catholic.
In these instances, these healthcare institutions have clearly gone beyond the bounds of exercising a reasonable conscience objection. Instead, they are using the rhetoric of conscience to impose their morality on individuals—Catholic and non-Catholic alike, and depriving them of their right to conscience as well as to timely and complete medical care.

When an institution rejects its role as a facilitator of conscience for individuals and instead inserts its own “conscience-based” refusal to provide services, it violates the rights of both patients and healthcare providers to make their own conscience-based decisions. It is the obligation of healthcare institutions to provide professionals who will provide services that patients deem moral and that are legal, while allowing those medical professionals who choose to opt out to do so.
In unavoidable situations when the conscience of an individual doctor, nurse or pharmacist conflicts with the wishes or needs of a patient, it is up to the institution to make seamless care available to the patient from medical professionals who are committed to providing such care. When it is not possible to do so, a reasonable fallback is for the institution to provide a meaningful referral—which means a referral that ensures the patient receives continuity of care without facing undue burdens such as having to travel a long distance, having her desire to access reproductive health services questioned or ridiculed in any way, or encountering additional burdens to obtaining the desired services. It goes too far to grant blanket conscience exemptions to institutions such as Catholic hospitals, which should not be allowed to impose their ideology on patients seeking care.

I would like to conclude by making one additional point. The discussion about conscience would not be complete without making a point that the controversy over abortion can easily obscure: women seeking abortion are operating according to their consciences. Many women wrestle with the abortion decision. Whether it is concern over their ability to be a good mother at the present time or in their present circumstances, concern for their existing family or worries about their health or financial security, women bring their own consciences and moral judgments into decisions about abortion. Good women have decided for and against abortion. No one decision can be right for every woman.

Many theologians and lay people believe that abortion can sometimes be a moral decision and that conscience is the final arbiter of any abortion decision. The consciences of women choosing abortion must be respected by the law, medical professionals and healthcare institutions. It is only by respecting conscience in the abortion decision that everyone can be said to truly be exercising free choice.

Catholics for Choice