Positive rights and the tyranny of political power

Thanks go to Jon Holmlund for making us aware of the “Consensus Statement on Conscientious Objection in Healthcare” written by Julian Savulescu and a like-minded group of philosophers and ethicists. The statement, which represents one extreme in the discussion of rights of conscience and not a consensus of all those involved in this issue, seeks to transform negative rights into positive rights. That is, they are saying that on issues such as abortion and euthanasia which some societies have said should no longer be forbidden there is now an obligation for physicians to assist in helping people take those actions because they are no longer forbidden.

Many among those of us who believe that medicine is a moral enterprise and follow the Hippocratic tradition that there are some things which physician should never do because of our respect for human life have written extensively on why a decision by a society or government to permit such actions should not include an obligation for physicians to perform those actions when the physician has a strong moral objection to doing so. What I would like to discuss briefly is the separate, but related, issue of how this statement takes a dangerous position on the interrelation of law and morality.

The statement states that a physician is obligated to ensure that a patient receives any “legal, professionally sanctioned medical service” that the patient desires. Determining what services are professionally sanctioned would be very difficult because multiple professional organizations may disagree on what services are appropriate. It is likely that the only criterion that could be established would be what is legal. It also seems likely that this statement would be used to support an obligation to provide a legal service such as physician-assisted suicide in Oregon and other US states where it has been legalized even though the AMA states that physician involvement in that service is against its ethical guidelines. This suggests that those writing this statement are saying that the only legitimate boundary on the services that a physician is obligated to provide is what is legal. By saying that a physician must do whatever is legally allowable in spite of his or her moral convictions erodes the moral foundation for law itself. One of the foundational principles of liberal democracy is that the power of political leaders is limited by law and that law is grounded on a fundamental understanding of what is morally right. It is the understanding that moral convictions take precedence over human law that allows for morally founded legal reforms such as the reforms of the civil rights movement as led by Martin Luther King Jr. His leadership in that movement was grounded in moral convictions which convinced him and others that the laws of US society were wrong and needed to be changed. If we say that we are obligated to do whatever the law allows when we are requested to do so without giving a legitimate place to moral convictions, then we are saying that whoever has the political power to enact laws has the right to determine our actions and that morality and ethics have no place in society.

It appears that those making this statement have chosen to use what is legal as the boundary for physician obligations because there are many societies that have recently changed their laws to fit with what this group is advocating. These ethicists appear to be failing to recognize that using the law to determine what we are morally obligated to do leaves us open to the tyranny of political power and an abdication of the role of morality in limiting such tyranny.

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Mark McQuain
Mark McQuain
4 years ago

In 1993, Marc Micozzi, MD, PhD, wrote an interesting commentary about an exhibition (“The Value of the Human Being: Medicine in Germany 1918-19454”) at the National Museum of Health and Medicine in Washington, DC. Please see his article HERE. One of his observations was that medicine had to be bureaucratized before it could be used effectively by the Nazis for their evil ends. Much of that bureaucratization occurred during the Weimar Republic prior to the Nazis gaining political and legal control. One quote I find concerning regarding your commentary above is:

“Removal of personal responsibility (‘I was only following orders’), personal authority, and personal choice in a bureaucratized system may leave less and less room for individual ethics in the conduct of medical science and practice.”

The later legalization by the Nazis of medical practices that we presently find morally repugnant was effectively “icing on the cake”.

The tyranny of political power is not isolated to a particular people group or period in history. We would do well to preserve what few moral conscience protections that remain at our disposal.

Jim Heid, MD
Jim Heid, MD
4 years ago

The rhetoric about how conscientious objection places an undue burden on the patient is lacking of true substance.
I have been practicing medicine since 1992. I did my residency at a Catholic hospital. We did not even prescribe birth control, we most assuredly did not perform, or refer for abortions. Yet in the three years of my residency, my patients had abortions, without any restriction or complaint that it was not even mentioned in my office visit with them. I then practiced for 5 years in southern California, in a smaller community. Again, patients found their way to have abortions without referral or offer of my services to perform it. Now I am in the northwest, and even before there was an abortion provider in the Vancouver, Washington area, patients readily crossed over into Portland, Oregon to get their abortions. These patients knew where abortion services were available even though, in all honesty, I did not.
I have yet to experience a situation in caring for patients where the patient did not already know exactly where to get the care that the desired, and never once have I been asked to refer, or perform an abortion. I believe this is mostly because in the communities I have practiced in, most primary care providers do not provide those services.

Jim Heid, MD
Family Medicine with Obstetrics