Legal Commentary

In recent years, there has been widespread resistance to the suggestion that a health care provider's own moral convictions should limit or otherwise shape the services she provides.  Whenever a pharmacist refuses to dispense the "morning after" pill, to cite a well-known example, most academic and media commentators have been quick to condemn the refusal.  As the governor of Wisconsin explained when vetoing a bill that would have extended conscience rights to pharmacists, "you're moving into very dangerous precedent where doctors make moral decisions on what medical care they'll provide."

The conversation has gotten more interesting with the news that a fertility doctor implanted a single parent of six with six more fertilized embryos (two became twins).  Some might insist that the criticism of the fertility doctor is different than the criticism of the pharmacist, because the pharmacist is engaged in paternalistic moralizing, while the fertility doctor violated the harm principle by disregarding the well-being of the children to be born.  It's not quite so simple, though, since concern for the children to be born also motivates the objecting pharmacist.  (Another stream of criticism focuses on the octuplet mom's "wasting" of taxpayers' money, which is another story.)

I'm not suggesting that there are no persuasive distinctions between the pharmacist and the octuplet mom's fertility doctor, but I do think we need to be careful before we diminish health care providers' own sense of moral agency.  I do not favor a legally cognizable conscience right for individual health care providers, but I also oppose efforts to render all health care providers morally fungible via state edict.  My own view, outlined in this paper and explored further in a forthcoming book, is that providers' moral claims should be free to operate in the marketplace as long as access to goods and services deemed essential by society is not threatened.  (For these purposes, I defer to the political process to determine which goods and services qualify as "essential.") 

One objection to my argument would be to say "We're not criticizing the octuplet mom's fertility doctor; we're just saying that the law needs to be changed so that what he did becomes illegal."  That's a coherent and logical argument, but I think we're headed down a troubling path if we reject the possibility of non-legal grounds on which to criticize a provider's exercise of professional judgment.