Wrongdoing, controversy and error

Avoiding wrongdoing

Perhaps the most basic account of why we should allow doctors to refuse to participate in controversial procedures is that those procedures are morally wrong:

A legislator might think that protecting conscience is so important that persons should not be made to act against conscience, however odd the basis for their judgments. But a legislator who believes that a particular procedure is seriously wrongful, and should be performed as little as possible, might approve a right of refusal independent of any special sensitivity about the conscience of those who refuse.

(Greenawalt, 2006, p.821)

Avoiding wrongdoing might be a very good reason not to legalise a controversial procedure in the first place; and Greenawalt’s suggestion, which I suppose might have some weight, is that we might want to allow refusals even when we do legalise it, in a pragmatic attempt to limit its prevalence. But when we’re looking for a reason why doctors’ objections should be given moral weight, I hope that the reason for rejecting this account is obvious: it takes for granted precisely what is at issue, namely the moral value of the procedure in question. As such, it violates the fundamental rule I set out in chapter 1, that there is no point in trying to use the moral value of a procedure as a premise in an argument about respecting objections to that procedure.

Of course, there’s nothing wrong with an individual doctor giving this account of why her objection should be respected. Indeed, it seems she must give something like this account if her objection is to count as a moral one. But those who disagree with the doctor’s dissenting view will need a different account of why they should nonetheless respect it.

Avoiding policy error

Closely related to the question of avoiding wrongdoing is the question of avoiding policy error. The idea here is that we should take doctors’ objections to particular procedures seriously because those objections give us information that we didn’t previously have — information that might lead us to conclude that there is indeed something immoral in those procedures, which might in turn prompt us to rethink their permissibility or being more careful when we approach similar decisions in the future. According to this argument, moral objections are a sanity check on the laws we pass, and if we shut our ears to them, we deny ourselves crucial information that might help us avoid or fix policy errors.

I agree, of course, that a good reason not to legalise a procedure is that it may be immoral. And in the same vein, it’s possible that new information about the moral value of a

procedure may come along after that procedure is legalised. This could come in the form of new, convincing arguments against the procedure, or simply in the form of more

widespread objections than we anticipated. I accept that we should keep our ears open to such objections, and if they change our minds — that is, if a currently legal procedure turns out to be have consequences that we realise are morally bad on balance — we should consider changing the law to make the procedure illegal.

But the question of which procedures should be legal and which should be illegal is not what’s at issue in my thesis. What’s at issue is rather how we should respond to doctors’ objections to procedures whose moral acceptability we (currently) grant. As a society, we investigated the moral value of the procedure when we weighed up whether or not to legalise it. At that stage, if people who objected to the procedure had convinced us that their reasons for doing so were likely to be correct, then we would have had a strong reason not to legalise the procedure after all. Since we did in fact legalise the procedure, having taken into account the arguments of those who disagree, this implies we concluded that it was not immoral.

So, at best, the argument from avoiding policy error is an argument against closing our ears to objections. It is not an argument for granting those objections moral weight.

Controversy

Perhaps what gives some objections moral weight is the fact that they are based on moral beliefs about practices that are controversial. This suggestion is made, for instance, by McLeod (2008) and Magelsson (2011), and most directly by Julie Cantor:

Would we tolerate a surgeon who holds moral objections to transfusions and refuses to order them? An internist who refuses to discuss treatment for diabetes in overweight patients because of moral opposition to gluttony? If the overriding consideration were individual conscience, then these objections should be valid. They are not (although they might well be permitted under the new rule). We allow the current conscience-based exceptions because abortion remains controversial in the United States.

(Cantor, 2009, p.1485)

So the reason we should give moral weight to doctors’ objections to things like abortion is because abortion is controversial, and the reason we should not give moral weight to doctors’ objections to things like pain relief is that pain relief is not controversial.31

This proposal has a couple of points in its favour. First, although some finesse may be required, it generates a very straightforward and practical piece of advice: respect objections to procedures that are controversial, and don’t respect others. Second, it seems to reflect an intuitive pre-theoretical view of ethical practice in general: there is something that seems intuitively right about saying that we should make allowances for people who disagree with the prevailing view if the prevailing view is itself controversial.

But things can’t be as straightforward as that. After all, nobody would advocate always following that principle. A quick glance at the politics columns of any national newspaper, or a stroll past the more-or-less-permanently-encamped bands of political protesters outside government and legislature buildings, is enough to drive home the point that many laws and practices are controversial when they’re first implemented, and some remain so for a very long time. It can be many years until a particular policy becomes generally accepted, assuming it’s not modified or repealed in the meantime. Equally, public support can persist for practices that have been outlawed for moral reasons: capital punishment in Europe may

be one such example (YouGov, 2014). The endlessly shifting sands of controversy are a familiar feature of life in a politically liberal country. Yet we don’t typically think that the objections of those who disagree with their country’s prevailing drugs or taxation policies, for instance, are themselves a reason to respect those people’s refusal to comply with those policies. In most cases, we expect people to abide by the requirements of the society in which they live, grudgingly or otherwise, and in many cases we think society justified in applying a degree of coercion to enforce those requirements. You will go to prison for using illegal drugs even if the policeman who arrests you, the judge who convicts you and you yourself all privately believe that your country’s drugs policy is wrongheaded. To hold otherwise would be to tantamount to rejecting the general authority of the law to compel anyone to do anything of which they disapprove, and that’s clearly going too far.

Indeed, even where I personally hold moral views about certain controversial measures which might lead me to agree with those who object to those measures, this is a long way from saying that I would want to allow those who object to have their objections recognised in law — and even further from saying that we should accord moral weight to any objection to any measure just on that basis. We are not tempted to write into all our laws a general conscience clause just in case the new law is controversial. And we resist still more strongly moral objections to rules that forbid things which we tend to think are impermissible anyway: ending the slave trade was highly controversial (Drescher, 1994) but few would argue that this controversy should have prompted 19th-century legislators to include a ‘conscience clause’ so that dissenting slave traders could continue to operate.

Another strategy for responding to the claim that controversy means we should respect objections is to think about how we would respond to hypothetical objections to practices where in fact there is no substantial controversy, and where we feel confident in our own moral views. To take a random example: children’s schooling (allowing for home schooling) is compulsory in many countries. Most people, I assume, have no objections to this rule.32

But suppose, counterfactually, that an undercurrent of resistance to compulsory schooling developed among some parents. Would we then want to grant moral weight to the

objections of those parents, so that they were entitled to deny education to their children?

That, I think, is an interesting question. On the one hand, it seems to me that the answer is obviously ‘no’. Once society has decided that children have a right to education (of some sort or other, at least), and that this is an important enough right to introduce compulsory schooling, the fact that some parents hold moral beliefs to the contrary doesn’t appear to be a reason to allow individual children to be excluded from that right, any more than we allow those who disapprove of wearing seatbelts or paying taxes to plead exemption based on their private moral objections.

But, on the other hand, I think the emergence of a degree of controversy about a practice should at least ring alarm bells. After all, a large part of what reassures us that compulsory schooling is broadly acceptable is that it is broadly accepted. If a groundswell of opposition to this formerly uncontroversial practice were to arise, we ought at least to examine the causes of this new controversy — and that examination may prompt us to ask ourselves whether the law needs revising. Or, to revisit Cantor’s example from a few moments ago, if a substantial number of doctors suddenly started raising moral objections to blood

transfusions or administering painkillers, we should look more closely at what was going on. It would be foolish to shrug off these warning signs simply because ‘controversy is irrelevant’.

Of course, this is an atypical scenario. When we think of controversial practices in modern medicine, we tend to think of practices that were relatively recently legalised and whose legalisation was controversial because the practices themselves were already controversial. In these cases, we don’t really need the fact of ongoing controversy to ring alarm bells for us: after all, before Oregon, Belgium and the Netherlands legalised doctor-assisted dying, they had already listened to those alarm bells and decided to go ahead anyway, so the fact they continued to ring after the relevant legislation was adopted didn’t provide them with any further information about the moral status of the procedure. Nonetheless, new

controversies can sometimes arise about existing procedures, if, for instance, an

improvement in our scientific understanding paints an existing procedure in a new light; and in that case, the new alarm bells are well worth listening to. Something like this happened with the over-the-counter marketing of thalidomide in the late 1950s and early 1960s (Botting, 2002). And, to take an example from outside medicine, most of us have a different moral attitude to burning fossil fuels now from the attitude we had fifty years ago.

In summary, I’ve argued above that, whatever it is that makes moral objections (sometimes) worth respecting, it can’t be the bare fact of controversy; and, by the same token, it’s not an appropriate response to controversy to allow objections, if we remain convinced that a procedure is morally appropriate on balance. But this doesn’t mean controversy is

irrelevant. The fact that some people disapprove of a rule indicates that they judge that rule to be inappropriate — and the more widespread the disapproval, the more confident we (society at large) need to be about the rightness of our position if we want to overrule people’s objections. The existence of controversy is not enough to justify respecting objections, but it is enough to remind us to keep an open mind.

Reasonable disagreement

Before we leave the question of error and controversy, let me present another version of the same argument. This is the argument that what counts is not just any old disagreement, but

reasonable disagreement. If there is reasonable disagreement about the permissibility of a

particular practice, the argument goes, then we ought to make allowances for the moral views of those who object to that practice.

If we take this line, we’re faced with the immediate task of adjudicating which disagreements are reasonable and should thus be taken seriously, and which are

unreasonable and can presumably be disregarded. It seems to me that we might try to do

this in one of two ways:

1. by assessing the content of the contrasting positions on both sides of the

disagreement — only ‘reasonable positions’ count;

2. by assessing the character of the people who disagree — only disagreements held by

‘reasonable people’ count.

(A third possible method, counting a disagreement as reasonable if enough people hold it, is just another version of the question of degree of controversy, which I dealt with a moment ago.)

Let’s consider first method 1 — assessing the positions themselves. I suppose there are two possible interpretations of what constitutes a ‘reasonable position’ here:33

• We could interpret ‘reasonable’ in the loose sense of ‘morally acceptable’ or

‘defensible’ (roughly the sense in which it’s used in phrases like ‘it’s reasonable to

expect people who move here to speak the language’). If we take this interpretation, any attempt to determine whether a position is reasonable or not will immediately thrust us back into the controversy about the acceptability of the procedure itself — because, under this interpretation, the question ‘Is it reasonable to object to

providing sexual health services to same-sex couples?’ is basically the same as ‘Is it morally acceptable to provide sexual health services to same-sex couples?’. In this sense, asking whether a position is reasonable gets us no further than simply asking whether the procedure in question is morally acceptable in the first place, and of course there is no agreed right way to answer this question in the case of

controversial procedures, since that’s what ‘controversial’ means. So this is a non- starter.

• We could interpret ‘reasonable’ in the stricter sense of ‘deduced using sound

reasoning from consistent premises’, making it synonymous with ‘rational’. But

then our test will grant moral weight to rational but plainly unacceptable objections, like ‘I refuse to countenance pain relief in childbirth because pain is God’s

punishment for original sin’. This is a perfectly reasonable position in the sense of being rationally deduced from consistent premises, but it is also one which (I submit) we clearly want to reject. At the same time, our test will deny moral weight to ‘it’s just wrong’ objections, such as ‘I just really feel in my heart that killing a patient is terribly wrong’. This objection stems from profound emotional

commitments, but it’s not rationally deduced from consistent premises. Yet it is (I submit) exactly the kind of objection we want to take into account (for reasons I’ll discuss at length later in this chapter). So this interpretation of ‘reasonable’ seems both too broad in one sense, and too narrow in another. It, too, is a non-starter.

33 _{There is much more discussion in the political philosophy literature about the notion of}

‘reasonableness’ as it relates to tolerance of moral disagreement. I revisit the issue of tolerance (including Rawls, 1993) in more detail in chapter 4, but other than that, I don’t even scratch the surface. For a wide range of accounts and commentaries, see Brooks & Nussbaum (2015).

That leaves us with method 2 — assessing the character of the people who disagree. Unfortunately, distinguishing ‘reasonable people’ from ‘unreasonable people’ is just as difficult and subjective as distinguishing ‘reasonable positions’ from ‘unreasonable positions’. Absent particular extraordinary conditions, most people are reasonable in the minimal sense of being capable of rational thought, so this will be too broad a criterion: nearly every disagreement will count as reasonable. But how do we narrow the definition? Do we exclude people whose intelligence or level of education falls below a certain

threshold? Or who labour under the influence of ‘complicating factors’ such as religious beliefs, for instance? Or whose value systems are sufficiently different from our own? I trust it’s clear why assertions like ‘We can disregard these people’s moral objections because they are too stupid/ill-educated/religiously misled/different from us to count as reasonable’ are deeply problematic. Judging controversies by the people who hold them, using predefined criteria of ‘reasonableness’, is a recipe for controversy in itself.

I have only sketched the immediate problems that arise from trying to invoke controversy or reasonable disagreement as justifications for taking objections seriously. But I hope this is enough to indicate that these are no magic bullets, essentially because they either rely

heavily on subjective criteria (what counts as ‘reasonable’, what counts as ‘enough controversy’), or because they cast the net far too widely to encompass any objection.34