Religious Accommodation in Bioethics and the Practice of Medicine

Abstract

Debates about the ethics of health care and medical research in contemporary pluralistic democracies often arise partly from competing religious and secular values. Such disagreements raise challenges of balancing claims of religious liberty with claims to equal treatment in health care. This paper proposes several mid-level principles to help in framing sound policies for resolving such disputes. We develop and illustrate these principles, exploring their application to conscientious objection by religious providers and religious institutions, accommodation of religious priorities in biomedical research, and treatment of patients’ religious views in doctor–patient encounters. Given that no sound set of guiding principles yields precise solutions for every policy dispute, we explore how morally sound democracies might deliberatively resolve such policy issues, following our proposed principles. Taken together and carefully interpreted, these principles may help in guiding difficult decision making in the indefinitely large realm where government, medical providers, and patients encounter problems concerning religion and medicine.

I. INTRODUCTION

Contemporary societies—especially pluralistic democracies, such as that of the United States—have grown increasingly secular. Simultaneously, their citizens have often asserted stronger claims for religious accommodation, and legislators have often advocated policy on (seemingly) religious grounds. This tension raises the question of what norms are relevant to governing such societies, with religious and nonreligious citizens who should be free and equal before the law. This question is particularly pressing because, in pluralistic, democratic societies, citizens must govern each other through democratic mechanisms and must cooperate through nongovernmental institutions and practices that further realize and sustain their status as equals in society. Such concerns are especially important for biomedical ethics, where many challenges, including those involving determination of the beginning and end of human life, have controversial religious implications.

The societies with which we are concerned have three specific features: they are democratic, pluralistic, and liberal.¹ In turn, they tend to emphasize values corresponding to each: those of democratic government, mutual respect between individuals with differing worldviews, and protection of rights and freedom. Yet, conflicts can arise between these values. For example, certain exercises of autonomy and religious liberty may yield or perpetuate harms and inequalities. Various traditions have emerged that address such conflicts (including those of Millian liberalism, justificatory liberalism, and deliberative democracy), and often these traditions have attempted to negotiate these conflicts with principles through which one value governs the others (e.g., emphasizing precedence of liberty, democracy, or respect for pluralism). In contrast to such monistic traditions, here we develop a pluralistic framework. Our principles provide general guidance for conduct of providers and institutions. Several of our principles have been described elsewhere (Audi, 2000, 2011b). Here, we extend them to address accommodation of religion biomedical ethics, adding further principles to cover this domain.

Drawing on the recent revival of intuitionism,² we take our principles to be justified intuitively, by a kind of reflection—even if they are not quite self-evident. Furthermore, we take them to be mid-level in the sense that they are also derivable from more basic principles; hence, further justification can be garnered from sources other than intuition, such as those of ethical theory.³ Indeed, we believe that these principles can be so derived from various more fundamental principles, including those featured in the traditions mentioned above, such that our framework may be attractive to theorists from a diversity of perspectives. We take this to be a key virtue in pluralistic societies.

Because our principles—in keeping with many elements of the intuitionist tradition—are only prima facie, they generally do not entail the illustrative applied claims that we discuss. In contrast, while we think deductive arguments as well as intuitive judgments can be offered for many of our applied views, we devote much of this text to drawing important distinctions⁴ between related views. Additionally, we supplement the basic framework with further theoretical resources that support our applied views when taken together with our prima facie principles. The point of our illustrations is, mostly, to support an inference to the best explanation for our framework. We aim to show that, when supplemented with other plausible claims, our view has broad explanatory power and thus significant support.⁵

We proceed as follows: Section I reviews critical background issues about the epistemology and methodology of our intuitionism. Section II introduces the basic elements of our framework. Sections III–VI illustrate its applications to questions of accommodation in bioethics. Obviously, we cannot cover all of the relevant issues, but we focus on issues of conscientious objection by individuals (Section III) and institutions (Section IV), as well as questions of accommodation in research (Section V) and accommodations for religious patients both by their providers and by their proxy decision-makers (Section VI). We focus on these topics in part because they emphasize a wide range of topics that a theory of religious accommodation in such societies must help explain, thus supporting the inference to our framework as the best explanation of this domain.

Before proceeding, we should first clarify the three key features of the societies on which we focus: democracy, pluralism, and liberty. First, we take a democratic society to be (roughly) one that citizens collectively control, primarily through institutions and procedures in which they equally have a voice. Different conceptions of such equality suggest different conceptions of democracy. Some minimal standards are widely accepted, including at least two: (1) formal equality in voting mechanisms (as enshrined in, e.g., the one-person, one-vote rule) and (2) formal equality before the law, which prohibits preferential legal treatment of particular individuals or groups. On some conceptions of equality, democracy may further require providing certain resources, opportunities, or capabilities—the kind whose absence might undermine political power or equality in status.⁶

Second, the societies that concern us are pervasively pluralistic: they feature substantive, often recalcitrant disagreements among their citizens about fundamental norms of government.⁷ If there were agreement on basic questions of, for example, distribution of resources, human rights, and political processes for decision making, then perhaps the remaining disagreements could be surmounted procedurally with results acceptable to all. But pluralism, as known in many contemporary societies, such as the United States and the United Kingdom, is too deep and pervasive for dispute resolution to be easy. Citizens disagree about what values governments should promote, as well as about what human, political, and civil rights they ought to protect. In many cases, there will be some citizens that object to the results of whatever decision-making process is used in dealing with such disagreements. Our proposed framework is intended to help in resolving these disagreements.

Third, the societies that concern us are liberal in the sense that they make special provisions to protect civil and political rights, particularly liberty rights such as free expression. A broad form of liberalism is a fitting response to pluralism in these societies for at least two reasons. First, it is fitting for pluralistic societies because, in the face of the aforementioned disagreements, powerful factions will often be tempted to prohibit actions of which they disapprove. The assiduous protection of liberty—a hallmark of liberal democracy—counteracts such temptations. Second, the liberal response is fitting for democratic societies because equal protection of basic rights is a constitutive means of realizing equality before the law.

II. INTUITIONISM⁸

We take the principles of our framework to have prima facie epistemic justification as intuitions. Before outlining the principles themselves, we should comment on the nature of this justification and the strengths we think it offers. We then further defend this view of justification against concerns. In particular, some might think intuitionism a problematically naive picture of epistemic inquiry because such appeals depend on an implausible appeal to a “view from nowhere,” or because appeals intuitions serve as “conversation stoppers,” or because antitheoretic appeals to intuitions cannot accommodate the productive role of moral theory.

In bioethical discourse, the first objection may be particularly pronounced. Several have asserted that “there is no view from nowhere.”⁹ Often, this objection explicitly draws on the tradition-based epistemological reflections of Alasdair MacIntyre (2007). Indeed, some, inspired by MacIntyre, appear to suggest that, “few serious thinkers today believe that” moral values can be defended in secular terms without tacit reliance on some normative tradition (perhaps meaning one covertly hostile to religion as such) (Camosy, 2012, 13–4).¹⁰ Yet, while we believe that traditions can offer important sources and inspiration for reflection, we also reject the idea that justification is intrinsically internal to a tradition.¹¹

Perhaps confusingly, the term “ethical intuitionism” refers to two distinct views. One of these is a view in moral epistemology, according to which an agent may be noninferentially and intuitively justified in accepting some propositions expressing practical (and/or moral) reasons—say the proposition that killing persons is (prima facie) wrong. The other view concerns normative ethical theory; it is a pluralism that posits a number of distinct, foundational principles, which are, according to it, intuitively justifiable. Notably, the discussion here does not assume that our principles are foundational. Furthermore, we rest our framework on intuitionist epistemology here, but others could adopt our normative view without endorsing our metaethics.

On our epistemic view, certain propositions can be noninferentially apprehended in such a way that an agent’s comprehendingly and reflectively considering them provides some justification for believing them; we call these intuitions.¹² Some of these are self-evidential—roughly, they are true and agents may be justified in holding them in virtue of adequately understanding them and may know them by believing them on that particular basis. A proposition’s being intuitive in the general way just described, or even further, being self-evident, does not entail that it is obvious or widely known.¹³

Defending propositions as intuitive need not rest on simple assertion nor need it be dogmatic. General principles can be suggested by way of illustrative examples—particularly when those examples can be multiplied or generalized. Instead, one way, among others, that defense can work is through enhancing and refining the understanding of the proposition in question. Similarly, responding to purported counterexamples can be a means of defending an intuitive proposition. For example, one might show how the purported counterexample can be accommodated (e.g., by showing it falls outside the scope of the proposition) or offer an error theory to explain away its appeal. All of these can be methods of defending propositions as intuitive (or even self-evident), but none work by appeal to premises in a deductive argument that replaces the intuitive defense for the proposition in question.¹⁴

There is a further way in which defense of intuitive propositions need not rest on simple assertion or dogmatism. Though agents may have non-inferential justification in believing intuitive propositions, this does not imply that intuitive propositions generally, nor self-evident propositions more specifically, cannot be argued for via deductive argument. Belief to the contrary may have historical precedence, because many early intuitionists, such as Ross (1930/2002, Ch. 2), took self-evidence to entail unprovability. Yet, this view is mistaken; for one thing, various theorems of standard logic or mathematics may be self-evident but also provable from other premises. So, too, with some moral intuitions. Here, as elsewhere, it is critical not to neglect the possibility of justificatory overdetermination. In argument, the advocate of some proposition as intuitive or self-evident may be able to find premises to support the proposition, even if the opponent refuses to admit its intuitive or self-evidential status. Indeed, religious persons might take there to be intuitive support for such reasons—though that is, of course, not the only justificatory support that they might take such reasons to have.

Of course, none of the above implies that there will not be exchanges in which arguments reach an impasse—for example, because of disagreements about cases, examples, premises, or other matters. Yet, the discussion above suggests that there is nothing distinctive of appeal to intuitive propositions that should make them particularly susceptible to this. This is critical because, in light of gaining justification without having to derive it from premises in deductive arguments to support them, appeals to intuitive propositions can stop the threat of justificatory regress that nonfoundationalist moral epistemologies must face.

In light of the above, we can respond to the three concerns about intuitionism introduced at the beginning of this section. First, appeals to intuitionism need not depend on any “view from nowhere” in the sense of being tradition free. Consider how, on the intuitionist view, understanding may genetically depend on experience for development without justificationally depending on experience (Audi, 2018, 2n4). One may, for instance, need to draw on various resources in considering the concept of harm and its application to particular circumstances. Yet, while one’s understanding of a proposition about harm may genetically depend on such experience, one may have noninferential justification in believing that proposition through deploying this understanding in an intuition. This may be the case either about a general proposition (such as that it is prima facie wrong to cause harm) or about a particular example (such as that this particular harming is all things considered wrong). Similar genetic dependence may stem from tradition or testimony—if, for instance, one’s understanding of harm draws on a tradition. This does not prevent a particular claim about the wrongness of causing harm relative to that of preventing a particular rights violation from knowability by the relevant intuition(s).

Of course, complaints that there is no “view from nowhere” are not always related to views about traditions.¹⁵ Sometimes complainants suggest their opponents’ views depend on some implausible form of objectivity, neutrality, or authority. Intuitionism rests on no such implausible claims. Of course, one’s intuitions are one’s own, but that need not deprive them of fairness, objectivity, or justification. Moreover, an appeal to intuition is not an authoritarian claim that in itself should convince one’s interlocutors of one’s view, but that need not undermine one’s justification.¹⁶

Second, appeals to intuitions need not be “conversation stoppers.” Appeal to intuition does not preclude offering further arguments to interlocutors. Demands for further explications, illustrations, examples, and responses to purported counterexamples can be made and may be met. Indeed, meeting such demands exemplifies the understanding necessary for one’s intuitions to serve as justificatory.

Finally, intuitionists need not be antitheoretic. Because a proposition’s status as intuitive or even self-evident does not entail that it cannot be derived from premises, intuitive and self-evident propositions can be incorporated into an ethical theory, especially where they can be demonstrated from more basic parts of the theory. Indeed, the sorts of abductive arguments for various ethical theories over their opponents, such as those of inference to the best explanation, rest on taking some datum—like an intuition about a moral claim in some case—and showing the theory to explain it. Furthermore, the intuitionist has a ready explanation of how explaining the datum provides justificatory support for the theory: the datum is itself justified and so inference from it can provide justification. Those who deny that intuitions provide justification need to explain this phenomenon.¹⁷

III. THE CORE FRAMEWORK

We now turn to detailing the core principles of our framework—although supplemental principles will be added as we extend it to various topics in biomedical ethics. We start with several prima facie principles that are called for concerning governmental treatment of religion and citizens—both religious and nonreligious. First are two concerning equality across religious and nonreligious persons:

  

The neutrality and equality principles seem intuitive and cohere well with the Establishment Clause of the First Amendment of the U.S. Constitution.¹⁸

Further principles are necessary regarding protection of liberty and equality. First is

The liberty principle: Government should protect religious liberty to the highest degree possible within a reasonable interpretation of the harm principle—i.e. (in rough terms), the principle that restrictions of liberty are justifiable only on adequate evidence that they are required to prevent significant harm.

Interpretation of the liberty principle depends on that of the harm principle, which is discussed in detail by J. S. Mill (1859/1978, 9–10), who first offered it (in a slightly different formulation), and by a multitude of later writers.¹⁹ Philosophers, jurists, and others have generally understood harm as (some type of) setback to interests, prominently including physical injury. Disagreement emerges on what other actions constitute harms. Furthermore, there is debate on which beings’ harms are relevant, on which types of harms are relevant, and on how various degrees of harm bear on justification for limiting liberty. We suggest that this scope include not only persons, but also other biological species and, potentially, the environment, but a full account of how these different contributions are to be weighed is beyond the scope of this essay.

Even granting these suggestions, further debates remain about the harm principle. Perhaps cases of harmless trespass, harmless contract violation, or other harmless infringements illustrate that governmental coercion is justified to prevent harmless wrongdoing (since it is clearly reasonable to illegalize many such wrongs) (Hart, 1982; Kamm, 2007; Ripstein, 2006). If so, the harm principle may need supplementation.²⁰

In particular, one might argue that government must not only prevent harm, but also promote the realization, protection, and promotion of each citizen’s status as an equal before the law.²¹ This normative standard is implicit in the democratic commitment to a kind of basic political equality, since that is threatened directly by inequality before the law and, in some cases, by major disparities in socioeconomic power. As an intuitively powerful way of capturing this demand, we propose

The social equality principle: Government should protect and, in some cases, promote equal sociopolitical relations among citizens, at least insofar as promotion is needed to assure equal status before the law.²²

To illustrate briefly, the social equality principle might require, among other things, significant legal changes to limit the influence that private money is allowed to have in governmental elections because citizens might take the law to treat them as unequally if moneyed interests have a certain kind of disproportionate power in determining representation and policy. It might also require stronger mechanisms to ensure public defense—as the law arguably does not treat one equal insofar as one’s lack of wealth raises the risks of losing at trial.²³

Our framework does not completely determine the application of all its principles to all relevant cases. Leaving many cases open, even with appropriate reflection and further intuitively plausible principles that we detail as we proceed, our framework requires deliberative principles to aid in decision making for democracies. In keeping with a broad family of liberal positions on this topic, we propose one such principle,

The principle of secular rationale: Citizens in a democracy have a prima facie obligation not to advocate or support any law or public policy that restricts human conduct, unless they have, and are willing to offer, adequate secular reason for this advocacy or support (e.g., for a vote).²⁴

For illustration, religious individuals might fulfill this duty in indicating that they oppose capital punishment mainly for religious reasons but further arguing that their basis for proposing its legal elimination is its tendency to be unequally imposed, mistakenly administered or a burden on courts that affects the overall administration of justice.

The principle of secular rationale is a principle of restraint, resembling, but often more permissive than, those which many others (particularly justificatory liberals and deliberative democrats) advocate.²⁵ The particular restraint described by the principle of secular rationale is a duty of citizens in the contexts of advocacy for or support of coercive laws or public policies. This restraint is not directed toward discourse as such, does not restrict freedom of speech, and does not license coercive restriction by government or others on such free speech. Furthermore, it may guide citizens in displaying mutual respect and tolerance.²⁶ When obligations are vague and reasonable citizens disagree, the ethics of citizenship demands that we exhibit tolerance to alternative interpretations of such obligations, especially in charged political environments where the risk of disrespect to those with whom we disagree is high.²⁷ Likewise, in seeing that our view matters to our opponents, we can more readily feel respected. By offering secular reasons for their views, those who advance religiously supported positions can exhibit respect to others in acknowledging that others’ points of view matter.

The meaning of the term “secular” is critical.²⁸ For a reason to be secular is roughly for it to be evidentially free of dependence on the authority of God’s pronouncements, religious institutions, and commitment to God (Audi, 2011a, 67). Importantly, evidential independence from beliefs about God’s existence does not imply that such reasons are independent of God’s existence. Such evidential independence also allows access to these reasons for individuals who disagree about the role of religious claims in the metaphysics of reasons; it does not even entail that there cannot be theologically sufficient grounds for normative propositions. Hence, the secular is not anti-religious, in that it allows that religious believers take the reasons to be metaphysically grounded in various theological theses—so long as they can be evidentially based on nontheological premises. Here the point mentioned above, in discussion of intuitionism, about justificatory overdetermination is also relevant. The principle of secular rationale merely requires that the reasons invoked be justifiable without such religious evidence. Of course, religious persons will often take God or religious institutions to prescribe concern for others, stewardship of environmental resources, and the like; such individuals can take these reasons as secular so long as they take there to be justification for such reasons that does not depend on a religious basis—even if religious support also gives justification.²⁹

Several further clarifications are important regarding the limits of this principle.³⁰ First, this principle allows for religious reasons to be offered in public deliberation.³¹ Returning to our illustration above, if the religious citizen has satisfied the prima facie obligation to have and be willing to offer adequate secular reason for eliminating the death penalty, she might further also invoke various religious claims in arguing for its elimination, such as that all individuals have a kind of sacredness as ensouled by God. The fact that the principle of secular rationale allows introduction of religious reasons is important, especially given that there are powerful arguments that religious institutions avowing religious reasons can offer inroads to political participation for the disenfranchised and that previous cases, such as those of Dorothy Day, Martin Luther King, Jr., and Desmond Tutu, have taught us that religious reasons can spark powerful arguments for advancing the ends of justice.³²

Thus, just as the principle is not antireligious in its appeal to secular reasons, so too, it is also not antireligious, in that it permits appeal to further reasons that do depend on religious beliefs or institutions as evidence. Instead of seeking to eliminate the use of religious reasons in public deliberation, the principle is designed to accommodate both religious and secular citizens by asking them, in effect, to take considerations they can share simply as rational and adequately informed persons as common ground providing a prima facie necessary condition for justifying coercive laws or public policies.

Second, like the other principles we propose here, it expresses a prima facie—hence defeasible—obligation. To see how defeat can occur, imagine a dictator so effectively brainwashing much of a population that a majority could support patently unjust laws. Suppose religious citizens might effectively oppose instituting those laws only by enlisting all the power of their religious position and its traditional influence in the population. This is not to say there would not be adequate secular reasons for opposing the proposed legislation; the point is that if only religious arguments would block the legislation and protect the population from serious harm, the prima facie obligation under the principle of secular rationale might be overridden.³³

Finally, the role of the principle of secular rationale in the broader intuitionist framework we defend is importantly distinct from that in justificatory liberal frameworks and many deliberative democratic views. Broadly speaking, deliberative democrats claim that “citizens and their representatives . . . are expected to justify the laws they would impose on one another” to each other through public deliberation (Gutmann and Thompson, 2004, 3).³⁴ Similarly, justificatory liberals have claimed that a law (or policy) is justified only if all reasonable constituents³⁵ have sufficient reasons to endorse it,³⁶ where the concept of justification in play is often that of legitimacy.³⁷ Both are often heavily influenced by John Rawls,³⁸ and both frequently adopt some requirement like his duty of civility (2005, 444)—a principle of restraint somewhat similar to the principle of secular rationale. As we understand it, it requires citizens to appeal to public reasons “when debating fundamental political questions,” allowing that they might “introduce . . . at any time [non-public reasons], religious or nonreligious, provided that in due course” (Rawls, 2005, 453), they provide “properly public reasons” to support their claims (Rawls, 2005, 462).³⁹

With many deliberative democrats, we agree that public deliberation can guide in setting acceptable rules for shared, democratic governance when basic frameworks—such as constitutional essentials and matters of basic justice⁴⁰—are not fully determinate. In particular, we note that ethically conducted citizenship can, through deliberation, specify whether a policy of accommodation reasonably balances the protection of liberty with that of equality in cases where reasonable people differ in their assessments. However, unlike many deliberative democrats, we would deny that such deliberation (even as a matter of regulative ideal) should be free from prior norms.⁴¹ In addition, we reject the justificatory liberal claim that justified law or policy must be such that each citizen has sufficient reasons to endorse it. On our view, the relationship between respect and the principle of secular rationale is not mediated by this principle, but is direct and intuitive (although not self-evident). We take the intuitive support for this relationship to be stronger than many competing views in light of the fact that the principle of secular rationale is limited in several of the ways we have mentioned.⁴²

IV. ACCOMMODATION OF RELIGIOUS PRACTITIONERS: THE CASE OF CONSCIENTIOUS OBJECTION

We now turn to applications of our framework to particular issues in biomedical ethics, noting that we need to add supplementary principles as we proceed.⁴³ We begin with the question of conscientious objection by individual providers. Given that some exercises of religious liberty by medical providers may cause harm or produce unequal treatment, the foregoing principles bear on conscientious objection. In particular, they support a moderate position, similar to those advocated by others,⁴⁴ on which providers may refuse to give services if and only if their objection to doing so is (1) nondiscriminatory, (2) does not violate their professional obligations or socially just laws, (3) does not excessively burden the patients seeking service, and (4) is accompanied by ensuring that patients know how to access the refused service(s), for example, by referral.

To see why the rights of conscientious objection are limited, first note that the liberty principle and the social equality principle⁴⁵ favor fulfilling medical needs as protections against harm and threats to equality. Hence, there are particularly forceful considerations for governmental action that weigh against those to protect religious liberty.⁴⁶ In turn, governments often have reason to coerce those who object to providing services in emergencies or would refrain from informing and referring patients for (legal and just) care they refuse to provide. This supports the view that government ought to protect medical needs—even at certain costs to religious liberty. When conjoined with a picture of professional obligations that we describe below, it supports, more specifically, limits on conscientious objection.⁴⁷

The professional duties that providers have to patients are, unfortunately, both vague in content and plural in nature. There is no simple account of such duties, and the general claim that physicians must prioritize patients’ interests is shot through with exceptions (Wendler, 2010). Strict opponents of conscientious objection who claim that providers must give any service that is legal, distributively just, requested by the patient, and/or at the core of the medical practice⁴⁸ face such difficulties as requiring providers to offer services outside their specialty. If, however, one limits the services required by including only those in the practitioner’s specialty,⁴⁹ one encounters the difficulty that providers often (reasonably) subspecialize or focus their practices in some other way. For example, those certified in obstetrics and gynecology might choose to pursue either gynecological surgery or obstetrics, rather than offer the full range of legal gynecological services.

In contrast, we suggest that medical professionals’ duties are determined in part⁵⁰ by their role as agents of, or at least bearing some moral responsibility to, societies through governmental and other institutions that reinforce or impose duties to protect healthcare rights and equal treatment under laws and public policies.⁵¹ Given the relationship between medical need and the liberty and social equality principles noted above, as well as society’s obligations to promote opportunities of their constituents (for which health is needed) and to protect their constituents’ basic human rights (of which some degree of health care is one), society has reasons to place certain requirements on individuals well-suited to discharge institutional obligations, including obligations to fulfill medical needs. Given that society has such reasons and that medical providers are well-suited to discharge them, medical providers acquire obligations to their patients and regarding the public health from society.⁵² In addition to their obligations to their patients, providers have duties to each other to ensure fair distribution of these responsibilities among one another. Given this obligation of fair distribution, and given that many cases of conscientious objection are foreseeable, those who conscientiously object have duties to anticipate situations in which they will be morally obligated to refer patients to colleagues—as do the institutions of which they are part.

There will often be significant disagreement about providers’ special obligations to their patients—in part because of their vagueness, the role of various institutions in their specification, and the reasonable disagreement characteristic of pluralistic societies. Often, and certainly in some important cases, disagreements arise from different religious perspectives or differences between some religious and some secular moral convictions. Even the best normative theories will not directly imply a particular verdict for every case; however, adequate frameworks for democratic societies require principles of deliberation for settling specific cases. Here, we note a significant role for democratic deliberation employing the principle of secular rationale, as described above.

V. ACCOMMODATION OF RELIGIOUS INSTITUTIONS

In addition to questions of individuals’ conscientious objections, there are questions of religious medical institutions’ conscientious objections—and, furthermore, more general questions of governmental accommodation of such institutions. Perhaps the most familiar of these are those of Christian organizations that refuse to provide services that they see as contraceptive, abortive, or abortifacient. For example, recent lawsuits concerning the Department of Health and Human Services’ (HHS) regulation that healthcare coverage under the Affordable Care Act must include contraceptive services have called attention to one sort of position on this issue—that of the Religious Freedom Restoration Act (RFRA) (U.S. Congress, 1993). Roughly, RFRA precludes the federal government’s “substantially burden[ing] a person’s exercise of religion” except in cases where such burden “furthers a compelling interest” through the “least restrictive means” of doing so. In Hobby Lobby (2014), the U.S. Supreme Court held that closely held corporations qualify as persons under this legislation. It argued that the HHS requirement violated RFRA in placing requirements on closely held, private corporations to provide coverage that owners find religiously objectionable when a less restrictive means was possible, which the government had provided to religious nonprofit organizations. It further rejected the possibility of legally drawing a distinction between the RFRA rights of religious non-profits and closely held, private corporations with religious owners.⁵³

These issues raise several questions regarding what standards of conduct are compatible with our framework. This section addresses three of them in a way that illustrates how the framework accommodates religious institutions. In so doing, we focus on the text of RFRA—rather than on legal issues about judicial precedent of substantial burdens and least restrictive means.⁵⁴ First, how are corporate agents—and group entities more broadly—to be treated on this framework? Second, if there are grounds for protection of conscientious objection of institutions, is the Court correct in thinking that there is not a means of distinguishing between the values of religious institutions and those of closely held corporations that have religious ownership? Third, if there are such grounds, would not the RFRA standard, which appears to set a fairly strict burden on demonstrating minimal restriction, generally cohere with the liberty principle, which requires maximal protection of religious liberty as consistent with a reasonable interpretation of the harm principle?

In the wake of Citizens United (2010), there is widespread skepticism about ascribing personhood to institutions and organizations. This invites skepticism regarding the Court’s general project of ascribing rights of conscientious objection to such agencies. It is important here to note that organizations might have some rights and duties of legal personhood while lacking others. It is further important to note that, for our purposes, even if one doubts whether corporations should have (all) legal rights of personhood, there is a distinct question of whether organizations display agency, and there are many plausible accounts on which they do (Tuomela, 2013; Shapiro, 2014). In particular, we believe that organizations may have capacity for “conscientious” objection⁵⁵ in virtue of the fact that they can be committed to values, integral to their identity, just as individuals do.⁵⁶

Of course, the degree to which different types of institutions have values that are critical to their identity varies in several ways. Some religiously affiliated institutions might reasonably be taken to have religious values central to their institutional identities. This may not be true of closely held private institutions that merely happen to have religious owners.⁵⁷ In particular, merely being an owner of a religious organization and having religious values does not entail that these values are integral to one’s corporation’s identity. This is in sharp contrast to the way in which values may be partially constitutive of churches or explicitly religious institutions, such as a Roman Catholic school.

Furthermore, some such corporations make loose reference to religious values in their mission statements or practices—for instance, in being closed on Sundays or in having “Biblical values.” Yet, loose reference to religious values—even in statements or practices that might indicate that values loosely construed are integral to organization identity—will often be insufficiently clear to show that those values justify religiously grounded objection. In contrast to an organization that is owned by a religious institution that has explicitly pronounced an explicit value relevant to the objection at hand, where employees and others interacting with the organization might reasonably be expected to know the implications of the religious values in question for the objection, vaguely stated values do not convey such clarity. In such cases, their corporations lack grounds to claim that those values are central to their identity.

If, as we hold, organizations can plausibly be considered agents and, as such, have central values that might make conscientious objection by an institution possible, the question arises of whether—and the degree to which—such objection should ground rights and privileges in a democratic, pluralistic society. In particular, if institutions are agents with such values, does not the liberty principle favor a rather robust conception of how such values are to be protected—one much like that of RFRA? The answer depends on what reasonable interpretations of the liberty and social equality principles require, and we do not believe they support such a robust conception. The following four points can clarify general contours of our interpretation in this context.

First, keeping in mind our points about the source of providers’ duties, such institutional questions occur in the context of three-part relationships in which (1) a provider is acting as a member of (2) an institution in caring for (3) a patient. The institution has several responsibilities in addition to those dictated by its institutional values, including responsibilities to its employees, its patients, and certain government agencies. For example, often physicians treat patients within relationships defined not merely as those between doctors and patients, but further as one between an institutional employee and a patient.

Second, if institutions are to have rights of objection, then, as noted for providers, though they have not forfeited their claims to conscientious objection, they nevertheless have duties to establish and sustain practices in which they can meet further duties to inform and refer.⁵⁸ Generally, Catholic hospitals that refuse to offer abortions in non-emergency circumstances have prima facie obligations to arrange transfer mechanisms to partner hospitals in their communities. Moreover, fairness would suggest that such hospitals be willing to provide other services that benefit their community partners.

Third, given that both providers and institutions have such duties—and are relying on each other in their fulfillment of them—they seem to have duties to each other, and thus also rights, to see these fulfilled. This partly explains why, in general, it is not necessarily invidious discrimination to refuse to hire—or indeed to fire—providers or pharmacists who would invoke mechanisms of conscientious objection, where creating and sustaining such mechanisms imposes significant costs on the institution, as it is likely to in many cases. For example, a 24-hour pharmacy might have only one pharmacist working overnight or a hospital may have only one obstetrician on call overnight. In both cases, the institutions might reasonably inquire about the moral views of those that they employ, or are considering employing, and refuse to employ those whose views would require them to hire additional staff in order to fulfill their duties to patients. Indeed, we take the principles so far proposed to support a defeasible requirement, like that proposed by others,⁵⁹ on major medical institutions as well as governments to reserve a certain proportion of positions for competent providers who are willing to perform certain duties.

For instance, consider the related case of a local community hospital that lacks a sufficient number of obstetricians (relative to patient demand) who are willing to perform elective abortions in a country where abortion is constitutionally protected. How might our position apply to a local public hospital in such a community? Our framework does not entail a particular detailed position in such a complicated case. Much might depend on the number of obstetricians from other hospitals or clinics willing to provide abortions, as well as the access that patients may have to providers in nearby communities and the distance they would need to travel to reach such providers. Yet, clearly our position suggests a prima facie obligation to serve the medical needs of patients within the scope of the law. In turn, a plausible view, in keeping with our framework here, as well as suggestions of others (Minerva, 2015, 2017), might be that such a hospital does no wrong in refusing to hire further obstetricians unwilling to provide abortions—or in paying higher wages to those who are willing. Indeed, all else being equal, in certain circumstances such a hospital might have a prima facie obligation to do so, if that would incentivize a sufficient number of providers to perform legal elective abortions in appropriate cases.^60,61

Fourth, institutions that receive government funding will also be in a triply special relationship with patients as (1) an agent of a pluralistic democracy that should provide access to needed medical interventions, (2) the institution caring for a patient, and (3) the institution discharging its employees’ responsibilities to inform and refer in cases of conscientious objection. This raises the demands on such institutions to achieve equal treatment of patients irrespective of religious convictions.

In light of these points, we believe that reasonable interpretations of the harm principle and the social equality principle limit institutional liberty without implying that it does not deserve respect. In many cases, allowing referral for elective abortion rather than requiring performance is not a great imposition on patients and, in such cases, should be allowed in deference to some institutions’ deeply held values. In turn, the question arises of how to address this problem without imposing unfair burdens on other facilities. One reasonable solution might be to require these institutions to do more to preserve social equality in other ways.

However, strict limits for institutional religious liberty arise in emergencies. Notably, severe cases of sepsis or hemorrhage have been documented when providers refused to induce labor in cases of miscarriage.⁶² In such circumstances, transfer to alternative facilities, in order for a conscientious objector to avoid performing what he or she perceives as an abortion, can be quite dangerous. When such occurs, then, as in the case of the moderate position we propose for individual objectors, invoking conscientious objection to require such transfer is impermissible.

VI. ACCOMMODATION OF RELIGION IN BIOMEDICAL RESEARCH

We now turn to extending our framework to accommodation of religious individuals in research, including the questions of governmental prioritization of and researchers’ liberties in projects that may be seen as friendly or antithetical to different religions. Regarding governmental prioritization, the neutrality and equality principles suggest that equal treatment ought to be given to the religious and nonreligious alike and to members of different religions. The notion of equal treatment is complex. Equal treatment does not, for instance, imply the same treatment⁶³ but must allow differential treatment—provided its basis is nonreligious, and it is otherwise justified.

For instance, perhaps, having state holidays on Christian feast days is acceptable in nations with Christian majorities, but only if members of other religious and areligious groups are given comparable leave for their observances. Indeed, it may be that a further condition is needed to justify such ostensibly preferential holiday patterns—for example, that some compensatory benefits are afforded to minority religious groups. These might include government incentives, for instance, publicity that might be used to make their belief systems more widely appreciated. Such incentives might further benefit pluralistic, liberal democracies by helping citizens understand the similarities and differences among their beliefs.

The requirement to treat religions equally in the research context raises the question of how to set research priorities among potential interventions for conditions where some of the potential interventions may be objectionable to some religions. These interventions might include those employing in vitro fertilization, bioprosthetic surgical materials (such as valves), and blood transfusions.⁶⁴ While citizens without such objections have reason to accommodate those who object, resources devoted to such development could not be directed toward other research projects of benefit to all. Hence, accommodating particular religions may pose a loss to citizens with different beliefs.

Among the considerations that affect determination of equal treatment is the relative stringency of different religious obligations for members of different religions. For example, various religions prohibit biological valves. However, on some standard religious teachings, Jewish patients and, in extreme circumstances, Muslims may receive porcine products, while the Hindu prohibition on bovine products is stricter.⁶⁵ If scarcity or budgetary constraints impose prioritization decisions, the relative stringency of these teachings could create some reason to prioritize research on porcine products—or perhaps on further alternatives that do not face religious objection, such as equine products (at least when such products are fitting for the procedure involved). Yet, these reasons may be limited in part by other patients’ reasonable expectation that research with the most promise to promote health (nonreligiously construed) be prioritized. Perhaps, for different societies, the strength of reasons for religious prioritizations is relative to the proportions of the populations that follow the different, strict, religious standards. For instance, reasons to favor nonbovine valves may be weightier in India than in the United States.

The strength of the reasons at stake will often be vague, making this a situation in which the ethics of citizenship plays an important role in shaping public and institutional deliberation about prioritization. In any case, the principle of secular rationale poses limits on what kinds of reasons are needed. Because it recognizes a duty of citizens to support equal treatment of fellow citizens with different beliefs, compliance with the duty to offer nonreligious reasons helps to ensure equal treatment of minorities in societies where (consciously or not) religious voting blocs may be tempted to prioritize their own interests in research funding.

The principle of secular rationale may also aid in addressing related concerns about the effects of religious voting blocs on regulation of research conduct. Perhaps, Christians in the United States who endorse strict prohibitions on removing of artificial nutrition and hydration would advocate greater oversight on related research—such as that on organ procurement after brain death. Such a policy might violate the principle of neutrality, but setting that aside, to the extent that a duty to offer adequate secular reasons for coercive laws or public policies is acknowledged, those favoring such oversight will be disposed to see that they must do more than simply vote their political interests.

VII. ACCOMMODATION OF RELIGIOUS PATIENTS

Finally, we address accommodation regarding religious patients. Such accommodation must respect both providers (individual and institutional) and religious patients in a way that recognizes all individuals as equal before the law. To aid in this, we suggest that, insofar as medical professionals’ duties are grounded in governmental and institutional duties to protect equality and neutrality, they have some reason to respect similar principles like those of equality, neutrality, and liberty in the doctor–patient relationship.

One plausible principle for professionals’ role is

The principle of practitioner religious neutrality: Medical professionals have a prima facie obligation to observe a distinction between their personal religious views and their views as professionals, to prevent any religious aims they may have from dominating their professional conduct, but also to allow patients’ religious views a role in the relationship to the degree that it contributes to their patients’ medical care.⁶⁶

Nondomination here does not preclude that providers’ religious worldviews have some influence in their interactions with patients—though there are complexities about this influence, some of which we will clarify. However, in keeping with our framework as presented thus far, we take nondomination to require that, at least, providers have adequate secular reasons for medical decisions that they make.

In support of this principle, note first that neutral treatment of patients by medical practitioners is asymmetrical; for the most part, it is the duty of the professional to accommodate the patient and not that of the patient to accommodate the professional. This asymmetry is appropriate. First, providers acquire some governmental and institutional obligations of neutrality and equality. Second, generally, treatment regimens affect patients’ lives more directly and profoundly than they affect practitioners’ lives. This sometimes warrants introduction of patients’ religious beliefs into shared decision making and even some aspects of their treatment.

Of the parts of the principle, the prescription of respect for patients’ religious views may be more controversial than the prohibition on physicians’ religious values from dominating the relationship. Yet, there are clear and uncontroversial cases in which accommodation of religious views is part of standard medical practice. Consider the role that religious values may have in patients’ care, which partially explains the appropriateness of hospital chaplains in comforting the sick. In many cases, the role of such religious values affects very little of the care provided by the medical professional, but in some cases, it may, as when, to enable religious, end-of-life rituals, one might temporarily reduce one’s otherwise preferred degree of pain-related sedation.

Furthermore, patients may appropriately want to discuss their religious views with their medical providers directly—in a way that has little effect on medical aspects of their care. Such discussion is appropriate, in light of the vulnerability of patients to providers—given that patients entrust providers with important elements of their health care.⁶⁷ In turn, providers should see the relationship as affording culturally competent medical care, including religiously competent care. A general capacity for such cultural sensitivity is something that all providers should cultivate.

A different aspect of the role of religion in patient care is illustrated by the point that, in the right circumstances, providers’ sharing of their own spiritual beliefs and experiences can communicate understanding to patients that may be not only appropriate but virtuous.⁶⁸ For instance, sharing one’s beliefs about and struggles in confronting death—when they appropriately connect with one’s patients and their families—may aid in showing patients and families concern appropriate to medical care. However, providers must be mindful of their abilities regarding such care. Different providers will understand different cultures and religions to different degrees. Aiming for fully virtuous care is appropriate where one may be confident of one’s abilities, but one can undermine care by acting on the assumption that one understands a patient’s culture when one does not. Likewise, one can easily overstep by not appropriately drawing on relevant elements already among the patient’s values but inappropriately intruding one’s own religious views in a way that violates the religious neutrality demanded of medical practitioners in such cases.

Just as the value of neutrality extends from claims on governments to those on medical providers, so too does that of religious liberty. We suggest, in keeping with general consensus in medical ethics,

The patients’ religious liberty principle: Medical providers have a prima facie duty to honor the religiously based decision-making of their religious patients to the highest degree possible within reasonable interpretations of the harm and social equality principles.

Patients’ religious values, like other values that are deep in their sense of identity, have strong claims to accommodation. This may justify allowing a medical harm to occur when, as with a religiously based rejection of a transfusion request, religious conviction demands the harm-inducing choice of the patient, and the patient is clearly mentally competent. It should be added, however, that not just any such refusal need be accommodated. Religious considerations, like other influences, may be irrational, and physicians may, in some circumstances, refuse to comply with religious-based demands that might lead to harm.

Challenges can arise regarding the patients’ religious liberty principle when patients (and surrogates) who have decision-making capacity rely on hopes of miracles and make decisions based on such hopes—even in cases where providers (religious and nonreligious) believe the hope unfounded.⁶⁹ For instance, evidence suggests that vast portions of the public believe that individuals in a persistent vegetative state might be saved by a divine intervention and further that related religious beliefs are associated with pursuing aggressive care that may be medically inadvisable (Widera et al., 2011). Here, the remarks above concerning the principle of practitioner religious neutrality are helpful. Competently engaging with patients’ beliefs can aid the relationship and subsequent decision making.⁷⁰ Furthermore, important data suggest that certain religious patients are more likely to pursue aggressive end-of-life care, more likely to die in an ICU, and less likely to receive hospice care. However, some of these discrepancies are reduced when religious patients receive end-of-life discussions and spiritual support from the medical team (Balboni et al., 2013).

Special cases in relation to the patient’s religious liberty principle include those of adults without decision-making capacity, as well as children. The former cases frequently arise in psychiatric care. Patients with psychosis often suffer delusions, frequently religious in nature. Sometimes such delusions affect their decision making, impairing their capacity in a way that might require treatment against their wishes. For instance, some patients are known to induce self-harm because they believe God is punishing them. In some cases, for the sake of safety such patients should be treated against their will. Nevertheless, respect for persons demands that their religious reasons at least be considered and not simply ignored, even if other values, such as prevention of harm, require that these reasons cannot be accommodated.⁷¹

Of course, some adult patients who lack decision-making capacity require proxy decision-makers—as do children in many cases. For those cases, we propose observing a

Principle of the narrower scope of proxy consent: Other things equal, proxies may not authorize as wide a range⁷² of potentially harmful medical or experimental procedures for others for whom they are making decisions as for themselves.

For instance, in keeping with judicial precedent,⁷³ most agree that the providers ought to give a blood transfusion to children of Jehovah’s Witnesses in life-endangering need, even over parents’ religious objections. By contrast, adults with decision-making capacity are generally allowed to refuse blood transfusions, even at cost of life.

Even if the liberty principle is ultimately limited in the above circumstances, the equality and neutrality principles are not; for it is neither the patient’s nor family’s particular beliefs as religious in light of which their wishes are rejected, but rather their incapacity as decision-makers. The same would be appropriate for a member of any religion or of any secular belief system who presented similar circumstances.

VIII. CONCLUSION

Pluralistic, liberal democracies face the challenge of balancing support of religious liberty, nonpreferential treatment of religion, avoidance of harm, and equal treatment of citizens. Not just any demand made in the name of religion should be protected by law, and even the democratic imperative to treat people equally does not justify wholesale elimination of religious accommodations. This paper presents standards aimed to help in balancing these competing demands, faced by democracies and the medical providers and institutions within them. Any plausible set of moral standards is, however, indeterminate regarding the resolution of certain difficult cases. Morally sound democracies, even as guided by sound standards, must resolve many policy issues—some perhaps perennially debatable—by situational deliberation.

With this wide range of problems in mind, we have proposed a number of principles. These include the liberty, equality, neutrality, and social equality principles as applicable to governmental and institutional policies; the principle of secular rationale (or natural reason), which guides both deliberative discourse and resolution of disagreements; the principle of practitioner religious neutrality as applicable to provider–patient relationships; and the principle of the narrower scope of proxy consent, which applies to both medical practice and biomedical research. If these principles are defensible in the ways we have suggested, they can significantly contribute to the task of framing sound policies governing religion and medicine.

Footnotes

ACKNOWLEDGMENTS

The paper has benefited from detailed, helpful comments from three anonymous reviewers for the journal and editorial remarks by Jeffrey Bishop. The authors have no conflicts of in regard to this paper. WRS receives support from the National Institute of Mental Health (grant R25MH119043).

REFERENCES