Conscientious Objection and the Duty to Refer
disability unrelated to the request for care, they may incur liabilities to legal and/or professional censure for legal and/or ethical misconduct, but any sanctions imposed would usually not include offenders’ obli gations to find applicants other suitable healthcare providers. A common ground of objection to referral is the concept of complicity, claiming that it is as wrong to participate in another’s wrong as to commit that wrong oneself, generating the same culpability. Since for instance in the Roman Catholic religious tradition committing abortion is a mortal sin, an adherent to this faith is liable to be anxious about culpability for complicity in abortion by referral of a requesting patient to another who might perform the procedure. Such anxiety may be partially relieved by the possibility of an ecclesiastical grant of absolution, or by entrusting the request to an intermediary agency or institution that would complete a referral by identifying a suitable alternative provider, depending on the sensitivities of individual practitioners.12 However, the “hands-on” test for accommo dation of conscientious objection precludes claims to rights of objection based on compli city, since referring practitioners have no hand in any services undertaken by practi tioners to whom referral is made. They do not share any responsibility or blame such practitioners may incur for misconduct in care of the referred patient, nor share any fees charged by that practitioner, since receiving fees for referral is widely condemned as professional misconduct, for conflict of interest. Two ethical concerns confound the claim to exemption from the duty of referral on grounds of complicity. The more minor is that referral of an applicant for abortion is not necessarily for the referee practitioner to conduct an abortion of the patient’s
pregnancy, but for that practitioner to counsel the patient regarding her options, of which induced abortion is one. Many instances are known of referred patients finding means or reasons to continue pregnancy, but with the assurance they seek that, should they come to prefer that choice, safe, timely termination would be available to them. The more major concern is the perceived scope of potential complicity. Practitioners may find complicity only in regard to individual patients seeking abortion, and be apprehensive of complicity in other practitioners to whom they refer such patients for terminating pregnancies, generating culpability for them as the initial referring practitioners. They are sometimes persuaded by a claimed analogy of declining a request to commit a murder, but referring the requesting party to someone else who will commit the act, rendering them morally culpable for the crime. This analogy is false when procedures to which practitioners may object are lawful, and also because patients requesting the procedures have an ethical claim to them not only on their immediate practitioners but also on the healthcare systems in which their practitioners participate. As the European Court of Human Rights ruled, "states are obliged to organize the health services sys tem” to ensure that conscientious objection “does not prevent patients from obtaining access to services to which they are entitled”.6 Accordingly, the scope of complicity arises not simply from the relationship between a patient and an initial and referee provider, but between a patient, a practitioner and the health services system of which the practitioner is a member. That is, complicity is not simply with another practitioner to whom a patient is referred, but with the health services system itself that is obliged to ensure the patient’s access to the lawful service to which the practitioner objects. The
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