“Choose, You Lose” Scheme Threatens All Ethical Professionals
January 3, 2019
by Jonathan Imbody
The increasingly aggressive discrimination in recent years against religious and pro-life healthcare professionals and students parallels a concentrated effort by abortion proponents to undermine the rationale for conscience protections in healthcare. Desperate abortion advocates apparently have concluded that the way to counter the medical community’s resistance to abortion is through coercion.
Coercion appeals to some activists because coercion is much quicker than persuasion in effecting change. If abortion activists can eliminate conscience protections, then health professionals can be forced to participate in abortion or else sacrifice their careers.
American principles protect conscience even at a price
Affordable Care Act architect Dr. Ezekiel Emanuel and University of Pennsylvania professor Ronit Stahl lay the foundation for getting rid of healthcare conscience protections, in a New England Journal of Medicine opinion piece entitled, “Physicians, Not Conscripts — Conscientious Objection in Health Care.”
Their message is simple: Choice is a one-way street. Patients get to choose; doctors don’t—at least not after they enter the medical profession.
Emanuel and Stahl attempt to establish this radical principle by postulating a sharp distinction between conscience accommodations for military draftees and conscience accommodations for physicians.
Emanuel and Stahl write,
“Although this [healthcare conscience protection] legislation ostensibly mimics that of military conscientious objection, it diverges considerably. Viewing conscientious objection in health care as analogous to conscientious objection to war mistakes choice for conscription, misconstrues the role of personal values in professional contexts, substitutes cost-free choices for penalized decisions, and cedes professional ethics to political decisions.”
In the United States, a pacifist opposed to the military draft can receive a conscientious exemption from combat duty, even during a time of war when every other able-bodied citizen his age is expected to fight to defend the national interest. The cost to the country is high if counted in terms of fewer soldiers available for active duty.
Yet the authors would countenance no such rights, no such accommodation of cost, to a pro-life physician who cannot on the basis of conscience end the life of a developing baby in an elective abortion. While permitting the pacifist draftee a conscientious objection to killing, the authors contend, government must deny the same objection by a health professional.
Why? According to Emmanuel and Stahl, the reason is that physicians choose their professions, whereas draftees do not choose to join the military.
Our Founders envisioned freedom of conscience for all
Lay aside for the moment the huge problem that by such reasoning, every professional who chooses a career involving service to the public—loses conscience freedom upon entering that career. First consider that the false dichotomy between conscience freedom for military draftees versus medical professionals ignores significant commonality between the two.
Accommodating the conscience objections of both the draftee and the medical professional is consistent with the bedrock American tradition of not coercing its citizens to violate their consciences.
Freedom of conscience and thought, and the freedom to act consistently with our beliefs and ideals, provided the basis for the First Freedom in the U.S. Constitution’s Bill of Rights:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech….”
The Declaration of Independence emphasized the God-given freedom of independent thought:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
The Declaration invoked the ultimate authority for conscientious objection, by “appealing to the Supreme Judge of the world for the rectitude of our intentions….”
When enshrining this tradition in the Constitution and Bill of Rights and highlighting its principles in the Declaration of Independence, the framers made no distinction between non-professionals and professionals or between those who find themselves thrust into an unwanted employment and those who choose their employment.
Conscience freedom is a foundational, inalienable right for all.
Who’s “jamming their beliefs down our throats”?
Listening to opponents of conscience freedom, one gets the impression that somehow conscientious objectors are “jamming their beliefs down our throats,” as if a mere objection somehow coopts their freedom. One would think that pro-life health professionals were trying to force abortion doctors out of medicine, and not the other way around.
Disqualifying abortion doctors from practicing medicine actually would have a solid basis in millennia of Hippocratic medical ethics. But as we know, abortion activists turn medical ethics upside down. They would have every physician forced submit to the 1984-style Newspeak notion that killing an unborn child is a healthcare service.
Another commonality neglected by Emmanuel and Stahl between conscientious objection by draftees and conscientious objection by medical professionals is that accommodating an objection does not require stopping the objectionable activity. Wars continue and abortions continue despite conscientious objectors.
America won World War II while exempting conscientious objectors from active combat duty, in the process preserving the very freedoms that make conscientious objection possible. Exempting conscientious objectors from abortion has not shuttered the abortion industry (unfortunately), as evidenced by roughly a million abortions performed in this country every year.
So one must ask those lobbying so hard to strip conscience rights from health professionals, what is the driving reason to end conscientious objection to abortion? Are a million human lives ended each year through abortion not enough?
Doctors choose a profession of healing—not killing
Even if one were to accept the rationale for stripping conscience rights from professionals simply because they choose their profession, the rationale does not apply properly to physicians and abortion.
That’s because a physician chooses a profession of healing. Healing is incompatible with killing.
It is only the perverse corruption of the medical profession (and the corruption of language) by a fringe minority that has categorized the killing of an unborn baby as “healthcare.”
How can a healing professional be compelled to kill? Perhaps a professional soldier might be expected to kill on command, but a physician dedicated to saving lives?
When a “Medical Moral Majority” rules absolutely
A key question for conscience opponents who assert that physician objectors are outliers and have no place in medicine:
Who gets to decide the boundaries for accommodating a physician’s conscience?
The authors would argue that the medical establishment—in their words, “collectively, the profession”—should dictate the prescriptions, procedures and patient counseling approaches to which physicians must submit.
Whereas a democratic republic protects the rights of the minority, Emmanuel and Stahl suggest a scheme in which the majority rules absolutely and the minority submit or lose their careers. The patient demanded something that the “Medical Moral Majority” favors, you refused to deliver, so you lose your job.
What about when patients and doctors differ on a course of action, based on differing moral persuasions? Some would insist that rather than attempting to navigate the differences, physicians must simply function essentially as waiters, taking and fulfilling the orders of patients. Just as retail sales persons sometimes have been instructed to act as if “the customer is always right,” now health professionals also must act as if “the patient is always right.”
The problem with conflating merchandising and medicine is that for health professionals, human lives and not just product sales are at stake. Sometimes a patient wants something that is actually harmful, not helpful. Sometimes a physician has good reason for not providing certain services or prescriptions on demand—even if those services and prescriptions are accepted by others in law and in the medical community.
Nevertheless, Emanuel and Stahl argue that health professionals may not exercise any ethical objection that contradicts a patient’s demands:
“Thus, a health care professional cannot deny patients access to medications for mental health conditions, sexual dysfunction, or contraception on the basis of their conscience, since these drugs are professionally accepted as appropriate medical interventions.”
The authors insist that the medical community writ large can be trusted fully to determine what is acceptable and appropriate:
“Thus, collectively, the profession—not politicians, judges, or individual practitioners—sets its contours.”
In other words, they don’t want pesky democratic institutions such as Congress, regulatory bodies, the courts and the rule of law to interfere with their medical oligarchy. As long as the patient’s request aligns with a professional medical organization’s stance, Emanuel and Stahl would automatically compel the questioning physician to choose between conscience or career.
They do not countenance another far less draconian solution—namely, that the patient could simply select another physician.
When a doctor declines to fulfill a demand for an abortifacient prescription, for example, why must the doctor sacrifice her entire career when the patient can simply get the prescription elsewhere? Even if in some barely imaginable situation in which the patient could not get the prescription filled anywhere else in the country, would that consequence even remotely compare to eliminating a physician from medicine?
What goes around comes around
Both authors, Emmanuel and Stahl, teach at the University of Pennsylvania. It does not seem to have occurred to them that their own arguments to deny freedom to medical professionals could be turned against them in their own profession.
What if Emanuel and Stahl’s totalitarian approach, which subordinates a professional’s conscience to the dictates of government and professional bodies, were applied to professors at the University of Pennsylvania? What would prevent the Middle States Commission on Higher Education (remember the absolute power the authors assign to “collectively, the profession”) from dictating that Professors Emanuel and Stahl must teach students ideas and principles that violate the professors’ deepest held beliefs?
How would Dr. Emanuel, known as an architect of the Affordable Care Act, react if he were compelled by the administration to highlight in his lectures how that law led to the loss of patients’ preferred physicians and a crisis in the cost of health insurance?
Or closer to the abortion and conscience debate, how would Dr. Stahl, who has written that “women’s equal participation in economic life rests on control of reproductive decision-making” react if the administration directed her to lecture about the harms and injustice of abortion?
After all, they chose the profession, so now according to their own principles they must submit their consciences to the dictates of “collectively, the profession.” If conscience protections are lost when professionals choose their professions, then conscientiously objecting academics must face the same fate as objecting physicians.
If “the patient comes first” negates physician conscience freedom, then “the student comes first” negates academic freedom. If students assert that grades and tests discriminate and create stigma, then of course only bigoted professors would attempt to use those tools, and they should be summarily dismissed. So decrees the culturally sensitive and politically correct Academic Moral Majority—”collectively, the profession.”
Besides undermining medical judgment and academic freedom, the Emanuel-Stahl “choose, you lose” policy also would rob attorneys of their professional conscience freedom to choose or decline clients and cases. This anti-conscience coercion would hardly benefit accused criminals. What defendant wants an attorney who’s been forced to defend the accused against the attorney’s will and professional judgment?
“Injustice anywhere is a threat to justice everywhere”
As Dr. Martin Luther King, Jr. noted, “Injustice anywhere is a threat to justice everywhere.” Liberally protecting conscience freedom and professional judgment protects us all.
By contrast, Emanuel and Stahl urge a stingy accommodation of conscience, denying the freedom to virtually all who choose a profession that serves the public.
Choose, you lose.
Emanuel and Stahl attempt to make their case for dismissing conscience freedom for physicians by mischaracterizing healthcare conscience laws as “one-sided, protecting only those who refuse to treat patients, not those whose conscience compels them to provide medically accepted but politically contested care.”
The authors postulate that legal protections for conscientiously objecting health professionals have merely attempted to “ostensibly mimic that of military conscientious objection,” as if such imitation were the only way to justify the exercise of conscience in healthcare.
It does not seem to occur to Emanuel and Stahl that First Amendment conscience freedom might apply broadly to all Americans and across many applications, from “liberal” anti-war or anti-death penalty causes to “conservative” anti-abortion or anti-euthanasia causes. Their characterization of healthcare conscience laws as “one-sided protecting only those who refuse” is patently false.
The Church Amendment conscience law, which the authors selectively excerpt, unambiguously spells out conscience protections both for those who perform and for those who decline to perform abortions. The law bans discrimination on the basis that an individual “performed or assisted in the performance of a lawful sterilization procedure or abortion, [or] because he refused to perform or assist in the performance of such a procedure or abortion….”
Dissenters can save lives
Freedom of thought, expression and action in our democratic republic hinges on tolerating dissension from consensus. But the freedom to dissent is not merely a nice philosophical concept; sometimes independent thinking literally saves lives.
A former fighter pilot, Captain Chesley “Sully” Sullenberger, exercised his professional judgment to contravene the control tower’s plan to attempt to return to the airport.
After losing both engines in a bird strike, Sully notified La Guardia air traffic control. Controller Patrick Harten gave the flight a heading to return to LaGuardia, telling Sully that he could land to the southeast on Runway 13.
A published analysis of the crisis details what happens next:
“The controller asks if Sullenberger wants to divert to Teterboro in New Jersey, a few miles west of the Hudson.
“’Yes,’” says Sullenberger.
“But in the time it takes the controller to contact Teterboro and find an available runway for an emergency landing, Capt. Sullenberger knows he can’t make it, and is already running out of sky and turning left over the George Washington Bridge, losing height fast and heading down for the Hudson.
“’Unable’” he tells the controller. “’We can’t do it.’”
“Then, in a few more beats of the heart, he says ‘We’re gonna be in the Hudson.'”
The article explains the significance of Captain Sully’s blink-of-an-eye judgment:
“What’s actually happened is that a man has supplanted all the sophisticated technology that modern aviation can muster. He’s flying by the seat of his pants. His reflexes and instincts have become an extension of the crippled airplane.”
Air traffic control assumed the establishment approach: turn back and land at a nearby airport. Sully, however, had quickly and instinctively realized—tapping in a nanosecond the memory banks of years of experience and professional judgment—that attempting the traditional plan would fatally fail.
Flight simulations after the event reveal that if Sully had submitted to the establishment approach rather than exercise his professional judgment, US Airways Flight 1549 would have crashed somewhere short of the LaGuardia Airport. The passengers and anyone else in the plane’s path on the ground when it crashed would have perished.
Instead, Captain Chesley Sullenberger diverged from the establishment, exercised his professional judgment and heroically landed his imperiled plane—intact—in the Hudson River.
All 155 passengers safely evacuated the airliner, owing their lives to a professional who, drawing upon convictions and observation born of years of experience, made a call that contradicted the prescribed norms of the professional establishment.
Sometimes the consensus is wrong and the “collective profession” can learn from the individual objector.
 “Physicians, Not Conscripts — Conscientious Objection in Health Care,” Ronit Y. Stahl, Ph.D. and Ezekiel J. Emanuel, M.D., Ph.D., New England Journal of Medicine 376;14, April 6, 2017.
Stahl and Emanuel, p. 1384.
 Stahl and Emanuel, p. 1384.
 Stahl and Emanuel, p. 1384.
 Stahl and Emanuel, p. 1383.
 Stahl and Emanuel,., p. 1384.
 Unfortunately, some universities appear closer than ever to this approach, as documented at https://www.adflegal.org/issues/religious-freedom/university/university-stories, accessed 9/26/17.
 Letter from Birmingham Jail, April 16, 1963.
 Stahl and Emanuel, p. 1381.
 42 U.S.C. Section 300A-7(b)(1).