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Justified Asymmetries: Positive and Negative Claims to Conscience in Reproductive Health Care

This interesting and well-argued piece by Kyle Fritz (2021) focuses on conscientious objections by health care providers (HCPs) to abortion. Most bioethicists who have written on conscientious objection (including me; McLeod 2020), interpret the category narrowly so that it only includes cases where HCPs conscientiously refuse to provide health care services that are legal and professionally accepted. These are what Fritz calls “negative appeals to conscience,” since they are appeals to negative obligations (i.e. not to do X) that are dictated by conscience. By contrast, Fritz and others, such as Mark Wicclair (2011), broaden the scope of conscientious objection to include positive appeals to conscience, which center on positive obligations (i.e. to do X). Fritz’s concern in his paper is with both positive and negative appeals to conscience, those that target abortion specifically. His main argument is that the reasons we have for protecting the negative appeals apply equally well or better to the positive ones, and so the asymmetry that exists in “conscience clauses” for abortion (i.e. in clauses that provide legal protection for the conscience of HCPs) is unjustified. To elaborate, the clauses focus overwhelmingly on negative appeals to conscience, and so on protecting HCPs who conscientiously refuse to offer abortion services. There are no positive conscience clauses—at least none that I’m aware of. There are no laws, in other words, that protect HCPs who conscientiously insist on providing abortions in circumstances where abortions are otherwise illegal. According to Fritz, this asymmetry is deeply problematic. He claims that “if negative [appeals to] conscience are to be respected ... in the case of abortion, then positive ones ought to be respected as well” (58, his emphasis). I agree completely with the above consistency claim and with many other aspects of Fritz’s paper. I particularly appreciated how well he responded to objections people might raise to positive conscience clauses, by showing that the same or very similar objections apply to negative conscience clauses (see Fritz’s section 3 but also section 2). At the same time, I have some reservations with Fritz’s paper: reservations that are conceptual, moral, and practical in nature. Let me begin with the conceptual. Fritz treats negative and positive appeals to conscience as being two sides of the same coin, but they aren’t that, especially when they target abortion. There is an important difference between the two, which is that the negative appeals generally conflict with patient autonomy whereas positive ones promote it (a fact, to be fair, that Fritz recognizes, although he doesn’t highlight it enough). He gives the example of Yasmine who has multiple reasons for wanting an abortion and asks her HCP for one. If the law and health policy backed Yasmine’s choice, but her HCP turned out to be a negative conscientious objector, then her autonomy would be thwarted, at least temporarily. Alternatively, if law and policy prohibited abortion but Yasmine’s HCP is a positive conscientious objector, then her autonomy would be enhanced by the objection. This difference suggests that the two phenomena—the negative and positive appeals—are quite different from one another, particularly in terms