Conscience or Disobedience? Comments on Dov Fox, “The Lopsided Law of Medical Conscience”

I am grateful to have been asked to comment on Dov Fox’s excellent and thought-provoking paper. Fox argues that “the conscience regime that governs American healthcare is broken.” By this, he means that whereas conscientious healthcare deniers are protected in various ways by state legal systems, conscientious healthcare providers are not similarly protected. This, argues Fox, is both morally unjust and legally indefensible. Instead, he claims, we should replace our tattered and unjust conscience regime with one that vindicates most forms of conscience, whether they involve denial or provision of healthcare, for those who invoke it in good faith, though this may sometimes require that conscientious providers pay to offset the harms of accommodation.

The major restrictions on the invocation of conscience in the healthcare arena Fox accepts are: respect for informed consent, no discrimination on the basis of morally arbitrary characteristics, such as race, sex, and age, and no abandonment in emergencies.