Friday, 1 May 2015

Five Observations About Conscientious Objection in Health Care

This connects a little bit to a post not long ago, by my Canadian bioethics colleague Udo Schuklenk on his Ethx Blog, on the topic of conscientious objection in health care. The reason why I have started to think about this is that my country's rapidly shrinking Christian Democrat party has just elected itself a new leader – Ebba Busch Thor (see image to the left) – and the echo of the affirmative acclamation at the party's national congress had barely silenced before she made her first move to plug the many leaks of voters, members and sympathisers by declaring that health care staff should be given the legal right to conscientiously object to participate in the performance of legal abortion. This follows attempts in two public health care counties earlier this and the last year, initiated by single midwifes backed up by "pro-life" lobby organisations, to have the counties grant them such a legal right. Busch's Thor's move is obviously tagging onto these initiatives in an attempt to stop the flight of fundamentalist Christians from the party and mark a shift from the former party leaders more liberal and secular version of Christian Democrat ideology (whatever that is). At the same time, in both of the cases, the motions on behalf of the midwifes were denied by the county councils, albeit in one of them after some brief shuffling. In addition health care professional organisations (including the union of midwifes) have publicly stood up strongly against this sort of idea (see here, here, here), among these the Delegation for medical ethics of the Swedish Society of Medicine, of which I am an appointed member. More precisely, this delegation dismissed generally the notion of a right to conscientious objection for health care staff, no matter the procedure or background motivation. On top of that, given the very strong support of the liberal-feminist Swedish abortion legislation (in place since 1975 and giving all pregnant women a positive right to have an abortion performed by public health care, at barely no cost, up to the end of the 18th week of gestation, no questions asked), while Busch Thor's move might lure some of the lost fundamentalists back into the Christian Democrat pen, it will probably scare off even more of the more liberal and secular minded of the party's supporters. So far so good.

However, when discussing this issue with people in general and colleagues within both ethics and health care, and both in Sweden and internationally, I have encountered five very common confusions, which I will set out briefly in this post. If you feel yourself attracted to the notion of a legal right to conscientious objection, you may want to consider these before settling on a more precise opinion on the matter.

First, as in the case of Busch Thor's suggestion, there often seems to be an assumption that a legal right to refuse performing professional duties can be reserved for only some such duties and some professions. However, given basic principles of equality before the law, legal security and rule of law, this is an impossibility. I'm here assuming a situation where employers are granted a basic (civil) legal right to direct the content and form of the work supposed to be carried out by employees (as long as it is not illegal through some other statute), something that is the case in all jurisdictions I know of. This basic general principle implies, that if one category of employees are to be granted an exemption from the employee (civil) legal duty to follow employer instructions (or resign or be dismissed), the same exemption will have to hold for all other employees of other employers as well, as long as no special reasons tell otherwise. The same reasoning can be repeated for the sorts of tasks involved in a profession. In effect, if there is to be a legal right to conscientious objection by health care staff, this will by default have to affect all staff and all tasks, and it would moreover be a reason to grant similar rights to other professions. This, then, is the level at which any discussion of legal rights to conscientious objection will have to be conducted. For sure, there may then be arguments advanced to restrict the right to certain areas, but you cannot start the discussion by randomly cherry picking some professional area or task to discuss in isolation. The stand taken by the Delegation for medical ethics referred to above is based on this observation: you cannot just discuss conscientious objection in relation to an isolated health care procedure and profession, you have (at least) to discuss it regarding health care in general, including all procedures and categories of staff.

Second, there seems to be a repeated mistaken perception that if a legal right to conscientious objection is denied, the potential conscientious objectors will automatically be legally forced to perform the tasks to which they conscientiously object. Often this confusion is multi layered as it is cloaked in the form of an accusation of infringing the freedom of religion (by forcing people to act against their own faith). However, this is false in two ways. The fact that an employee doesn't have the legal right to decide what tasks his or her employment are to direct him or her to perform, is perfectly compatible with the fact that an employer exercises its right by finding room for the employee in the organisation where he or she will not be faced with the task to which he or she objects. Such accommodations are continuously and routinely arranged throughout the Swedish health care system, as it is – I presume – in other professional areas and jurisdictions. If that is not practically possible, most professional areas present opportunities of finding alternative employment more fitting to one's conscience. And if that proves difficult, there are a great many other areas to explore on the work market. That is, the conscientiously objecting employee have several alternatives to explore, so he or she is not forced in that way. Moreover, the fact that several of these alternatives may mean that he or she may have to change her work situation (including employer, pay, and so on) is no reason to regard his or her liberty to be restricted, as it is the responsibility of the employee his- or herself to have accepted employment where he or she may have to perform tasks to which he or she conscientiously object. With this falls also the claim that denial of a legal right to conscientious objection infringes religious freedom – the believer is and continues to be free to seek and obtain whatever work he or she chooses and no one has a right to stop that, but that does not imply that anyone has a duty to provide work accommodating anyone else's religious (or other) beliefs.

Third, to be denied a legal right to conscientious objection is perfectly compatible with the claim that it may be morally permissible or even required by a professional to refuse employer instructions – thus washing one's hand off whatever evil deed is being suggested. The particular confusion that this is not the case is very common among health care staff, not least doctors, in my experience. Presented with the issue, they often object that it is a frightening thought that one would have no right to refuse or even sabotage immoral instructions from employers – usually the case of Nazi Germany and recent examples of torture is brought up as examples. This, however, is to confuse two legal issues with each other and, in addition, these two with two (also confused) moral issues. Suppose, first, that your employer orders you to do something that is immoral and also illegal. In this case, you have a right to refuse, as the boundary of the employer's right to direct the content and form of the work has been overstepped – thus, you need no legal right to conscientious objection. Now, change the example, and assume that the immoral thing you are ordered to do is, in fact, legal. In this case, the employer's default right to order you to do this thing will hold, and you will be legally bound to comply (or find alternative solutions as indicated above under confusion no. 2). This, however, is perfectly compatible with the claim that you are morally permitted – indeed required! – to refuse the order, or, as said, even sabotage its execution. That is, you have a moral right to refuse a legal obligation, and this you will continue to have with or without a legal right to conscientious objection. In addition, denying such a legal right is also compatible with the claim that the legal provision of the ordering of the immoral task is morally unjustified, so the fact that you lack a legal right to conscientious objection will not undermine whatever moral reasons there are against the law (legally) obligating you to do it either. At the same time, both these moral reasons are, of course, separate – your reason to refuse the order is a reason for that, but the reason to have the law changed is not necessarily a reason for the former. My impression is that also this distinction is left unnoticed in debates on conscientious objection, and that it is often assumed that if there are moral reasons for changing a law, there is a moral reason to refuse its provisions. This, however, is an elementary fallacy. In any case – lack of a legal right to conscientious objection will not in any way undermine the moral reasons for or against single professional tasks or legal statutes relating to these.

Fourth, the moral right to refuse to do immoral things cannot be equated with a moral right to follow one's conscience. This is otherwise a surprisingly common confusion among religious advocates of the legal right to conscientious objection. What seems to be assumed is that a person's conscience will only tell this person certain things – in particular the moral messages embraced by the advocate of conscientious objection in question. But of course – and who should be more aware this than a devout follower of the Christian faith? – a person's conscience may relay messages from whatever source – spiritual or otherwise. Ergo, there is no moral right to follow one's conscience (and this seems to hold for whatever ethical theory is assumed). It may thus be suggested that many supporters of legal conscientious objection rights have simply confused these, with their perceived moral right to act on the morality they themselves embrace (a perception which may, of course, be mistaken).

Fifth, and finally, if there is a legal right to conscientious objection, this right will thus not be restricted to certain contents of consciences. This simple point seems to be almost always overlooked by conscientious objection advocates, and was made in the recent Swedish debate, by a medical doctor who satirically, in response to Busch Thor's declaration, went public to declare that he would henceforth refuse to treat religious people. Perhaps a bit ham-handed, this provocative move still illustrates one of the most basic problems with the idea of a legal right to conscientious objection: such a right cannot be restricted to any particular conscience. While it may provide a legal right for doctors and nurses honouring their professional ethos to refuse, e.g., participating in torture – should this have been made legal – or the right of those who find that objectionable to refuse participating in legalised assisted dying procedures or abortions, at the other end of the scale it would equally protect the rights of the vile, hateful racists or misogynist to refuse to assist in, e.g., the care of Jews or Roma people or "immigrants", or disabled, or others that such a person's conscience may tell him or her should not be included in public health care services. By implication, we may also imagine a hateful anti-religious doctor, who would be convinced that religious people should be denied privileges extended to others, and this person's right to execute this denial would then be protected by law – as would an imagined Josef Mengele leaving disabled babies to perish and die in the maternity ward where he works. So, while there is an often repeated rhetoric suggesting that a lack of a legal right to conscientious objection will open the door for Nazis and similar horrid figures to reign freely (dealt with above in confusion no. 3), it is in fact the very existence of such a legal right that opens this door – if there is a "Nazi argument" on this topic, it speaks against, not for, legal conscientious objection rights. On a grander scale, this illustrates, of course, that the upshot of a legal right to conscientious objection is nothing less than potential anarchy and arbitrariness – again the very opposite of what is required of the basic principles of the rule of law and legal security.

Luckily, for anyone conscientiously objecting to whatever task included in his or her work description, there are many easy solutions: Talk to your employer about changing role and, if that doesn't help, find a job where the task you object to is not on the menu. But first of all, do not take jobs where there are tasks to which you conscientiously object!

Sunday, 26 April 2015

The Inevitable Endpoint of EU Refugee and Border Policy Spells Genocide

There has been abundant reporting recently on the continuously ongoing exercise in inhumanity that is European Union refugee policy. Alas, the focus is often on singular incident, such as the recent tragedy of the sunken both that had at least 700 die of drowning in the Mediterranean (here, here, here). However, already several month ago, BBC reported that in the course of just a few months last year, over 2 200 people were estimated to have lost their lives due to similar causes in these deadly sea. A more recent report from the International Organisation for Migration (IOM) is cited by the same source as implicating an expectation of the number of people meeting similar destinies in the Mediterranean alone will reach 30 000 this year (also reported here), and other sources note that the number of refugee deaths in the Mediterranean is already 30 times higher this year compared to the same period in the former. A detailed map of all registered deaths since the year 2000 can be found here.

As dryly noted by well-known public health educator, and my countryman, Hans Rosling in a recent video – rhetorically answering the cynical question why refugees don't fly instead, as this is much cheaper and safer – the primary cause of this development can be located almost entirely in the inhuman border and refugee policies of the European Union and its member states:



True to this essence of European policy in this area, in the 2014, the UK announced that it would cancel all further engagement in missions to rescue victims of capsizing refugee boats, leading to sharp reactions, e.g., from Amnesty International. In a similar spirit, the European Union has reacted to the more recent outcries, with a 10-point plan, most of which is nothing else than just more of business as usual, as noted by, e.g., Human Rights Watch. For the essence of EU border and refugee policy is to stretch its supposed commitment to international asylum agreements to its limits, bearing in mind that the right to ask for asylum starts at the border points of a country and keep the eyes shut to the devastating consequences of this sort of policy:

"the EU's maritime patrolling operations in the Mediterranean, called Triton and Poseidon"
"capture and destroy vessels used by the people smugglers" 

 "EU will engage with countries surrounding Libya through a joint effort between the Commission and the EU's diplomatic service."
"The EU will deploy immigration liaison officers abroad to gather intelligence on migratory flows and strengthen the role of the EU delegations

"European Union's asylum support office will to deploy teams in Italy and Greece for joint processing of asylum applications."
"EU governments will fingerprint all migrants."
"EU will consider options for an "emergency relocation mechanism" for migrants."
"EU will establish a new return program for rapid return of "irregular" migrants coordinated by EU agency Frontex from the EU's Mediterranean countries."

At the same time, similar thinking is shaping this adaption to European Union border and refugee policy standards by Bulgaria (along its border to Turkey), which hopes to be admitted as full member shortly and therefore implements this perversity, apparently failing to note the bitter ironic link to its own iron curtain past (also here):


This is the voice of three monkeys failing to register the complete unsustainability of their chosen path. Or, let me be more precise, this path is completely unsustainable as long as the European Union recognises the notion of its lack of rights to commit organised mass murder. For at the end of the day, this is the only conceivable endpoint that this policy can have.

The idea that capturing a few criminals, currently exploiting the desperate situation of refugees created by European Union policies, would somehow make said refugees stop attempting to finalise their escape is nothing but plain stupidity. Once these bands are dealt with, there will instead be the initiatives of others, not least refugees themselves and ordinary people trying to help them. For the need to escape is not created by these minor border bands of cynic criminals, those are mere symptoms of an infinitely more cynic and inferior way of responding to the ever present needs that have had refugees on their way across history and the world since the dawn of humanity. At that point, the EU will face the choice of continuing the policy and thus deploy the military and police forces referred to in its 10-point programme to start attacking the refugees themselves, besides anyone aiding them. Similarly regarding the idea to "engage with countries surrounding Libya" (and other bordering countries, as the need arises) and "strengthen the role of the EU delegations", effectively to have bordering countries set up concentration camps funded by the EU, to effectively lock the refugees up to stop further escape (a recent analysis by Doctor's without Borders of how bad the situation is in this respect already now is here). Again, the question then arises what will be the EU policy when these incarcerated people – as they have all reason and every moral right to do – attempt to break out. In both cases, the logic of current EU policy seems to dictate  nothing less than genocide. Whether or not it is performed by proxy or bona fide European armed personnel is, in this case, completely irrelevant.

But, of course, my point is that this analysis demonstrates the complete unsustainability of current European Union border and migration policy. Especially pondering that current refugee and migration streams are in fact nothing compared to what may be expected in the future due to the effects of climate change and other environmental problems (also effecting economic and social instability and war in their aftermath), one can easily see that it can end up nowhere else than in massive genocide on desperate people fleeing destitution or other dire circumstances. Pondering the constitutional backbones of the EU, such as the European Convention of Human Rights (not to speak of EU member states' uniform commitment to the UN Convention on the Prevention and Punishment of the Crime of Genocide), this should effect careful consideration of the increasingly apparent folly of the current policy path among European policy makers and high officials. Is this how you want to end up; as mass murderers on a grand scale – is that what Europe and the European Union is about? This is the question that those three monkeys desperately seek to avoid.

Saturday, 25 April 2015

Forget the "Editing" Hype: Human Genome Action Painting Attempted in China

Recently, there's been a lot of hype around what's been referred to as genome editing. What it's all about is that there's a new bioetechnological strategy for effecting genetic modification in organisms, called CRISPR/Cas9, that has shown promise in facilitating more precise and specific changes of a genome more effectively than before. This is an important advance for laboratory biology research, as the effecting of specific genetic changes in the genome of organisms and study of how these "behave" in response to various stimuli, in different environments, and reproductively over generations is a basic way of advancing knowledge of basic biological mechanisms. However, as usual, there has also been some lack of temperance among those who immediately want to move the new promising lab-tool into practical "in vivo" applications, sparking calls for a global moratorium on practical application, akin to that famously adopted in 1974 at the Asilomar Conference to apply to the then novel recombinant DNA technology. In addition, there has been especially forceful calls to abstain from "editing" a human genetic germ line. The reasoning is an apparently sound precautionary argument to the effect that before practical applications are attempted, sufficient understanding of the technology, its potentials and limits, possible consequences and suitable security protocols, need to be attained and put into place.

At the same time, when new technologies are hyped like this, my bioethics alarm bells start ringing loudly for a number of reasons. We know from a long series of hyped new technologies that, while they may indeed over time prove to be advances compared to what has been previously available (though by far not always), the promises of new "clean", "precise" tool that will effect all that we aim for without any side-effects or mistakes is usually as credible as the promises of precision warfare foreboding the 2003 Iraq invasion – or worse. What one mustn't forget is that there are almost always substantial vested interests around, that have high stakes in having the tech they personally hold patents for, or stock in start-up companies that do, or have stakes in institutes or universities that do, and so on, appear in much better light that there is actual evidence to support. And, in this respect, CRISPR-Cas9 is no different. This is a basic reason to primarily interpret any positive claim about the technology outside of the bona fide peer reviewed scientific literature as part of a marketing campaign aimed at upping the the price of licensing fees, credit rating of the patent holder, attraction for external financial investors, and (if it is a start-up company) stock price pending a coming introduction into a stock exchange or a emission of new shares. Other agents with similar vested interests include those who have already invested in the product somehow, or those who want to peddle quack junk to people under the guise of novel science, much in the spirit the infamous stem cell clinics that continue to jack money out of the hands of conned, often desperate, people.

So, for me, it was no surprise when the reality of the "editing" showed its true face when a group of Chinese researcher recently applied it to human in vitro embryos (modified, so that they could never have resulted in a living human baby, but also never implanted to effect a pregnancy). What we learn from this study is that if there's any honesty among gene modification scientists, the "editing" misnomer should be dropped immediately:
The team injected 86 embryos and then waited 48 hours, enough time for the CRISPR/Cas9 system and the molecules that replace the missing DNA to act — and for the embryos to grow to about eight cells each. Of the 71 embryos that survived, 54 were genetically tested. This revealed that just 28 were successfully spliced, and that only a fraction of those contained the replacement genetic material. “If you want to do it in normal embryos, you need to be close to 100%,” Huang says. “That’s why we stopped. We still think it’s too immature.”
His team also found a surprising number of ‘off-target’ mutations assumed to be introduced by the CRISPR/Cas9 complex acting on other parts of the genome.
What we seem to be looking at in the reality outside of the hype is some sort of human genome action painting, where now and then a drop of the right colour lands in the right place, several other drops land where we absolutely do not want them to, but most of the result is just general heap of pint randomly applied by these the Jackson Pollocks of human genetics.

Moratorium? No shit?!!