Florida’s conscientious objection bill is not discriminatory

Critics are relying on a tired caricature of doctors who refuse to perform certain procedures.

Florida’s Republican-controlled legislature is not shy of controversy. The state regularly makes international headlines for its hard-line immigration policy and its ongoing “war on woke”.

Lawmakers have recently set their sights on reforming the state’s health law. Last month, the Florida legislature passed two major health bills, one of which established a sweeping right to conscientious objection for doctors, medical students, and healthcare institutions.

The new conscientious objection law permits physicians, health providers and medical students in Florida to opt out of providing any medical procedure to which they have a religious, moral or ethical objection.

It is not limited to a narrow set of procedures like abortion or euthanasia (unlike other conscientious objection legislation). Nor does it impose referral requirements on objecting physicians. The bill simply requires that physicians give a patient notice of their objection before an appointment is scheduled.

Unsurprisingly, ethicists have expressed concern about the effect of the law on access to healthcare for vulnerable patient groups, particularly LGBTQ+ patients. Bioethicist Craig Klugman recently said that the “entire purpose of the law is to permit discrimination” and called for a national campaign against the “legislators who pass and governors who sign these bills”.

Physicians are, however, prohibited in the law from denying healthcare to a patient “because of that patient’s or potential patient’s race, colour, religion, sex, or national origin”. That is to say, objections must be to particular procedures, not to classes of patients. A doctor, then, could object to providing abortions because of a moral belief in the sanctity of human life, but she could not object to providing medical care to women, say, or to Latino patients. One media outlet erroneously stated that “the law makes no mention of protections against gender or race-based discrimination”. This is incorrect.

While the bill does not explicitly include “sexuality” in its list of protected patient categories, it does state that “the exercise of the right of medical conscience is limited to conscience-based objections to a specific healthcare service”. As such, the new law does not provide an explicit legal pretext for discrimination against LGBTQI+ patients.

But commentators are perhaps concerned with the collateral effects of this bill rather than its explicit content. The concern seems to be that health law in Ron DeSantis’s Florida is implicitly marginalising minorities – women and queer patients in particular. Commentators are worried that the law could exacerbate health inequalities in a state that already ranks poorly for healthcare access among US states. Only days ago, DeSantis signed a bill banning gender affirming care for minors. Florida has a six-week ban on abortion with limited exceptions.

Kenneth W. Goodman, PhD, professor and director of the University of Miami’s Institute for Bioethics and Health Policy, went as far as to say that the law sanctions negligent medical practice:

“To deny care based on unspecified and unarticulated ‘moral, ethical, or religious reasons’ opens the door to neglect, abandonment, and suspicion…It undermines two millennia of a cornerstone of medical ethics: take care of your patients — no matter who they are.”

This is a common argument in the bioethical literature on conscientious objection, namely, that conscience laws pit physician liberties against the welfare and rights of patients, and that patients will ultimately end up second best in jurisdictions where conscientious objection is broadly permitted. The principal duty of a doctor is the welfare of his or her patient, but so-called conscience clauses give inordinate priority to the idiosyncratic views of clinicians and, indeed, open the door to “a pandora’s box” of “value-driven medicine”.

But as I argue in my recent book, Why Conscience Matters: A Defence of Conscientious Objection in Healthcare, conscience laws are not to the detriment of patient welfare and, in fact, critics rely on a prejudicial caricature of conscientious objection when they argue against these laws.

The average conscientious objector is a diligent medical practitioner who is just as concerned about patient welfare as any other doctor but who respectfully disagrees with the morality of particular socially contentious medical procedures. Their convictions are deserving of respect and legal protection.

The burden of proof lies with critics of conscientious objection to show that this is really a problem rather than a poorly evidenced, ideologically motivated campaign against religious healthcare practitioners.

Is it likely that this bill will be replicated in other states? Florida has been described as an “ideas laboratory” for the Republican Party and it is not implausible to suggest that we will see similar legislation in other states in the future.

Would this spell “danger” for health access for minorities? When it comes to heart transplants or routine antibiotics, certainly not. The real concern is precisely the kinds of socially controversial procedures that are at the centre of debates about conscientious objection – abortion, emergency contraception, gender affirming care, and euthanasia. To call this a dangerous development would be to gratuitously assume that these procedures are part of basic medical care rather than being at odds with the proper goals of medicine.

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