Against the Referral Asymmetry: Leveling-up Referral-Related Conscience Protections

America’s conscientious objector laws currently possess a “referral asymmetry.” Clinicians are legally entitled to conscientiously refuse to refer for services that their hospitals offer (e.g. tubal ligation), but they are not legally entitled to refer for services their hospitals refuse to offer, even if those services are within the standard of care. This paper advances two theses about the referral asymmetry. First, we argue for equal legal protection of both kinds of referral rights, that is, the abolition of the referral asymmetry. The arguments for rights to conscientiously refuse to refer also support rights to conscientiously provide referrals. Similarly, the arguments against rights to conscientiously provide referrals count equally against rights to conscientiously refuse to refer. Second, we argue that the best way to abolish the referral asymmetry is to “level-up” legal protections to cover conscientious provision of referral rather than to “level-down” legal protections by eliminating existing protections for conscientious refusal to refer. We defend our leveling-up thesis against a slippery slope objection, according to which establishing new rights to conscientiously refer will require the establishments of new rights to conscientiously provide interventions. We offer general arguments in public reason, and we hope, in particular, to persuade Roman Catholic leaders to support the establishment of new legal rights and hospital policies for the conscientious provision of referral.

Abram Brummett, PHD, HEC-C – Department of Foundational Medical Studies – Oakland University William Beaumont School of Medicine; Tanner Hafen – Department of Foundational Medical Studies – Oakland University William Beaumont School of Medicine