Abstract
We would like to thank Dr. Jones-Nosacek for her thoughtful engagement with our article and we appreciate the opportunity to respond (Jones-Nosacek 2023).
In our original paper, we do not argue for legal measures that would “force” Catholic hospitals to allow the conscientious provision of emergency contraception (EC). Instead, we make a moral argument that if Catholic leadership is committed to defending conscientious objection rights based on reasonable external disagreement, then Catholic leadership should consider permitting the provision of EC to rape victims based on reasonable internal disagreement about the interpretation of “appropriate testing” in Directive 36 of the Ethical and Religious Directives for Catholic Health Care Services (Brummett, Mason-Maready and Whiting 2023).
In response to our argument, the author points to the fact that only conscientious objection currently receives federal legal protection in U.S. law, but this would not provide a moral reason to disregard conscientious provision entirely. Catholic institutions may choose to honor conscientious provision in some contexts because the same reasons for honoring conscientious objection rights (e.g., protecting the moral integrity of clinicians, showing tolerance in a morally diverse society) apply equally toward a presumption for honoring conscientious provision rights (Fritz 2021). We have offered reasonable internal disagreement over the interpretation of “appropriate testing” as one such context.
Curiously, the author references Tristram Engelhardt's theory of secular bioethics to provide moral support for an institution's right to prohibit physician employees from prescribing EC in all circumstances, but this is an infirm basis for this claim. Engelhardt's account is both widely rejected in secular bioethics (on account of being internally inconsistent, leading to morally egregious consequences, and premised upon an empirically false view of moral strangerhood) (Brummett 2022), and sits in uncomfortable tension with the author's own presumably Catholic commitments (because it would prohibit the outlawing of abortion in the U.S. and would permit hospitals to engage in overt discrimination—such as not hiring Catholics).
Finally, the author's claim that prescribing EC to rape victims following appropriate testing is cooperation with “evil” is hyperbolic, at least from the perspective of official Catholic teaching, which finds the practice morally permissible. Even if an EC-prohibiting Catholic institution claims “cooperation with evil” as the reason for prohibiting its physicians from prescribing EC, then an EC-permitting Catholic institution can claim “cooperation with evil” when an employed physician refuses to prescribe EC to an already vulnerable rape victim thereby leaving them unable to defend themselves from the attack. Of course, current U.S. conscience law would not permit a Catholic institution to require physicians to prescribe EC, but again, this is a legal feature of these cases that does not amount to a moral justification for the difference.
There may yet be good moral reasons to dispute our thesis, but the author cannot find them in law, Engelhardt's widely disputed theory of secular bioethics, nor claims of “evil” that is not supported by official Catholic teaching. Continued conversation (again, not compulsion) is needed on this topic.
Needless to say, the role of conscience in the prescription of EC will become moot if further research shows it simply does not have abortifacient effects. In December of 2022, the FDA announced Plan-B would be receiving a new label clarifying that the drug does not prevent fertilized eggs from implanting in the uterus (US Food and Drug Administration 2022). However, the NCBC has disputed this relabeling, claiming the FDA should have performed or required new clinical research in order to fully dispel any remaining concerns the Catholic community has about possible post-fertilization mechanisms of action (NCBC Ethicists 2023). Until this empirical question is resolved, the role of conscience will remain center stage.