Putting the Asymmetry Debate in Its Place

Abstract

The target article by Kyle Fritz (2021) draws attention to the asymmetry debate, an under-analyzed issue within the broader debate over the proper role of physician conscience in healthcare. The asymmetry debate concerns whether the greater ethical attention and legal protection enjoyed by negative conscience claims over positive conscience claims are justified. Fritz takes up the debate in the context of state “heartbeat” bills, which would outlaw abortion once an embryonic heartbeat is detected (as early as six weeks). Fritz defends a conditional-consistency thesis, namely that “if the law provides legal exemptions for health care professionals who, as a matter of conscience, refuse to provide abortions where it is legal, it should also provide exemptions for health care professionals who, as a matter of conscience, feel obligated to provide abortions where it is illegal” (Fritz 2021, 46). Fritz argues one may use this conditional-consistency thesis to conclude either that (1) we should not be honoring any conscience claims, or (2) we ought to be honoring far more conscience claims (by adding positive claims) than is currently done. In this commentary, I argue that when the asymmetry debate is put in its proper place (where positive conscience claims are understood as the positive right to perform legal procedures in institutions with a moral objection to those procedures), it becomes easier to see unique but defeasible reasons for a conscience asymmetry. I do not argue for a sweeping endorsement or rejection of all positive conscience claims, but for each type to be evaluated individually once it is understood they are being asserted as positive rights. I conclude by noting that my view opens avenues for future reflection because each type of positive conscience claim must be evaluated on its own merits. In the target article, the context Fritz (2021) identifies is not an example of conscientious objection/provision as it is commonly understood, but of civil disobedience. A critical difference is that civil disobedience involves instances of illegal activity for the purpose of generating societal change whereas conscientious objection/provision is directed at legal procedures that need not involve a desire for societal change (Wicclair 2011, 11–13). Whether physicians should be legally protected to perform an illegal activity when acting for reasons of conscience is related to (because it involves conscience) but separate from (because it involves illegal activity) the asymmetry debate. Even if one grants that Fritz (2021) has identified an instance of conscientious provision, his view relies heavily on Mark Wicclair’s argument that there is no significant moral difference between positive and negative conscience claims. The trouble with Wicclair’s analysis is that he does not acknowledge that positive conscience claims must be defended as positive rights in the asymmetry debate. Physicians already enjoy the protection of their positive conscience claims as negative rights, meaning they have a right to organize their own institutions through which legal and professionally accepted medical procedures can be provided without undue interference from others. What is controversial is whether positive conscience claims as positive rights ought to be protected when working in institutions that have a moral or religious objection to those procedures (Brummett 2020). Protecting positive conscience claims as a