The Cult of Autonomy
Privacy, autonomy, and self-actualization arguably make up the zeitgeist of our age, a new Holy Trinity replacing the old. Such concepts have been recognized in most Western countries as having the effect of constitutional rights, and they inform the decision by courts to strike down an ever-growing slew of prohibitions on previously stigmatized practices. As Supreme Court Justice Anthony Kennedy put it bluntly in Planned Parenthood v. Casey, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
As a result, abortion, contraception, assisted reproduction, and, to some extent, suicide have all been rehabilitated as private choices with which the state may not interfere. A large subset of the population now treats them as transgressive acts of “empowerment,” positive goods to be celebrated rather than merely tolerated by a morally agnostic liberalism.
The consequence of this momentous shift in the law and culture is the rise of a new norm whereby the state has an affirmative duty to assist citizens in realizing their chosen lifestyles. Abortion, says its advocates, must not only be legalized but publicly funded. Otherwise, the enjoyment of a child-free life remains cost-prohibitive. Concerning employer-provided health insurance plans that cover assisted reproduction, the term “infertility” must be redefined to include “a person’s inability to reproduce either as an individual or with their partner without medical intervention,” as California did in 2023 with its S.B. 729. In other words, insurance providers will be required to create children for single women and gay couples.
Not only must the state give financial incentives to practices in line with personal autonomy, but it must also proactively dismantle existing barriers to autonomy. The latest barrier to fall within the crosshairs is the protection of conscientious objections by healthcare providers. The argument is that when healthcare providers can legally decline to perform abortions, prescribe abortifacients and contraceptives, and offer infertility treatments, access to these services would be frustrated, thus hampering the patient’s autonomy.
In place of the current system of conscience protections at the federal and state levels, advocates of autonomy propose “a collective obligation of the [medical] profession to provide non-discriminatory access to all lawful services.” Taken to its logical end, this obligation would make it impossible for any physician, nurse, or pharmacist to exercise their conscience. Instead, obedience to the patient becomes a condition for practicing medicine.
Some pro-autonomy voices like the bioethicist Alta Charo openly admit that they aim to remake American healthcare along the lines of the Seventh Circuit’s holding in Endres v. Indiana State Police, which says that a state does not have to provide accommodations to police officers who conscientiously object to serving certain communities that they find immoral. The effect is that all healthcare providers will become de facto employees of the state and are compelled to regurgitate its preferred speech in favor of expanding lifestyle liberties. Autonomy as currently understood betrays a totalitarian impulse.
In the wake of the Supreme Court’s decision in Roe v. Wade, Congress has sought to extend the long-standing tradition of conscientious objection to reproductive health. The 1973 Church Amendment to the Public Health Service Act protects medical institutions from being denied federal funding on the basis of their refusal to provide abortions and sterilizations. Institutions receiving federal funding cannot discriminate against personnel who refuse to provide abortions and sterilizations through “employment actions” like firing. Since 2005, the Weldon Amendment has barred the U.S. Department of Health and Human Services (HHS) from funding any federal or state programs that discriminate against insurance plans, healthcare institutions, or professionals that refuse to “provide, pay for, provide coverage of, or refer for abortions.”
As of 2025, 48 out of 50 states have laws protecting healthcare providers who refuse to perform abortions from being disciplined by their employers and professional associations. Depending on the state, an objector may be required to refer the patient to a willing provider. Most states allow a provider to object as long as the sought-after treatment is not necessary to saving the patient’s life. The types of treatments one may refrain from providing are expanded to include contraception, assisted reproduction, assisted suicide, or research involving human tissue and cells.
As noted by scholars like Elizabeth Fenton and Loren Lomasky in their article titled “Dispensing with Liberty: Conscientious Refusal and the ‘Morning-After Pill,’” supporters of conscience laws advance several arguments based on societal norms and the unique nature of the medical field. First, “obligations to perform typically have to meet a higher burden of justification than do obligations to desist.” To the extent that a medical procedure being objected to is optional and primarily a way to further a lifestyle choice, the patient is not harmed but is merely denied a benefit.
Second, healthcare providers often know better than their patients due to having specialized knowledge. Provider oversight offers “protection from unqualified practitioners and one’s own uninformed or impulsive predilections.” Therefore, an intrusive medical procedure is not just any service that patients can get on demand. Not allowing a physician to exercise his best judgment would reduce him to something akin to a street vendor.
Autonomy’s defenders are not convinced. Their positions are best summarized by bioethicist Alta Charo. In “Health Care Provider Refusals to Treat, Prescribe, Refer or Inform: Professionalism and Conscience,” Charo does not so much challenge the proposition that providers ought to have some discretion over whether to offer treatment as she attacks the alleged motivations of those providers. The beliefs used to justify conscientious objections are said to be hypocritical: “[T]he physician is trained to heal the criminal, regardless of personal feelings about the criminal’s moral culpability . . . . Even knowing that the act of healing may result in further abusive and criminal acts does not yield a medical ethic that calls for refusing care lest one become complicit in those acts.” Yet, the same doctors might object to performing an abortion on the grounds that it causes harm.
This contradiction—combined with the fact that refusal to offer procedures like abortion and IVF has a disproportionate impact on women, homosexuals, and people who are single by choice—speaks to malign prejudices on the part of providers who object. “One might ask whether the current debate over refusal clauses would sound any different if it were more baldly framed as the asserted right of health care providers to refuse service to ‘bad women,’” Charo writes. Yale Law School’s Douglas NeJaime and Reva B. Siegel make a similar point in their article “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics,” positing that conscientious objections inflict “dignitary harm” on patients: “Accommodating these religious liberty claims will have social meaning and material consequences for the law-abiding persons who the claimants say are sinning.”
A proper response to Charo would start by considering why a doctor who refrains from performing abortions might nonetheless treat a violent criminal. Hypocrisy is premised on the doctor subjectively believing that he is aiding in future harm. But how can he know for sure when the perpetration of such harm depends entirely on the criminal? Since the chain of causation is severed, a doctor who heals the criminal can do so without believing that he, as the healer, is indirectly responsible for any subsequent harm. In contrast, no doctor who performs an abortion or refers the patient to an abortionist can reasonably deny that he is the direct or proximate cause of the procedure’s ultimate fulfillment. A doctor who sincerely believes abortion to be harmful cannot follow a request for an abortion without believing that he is himself doing harm.
If an objecting healthcare provider is not lying about his conscience, the only reason why he should not be left to exercise it would be that the conscience is itself unethical. Charo submits that because conscientious objections fall heavily on women and gender non-conforming persons, they “raise legitimate questions about the underlying motivations of the [objectors], and the sufficiency of their justifications.”
One might remind her that a practice need not possess discriminatory intent for it to have a disparate impact. Objection to abortion disproportionately affects women because only women can get pregnant; objection to IVF disproportionately affects homosexuals because their sex lives are sterile. Moreover, assuming that “discrimination” means showing a preference for one group over another, just how discriminatory is the intent behind conscientious objection? Can a doctor intentionally discriminate against women in favor of men when refusing to perform abortions if men never ask for abortions? Is a doctor who opposes sterilization discriminating against any protected class, given that men and women of all races and sexual orientations can request to be sterilized? Does opposing IVF betray discriminatory intent against female patients when their husbands are also denied the ability to conceive artificially?
These questions are beside the point, as Charo’s argument seems to be that it is discriminatory to merely oppose abortion, sterilization, and IVF. After all, to object to enabling a choice on the basis that it is wrong per some religious or moral conviction would inflict “dignitary harm” on the choosers who are made out to be, in Charo’s own words, “bad women.” Should the law then no longer permit one to act on her conscience insofar as it dares to question another’s lifestyle?
This redefinition of what it means to discriminate will upend the First Amendment rights to free speech and free exercise of religion. It licenses the state to intrude into the human mind and declare private thoughts to be against public policy. Faith-based objections will become equivalent to “hate speech” in European countries that impose criminal and civil liability on those that allegedly insult the dignity of others, except there will be no need to determine whether the objecting healthcare provider harbors actual hatred towards the patient’s social group, for hatred is assumed from the objection itself.
The fight to preserve medical conscience ultimately implicates the kind of society America ought to become. Should free minds no longer be allowed to dissent from the state ideology of autonomy? Should America be a place where some people (women, LGBT people etc.) have the right to be whoever they want to be while others (pro-life doctors) do not? If so, when the former invoke the need to “protect our democracy,” as they often do, what they are referring to is a regime by, for, and of persons like themselves, a “their democracy.” The burden is on them to prove that “their democracy” is at all democratic.
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