Co-operation despite disagreement: From politics to healthcare

Bioethics

Volumn 17, Issue 2, 2003, Pages 121-141

  Zohar, Noam J ^a  

^a BAR ILAN UNIVERSITY   (Israel)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; CONTROLLED STUDY; HEALTH CARE; HEALTH CARE POLICY; HUMAN; INSTITUTIONAL CARE; MEDICAL DECISION MAKING; MORALITY; PHYSICIAN; POLITICS;

EID: 0037384640     PISSN: 02699702     EISSN: None     Source Type: Journal    
DOI: 10.1111/1467-8519.00329     Document Type: Article

References (37)

1. Abraham Sofer-Abraham. Anesthesia for the Sake of Performing an Abortion. Asya 1989; 47/48: 40-50. (Hebrew)
2. 'Halakhah' denotes the Jewish religious tradition of normative discourse.
3. Immanuel Jakobovits. 1975.Jewish MedicalEthics (second, enlarged edition). New York. Bloch: 190. See generally, 182-191. See more extensively: David M. Feldman. 1998. Birth control in Jewish law: marital relations, contraception, and abortion as set forth in the classic texts of Jewish law (second edition). Northvale. Jason Aronson Publishers.
4. Immanuel Jakobovits. 1975.Jewish MedicalEthics (second, enlarged edition). New York. Bloch: 190. See generally, 182-191. See more extensively: David M. Feldman. 1998. Birth control in Jewish law: marital relations, contraception, and abortion as set forth in the classic texts of Jewish law (second edition). Northvale. Jason Aronson Publishers.
5. Joseph Boyle. 1999. Collaboration and Integrity: how to think clearly about moral problems of cooperation. In Issues for a Catholic Bioethic. L. Gormally, ed. London. The Linacre Centre: 195 (187-199). See also: H. Bouma, D. Diekema, E. Langerak, T. Rottman & A. Varhey. 1989. Christian Faith, Health, and Medical Practice. Grand Rapids, MI. Eerdmans. These authors work out a scheme for 'Respect, Tolerance, and Co-operation' (pp. 95-101), yet in fact leave little moral space for co-operation despite disagreement. Sofer-Abraham himself, in consultation with some prominent rabbis, went on to extend his discussion to prenatal testing, to conducting diagnostic procedures that might be used to determine brain-death (which in his view is not truly death), and to abiding by a DNR order where the doctor believes the patient should be rescued: A. Sofer-Abraham. Do not place a stumbling-block before the blind. Asya 1990; 49/50: 62-67.
6. Joseph Boyle. 1999. Collaboration and Integrity: how to think clearly about moral problems of cooperation. In Issues for a Catholic Bioethic. L. Gormally, ed. London. The Linacre Centre: 195 (187-199). See also: H. Bouma, D. Diekema, E. Langerak, T. Rottman & A. Varhey. 1989. Christian Faith, Health, and Medical Practice. Grand Rapids, MI. Eerdmans. These authors work out a scheme for 'Respect, Tolerance, and Co-operation' (pp. 95-101), yet in fact leave little moral space for co-operation despite disagreement. Sofer-Abraham himself, in consultation with some prominent rabbis, went on to extend his discussion to prenatal testing, to conducting diagnostic procedures that might be used to determine brain-death (which in his view is not truly death), and to abiding by a DNR order where the doctor believes the patient should be rescued: A. Sofer-Abraham. Do not place a stumbling-block before the blind. Asya 1990; 49/50: 62-67.
7. Joseph Boyle. 1999. Collaboration and Integrity: how to think clearly about moral problems of cooperation. In Issues for a Catholic Bioethic. L. Gormally, ed. London. The Linacre Centre: 195 (187-199). See also: H. Bouma, D. Diekema, E. Langerak, T. Rottman & A. Varhey. 1989. Christian Faith, Health, and Medical Practice. Grand Rapids, MI. Eerdmans. These authors work out a scheme for 'Respect, Tolerance, and Co-operation' (pp. 95-101), yet in fact leave little moral space for co-operation despite disagreement. Sofer-Abraham himself, in consultation with some prominent rabbis, went on to extend his discussion to prenatal testing, to conducting diagnostic procedures that might be used to determine brain-death (which in his view is not truly death), and to abiding by a DNR order where the doctor believes the patient should be rescued: A. Sofer-Abraham. Do not place a stumbling-block before the blind. Asya 1990; 49/50: 62-67.
8. 'Integrity' is a protean concept; for an illuminating analysis, see: Damian Cox, Marguerite Lacaze & Michael P. Levine. Should We Strive for Integrity? The Journal of Value Inquiry 1999; 33: 519-530. The authors consider integrity in this sense ('steadfast devotion to principles', p. 520), but go on to examine several other meanings as well. There is, for instance, a very different sense of 'lack of integrity', meaning dishonesty; that is not an issue in the context of my discussion here.
9. In the context of abortion, the US legal doctrine (based on 'privacy') claims neutrality - leaving the decision to individual citizens. The validity of this claim is debatable, but even if it is granted, the federal government cannot avoid taking a stand in the realm of policy, either for or against abortion. This is most clearly evident with regard to policies of public funding; one particular example will be discussed below.
10. Some of the minimal requirements for legitimacy are defined, for example, by Gutmann and Thompson within the framework of 'deliberative democracy' in terms of 'reciprocity': Amy Gutmann & Dennis Thompson. 1996. Democracy and Disagreement. Cambridge, MA. Harvard University Press.
11. It may be that there is some better justification or way of tracing the limits of legitimate disagreement. As argued above, my main point is that the notion of a moral polity assumes that some such justification is possible.
12. Margaret Walker. 1998. Moral Understandings. New York and London. Routledge.
13. Martin Benjamin. 1990. Splitting the Difference: Compromise and integrity in ethics and politics. Lawrence, KA. University Press of Kansas: 1.
14. In specific cases, such criticism may be warranted, and there might be a call for conscientious objection or civil disobedience. But these will be the exception; the rule must allow for discrepancies between each citizen's ideals and the policies with which she will go along with. For an illuminating analysis, see: Arthur I. Applbaum. 1999. Ethics for Adversaries: The Morality of Roles in Public and Professional Life. Princeton. Princeton University Press: Chapter 9 'Democratic Legitimacy and Official Discretion' (pp. 207-239), particularly 226 ff.
15. James F. Childress. Ethics, Public Policy, and Human Fetal Tissue Research. Kennedy Institute of Ethics Journal 1991; 1: 93-121.
16. This is recognised by Gutmann and Thompson, although they seek to minimise such participation as far as possible: op. cit. note 7, pp. 89-90. Boyle cites the moral duty to pay taxes as an instance of 'constraining circumstances' that may generate 'mixed voluntariness' and possibly allow co-operation with evildoing (op. cit. note 4, p. 190); I will say more on this approach below.
17. This is recognised by Gutmann and Thompson, although they seek to minimise such participation as far as possible: op. cit. note 7, pp. 89-90. Boyle cites the moral duty to pay taxes as an instance of 'constraining circumstances' that may generate 'mixed voluntariness' and possibly allow co-operation with evildoing (op. cit. note 4, p. 190); I will say more on this approach below.
18. This is generically similar to the case from which we started above, except that there it was not the gynaecologist but only the anaesthesiologist who had qualms about abortion. I will come back to that below.
19. I am assuming throughout, that despite their strong disagreement, the agents view each other's positions as lying within the bounds of legitimacy. Ronald Dworkin has offered a powerful philosophical account of how they can have such views while strongly disagreeing about abortion itself: Ronald Dworkin. 1993. Life's Dominion. London. HarperCollins. For the halakhic context, see note 3 (above).
20. This holds even under an expanded notion of toleration, such as the 'Affirmative Tolerance' advocated by Apel: Karl-Otto Apel. Plurality of the Good? The Problem of Affirmative Tolerance in a Multicultural Society from an Ethical Point of View. Ratio-Juris 1997; 10: 199-212.
21. Benjamin, op. cit. note 10, p. 26.
22. Ibid. pp. 30-32.
23. Beyond the individual perspective, P may have some claim to become A's patient, grounded in a broader societal or professional perspective. The question whether that claim could generate an obligation to engage in CDD calls for further reflection.
24. The question of a duty to refer naturally arises; basically, however, this is another way of contributing to the same deed.
25. Noam Zohar. 1998. Jewish Deliberations on Suicide: Exceptions, Toleration and Assistance. In Physician Assisted Suicide: Expanding the Debate. M.P. Battin, R. Rhodes & A. Silver, eds. New York. Routledge: 362-372.
26. Iris Marion Young. 1996. Communication and the Other: Beyond Deliberative Democracy. In Democracy and Difference: Contesting the Boundaries of the Political. S. Benhabib, ed. Princeton. Princeton University Press: 120-135.
27. Boyle, op. cit. note 4.
28. Compare the argument advanced by Benhabib, that a 'communicative ethic' requires engagement with the concrete other (Seyla Benhabib. 1987. The Generalized and the Concrete Other. In Women and Moral Theory. E.F. Kittay & D.T. Meyers, eds. USA. Rowman & Littlefield: 154-177). More radically, Noddings has argued that in a 'one-caring' relationship, an agent must fully take on the other's perspective (Nel Noddings. 1984. Caring: A Feminine Approach to Ethics and MoralEducation. Berkley. University of California Press). Davion points out that, if indeed relational commitments entail such a response, one must beware of involvement with persons whose projects one considers evil, so as not to become a contributor to their evildoing. This seems right as far as it goes; but Davion does not consider the kind of cases with which I am concerned here, where moral disagreement is coupled with a recognition of the other's view as legitimate (Victoria Davion. Autonomy, Integrity and Care. Social Theory and Practice 1993; 19: 161-182).
29. Compare the argument advanced by Benhabib, that a 'communicative ethic' requires engagement with the concrete other (Seyla Benhabib. 1987. The Generalized and the Concrete Other. In Women and Moral Theory. E.F. Kittay & D.T. Meyers, eds. USA. Rowman & Littlefield: 154-177). More radically, Noddings has argued that in a 'one-caring' relationship, an agent must fully take on the other's perspective (Nel Noddings. 1984. Caring: A Feminine Approach to Ethics and MoralEducation. Berkley. University of California Press). Davion points out that, if indeed relational commitments entail such a response, one must beware of involvement with persons whose projects one considers evil, so as not to become a contributor to their evildoing. This seems right as far as it goes; but Davion does not consider the kind of cases with which I am concerned here, where moral disagreement is coupled with a recognition of the other's view as legitimate (Victoria Davion. Autonomy, Integrity and Care. Social Theory and Practice 1993; 19: 161-182).
30. Compare the argument advanced by Benhabib, that a 'communicative ethic' requires engagement with the concrete other (Seyla Benhabib. 1987. The Generalized and the Concrete Other. In Women and Moral Theory. E.F. Kittay & D.T. Meyers, eds. USA. Rowman & Littlefield: 154-177). More radically, Noddings has argued that in a 'one-caring' relationship, an agent must fully take on the other's perspective (Nel Noddings. 1984. Caring: A Feminine Approach to Ethics and MoralEducation. Berkley. University of California Press). Davion points out that, if indeed relational commitments entail such a response, one must beware of involvement with persons whose projects one considers evil, so as not to become a contributor to their evildoing. This seems right as far as it goes; but Davion does not consider the kind of cases with which I am concerned here, where moral disagreement is coupled with a recognition of the other's view as legitimate (Victoria Davion. Autonomy, Integrity and Care. Social Theory and Practice 1993; 19: 161-182).
31. This actually appears to be the case in many countries.
32. Sanford Kadish. Complicity, Cause and Blame: A Study in the Interpretation of Doctrine. California Law Review 1985; 73: 323-410.
33. This analysis is not substantially altered even if we adopt the alternative view regarding complicity, advanced by M. Gur-Aryeh. Miriam Gur-Aryeh. 1987. Comment on 'A Theory of Complicity.' In Issues in Contemporary Legal Philosophy. Ruth Gavison, ed. Oxford. Oxford University Press: 304-310.
34. For an illuminating discussion, see: Judith L. Kissel. 1997. A Comprehensive View of Complicity as Positive Collaboration and Toleration-of-Evil. PhD Dissertation. Georgetown University.
35. See: Rebecca S. Dresser. Freedom of Conscience, Professional Responsibility and Access to Abortion. The Journal of Law, Medicine & Ethics 1994; 22: 280-285.
36. If D's support of abortion in the case at hand is grounded in a position like that expounded by J.J. Thomson, then this line should be amended: they disagree about whether there is a third party with a valid claim against being killed through removal from the woman's body. Judith Jarvis Thomson. A Defence of Abortion. Philosophy and Public Affairs 1971; 1: 47-66.
37. The qualifying word 'legitimately' is intended to reflect the limits of cooperation, as mentioned at the outset.