Positive and Negative Rights of Conscience: Balancing When Rights Conflict

Abstract

Conscientious objection (CO) in medicine has been seen as a negative right, the right to be free from the intervention of others, so as not to be coerced into doing a medical intervention that the objector thinks is immoral. Arguments are now becoming more common calling for protection for the positive right of conscience, the right to perform interventions by the healthcare provider (HCP) even when it goes against the policy of the healthcare institution (HCI) or the law. Rights create obligations. While negative rights only obligate that others not interfere, positive rights create the obligation of others to support the activity. Positive rights of conscience of the HCP impinge on the negative rights of the HCI. They require that the HCI implicitly support the activity of the HCP, which is formal cooperation and can never be justified without the loss of integrity on the part of the HCI. This article will argue, outside of the limitations of CO such as providing care in an emergency when there is no other option, that respect for the negative right of conscience of the HCI outweighs the positive right of the HCP.