Category: Health

In July of 2002 the New England Journal of Medicine published a study on arthroscopic surgery.

The experimental group members underwent surgery while the control group received placebo surgeries.  Somewhat surprisingly, those receiving the placebo reported feeling better and performed better at walking and stair climbing than those in the experimental group. After reading this study, I wrote “Lies…the Best Medicine?” and it appeared in my What Don’t You Know? While working through my massive backlog of magazines, I came across an update on placebo surgeries in Scientific America in which Claudia Wallis argued in favor of fake operations. Reminded of my ancient essay, I am revisiting thoughts on the ethics of placebo surgeries.

As in my old essay, I think that there is a good argument against placebo surgery. Treating a patient with a placebo requires deception. If the effect requires the patient to believe they have received surgery, then the patient must be convinced of an untruth. If the medical personnel are honest and tell the patient the the surgery was fake, then they would, presumably, not benefit from it. If it is wrong to lie, then this deceit would be wrong. What would make it even worse is that medical personnel should be honest with patients.  Thus, even if placebo surgery is effective or even more effective than real surgery, then it should not be used.

One counter to this argument is that even when patients know they are receiving a placebo, it can still be effective. Medical personnel could be honest with patients about a placebo surgery and, perhaps, still maintain the effectiveness of the non-treatment. This would allow the use of placebo surgery while avoiding the moral problem. However, this does not solve the problem for cases in which patients must not know whether they are receiving surgery or the placebo. Placebo surgery is often used to test the effectiveness of surgeries in a rigorous manner. If the surgery is no better (or even worse) than a placebo, then there would be no medical reason to use the surgery over a placebo or no surgery at all.

It can be argued that deception in such situations is acceptable. One approach is to use examples of acceptable, beneficial deception. Obvious examples include the benign deceits about Santa Claus, the Easter Bunny and the Tooth Fairy. As another illustration, there are lies people tell to avoid causing others suffering. If this sort of benign deceit is acceptable, then so is the use of deceit to produce the placebo effect or to conduct a study for the greater good.

A second approach is to focus on the purpose of the medical profession. While philosophers and scientists are supposed to seek the truth, the end of medicine is to relieve pain and prevent or cure illnesses. If deception, in the form of a placebo, can achieve the end of medicine, then it is one more tool, like a scalpel or drug. In fact, it could be argued that effective placebos are even better than drugs or surgery. Surgery always involves some risk, and most drugs have side effects. Placebos would, presumably, involve little or no risk. That said, it is worth considering that there could also be mental side-effects with placebos.

Since placebo treatment is usually not free, it could be objected that it is still wrong: patients are charged, and nothing has been done for them. If medical personnel were using placebos to cover up illnesses and injuries while pocketing profits from fake treatment, then that would be unethical. However, if the treatment is honest and works then it would be as legitimate as any other form of treatment. So, if a patient needs to see a doctor to get the placebo effect working properly and it works as well or better than the “real” treatment, then it is as reasonable to bill for the placebo treatment as it is a real treatment—although the price should be adjusted accordingly. If the placebo effect could be created without involving medical personnel, then charging patients for it would be unethical.

In the case of studies in which the subjects are not paying, then there would be no special moral concern for the use of the placebo. Its use would, in fact, be required for a proper experiment. This does raise the usual moral concerns about conducting experiments, but that is a subject worthy of consideration on its own.

As J.S. Mill and others have argued, freedom of expression is a fundamental liberty and the people working at crisis pregnancy centers have that right. But crisis pregnancy centers purport to offer an alternative to abortion—though they seem to routinely engage in deception rather than honest persuasion. This raises moral questions about freedom of expression.

To get the obvious out of the way, those who work for crisis pregnancy centers have the moral right to express their views on abortion. They also have the moral right to try to persuade others to accept their views. A key part of the freedom of expression is the freedom to engage with others who are willing to listen. So, the freedom of expression of these centers is not in dispute.

One concern, which was addressed in my previous essay, is the ethics of deceit. While people do have the right to express their views, freedom of expression is not a license to lie. But it must be noted that there is an important distinction between making an untrue claim and lying.  While there are many forms of lying, the common form requires that a person believes they are making an untrue claim and that they have the intention to deceive. So, if the those at the centers believe the untruths they tell women, then they are not lying. However, this does not get them off the moral hook completely as there is also an ethics of epistemology (the theory of knowledge). Just as there is a moral obligation, as per Thomas Aquinas, to consider one’s actions before acting, there is also an obligation to confirm one’s beliefs before trying to get others to accept them. The seriousness of this obligation, as with actions, is in proportion to the seriousness of the likely consequences of the belief. Being epistemically irresponsible about knowing birth control’s efficacy or the medical effect of abortion is morally unacceptable. As with any liberty, there are also associated responsibilities. Due diligence and honesty in the claims one makes are part of these responsibilities. That is, freedom of expression is not freedom from truth and proper research (which is more than just Googling while under the influence of confirmation bias).

A second concern is values. While people do not have a right to their own facts, they do have the right to their own values (and the responsibility of the consequences of those values). While some embrace the self-defeating notion that relativity of values requires tolerance (it self-defeats because claiming tolerance as an objective value contradicts relativism), it would beg the question to assume that values are objective (or subjective). Even if values are objective, there is still the problem of sorting out which values are right. Because of this, it is more difficult to show that someone has the wrong values. There do seem to be some clear exceptions: those who advocate for rape and genocide have indisputably gotten things wrong. However, moral philosophy has vast tracts of disputed territory and rational moral disagreement helps warrant the freedom of expression. Since we do not always know what is right, it would often be both foolish and wrong to silence people with differing views.

While the various sides on the abortion issue tend to believe they have the objective truth; the issue is morally complicated and an area of reasonable moral dispute. Those who think they have the right answer still have an excellent reason to accept this, if only on pragmatic grounds. Even if they are winning now, they might be losing tomorrow and need the freedom to make their case. If they are losing now, they would want the freedom to make their case. So, the center folks have the right to present their values as do those who disagree with them.

The final concern I will address is the matter of compelled listening. While there have been some legal cases involving compelled speech, there is also the moral question of compelled attention. The easy and obvious view is that people have no general right to expect others to listen to them, although there are contexts where there can be such an expectation. People also do not, with some notable exceptions, have the right to harass people under the guise of free expression. To use an analogy, you have a right to swing a knife around as much as you wish as long as you are not slashing at other people. Likewise, you can express yourself however you wish, provided that the expression is not aimed at harassing, coercing or harming others. I admit there is a problem with sorting out what counts as harassment, coercion and harm. This must be addressed by considering specific types of cases and by developing general guidelines. For example, college students don’t have grounds to claim that a speaker they dislike is automatically harming them because they dislike what they hear. As another example, a student who is shouting a speaker they dislike is both violating the speaker’s right to free expression and endeavoring to compel others to listen to them over the speaker, and are in the process of trying to violate two rights.

Returning to the centers, they do have every right to try to persuade, but the tactics that are coercive, deceptive or harassing are not protected by moral freedom of expression. While they do have the right to express their views, they do not have the right to trick, harass or coerce others into listening to or accepting their views. Naturally, the general principles at work here apply generally, especially to the freedoms of people I disagree with.

While I think abortion is morally tolerable and should be legal, I recognize that there are competing moral views that can be held in good faith. Proponents and opponents of abortion have the right to argue for their views and influence others. So, I have no moral objection against the idea of a pregnancy crisis center that provides accurate information about alternatives to abortion and assistance to women who elect to not have an abortion. Unfortunately, pregnancy crisis centers often seem to engage in willful deceit.

Some years ago, John Oliver did a show on the deceptive practices of these centers. While Oliver is a comedian, his claims were backed up with evidence: these centers often trick women. One common technique is masquerading as an abortion clinic or health care provider by locating close to such places and using similar names. They also tend to use the trapping of professional medicine to create the illusion they are a clinic despite not being licensed to provide medical care. Another tactic is to make untrue claims about abortion, such as the claim that abortion increases the risk of cancer and infertility.

While centers are usually allowed to give ultrasounds, they seem to routinely mislead women about the results. While there is a shortage of funding for women’s health, many states provide public money to these centers. This should worry people who profess to favor small government and to oppose public money being used for ideological causes. After all, one of the arguments advanced against public funding of Planned Parenthood is that public money might be used for something some people find morally or religiously unacceptable. The same logic should apply to these centers.

On the face of it, deceit seems morally wrong and centers that engage in it are acting immorally. This is especially ironic given these centers tend to be affiliated with religious organizations and the bible is clear about lying. That said, one can argue in favor of the approach of these centers.

It can be argued that such deceit is justified on moral grounds because the end justifies the means. The obvious moral theory to use here is utilitarianism: the action that creates the most good and the least harmful is the right action. In the case of the centers, they could accept that deceit is generally not a good thing, but that the harm of deceiving the women and girls is exceeded by the good of misleading them so that they do not have an abortion. To use an analogy, lying to a murderer to keep them from murdering would be morally right on utilitarian grounds.

Even if one accepts the utilitarian approach, there is still the question of whether the centers are doing their moral calculation right: is the good they claim to do outweighing the harms to the women and girls they deceive? Obviously, pro-choice people would disagree. There is also my usual line: why lie if the truth will suffice? In the case at hand, if abortion is truly as evil as the center folk believe, then telling women the truth should suffice to convince them. If they must lie to people, then one would suspect that they must not have faith in their own reasons and arguments. They could, of course, reply by doubling down on the utilitarian approach and contend that people are not swayed by good reasons nor are they drawn to the right thing without being led there by deceit.

Accepting utilitarianism does create its own problem: if the ends justify the means in terms of deceiving to prevent abortion, then the same principle also applies to abortion. As such, abortion would be subject to the same utilitarian calculation and could turn out to be acceptable on these grounds. In any case, its wrongness would be conditional upon the harms and benefits.

The centers could reply that they are not utilitarians; they just hold that the end justifies the means when it comes to lying about abortion. They could hold that abortion is inherently worse than lying and it is acceptable to do lesser evils to prevent greater evils. While this is a consistent position it is morally problematic as there are non-deceitful ways to reduce abortions, such as providing cheap and effective birth control, funding quality sex-education, improving support services for women and girls who have babies, and so on. After all, it is hard to justify doing evil to stop evil when there are viable non-evil alternatives. If someone gladly embraces deceit to advance their cause when morally better alternatives exist, one must question their ethics.

As noted in my previous essay, a person does not surrender their moral rights or conscience when they enter a profession. It should not be simply assumed that a health care worker cannot refuse to treat a person because of the worker’s values. But it should also not be assumed that the values of a health care worker automatically grant them the right to refuse treatment based on the identity of the patient.

One moral argument for the right to refuse treatment because of the patient’s identity is based on the general right to refuse to provide a good or service. A key freedom, one might argue, is this freedom from compulsion. For example, an author has the right to determine who they will and will not write for.

Another moral argument for the right to refuse is the right not to interact with people  you regard as evil or immoral. This can also be augmented by contending that serving the needs of an immoral person is to engage in an immoral action, if only by association. For example, a Jewish painter has every right to refuse to paint a mural for Nazis. But this freedom can vary from profession to profession. To illustrate, a professor does not have the right to forbid a Christian student or a transgender student from enrolling in their class, even if they have a sincerely held belief that Christians are wicked or that transgender students are unnatural.

While these arguments are appealing, especially when you agree with the refusal in question, we need to consider the implications of a right of refusal based on values. One implication is that this right could allow a health care worker to refuse to treat you.  People who support the right to refusal often believe it will be used only against other people, people they do not like. Which is often why they support specific versions of the right, such as the right to refuse gay or transgender people. The idea that it could be used to refuse Christians, straight people, or white people does not enter the imagination. This is because those crafting laws protecting a right of refusal tend to have clear targets in mind.

But moral rights should be assessed by applying a moral method I call “reversing the situation.” Parents and others often employ this method by asking “how would you like it if someone did that to you?” This method can be based on the Golden Rule: “do unto others as you would have them do unto you.” Assuming this rule is correct, if a person is unwilling to abide by their own principles when the situation is reversed, then it is reasonable to question those principles. In the case at hand, while a person might be fine with the right to refuse services to those they dislike because of their values, they would presumably not be fine with it if they were the one being refused. As noted above, laws designed to protect the right of refusal are usually aimed at people intended to be marginalized.

An obvious objection to this method is that reversing the situation would, strictly speaking, only apply to health workers. That is, the question would be whether a health care worker would be willing to be refused treatment.  Fortunately, there is a modified version of this method that applies to everyone. In this modified method, the test of a moral right, principle or rule is for a person to replace the proposed target with themselves or a group (or groups) they belong to. For example, a Christian who thinks it is morally fine to refuse services to transgender people based on religious freedom should consider their thoughts on atheists refusing services to Christians based on religious freedom. Naturally, a person could insist that the right, rule or principle should only be applied to those they do not like. But if anyone can do this, then everyone can, and the objection fails.

A reasonable reply to this method is to argue there are exceptions to its application. For example, while most Christians are fine with convicted murders being locked up, it does that follow that they are wrong because they would not want to be locked up for being Christians. In such cases, which also applies to reversing the situation, it can be argued that there is a morally relevant difference between the two people or groups that justifies the difference in treatment. For example, a murderer would usually deserve to be punished while Christians do not deserve punishment just for being Christians. And I’m not saying this just because I am an Episcopalian. So, when considering the moral right of health care workers to refuse services based on the identity of the patient the possibility of relevant differences must be given due consideration.

An obvious problem with considering relevant differences is that people tend to think there is a relevant difference between themselves and those they think should be subject to refusal. For example, a person who is anti-racist might think that being a racist is a relevant difference that warrants refusing service. One solution is to try to appeal to an objective moral judge or standard, but this creates the obvious problem of finding such a person or standard. Another solution is for the person to take special pains to be objective, but this is difficult.

A final consideration is that while entering a profession does not strip a person of their conscience or moral agency, it can impose professional ethics on the person that supersede their own values within that professional context. For example, lawyers must accept a professional ethics that requires them to keep certain secrets their client might have even when doing so might violate their personal ethics and they are expected to defend their clients even if they find them morally awful. As a second example, as a professor I (in general) cannot insist that a student be removed from my class by appealing to my religious or moral views of the student. As a professor, I am obligated to teach anyone enrolled in my class, if they do not engage in behavior that would warrant their removal. Health care workers are usually subject to professional ethics and these often include requirements to render care regardless of what the worker thinks of the morality of the person. For example, a doctor does not have the right to refuse to perform surgery on someone just because the patient committed adultery and is a convicted felon. This is not to say that there cannot be exceptions, but professional medical ethics generally forbids refusing service just because of the moral judgment of the service provider of the patient. This is distinct from refusing services because a patient or client has engaged in behavior that warrants refusal, such as attacking the service provider.

Joining a profession can complicate a person’s ethical situation. For example, lawyers are obligated to defend their clients even if their client is a moral monster. In the case of health care workers, moral complications can arise when they are expected to perform medical procedures they oppose on moral or religious grounds. They can also arise when they are asked to treat a patient when they have an objection to treating patients of that type, such as a transgender person or a CEO. There is the ethical issue of whether a health care worker has the right to refuse to perform a procedure or treat a patient based on these religious or moral objections.

Some might assume that health care workers have no moral right to refuse services, especially if they are thinking of procedures they find morally acceptable. For example, a pro-choice person is likely to think that a health care worker should not deny a patient an abortion on moral or religious grounds. But this assumption would be hasty. Entering a profession does not entail that a person automatically surrenders their moral rights or conscience. To think otherwise would be to embrace the discredited notion that “just following orders” or just doing one’s job provides a moral excuse. As health care workers are morally accountable for their actions, they also retain the moral agency and freedom needed to provide the foundation for that accountability. Those who support the moral right of refusal will find this appealing, but they must remember that this moral coin has another side.

Entering a profession, especially in health care, comes with moral and professional responsibilities. These responsibilities can, like all responsibilities, justly impose burdens and obligations. For example, doctors are not permitted to immediately abandon patients they dislike or because they want to move on right now to a better paying position. The ethics of a health worker refusing to perform a procedure based on their moral or religious views requires that each procedure be reviewed to determine whether it is one that a health care worker can justly refuse or one that is a justly imposed burden.

To illustrate, consider a state employed doctor asked to keep prisoners conscious and alive during torture. Most doctors would have moral objections to this and there is the question of whether this falls within the moral expectations of their profession. On the face of it, since the purpose of the medical profession is to heal and alleviate suffering, this is not something that a doctor is obligated to do. In fact, the ethics of the profession would dictate against it.

Now, imagine a health care worker who has sincere religious or moral beliefs that when a person can no longer sustain their life on their own, they must be released to God. The worker refuses to engage in procedures that violate their principles, such as keeping a patient on life support. While this could be a sincerely held belief, it seems to run counter to the ethics of the profession. As such, such a health care worker would seem to not have the right to refuse such services.

One could even imagine extreme cases as there is no requirement to prove that a sincerely held religious belief is true, one must only be convincing in one’s (alleged) sincerity. For example, imagine a health care worker who has a sincere religious belief that a patient must prove themselves worthy in the eyes of God by surviving with only the most basic care; anything beyond that is an affront to God’s will. The patient will survive if God wills it and humans should not interfere. Such views would not be accepted as justifying their actions and they should seek another profession if they cannot do their jobs.

Turning back to services like abortion and gender transition, the issue would be whether these are like asking a medical worker to participate in torture or expecting a medical worker to provide normal medical services. Those who oppose abortion will make the moral argument that performing abortion is as bad (or worse) than abetting torture. The pro-choice will contend it is a medical procedure.

In the case of gender transition, there are no moral appeal to concerns about killing. Rather, a person must appeal to the view that people should not modify their sex and should accept what they were born with. This seems to be more like my imaginary case of a health care worker who believes that people must prove themselves worthy in the eyes of God than like the torture case, especially if someone takes the view that God wants people to stick with their original sex. That said, it could be argued that such modifications are wrong in the same way that non-restorative cosmetic surgery is wrong as both aim to allow a person to be who they want to be. I do not, however, want to claim that the transitional process is as trivial as the gender affirming procedure of getting breast implants.

While I do not think I will change minds, the matter of moral objections needs due consideration. It is easy to simply embrace one’s views without considering the possibility of error.

Briefly put, right-to-try laws give terminally ill patients the right to try experimental treatments that have completed Phase 1 testing but have yet to be approved by the FDA. Phase 1 testing involves assessing the immediate toxicity of the treatment. This does not include testing its efficacy or its longer-term safety. Roughly put, passing Phase 1 just means that the treatment does not immediately kill or significantly harm patients.

On the face of it, no sensible person would oppose the right-to-try.  This right is that people who have “nothing to lose” are given the right to try treatments that might help them. The bills and laws use the rhetorical narrative that the right-to-try laws would give desperate patients the freedom to seek medical treatment that might save them and this would be done by getting the FDA and the state out of the way. This is powerful rhetoric that appeals to compassion, freedom and a dislike of the government. As such, it is not surprising that few people dare oppose the right-to-try. However, the matter does deserve proper critical consideration.

One way to look at it is to consider an alternative reality in which the narrative is spun with a different rhetorical charge, a negative spin rather than positive. Imagine, for a moment, if the rhetorical engines had cranked out a tale of how the bills would strip away the protection of the desperate and dying to allow predatory companies to use them as Guinea pigs for their untested treatments. If that narrative had been sold, people would probably be opposed to such laws. But rhetorical narratives, positive or negative, are logically inert and are irrelevant to the merits of the right-to-try. How people feel about the proposals is also logically irrelevant as well. What is needed is a cool examination of the matter.

On the positive side, the right-to-try does offer people the chance to try treatments that might help them. It is hard to argue that terminally ill people do not have a right to take such risks. That said, there are still some concerns.

One concern is that there is an established mechanism allowing patients access to experimental treatments. The FDA already has as system that approves most requests. Somewhat ironically, when people argue for the right-to-try by using examples of people successfully treated by experimental methods, they are showing that the existing system already allows such access. This raises the question about why the laws are needed and what they change.

The main change is usually to reduce the role of the FDA. Without such laws, requests to use experimental methods must go through the FDA (which seems to approve most requests).  If the FDA routinely denied treatments, then such laws would seem needed. However, the FDA does not seem to be the problem as they generally do not roadblock the use of experimental methods for the terminally ill. This leads to the question of is limiting patient access.

The main limiting factors are those that impact almost all treatment access: costs and availability. While the right-to-try grants the negative right to choose experimental methods, they do not grant the positive right to be provided with those methods. A negative right is a liberty, and one is free to act upon it but is not provided with the means to do so. The means must be acquired by the person. A positive right is an entitlement, and the person is free to act and is provided with the means of doing so. In general, the right-to-try does little or nothing to ensure that treatments are provided. For example, public money is usually not allocated to pay for them. As such, the right-to-try is like the right-to-healthcare: you are free to get it if you can pay for it. Since the FDA does not roadblock access to experimental treatments, the bills and laws would seem to do little or nothing new to benefit patients. That said, the general idea of right-to-try seems reasonable and is already practiced. While few are willing to bring them up in public discussions, there are some negative aspects to the right-to-try. I will turn to some of those now.

One obvious concern is that terminally ill patients do have something to lose. Experimental treatments could kill them earlier or they could cause suffering. As such, it does make sense to have limits on the freedom to try. At least for now it is the job of the FDA and medical professionals to protect patients from such harms even if the patients want to roll the dice.

This concern can be addressed by appealing to freedom of choice, provided patients can provide informed consent. This does create a problem: as little is known about the treatment, the patient cannot be well informed about the risks and benefits. But, as I have argued often elsewhere, I accept that people have a right to make such choices, even if these choices are self-damaging. I apply this principle consistently, so I accept that it grants the right-to-try, the right to get married, the right to eat poorly, the right to use drugs, and so on.

The usual counters to such arguments from freedom involve arguments about how people must be protected from themselves, arguments that such freedoms are “just wrong” or arguments about how such freedoms harm others. The idea is that moral or practical considerations override the freedom of the individual. This can be a reasonable counter, and a strong case can be made against allowing people the right to engage in a freedom that could harm or kill them. However, my position on such freedoms requires me to accept that a person has the right-to-try, even if it is a bad idea. That said, others have an equally valid right to try to convince them otherwise and the FDA and medical professionals have an obligation to protect people, even from themselves.