Hello and welcome to FAB Gab. This is the podcast for the International Journal of feminist approaches to bioethics brought to you by fab Network. My name is Kathryn MacKay, and today I'm joined by Claire Moore from the bioethics department at the National Institutes of Health in the United States. And we're discussing her paper, objection or obstacle applying Amartya Sen's capability approach to the conscientious refusal of emergency contraception. Hello, Claire.
Hi.
Thanks so much for being here.
Yeah, thank you so much for having me.
My pleasure. So to get us started, could you give our listeners the elevator pitch for this paper?
Absolutely. This might be a long elevator ride. I'll try to keep it brief. Obviously, the title itself is a mouthful. I'd also like to just note quickly that all of what I say is my own and none of this reflects the position of the NIH or US government. Yeah. So this is a paper that I actually started writing, just as I was completing my undergraduate degree. And I've since still been thinking about it, but it's not something that I've currently been working on in my current capacity as a NIH fellow [KM: noted]. So, yes, in this paper, I basically apply one specific theory of equality, which is a Martina sense capabilities approach to this specific issue of conscientious refusal to emergency contraception. And in doing so I sort of aimed to highlight one potential strategy for how we might argue for a prohibition against these conscientious refusal policies that can hinder the over the counter sale of emergency contraception pills, at least in the US context. These policies exist in at least 14 US states using things like broadly worded conscience clauses that ended up often extending to pharmacists and pharmacy clerks who are working in non clinical settings, right, who might just be working at, you know, a Walgreens or Walmart pharmacy, and they inevitably sort of enable pharmacists and clerks to refuse to sell something over the counter like Plan B, one step based on their religious or moral convictions. And of course, this is a hot debate in bioethics outside of this particular issue about emergency contraception. Many bioethicists have done a ton of work on conscientious objection and conscientious refusal. So the sort of spirit of this paper is that sense capabilities framework, I think, has a lot of useful import in this debate, especially in helping us sort of rank our different priorities right, because many bioethicists agree and argue that we have a right to things like bodily autonomy or to reproductive choice. And those are really important to a lot of different arguments in bioethics. But similarly, a lot of bioethicists also agree that we have a right to enjoy religious expression and freedom from religious persecution. So seemingly, these sort of two things, what Sen would call a capability, these two different capabilities are at odds, which is, of course, very familiar in many debates about reproductive health care. So essentially, I try and argue that conscientious refusal to emergency contraception can create a very burdensome inequality for people wishing to prevent pregnancy, given the sort of background of historical and justices that are so apparent in the US with respect to reproductive health care access. And so I argue that that fact alone ought to sort of elevate its importance when we weigh these competing capabilities.
So what motivated you to write this paper?
Yeah, that's a good question. I was motivated for a number of reasons. First, I just sort of really got interested in sense capability approach during an undergraduate philosophy course on a egalitarian theory. I think the reason it stuck out to me is because it seems to sort of inherently be able to assess structures of power and of injustice, which I don't think are necessarily baked into all theories of equality in the political philosophy, literature. And also, I was motivated because this seems like a really interesting context, right? Like the over the counter sale of emergency contraception, like bioethicists, rightfully spend a lot of time thinking about the duties of clinicians and sort of medical settings, clinical research settings, and so on. But I think maybe less attention is paid to these sorts of more sort of every day. Issues like what happens when someone goes into their local grocery store and tries to buy something like an emergency contraceptive pill over the counter? I think that is also a setting that is like rife with a lot of these ethical issues, but it's not necessarily us. Setting that gets a large amount of attention. And also, I grew up in sort of the American South. And so I sort of firsthand witnessed barriers to health care access broadly. And so it's something very personal to me, and I think is always going to inform my my scholarship and bioethics,
huh. Yeah, I feel like the paper is framed by some really important empirical facts about healthcare access, but also just other access to other goods that might count as capabilities within the United States for people who live especially rurally, I think is one of the sort of focuses in the paper. Absolutely. Yeah,
I think often, a lot of people, at least when they think about conscientious refusal policies, often in these policies, it's baked in that, you know, you have an obligation as a clinician if you do refuse to refer someone elsewhere. And I think that's great that that sort of baked into these policies. But as you note, I point out in the paper, that it's just sort of an empirical fact that if you live in an area that doesn't have a lot of resources, and you don't have much access to an abundance of healthcare resources, then that referral doesn't really do too much for you, if you don't have anywhere else to be referred to.
I have a question for you about the capabilities. But I think first, I wondered if you wanted to maybe give a highlight of some of the main points of your argument? Yeah, sure.
I'll try my best. So basically, the main argument of the paper is that if we were to employ this capabilities framework, to tease out what we think as a collective society, what the most important functionings are, that people should all be able to reach. Such a framework could prioritize bodily autonomy over religious expression via conscientious refusal. So I get there by basically pointing out that I think reproductive or bodily autonomy is what Sen calls a fundamental capability. And I think that's true, because put really simply being pregnant and giving birth to one or more children can seriously impact how your life goes, right? Like, I'm not yet a parent, but I know from my parents and many others that, you know, even once you have kids, you're your life, that sort of changed. But that's also if you don't decide to then parent that child you give birth to that still has a direct impact on how your life progresses moving forward. And I'd like to note that, of course, expressing your religion impacts how your life goes as well, often in a really fundamental way, it can even impact how your life goes, after you pass on, right. But I argue that it seems that you can express your religion in all sorts of ways throughout your life, right? Like you can choose to live a robustly or devoutly religious lifestyle. Without conscientious refusal to emergency contraception being legal, right, since there are tons of avenues you can express your religion through, maybe you don't get to in that one transaction at work that day. But I think it's sort of obvious that emergency contraception is like a time sensitive matter, you only have a couple of hours or sometimes days for it to be effective. And so that's a very small window of opportunity that has a huge potential impact on your life. And moreover, pregnancy and having kids also has a huge implication for your health, right, like so many people experience all sorts of health complications due to pregnancy or having children. And in the spirit of the paper as a whole. We know that there are huge disparities in those outcomes and health impacts. We know that black women especially face such higher rates of maternal mortality and and so many other health impacts. So given that, it seems that it's sort of fundamental in a sense that maybe religious expression in this context is
not. Yeah, it's actually it's always a stunning statistic to me that African American Alaskan Native and American Indian women have like a three times higher rate of serious complications in pregnancy and it's nothing to do with biology. It has everything to do with access and pre existing inequalities and it's just mind boggling.
Absolutely. Yeah. It totally is. And it's like, it seems like it's so mind boggling. How could we ignore you know, statistics like that when we when we you know, news about policies on on emergency contraception and whether they should exist and in what ways and So that is sort of also like the motivation for this paper is like how can we have a historically informed view on these policies? I think if we look at the history of reproductive inequality and these current disparities that happen as a result, like it's clear that certain people will be hugely impacted, and we ought to prevent that we ought to take that into account and not have those disparities exacerbated further.
Hmm. So I wanted to ask you a little bit about the capabilities, because it's possible that the listeners haven't heard too much about them before. And you're using them artisans, framework roughly. And so I wondered if you could say a little bit about his framework of capabilities. And then I just wanted to ask you a couple of questions about sort of how you've used it. So I'll let you do an intro first. Sure.
Yeah. So I'll try to keep this brief as well. I don't want to be too pedantic. But I think it is really helpful in understanding the capabilities approach to contrast it with maybe other theories of equality. So like, really roughly, a lot of people are like, Yeah, we need equality, we should have a theory of, of how to make people equal. But the task of many political philosophers has been okay, if we say that we want equality broadly among human agents, what does that mean? What are we actually making equal between people? So there's lots of different theories that discuss just that point, what are we going to make equal if we agree that we want equality. So some people say that we should make people's access to resources equal, so everyone should have roughly the same amount of stuff are the same kind of stuff. Or other people say, well, we can all have different life situations and different stuff. But really what should be made equal is people's well being. So if everyone's doing pretty good, and that can be achieved in a number of ways. And so that's like a welfare theory of, of equality. And the first one is a resources theory of equality. So sense theory is sort of in contrast to those in that he doesn't think of equality as being something about these primary goods or resources are about a sort of end goal state like, well, at the end of the day, everyone should, you know, be doing pretty good. He thinks throughout life throughout a whole lifetime. There all of these different states that we can constantly achieve. And that sort of in a complex way, a government's responsibility is to ensure that at least people have roughly the same ability to reach these states across their lifetime. So different capabilities could be like the state of being educated, the state of feeling or being housed. So there's sort of these these complex states that are sometimes hard to define. But I think it's like a really compelling approach, because it's not necessarily thinking about equality as something that happens at one point in time, but something that is, you know, often aimed to be achieved over a lifetime and through these different states, and not just saying, well, people shot the same stuff, or people should feel or be doing about the same. Right. And that was a great overview. Okay, great.
So, Sen's got one sort of capabilities, approach theory, Martha Nussbaum has another, they were developed in conjunction kind of, and on each of those, although Sen has really hesitated to give us any kind of list, he often gives examples. Nussbaum, on the other hand, has sort of bitten the bullet, let's say, and she's actually provided a rough list of sort of the central capabilities, I think she's got 10 or something like that. But it's not like it's a complete list or anything like that. However, my question for you, is, usually these capabilities are taken to be really quite broad categories of, of life, like you've just said, like, they're kind of, they're these things that we want to do, they're over a whole lifetime. So they're not really prescriptive. And they're also not, you know, a capability is something other than a preference. And it's something other than something that we value, because we might value all kinds of things, but they might not be capabilities. So like, I might value owning my own vehicle, that doesn't make that a capability. Rather, what a capability is, is the ability to move freely, or perhaps, you know, to be able to live within a reasonable distance of my work or something maybe like that. So I wanted to ask you about basically like, splitting things into capabilities and not capabilities, because I think this is relevant for your paper. You know, we're thinking about expression of religious belief, which is definitely a big broad capability. And I think that reproductive autonomy falls into capability as well. But then does each little, you know, how do we figure out which how each little bit of what we value and what we prefer and how we act in life interacts with these broad capabilities? Yeah,
you're hitting me with the hard questions, Kathryn. That's a really good one. I'm sorry. Oh, that's so great, because this is something that I thought so much about when I when I wrote this paper, it that question definitely, sort of, I think, has informed my argument, right that like, it seems that certain actions have more of a direct link to the achievement of a capability than others. Right. But like you said, it's really murky water. And it's, it's hard to, to, to define, clearly. But going back to what I sort of said earlier, I think, like, the ability to obtain an emergency contraceptive has a pretty direct link to your reproductive autonomy more broadly, because if you don't have access to that, and you really don't want to have a future pregnancy, then you now are in a position where you know, you may seek an abortion, and then you may face further difficulties, or there's like, there's some key checkpoints. In other words, like as if pregnancy is something that is part of bodily autonomy, which I think it's a really important part of bodily autonomy. But on the flip side, yeah, like, what sorts of micro actions do people take everyday to achieve religious expression? That's really hard to say. And I'm not sure, but I'm pretty convinced that not always expressing your religious views in the workplace is one of those really important ones for religious expression? But of course, some may disagree. And then I would love to read their paper in response to my
Yeah, absolutely. I only asked you that, because I think this is such an interesting and quite murky area, as you put it, to figure out sort of like how, yeah, because each capability is quite a broad category, there's innumerable ways that they could be fulfilled, or, or perhaps not fulfilled. So it seems quite complicated.
Yeah, yeah, definitely. And then, like points that out, which I really appreciate, which is that these capabilities are so often competing with one another and are at odds. So it is it's just it's a very difficult question. And then, like you mentioned to Nussbaum is like, well, you know, I'm just going to theorize about the top 10. Whereas Sen is, like, yeah, these are often at odds, and this is murky water. And you know, it's up to you all to figure it out.
Yes. So Did you face any specific challenges when you were writing the paper?
Definitely, I really appreciate this question. Because I, some other ones I thought more deeply about. And this one came to me immediately, because it was like the hardest part in writing this paper was this challenge that I think many people encounter in bioethics or philosophical Scholarship, which is that often someone can adopt the same framework as you operate under all the same assumptions, take all of your premises to be true. And yet, flip it on you and disagree. And I think that is very possible with my paper. And so that's the objection that I outline, it's very possible that someone could be, you know, committed to the capabilities approach to equality, agree that there are these two competing capabilities of reproductive autonomy and religious expression, and then conclude that religious expression ought to take precedence and that we ought to allow for conscientious refusal to emergency contraception sales. I think that's a very compelling objection. And it's very, it's always very tricky, I think, to approach objections like that, as sort of a junior academic myself. And so that's all to say, that's always a challenge. But I think it's also a really exciting one, because you really have to, you know, be strategic and addressing objections of that kind.
Mm hmm. Yeah, and I think in the paper, you note that this objection is, you know, quite compelling and quite astute, but it seems like it's your answer kind of comes down to the time sensitiveness of emergency contraception versus the abuse. Have you to express your religious commitments over lifetime? Is that right?
Yeah, yeah, that's certainly a huge a huge part of my response. It's, it's interesting too, as like a burgeoning bioethicists. Sometimes I'm scratching my head all the time about how to, you know, think through a really complex ethical issue. And I really do think in this case that these pragmatic concerns are really relevant to this to this debate. And so I do note that just really importantly, emergency contraception access is a time sensitive matter, and people only have so much time and I think that should really be considered. Whereas you know, you may express your religion, all throughout your life, of course, you may face many barriers in doing so depending on what religious beliefs you hold. But I do think something like practical in that sense is relevant here. And also, again, just thinking about also, what we've been talking about at the beginning, in terms of a historically informed bioethics and thinking about, like the history of health disparities in the US and reproductive health care access inequities. I think that also is sort of how I would address the objection that like these two are totally on par in religious expression is actually more important. It should be more fundamental. It's like, well, I don't think if we do like a power analysis of who has the most to gain and who has the most to lose, I would argue that there's of course, a huge population of people who are historically marginalized, and who, like literally face, so many more health complications and poor health outcomes, if we allow for such policies. Whereas I don't think certain religious beliefs in the US of this kind are being, you know, systemically persecuted. on that level.
You might actually think that the fullest expression of such a religious belief would be much more concerned about those inequalities. Yeah, The sort of original background inequalities, than the point of sale transaction, although still important.
Sure. No, that's a really great point. I didn't even necessarily think about that. But I absolutely think you're right that you can then you can take their position and then use it. So that's, that's the perfect strategy.
So we're coming towards the end of the of our conversation. What is the primary takeaway message that you would like people to leave with?
Yeah, I had to really think about this. I guess my primary takeaway message is that I think bioethicists in particular, many of us still have a long way to go in taking seriously the fact that our work doesn't exist in a vacuum free of historical context. And so I've sort of been harping on that this whole podcast, no, but I just think it's really important, and especially in the spirit of being on a feminist bioethics podcast. I yeah, I just I really would like to emphasize that thinking through these issues that involve really classical debates on the surface about autonomy and obligations and the limits of autonomy and people's preferences, you know, like I said, are so often entrenched in like a way deeper historical narrative. And I think it's part of like being a responsible bioethicists to note that kind of historical context. And in this case, noting that reproductive health care, especially for women of color, poor women of color, women in rural areas, etc, have faced such a lack of, of access. And I think that is something that should inform this debate directly, how we think about it and how we argue about it. And similarly, I think that applies to all sorts of issues in bioethics.
Thanks so much for speaking with me, Claire.
Yeah. Thank you so much, Kathryn. It's been so fun.
Agreed. And thank you, everyone for listening to this episode of FAB gab. You can find Claire's paper linked in this episode's notes along with the transcript. Fab gab is hosted and produced by me Kathryn MacKay. You can find her other episodes on Spotify, radio public, or wherever you get your podcasts with quality. Thanks again for listening. Bye