Conscience as contract. Conscience as covenant.
This essay is oriented in two main directions. First, I will provide a working definition of conscience. (1) Second, I will develop two ways of thinking about the outworking of conscience in the patient-physician relationship that Professor Sepper has not adequately accounted for in her application of conscience to certain state refusal regulatory schemes: one, a conception of the doctor-patient relationship grounded in contract (2) and two, the relationship grounded in the richer concept of covenant. (3)
First, it is important to define the term that is the pivot point for conscientious refusals to provide healthcare goods and services. If one were to look under the hood of the word "conscience," one would see three important characteristics. The first characteristic encapsulates the sacred space in which a person holds safe her most closely-held values and makes her most important judgments. Here, it is instructive to draw upon the great German Reformer, Martin Luther. Many are familiar with the most famous line of Luther's religious trial before the Imperial Diet of Worms in 1521, usually recorded as: "Here I stand. I can do no other. God help me. Amen." (4) However, in this same monologue, Luther made a couple of arresting statements about conscience. He confessed, "my conscience is captive to the Word of God." (5) Luther was bound by the Gospel and could do nothing but proclaim it in (what he thought was) its unvarnished state. He was completely hemmed in by it and could do nothing that was in violation of it or that added to it. (6) Luther was formed by his conscience. His habits, his ways of thinking, his actions, and his relationships were all filtered and reflected through this lens of conscience as the Word of God. (7) The second, and equally important, characteristic of conscience is that it is a guide for the conscience holder. Luther went on to state in his plea before his jury that "it is neither safe nor sound" to abrogate one's conscience. (8) In this sense, conscience served as the narrow road on which Luther had to walk. He was faced with a choice between walking down the path that his conscience, formed by the Word of God, provided for him, or falling into the pit of religious conventionalism and error that he was fighting against. (9) The third characteristic of conscience is derived from the word "safe" that is particularly striking in Luther's statement. To violate his conscience, recant, and then slide into obscurity under his accusers' thumbs would be to do violence against himself. It would be to harm himself, the actor. (10) This, Luther was not willing to do.
I will grant that my use of Luther the Reformer is idiosyncratic, and that his context is temporally divergent from our con text here. But the lessons of Luther's conscience have traction for contemporary physicians who themselves must exercise their consciences when hard decisions must be made about treating or withholding treatment from their patients--decisions that are now protected at law. As an overall conception of conscience, these ideas borrowed from Luther--conscience as that which binds the physician, conscience as a clear path in the storm and fog of medical decision-making, and conscience as that which is perilous to violate --are important ones that can ground most any physician's professional practice. But first, I would like to examine two foundational premises upon which I believe Professor Sepper's remarks rest and why these premises do not adequately (or accurately) represent the state of the conscientious physician or religious hospital that takes a principled stand based on its values.
Professor Sepper concedes that medical services are different than any other services purchased in a free marketplace. (11) Perhaps this is surprising--or perhaps not--to most peoples' ears. After all, we like to think of our doctors as beneficent, compassionate, and allied with our own particular interests in wellness. (12) In fact, in some contexts, I suspect that we might even be happy with a bit of mild paternalism from our physicians--recognizing that they are experts in the human body and we are not. (13) In short, we are lucky if we have a special relationship with our doctors. We respect their expertise, and we would like to think that they actually care for us.
This relational image shared between doctor and patient is something to which I will return in my second point, because I think that it actually bolsters my case for conscientious refusal by the doctor; however, here I claim that the doctor-patient relationship --notwithstanding the comforting and trust-filled elements fostered in the relationship--is actually one built upon the foundation of contract. (14) Contemporary contract theory has been perverted by libertarians like Richard Posner who claim that a contract means nothing more than what a breaching party is willing to bear in damages in order to secure a "better" deal. (15) In contrast, what is central to the best of modern contract theory is this: something real is created when parties agree on an exchange; indeed something "moral" is created--the parties have invested their respective free wills to help coordinate competing interests in society, thereby co-creating a new thing called the "contract." (16) Importantly, this new moral enterprise functions only upon the parties' ability to freely and completely exercise will, judgment, and discernment "on the front end," as it were. Students of contracts will recognize this as the Objective Theory of Contract. (17)
Here, then, is the application: generally speaking, the doctor is free to enter into a contract with a patient, and a patient is free to enter into a contract with a doctor. (18) A great deal of contemporary health law is built on the premise that the patient and the doctor freely enter into their relationship with each knowing their respective responsibilities up front--the doctor to provide agreed upon treatment, and the patient to pay for those services. (19) Of course, much of the texture and richness of the case law that has developed around this premise focuses on doctors failing to perform contracted services. (20) And this is, ironically enough, where I think Professor Sepper and I agree. If the doctor is to exercise his rights in conscience he should give wide berth to his counterparty, the patient. The patient should know before treatment begins what the doctor will do and will not do for the patient. (21) To the extent that the patient and the physician are well into their professional relationship and only then does the doctor tell the patient that he will not perform an abortion (or more likely prescribe abortofacient contraceptives), that could prompt a charge of (at least) unfairness by the patient. The patient might claim: "How was I supposed to know that my doctor wouldn't provide my abortion? I received other prescriptions from my doctor; I'm blindsided by his refusal to write this particular, prescription for me." At this point, the disaffected patient who was blindsided by the sly doctor, who retreats into a claim of conscience, should perhaps press her claim in breach of contract. And at that point, the suit would bog down in a grudge match over the terms of the contract. (22) Quantifying damages would be fairly difficult to prove though, and under no circumstances would the doctor ever be forced--pursuant to any contract remedy--to do something that he did not want to do. (23)
Could the doctor alleviate this problem by forthrightly telling the patient at the beginning of the treatment relationship that he will not do any procedure that he finds ethically objectionable? (24) This might be an (in)elegant work-around to the problem identified above. It would not necessarily mollify the patient's disappointment, but it would put the patient on notice that there are some lines that the physician will not cross. (25)
The Objective Theory of Contract is a two-way street. If the doctor has an obligation to dutifully notify his patient about objectionable procedures, so does the patient have an obligation to demand procedures when the desire for those procedures are formed, and no later. If the procedures are both desired and requested before the treatment relationship has been formed, then all the better. The doctor can refuse the request for treatment and thereby prevent formation of the contract. The harder case, as identified above, is when the patient and physician have maintained a long-standing treatment relationship and the request for abortion or abortofacient contraceptives is introduced in the relationship. (26)
At this point, it is also important to recognize that many times the doctor exercises her conscience in a value-laden institutional context. It would be wrong, I think, to claim that religious hospitals and other value-oriented institutional healthcare providers have a "conscience" or themselves "exercise conscience." However, these facilities do deliver healthcare based on their collective missions. (27) Thus, it seems that a patient's relationship with an institutional provider is much like that between the doctor and patient. Ideally, the patient would know the institution's value orientation before availing herself of that institution's services. As in the physician context, most issues with an institution's conscientious refusals can be alleviated by clear communication of institutional values before admission to the institution. (28) Even in end-of-life contexts, when the patient has been an inpatient in the hospital for several days or weeks before the hard decisions to discontinue life-sustaining treatment are made, institutions are in an even better position to communicate their values to patients so that patients can make a considered choice to receive care at the religious hospital or somewhere else.
I have one last word about contracts and conscience. As you have now seen, for a contract to be a real contract, one that is based in freedom and mutuality, there can be no coercion by either party. (29) Furthermore, for a contract to be a real contract, there must be real alternatives to entering into the contract from both parties' perspectives. That is, before entering into the instant contract, a party must feel free that she can walk away from the negotiating table and do something else. This is what I see happening more often in the abortion and abortofacient contraceptive instances, and less so in end-of-life cases. Professor Sepper cannot make the claim (nor do I think that she actually does) that a woman must have an abortion provided from the physician who exercises conscientious refusal OR she will completely miss out on the desired service. (30) And at this point, let me be clear--no one today is seriously arguing to ban abortion or the dispensing of abortofacient contraceptives. Nor is anyone arguing that physicians should be prohibited from making tough calls regarding the removal of life-sustaining medical treatment in appropriate cases. (31) Rather, what I am arguing is that the marketplace for abortion and abortofacient contraceptives is rather robust. (32) If a patient cannot get the services she desires from one physician who conscientiously objects to providing the services, other physicians are able and willing to provide those services. (33) I have not seen any empirical studies showing a pervasive "detrimental" effect on a woman's ability to procure an abortion or abortofacient contraception should she sincerely desire those services, notwithstanding Professor Sepper's anecdote at the beginning of her lecture. (34) With well over one million abortions performed in the United States every year, it strains credulity to think there are bona fide access problems to abortion. Thus, a woman seeking an abortion or abortofacient contraceptives may not have the opportunity to have a certain physician perform that service, but she maintains alternative options important to the freedom of contract.
Medicine, like marriage, is more than a mere contract. (35) The relationship between patient and physician is a covenanted space--a protected society--in which the patient shares things with his doctor that he might not share with anyone else. Apart from marriage, it is hard to think of a more intimate relationship. We (reluctantly) share things with our doctors that we do not share with our friends, even our close friends, and maybe even our spouses. The knowledge that a doctor has of our bodies rivals only the knowledge that a spouse has--in the biblical sense. (36) It is interesting to note that the historical learned professions--clergy, lawyers, and doctors--all enjoy evidentiary privileges at law because of the confidences they receive from their penitents, clients, and patients. (37) Because the doctor has this knowledge, and indeed, this power, over his patients, it is incumbent upon him to be the prime mover in the treatment relationship to build trust--one of the prime characteristics upon which any covenanted relationship is based. (38) But even beyond trust, we expect our doctors to sublimate their own self-interests in favor of the patient's interest(s).
This last point, of course, is a real nub of contention in doctor-patient relationships in which conscience is exercised. Professor Sepper argues that the exercise of conscience by a physician is not entirely encapsulated by the dispassionate exercise of considered judgment combined with strongly-held values (which is what is best about conscience), but rather disparities balanced in favor of the doctor against the patient. (39) It is in the exercise of conscience that the doctor's real self-interest is exposed, and he exercises his will over the patient, who is bereft of choice and is stuck with her condition. (40) The answer, it seems to me, is that this is an unwinnable argument for the doctor. The patient can always claim that the doctor is being heavy-handed by foisting his personal choices upon the patient. Indeed, the patient might even argue that the physician oppresses her and delegitimizes her very self by making decisions that ultimately should be controlled by her alone. Nevertheless, there is no way around this potential conundrum except for the patient finding another doctor or healthcare facility whose demands of conscience align with the patient's own. (41)
Rather, the doctor-patient relationship is a covenant relationship that is an extension of a larger covenanted relationship that the doctor has with medicine itself and the public. Physicians are grounded in a moral code that reaches back well over two thousand years to the time of Hippocrates who required all of his disciples to swear that they would not prescribe an "abortive remedy." (42) Of course, one could criticize the legitimacy of Hippocrates and his Oath that has undergirded much of Western medicine up until the latter part of the twentieth century by noting that the same Oath proscribes Hippocratic physicians from performing surgery. (43) The argument goes that we have long since outgrown the quaint limits of one part of the Oath, and we have more recently outgrown the quaint limits of another part of the Oath (the proscription against abortion).
I would commit, I think, a rather large logical fallacy to argue that just because doctors have been groomed in the Hippocratic tradition and its vestiges remain among today's practitioners, physicians should be allowed to depend on this tradition as a crutch or excuse to not provide services when demanded. (44) And if that is the argument, then I agree. History is not normative by itself. It is (very) persuasive by itself, but not necessarily normative. What is normative, I submit, is the type of tradition at play. When I say that the Hippocratic tradition within medicine is a "tradition bound" set of practices, I am thinking of it in terms of Alistair Macintyre's view of tradition-laden practices: those recursive practices and goods that are always seeking refinement and clarity. (45) But in the case of the Hippocratic Oath, and its call to covenant between doctor and patient (and call that the doctor should foreswear abortion), there is something about this "Tradition-bound" practice that is attractive--because it is true. Here we have something like the Catholic Church's argument for Tradition--it should be followed and obeyed because there is something intrinsically true about it. (46)
What does this have to do with medicine? Everything, I submit. The entire point of medicine is wrapped up in the following aphorism that doctors intuitively know: their job is "always to care, never to kill." (47) Doctors reflexively know that their job is to nurture, foster, heal, and care. That the same person would devote part of his life to saving life and another part to destroying life is much like the analogy that James, the brother of Jesus makes in his Epistle when writing on the power of the tongue to edify or destroy: "Can both fresh water and salt water flow from the same spring?" (48) They cannot. Rather, the conscientious physician who refuses to provide abortion or abortofacient drugs takes the trust invested into him by the patient and then exercises his considered judgment to forego providing services that violate himself and ultimately his patient.
Conscience, writes Professor Sepper, is bound up with ideas of morality. (49) Certainly, this is true. Martin Luther believed that conscience was inexorably tied to what was truest and dearest about him: his proclamation of the unvarnished Gospel. However, morality cannot fully capture the meaning of conscience, particularly as the term is applied to thorny medical decisions, like procuring an abortion or abortofacient drugs. Indeed, conscience is much greater than a moral norm and must include legal norms like contract. When contract is defined as the agreement between free parties, one recognizes a richer context for conscience--that the parties have agreed to those treatments and procedures that they have agreed to, and no more. In this sense conscience is cooperative between the patient and the physician, for each party to the treatment relationship should know the other's expectation. Yet contract, like morality, is not itself the full expression of conscience. Covenant, a concept that exceeds and deepens contract, contributes to our understanding of conscience. Physicians who view their relationships in particular Hippocratic norms repose their skill into their patients, as their patients repose their trust in them. This trust-bound relationship is pointed in the direction of wellness, vitality, and life, and not in the destroying of the same.
(1) See infra Part II.
(2) See infra Part III.
(3) See infra Part IV.
(4) Elesha Coffman, What Luther Said, CHRISTIANITY TODAY (Apr. 8, 2008, 12:33 PM), http://www.christianitytoday.com/ch/news/2002/aprl2.html (quoting church historian Scott Hendrix's appraisal that "[h]ere I stand" is the usual rendering of Luther's famous quotation). But cf. id., (quoting from eminent Reformation historian and Luther biographer, Heiko Oberman, who renders Luther's monologue without the "[h]ere I stand" quote).
(5) Id., (quoting from Oberman's rendering of Luther's monologue).
(6) See, e.g., ROLAND H. BAINTON, HERE I STAND: A LIFE OF MARTIN LUTHER (Abingdon Classics 1991) (1950) (accounting in readable detail Luther's fidelity to God's Word as he read it).
(7) See id. at 166 (with Luther claiming confidence in the Word of God after his return to Wittenburg from the Diet of Worms).
(9) See generally id. at 51-166 (detailing Luther's fight against the doctrines and practices of the Roman Catholic Church).
(10) See id. at 129-48 (detailing Luther's hearing before the Diet of Worms).
(11) See generally Elizabeth Sepper, Not Only the Doctor's Dilemma: The Complexity of Conscience in Medicine, 4 FAULKNER L. REV. 385 (2012) (consistently using the word "moral" or a derivative to describe the relationships between patient, doctor, and health care facility).
(12) See TOM L. BEAUCHAMP & JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL ETHICS 259-325 (4th ed. 1994) (using the language of "beneficence").
(13) See id. at 271-84 (discussing various approaches to paternalism in the medical con text).
(14) See Childs v. Weis, 440 S.W.2d 104,105-06 (Tex. Civ. App. 1969).
(15) See Richard A. Posner, Common Law Economic Torts: An Economic and Legal Analysis, 48 ARIZ. L. REV. 735,743-44 (2006).
(16) See Steven R. Salbu, Evolving Contract as a Device for Flexible Coordination and Control, 34 AM. BUS. L.J. 329 (1997) (analyzing the coordinating effects of contract); see also JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 244-49 (1980) (proposing that government authority itself works to coordinate the actions of members of the community). But see Gregory Klass, Intent to Contract, 95 VIRGINIA L. REV. 1433, 1437-38 (2009) (stating that the rule from the RESTATEMENT (SECOND) OF CONTRACTS holds that intent is not needed to establish a contract).
(17) See generally Wayne Barnes, The Objective Theory of Contracts, 76 U. CIN. L. REV. 1119 (2008).
(18) See, e.g., Stewart v. Rudner, 84 N.W.2d 816,822 (Mich. 1957).
(19) See, e.g., Henson v. St. Paul Fire & Marine Ins. Co., 354 So. 2d 612,615 (La. Ct. App. 1977).
(20) See, e.g., Day v. Harkins & Munoz, 961 S.W.2d 278,280 (Tex. App. 1997) (physician committed malpractice while treating the patient within the confines of the contracted relationship).,
(21) This is a call for explicit contracting at the beginning of the physician-patient relation ship. This would be a significant change for many, if not most, physician-patient relationships, which form on an implicit contract basis. See Stutes v. Samuelson, 180 S.W.3d 750, 753 (Tex. App. 2005). Further, in this section I am considering more the goods and services that physicians would affirmatively refuse to provide like abortion or abortofacient contraceptives, and not necessarily services that physicians would negatively refuse to provide, such as withdrawing life-sustaining treatments.
(22) Conscience-based contract claims sounding in breach of contract should be difficult to press in implicit contracts between patients and physicians. Either the physician will refuse a patient imploring to commence a relationship because the physician does not want to do or will prescribe the thing requested by the patient; or, the physician will refuse after the implied-contracted relationship is underway, claiming that the service requested is not one of the terms of the implicit contract. For a commentator who endorses pre-treatment, explicit contracting over the services provided by the doctor to the patient in situations otherwise governed by a physician's conscience, see Bruce Patsner, Refusing to Treat: Are There Limits to Physician "Conscience" Claims?, HEALTH LAW PERSPECTIVES 5 (2008), http://www.law.uh.edu/healthlaw/perspectives/2008/%28BP%29%20conscience.pdf; see id. at 2-5 (discussing N. Coast Women's Grp. v. San Diego Super. Ct., 44 Cal. 4th 1145 (2008) (in which a physician's conscience claim was denied on public accommodation grounds)).
(23) See, e.g., SeaEscape, Ltd., v. Maximum Mktg. Exposure, Inc., 568 So. 2d 952, 954 (Fla. Dist. Ct. App. 1990).
(24) This sentence makes two assumptions: (1) that, in the ambulatory medicine contexts, patients generally do not sign informed consent forms that detail all the drugs and/or services that the physician will not provide for the patient; and (2) that, in the inpatient context, the patient will already have been admitted to the hospital for another condition/illness, and only after admission, the patient would demand a service the hospital would be unwilling to provide. As Professor Sepper discusses in her article, yet another context in which patients and facilities face conscience conundrums is the emergency context. See Sepper, supra note 11, at 396.
(25) See Patsner, supra note 22, at 5.
(26) This section considers the discreet proposition that conscientious refusals in medical contexts should be filtered through the concept of contract. It is important to note that there are other contingencies weighing on the physician-patient relationship that might tie the physician to the patient. See Patsner, supra note 22, at 1.
(27) See generally Michael J. DeBoer, Religious Hospitals and the Federal Community Benefit Standard Counting Religious Purpose as a Tax-Exemption Factor for Hospitals, 42 SETON HALL L. REV. 1549 (2012). Sometimes physicians and hospitals working together can exercise their respective wills to themselves desire to end a patient's life against the patient's or family's wishes. See also Thaddeus Mason Pope, Medical Futility Statutes: No Safe Harbor to Unilaterally Refuse Life-Sustaining Treatment, 75 TENN.
L. REV. 1 (2007) (discussing medical futility and the physician's and health care facility's place in withdrawing life-sustaining treatment).
(28) See Sepper, note 11, at 409-10 ("As a corollary, [health care providers] should disclose the limits on the services they are willing to provide").
(29) See Mo. Pac. R.R. Co. v. Fields Bros., 203 S.W. 1036, 1037 (Ark. 1918).
(30) Michael DeBoer makes the claim that a provider's refusal, including conscientious refusal, to provide/perform certain services serves as a "boundary" that delimits the patient-provider relationship. See Michael J. DeBoer, Access Without Limits? Revisiting Barriers and Boundaries After the Affordable Care Act, 44 CONN. L. REV. 1239, 1271-77 (2012).
(31) See, e.g., Pope, supra note 27, at 6-26 (discussing, inter alia, the tension present when physicians and health care facilities want to remove life sustaining treatment from a patient).
(32) See Facts on Induced Abortion in the United States, GUTTMACHER INST. (Aug. 2011) http://www.guttmacher.org/pubs/fb_induced abortion.html (claiming 1.21 million induced abortions were performed in the United States in 2008).
(33) But see Sepper, supra note 11, at 409 (citing statistics showing a small percentage of all obstetrician-gynecologists who are abortion providers).
(34) See id. at 385 (anecdote about Dr. Willie Parker).
(35) See JOHN WITTE, JR., FROM SACRAMENT TO CONTRACT (2d ed. 2012) (describing changes to Western conceptions of marriage).
(36) See Genesis 4:1 (King James) ("And Adam knew Eve his wife; and she conceived, and bare Cain, and said, I have gotten a man from the LORD").
(37) See, e.g., Skinner v. State, 920 N.E.2d. 263,266 (Ind. Ct. App. 2010); People v. Carmona, 82 N.Y.2d 603,607 (1993) (clergy-penitent privilege); Farkas v. Orange Regional Med. Ctr., 948 N.Y.S.2d 651,654 (App. Div. 2012) (physician-patient privilege).
(38) See Mark A. Hall, Law, Medicine, and Trust, 55 STAN. L. REV. 463 (2002) (physicians and trust).
(39) See Sepper, supra note 11, at Parts II and Part IV.B.
(40) See id. at Part IV.B.
(41) See id. at 393,400 (in which Sepper describes abortion and abortofacient drugs as routine, necessary healthcare). Physicians who conscientiously refuse to provide elective abortions or write prescriptions for abortofacient drugs (or pharmacists who refuse to fill those prescriptions) quite obviously disagree with Sepper's foundational assessment that these services are necessary.
(42) ON MORAL MEDICINE: THEOLOGICAL PERSPECTIVES ON MEDICAL ETHICS 223 (M. Therese Lysaught et al. eds., 3d ed. 2012) (discussing "The Hippocratic Oath").
(44) See id. at 224 (discussing a Christian re-write of the Hippocratic Oath). But see, Peter Tyson, The Hippocratic Oath Today, NOVA (Mar. 27, 2001) http://www.pbs.org/wgbh/nova/body/hippocratic-oath-today.html (providing a contemporary re-write of the Hippocratic Oath against its ancient forebear).
(45) See ALASDAIR MACINTYRE, AFTER VIRTUE 204-25 (especially 221-22) (2d. ed. 1984).
(46) Pope Paul VI, Dogmatic Constitution on Divine Revelation Dei Verbum, VATICAN.VA (November 1995) http://www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vatii_const_19651118_dei-verbum_en.html.
(47) A powerful rendition of this statement can be found in Hadley Arkes et. al., Always to Care, Never to Kill, FIRST THINGS, (Feb. 1992), http://www .firstthings.com/article/2008/01/006-always-to-care-never-to-kill-36.
(48) James 3:11 (NIV).
(49) See Sepper, supra note 11, at Part II.A.
Jeffrey B. Hammond, Associate Professor of Law, Faulkner University, Thomas Goode Jones School of Law. I would like to thank Ashley Norgard, Spencer Kyle, Samuel White, and all the others from the Faulkner Law Review staff who made our initial Symposium a success. Elizabeth Sepper provided a very thought provoking lecture to which to respond. It was a distinct pleasure and honor to respond to Professor Sepper's prepared remarks and subsequent Article. I would also like to thank John Witte's wife, Eliza Ellison, and his associate at Emory's Center for the Study of Law and Religion, Amy Wheeler, for traveling to be with us at the Symposium. Additionally, I owe a special word of thanks to my colleagues, Michael DeBoer, for hosting the Symposium and for reading an earlier draft of this brief essay and Matt Vega, faculty adviser to the Faulkner Law Review, for providing leadership to make the Symposium possible.
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|Title Annotation:||Faulkner Law Review Symposium|
|Author:||Hammond, Jeffrey B.|
|Publication:||Faulkner Law Review|
|Date:||Mar 22, 2013|
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