Not only the doctor's dilemma: the complexity of conscience in medicine.
Over the past several years, conscience has become a national catch phrase, invoked regularly in health policy discussions. Rarely, however, do we hear about medical providers like Dr. Parker. Legislators do not seem interested in his conscientious judgments and the conflicts that might develop if a hospital denies him admitting privileges for his conscientious acts or interferes in his treatment of patients.
Instead, the word "conscience" often stands in for refusal to deliver abortions or contraception or to remove or withhold life support. Reported refusals cut across a large range of care, including condoms as part of HIV counseling, circumcision, fertility treatments, and pain management, to name a few. (3) In the last year, employers and insurance companies asserted a right of "conscience" against contraceptive insurance coverage required by the Affordable Care Act. (4) A group of nurses filed suit against a New Jersey hospital where they work, stating their consciences would not allow them to care for patients who had had abortions? The U.S. Congress spent its time proposing legislation, entitled "Respect for Rights of Conscience Act," that would have permitted any person or entity to refuse to provide any care even if the refusal results in a person's death. (6)
In discussions of conscience, one hears commentators baldly assert that no one should be forced to violate his or her conscience. (7) Instead, it is claimed, doctors and nurses should be able to freely refuse to provide any medical help to which they object. Hospitals, clinics, and insurance companies similarly should be able to set moral or religious policies against providing (or paying for) controversial care.
Conscience, however, is not so one-sided. Nor is medical decision-making so straightforward. First, medical decisions-especially those involving questions of life and death--inspire divergent moral convictions. Second, as I will explain, medical decisions do not simply implicate conscience for the provider. They should be thought of instead as involving, at minimum, three parties: patients, providers, and institutions. This three-sided relationship complicates moral decision-making, with each party asserting potentially conflicting claims. Third, I will describe how lawmakers have responded to conflicts over medical decisions. Finally, I will argue that existing legislation fails to measure up to its purported goals of protecting conscience, risks harm to patients, and destabilizes ethical decision-making within medicine itself. I conclude with a few thoughts on principles people who genuinely care about conscience might commit to in order to improve the law's approach to morality in medicine.
I. CONFLICTS OF CONSCIENCE IN MEDICAL DECISION-MAKING
Medicine presents moral questions that few people encounter in their day-to-day lives. (8) Many decisions involve multiple options with no single correct choice. (9) For example, the consideration of "quality of life" requires a judgment that may vary according to how each person defines a good, or sufficient, life. Advances in modern medicine also may challenge historical and religious concepts of life and death. Today, a patient in a persistent vegetative state may survive for decades. For the elderly, the dying process can be prolonged indefinitely, sometimes inflicting great pain. Extremely premature babies who once would not have lived can now be saved. These issues--especially those involving questions of life and death--may invoke conflicts of conscience for patients and providers alike.
A brief definition of conscience is in order. Conscience cannot be equated to religion. It is significantly broader, informed by education, experience, and introspection. Through the process of conscience, a person identifies moral principles, assesses context, and decides whether to commit or omit a particular act. (10) Conscience is not mere application of rules. The person who says "my religion tells me 'do not work on Saturdays'; hence I do not work on Saturdays" is not expressing conscience. The unexamined, unthinking life does not represent conscience. Instead, conscience requires examination and judgment. Acts of conscience take place when that person is informed by specific circumstances. (11)
Conscience has real importance because it is closely related to one's moral integrity or sense of self. While some humans are more conscientious than others, every one of us has a conscience. Although individuals will disagree over fundamental questions of morality, each experiences conscience in determining the morality of his or her own actions. To be clear, conscience is more meaningful than adherence to a pro-life or pro-choice political position. As Dan Brock argues, conscientious judgments "define who, at least morally speaking, the individual is, what she stands for, [and] what is the central moral core of her character." (12) This concern for moral integrity has prompted attempts to resolve conflicts of conscience in medicine.
Given the centrality of conscience to the human experience, we should consider how conflicts of conscience take place. A conflict of conscience, by its nature, involves a dilemma that requires the individual to choose between conflicting moral demands. (13) It may be experienced retrospectively, generating guilt or regret, or prospectively, generating a sense that failure to resolve these conflicting demands will risk one's sense of self. (14) For instance, a patient's relative may be torn between a duty to help the patient by ensuring he receives treatment, and a duty to not cause suffering by minimizing treatment.
These conflicts can emerge as a tug of war between doctors, patients, and institutions. (15) Patients and doctors may disagree over the appropriate decisions on ethical, moral, or religious bases. A nurse may oppose a physician's orders. When a hospital prohibits dispensing emergency contraception to sexual assault victims, a doctor may struggle to reconcile her duty to comply with institutional policies and her duty to do no harm to the patient. (16)
When are we likely to see these conflicts? They can occur in many unexpected areas. Doctors, for instance, have resisted demands of managed care citing moral obligations to their patients. (17) Dialysis for very sick or elderly patients reportedly causes many medical providers to experience internal struggles between their mandates to sustain life, on the one hand, and to relieve suffering, on the other. (18) Patients' religious values can collide with the judgments of medical providers over basic life-saving treatment. In the textbook case, a Jehovah's Witness, whose faith prohibits blood transfusions, insists on refusing blood even if she will die as a result. (19)
Most salient in the public imagination, however, are decisions about reproductive health and end-of-life care. Futility determinations are a classic example, relying on determinations about the nature of life and death. Take, for instance, the case of Sonya Causey. She was a young woman who was quadriplegic and in end-stage renal failure in a nursing home, when she suffered cardiorespiratory arrest and fell into a coma. Her family insisted on aggressive life-sustaining care. Her treating physician, by contrast, believed that continuing treatment was futile; with dialysis and a ventilator, Causey could live another two years, but would have a very small (1% to 5%) chance of ever regaining consciousness. The Louisiana court confronting these facts recognized that questions of "life-prolonging care [are] grounded in beliefs and values about which people disagree." (20) Where the physician could keep the patient alive, the care was not physiologically futile but might be futile "on philosophical, religious or practical grounds." (21) As the court said, at issue ultimately was "a conflict over values, i.e., whether extra days obtained through medical intervention are worth the burden and costs." (22)
II. THE THREE-SIDED RELATIONSHIP OF MEDICAL DECISION MAKING
We have seen that medical decisions raise thorny moral questions. These questions are further complicated by the fact that at least three parties may be involved in the decision-making process. In public policy debates, there is a tendency to think that the medical field's moral dilemmas are exclusive to the medical providers themselves. But doctors and nurses are not alone in confronting these complex issues; nor are they the only actors with a strong claim to preserve their integrity. Moral questions also implicate patients and healthcare facilities.
For a medical provider, the claim is to preserve one's own moral integrity. This claim resonates with the importance of sensitivity to moral issues for the practice of medicine. Although we tend to think of medicine and morality as inherently in tension with each other, ethical reasoning is in fact deeply embedded in the practice of medicine. As a profession that is largely self-regulated, medicine demands conscientiousness--that is, that physicians recognize the moral quality of their actions in order to do what is right and correct what is wrong. (23)
Through training and socialization, professional ideals become integrated with personal ideals, religious and otherwise, that physicians and nurses bring to bear when they encounter patients. (24) Doctors and nurses then may conscientiously evaluate the morality of every situation in light of their professional norms. From first principles such as "seek good and avoid evil," a doctor determines, for instance, the permissibility of keeping information from a patient. In another context, a nurse may judge conscientiously whether he or she is morally required to accede to a terminally ill patient's request for withdrawal of treatment. In practice, fostering moral reasoning can have benefits for patient care. Nurses, for example, report that acting conscientiously increases their sensitivity to patients' needs and encourages them to put patients first. (25)
For the patient, the second and key player in the three-part relationship, concern for moral integrity - in particular that care reflects one's own values--is joined to a weighty interest in bodily integrity. Common law and constitutional doctrines recognize patients' rights to control their medical treatments and to refuse even life-saving care. (26) Ensuring that the decision lies with the patient reflects the importance of both the bodily integrity and the autonomy of the patient. Of course, patients' value judgments may not coincide with the judgments of medical providers. Nevertheless, compromise is often possible when providers take time to understand patients' values and limitations. Sometimes, however, a fundamental conflict in moral judgment results in a stalemate where the doctor will not proceed as the patient requires.
Finally, a third party, the healthcare facility, also has some stake in the approach taken to medical decisions. A healthcare facility may seek to create a distinct institutional identity or express moral positions. Nursing homes, for example, sometimes care for residents in accordance with particular moral values. Orthodox Jewish nursing homes perform extraordinary measures to prolong life for dying patients in accordance with religious beliefs. An AIDS hospice devoted to gay rights similarly may make clear the moral mission of the institution, drawing patients and practitioners who share its perspective.
Numerous hospitals and other practices seek to limit care doctors may deliver, not for medical or financial reasons, but for religious or moral reasons. Such policies most commonly limit abortion, contraception, sterilization, and end-of-life care. Baptist and Seventh Day Adventist hospitals prohibit non-therapeutic abortions. Catholic healthcare has more wide-ranging restrictions and is distinguished by its size. (27) Doctors and nurses within Catholic facilities must comply with restrictions on a wide array of care, including reproductive and end-of-life care, and must limit information to "morally legitimate alternatives." (28) Many physicians work under religious or moral restrictions. Forty-three percent of physicians reported having practiced in a religiously affiliated institution during their careers, a large number of which had institutional policies of refusal. (29) Objections to legal, medically necessary care are not exclusive to religiously affiliated institutions; a number of for-profit, secular healthcare institutions also operate under religious restrictions. (30)
Where value-based conflicts arise in medical care, what is at stake for each of our three categories of actors is quite different. For the medical provider, it is a claim of moral integrity, to practice medicine in accordance with her judgments of right and wrong. For the patient, it is a claim of moral integrity as well; his conscience equally deserving of respect. His interests are magnified, however, because his bodily integrity is also at risk. For the institutional actor, the interests are more attenuated. Note that the institution is involved in medical decisions only indirectly. Hospitals and their administrators do not practice medicine. Indeed, the structure of medical staff requires that physicians have independence in the practice of medicine. (31)
Moreover, business organizations do not experience conscience. Conscience is intimately connected to human nature (32) and characteristics, such as consciousness of circumstances and ability to distinguish right from wrong. As artificial entities, business organizations cannot feel regret or guilt. Unlike each of us, they cannot reason or act without mediating agents. A business organization's interest might more accurately be understood as a claim to maintain an institutional identity in the face of countervailing judgments by providers and patients. (33) For instance, Catholic hospitals impose directives that prohibit doctors from performing abortions even when the woman's health (or sometimes life) is at risk. In effect, however, this amounts to merely following rules rather than making the nuanced, contextual judgments that conscience demands.
III. THE LEGISLATIVE RESPONSE TO MEDICINE'S MORAL DILEMMAS
At this point, we have a sense of the complexity of medical judgments and the ways in which conflicts can arise within the three-sided relationship. The question remains: is there a role for law to respond to these conflicts? I will now explore one area where federal and state legislatures have interposed themselves with full force in medicine's moral dilemmas: what is often called conscience legislation (or "conscience clauses").
Conscience legislation protects medical providers and healthcare facilities that refuse to provide particular controversial procedures for religious, moral, or ethical reasons. In almost every state, a doctor or institution may refuse to comply with a patient's request to withdraw or withhold life-sustaining treatment. (34) As one might guess, refusals to participate in abortions are also virtually uniformly covered. (35) In approximately one-third of states, contraception and sterilization, such as tubal ligations or vasectomies, also fall within the scope of legislation. (36)
The stated purpose of this legislation is the protection of the consciences of doctors and nurses. Legislation often bears the title "health care rights of conscience act." (37) Some statutory texts affirm "the rights of all individuals to pursue their religious beliefs and to follow the dictates of their own consciences." (38)
What are the effects of this legislation in practice? First, it imposes a duty on healthcare institutions to accommodate individual medical providers who refuse to participate in delivering controversial treatments. Institutions are prohibited from discriminating against refusing doctors and nurses in hiring, promotion, or staff privileges. (39) Second, the legislation prohibits government programs from discriminating against or penalizing refusing providers. (40) Finally, it immunizes refusing institutions and individuals from civil and criminal liability or professional discipline. (41) More concretely, a doctor faced with a patient in need of medical care may refuse to treat him or her without consequence--even if the patient is harmed as a result. The legislation extends beyond individuals to permit entire hospitals, healthcare systems, clinics, and practice groups to prohibit certain treatments based on moral, rather than, medical considerations. They can then require doctors and nurses to abide by institutional restrictions even when the restrictions conflict with their individual consciences. Under all but a few conscience clauses, care may be refused even in emergency situations. (42)
Over time, in some states, conscience legislation has grown to be even more expansive--again, purportedly in the name of protecting conscience. First, the number of procedures specified has increased. The broadest legislation permits objection to any medical treatment at all. (43) Second, some states allow a growing number of actors to refuse treatment. At the individual level, this has meant moving from direct providers like doctors and nurses to pharmacists, emergency medical technicians, orderlies, and so on. At the institutional level, protection has extended to a wide array of health facilities and even to insurance companies. (44) In effect, this broad institutional conscience legislation allows payers, not involved in providing controversial procedures, to nonetheless refuse to pay for them. (45) Third and relatedly, the text of some statutes allows for increasingly distant interactions to fall within permissible refusal. In Oklahoma, a nurse could refuse to take the blood pressure of a woman after she has had an abortion. (46) In Illinois, doctors may decline to "counsel, suggest, recommend, refer or participate" in "any phase of patient care." (47)
IV. LOOKING AT CONSCIENCE LEGISLATION WITH A CRITICAL EYE
Having surveyed the lay of the legislative land, I want to consider whether conscience legislation meets its goals--that is, does it actually safeguard conscience in medical decision-making? I submit that not only does existing legislation fail to measure up to its purported goal, but it also risks harm to patients and destabilizes ethical decision-making within medicine.
To be clear, looking critically at conscience legislation does not amount to forcing doctors to perform any particular procedure. Physicians' professional authority is such that even if conscience legislation did not exist, physicians would have no duty to perform any controversial procedure under normal circumstances. (48) Professional ethics generally allow conscientious refusal, provided the physician informs patients of their options and refers them for care. (49) Indeed, in order to preserve the ethical compact between patients and providers, state medical societies have opposed legislation enacting broad conscience protections. (50)
A. Fails to Protect Conscience
The first and central question is: does this legislation effectively safeguard conscience? The answer, I propose, is no.
The problem is two-fold. The first is that current legislation undermines conscience for those, like Dr. Parker, who are dedicated to delivering controversial procedures as a matter of conscience. It, instead, only protects those providers and facilities that refuse services. But what of the doctor who seeks to sedate a terminally ill patient to the point of unconsciousness to relieve pain, in accordance with the family's wishes? Why in the name of moral integrity do we defer to institutional policy that prohibits him from doing so? This leads directly to the second problem: the legislation assigns no weight to the conscience of the individual patient, because of its single-minded focus on the refusing provider. What of the family who wishes to withdraw treatment from their loved one? Similarly, when a rape victim seeks emergency contraception in good conscience, why does legislation sometimes allow hospitals and doctors to refuse for moral or religious reasons? Put simply, why are their moral judgments more important than hers?
1. Creates Conflicts of Conscience for Willing Providers and Institutions
I would like to explore each of these problems in turn. As to the first, legislatures have failed to acknowledge that conscience is not equivalent to an anti-abortion or anti-withholding-of-life-support position. As a result, legislation recognizes claims of conscience for refusing providers and institutions alone. (51) Nurses can refuse to participate in removal of life support, even though the employer would otherwise require it. Doctors unwilling to provide controversial services must be accommodated by facilities that permit or support such services. At the same time, refusing healthcare facilities can prohibit sterilizations following Caesarean sections and require staff and patients to go along with the restrictions.
But conscientious judgments of individual providers are not so one-sided, especially where questions about the nature of life and death are involved. For some doctors and nurses, the decision to provide abortion, contraception, and compliance with patients' wishes for end-of-life care implicates deeply felt moral, ethical, and religious values. (52) These providers may be constrained by conscience to perform these procedures, irrespective of the consequences. Some nurses invoke religious beliefs in favor of withholding care and indicate that God would not want patients to suffer the way that they do. (53) Others explain their participation in assisting in suicide in moral terms. (54) Even people of the same faith may disagree over right and wrong when it comes to healthcare. The vast majority of American Catholics, for example, reject the Church's prohibitions on contraception. (55) Despite headline-grabbing opposition to contraception from some prominent evangelical preachers, seventy-five percent of evangelical women say that they use birth control, and ninety-one percent of evangelicals believe that birth control is morally acceptable. (56)
Because existing legislation overlooks the diversity of moral beliefs, it simply shifts conflicts of conscience. It creates a new tension between providers who seek to deliver care and institutions that limit care for moral, not medical, reasons. This is not an abstract problem, but one that affects one in five physicians who practice at religious hospitals, (57) and a full fifty-two percent of ob-gyns in Catholic hospitals. (58) For instance, Catholic healthcare facilities prohibit dispensing condoms; yet, for a religious nurse who determines life is inviolable, conscience might lead him to give condoms to his HIV-positive patients to preserve the lives of others --setting him up for a conflict with his employer. In this case, under conscience legislation, the institutional interest--that is far from the human experience of conscience--wins out over the individual's conscience. In stark contrast, institutional interest is not valued when a healthcare facility seeks to deliver controversial care as a matter of morality or religion. For instance, despite a moral commitment to ensure women's access to all necessary care, a clinic would have to permit a doctor to refuse to provide abortions.
2. Overlooks the Patient's Moral Integrity
The one-sided protection of refusing providers and institutions sets up this initial asymmetry. But there is a second, related problem: existing legislation treats the conscience of the refusing provider as an overriding value without considering that conscience also hangs in the balance for patients. According to this viewpoint, the physician, rather than the patient, is the moral agent because only she can deliver medical treatment. (59)
Yet, the patient has at least an equal if not stronger interest in preserving his moral integrity in medical decision-making. Patients make conscientious judgments to seek contraception, abortion, or fertility treatments, or to ensure compliance with their wishes about death.
Religious faith can motivate patients' decisions to seek contested procedures. To give just one example, in New York, a religious brother fell into a persistent vegetative state, following cardiac arrest. He had carefully considered withdrawal of life support and made the determination "not to have his life prolonged by medical means if there were no hope of recovery ... supported by his religious beliefs and ... not inconsistent with his life of unselfish religious devotion." (60) Despite the patient's clear conscientious judgment on the subject, the healthcare facility resisted withdrawing life support--a decision that modern conscience legislation would allow.
B. Licenses Harm to Patients
So, that is my first critique: the legislation's effect on conscience is not so benign; rather, it sets up new conflicts for willing providers and institutions and overlooks the consciences of patients.
My second critique stems from the reality that patients' concerns go well beyond the metaphysical interest in moral integrity that they share with medical providers. A patient's body is itself the site of disagreement. Her agency and control over it are at stake. Some proponents of conscience legislation describe the effect on patients denied treatment as "mere inconvenience." (61) In so doing, they disregard the risk of harm from refusal. A woman who seeks an abortion may be harmed by self-induced labor or by carrying the pregnancy to term. A chemotherapy patient denied information about preserving his future fertility may never be able to have biological children. If providers are unwilling to honor his advance directives indicating minimal comfort care, a terminally ill patient may suffer having his ribs broken during CPR. Psychological and dignitary damages can also be substantial. Consider, for example, refusal to dispense emergency contraception. It suggests that society does not value a woman's ability to make decisions about her life and her body. (62)
Indeed, conscience legislation licenses harm to patients. As we have seen, most statutes immunize refusing providers from civil and criminal liability and professional discipline for injury to patients. (63) In effect, patients harmed by refusal have no recourse.
Immunity goes far beyond what is necessary to protect the moral integrity of medical providers. It destabilizes the medical profession's duties to do no harm and respect patient autonomy. It endangers the very trust upon which the profession relies.
Several statutes go so far as to countenance deception, permitting refusal to give patients information about their diagnosis and options or referrals to providers who can help. (64) The most expansive version, which has been adopted in Mississippi and proposed in more than fifteen states, protects refusal to participate in "patient referral, counseling, therapy, testing, diagnosis or prognosis" for any medical treatment at all. (65)
Reflect for a moment on the expansive scope of this legislation. A nurse who thinks gluttony is a sin could refuse to treat diabetics or even to give patients information about the disease. A doctor could simply not tell a patient about a positive HIV test. These actions could generate no tort liability, no professional discipline, and no adverse employment action.
When an entire institution refuses to deliver common medical procedures, like contraception and abortion, the risk to patients is further magnified. First of all, access becomes a more significant issue. Patients' choice of a healthcare facility is more limited than their choice of an individual doctor. In many parts of the country, only one hospital is accessible. (66) Even in communities with more than one hospital, the wave of hospital mergers can mean all nearby hospitals operate under religious restrictions. Managed care may further require patients to receive treatment from a specified institution. Second, hospitals in particular deal with emergencies in which patients' interests are at their apex. More acute hardships befall a patient when hospitals deny or delay care in emergencies, such as rape, ectopic pregnancies, or health-threatening conditions during pregnancy.
C. Encourages Refusal Unrelated to Moral Reasoning and Impedes Ethical Development
As we have seen, conscience legislation fails to achieve its stated purpose, only protecting conscience inconsistently and incoherently. It is under-inclusive with regard to willing providers and patients alike. It also systematically undervalues patients' interests in bodily integrity.
At the same time, the legislation is over-inclusive, sweeping in refusal for reasons unrelated to conscience. So doing, it short-circuits ethical discussion and development within the medical profession.
As it exists, conscience legislation encourages refusal, not conscientious judgments. Most statutes consider conscience the motivating factor in all refusals. (67) Few define or limit the grounds on which providers can claim conscientious objection. None set forth a test for differentiating between refusals that should be respected and those that should not. (68)
Yet, not all refusals to participate in care are based on conscience. Certainly, insurers' refusal to cover treatments that they deem ineffective, unnecessary, or inordinately costly is not conscientious. Even with regard to abortion, the most-contested treatment, many providers' decisions to decline have little to do with conscience and moral integrity. (69) Instead, they cite physical safety, fear of controversy, low professional esteem, and lack of support. (70) Their refusals are treated, nonetheless, as though they were conscientious.
Ethicists Christopher Meyers and Robert Woods describe the experience of a California county hospital which bears a legal obligation to provide abortions to incarcerated women. (71) Faced with requests to perform a second trimester abortion, all of the physicians simply signed a form, as required by state conscience legislation, stating that they hold "a moral, ethical, or religious objection." (72) Upon inquiry, one expressed concern that participation might cost him patients at his fertility clinic. (73) Another wanted to limit his practice to gynecology, rather than obstetrics. (74) A third admitted he did not want to become an abortion provider because it is not lucrative. (75) The final physician came closest to expressing a moral objection, stating that second trimester abortions are "complex and frankly ugly." (76) None of the objections clearly involved moral reasoning, but they were all accepted as conscientious. (77)
This approach risks suspending ethical development altogether. When disagreements arise among a patient, provider, and healthcare facility, a refusing provider's appeal to conscience becomes a "cloture of debate." (78) After invoking conscience legislation, a nurse in the ICU will no longer encounter terminally ill patients requesting palliative sedation; she will not test her judgments or face circumstances that challenge her convictions. Yet, being a person of conscience means doing exactly that--consulting one's conscience and being receptive to change. (79) As one ob-gyn tells it, her training in a hospital that provided abortions opened her eyes to patients' realities and prompted her to adopt a more nuanced view of the morality of abortion. (80) Although she ultimately did not go on to provide abortions, she describes herself as better able to care for the patients she sees. (81) Conscience legislation, by contrast, corresponds to a view that "conversation is somehow dangerous." (82)
D. Uncloaking the True Goal of "Conscience" Legislation?
Existing legislation both neglects to protect sincere acts of conscience and encourages opportunistic refusals. It seems particularly inept if its purpose is to protect integrity, as it focuses on the content of the moral conviction rather than the integrity of the moral actor. (83) Just as a policy of vouchers only for Christian schools does not further religious freedom, current conscience legislation does not successfully preserve moral integrity.
An alternate explanation is that the true purpose of this legislation is to make abortions, family planning, and end-of-life care more difficult to obtain. If this is the goal, conscience legislation should be considered a success. Conscience clauses contribute to a legal landscape of diminishing access to abortion and of opposition to family planning services. Permitting institutions to impose moral restrictions on medical providers further reduces the number of physicians able to deliver care, and leads to an overrepresentation of morally restrictive views. For instance, though approximately twenty percent of hospitals require compliance with Catholic prohibitions on artificial insemination and in vitro fertilization, fewer than five percent Of ob-gyns object to performing these procedures. (84)
If conscience statutes are simply another battleground in the abortion wars, the legislators responsible for them are deeply cynical. They cloak their resistance to common and legal medical procedures in the language of conscience but are not truly committed to it. For people genuinely interested in achieving moral integrity in professional and personal life, this conclusion is disturbing. I fear, however, that it is inevitable when one looks to some of the latest iterations of the conscience debate. Assertions that insurance companies have consciences like human beings, for example, would be laughable were they not so pernicious in imposing corporate values on insured people. In such cases, we should recognize the true goal of legislation for what it is--hostility to reproductive health and patients' interests.
V. A CALL FOR LEGISLATIVE MODESTY
Nonetheless, I continue to think that morally serious people with differing opinions may indeed be interested in safeguarding conscience. The existence of sincere conscientious judgments on the part of some willing and refusing providers and their patients calls for us to continue to grapple with this issue, to consider whether there is a role for legislation, and to ask how, if at all, law should intervene to protect moral integrity in medical decisionmaking.
If this were a binary conflict between the state and the provider, the solution might be fairly straightforward. The state could cede to the individual's sincere and proven interest. (85) The burden, if any, could then be spread throughout the population, instead of imposed on an identifiable patient. The conscientious-objector doctor could assume alternate burdens, such as offering free preventive care to patients. (86) Indeed, this is similar to how the legislative framework functions for conscientious objection to war and to participation in the death penalty.
The three-sided relationship of patient, provider, and facility prevents such easy solutions for medicine. Adherence to the following three principles, however, might help move us toward a more coherent system.
First, if the concern of legislation is conscience, the one-sided protection of refusal cannot stand. The clear place for legislation lies in resolving the conflict between doctors and nurses, on the one hand, and medical facilities, on the other. This side of the triangular relationship, involving employer versus employee or medical staff versus hospital, is irresolvable without legislative activity.
A more balanced system would ensure that providers of all convictions on controversial procedures are accommodated in, at minimum, large and pluralistic facilities like hospitals. (87) These institutions then would not be permitted to dictate moral positions on medical care. Thus, a nurse would be able to refuse to participate in the removal of life support, but the broader institution would ensure the patient's wishes are carried out. Similarly, a doctor who seeks to perform a tubal ligation following a caesarian section could not be prevented from doing so by institutional moral policies against sterilization. By placing the burden on the larger institution, this approach largely resolves the potential for conflict between patients and institutions. It also improves the situation of refusing doctors and nurses by allowing them to transfer care seamlessly without intractable disagreements with patients.
Second, legislation should encourage ethical deliberations over contested care. Nurses and doctors have their own ethical evaluations of practices, like abortion, but also hold values such as concern for respecting others' beliefs and autonomy. (88) In such situations, true integrity requires navigating morally complex decisions and reconciling the plurality of values one person holds. (89) Struggling between two commitments--say, to Christian religious beliefs and one's role as an ethical professional--can be valuable; indeed, "[t]o refuse this challenge is to act without integrity. It is to deny a part of yourself, as well as denying your debt to the plurality of communities to which you belong." (90)
Ethics consultations offer a space for resolving moral conflicts involving doctors, nurses, and patients. In the context of futile treatment, for example, they may bring the patient, family, and providers to some resolution simply by allowing them to conduct, often for the first time, a conversation about a seriously ill patient's fate. (91) They could foster better understanding of, and greater respect for, one another's views.
The struggle to negotiate complex moral problems may also produce more conscientious physicians. Requiring discussion of ethical concerns allows for an informal way to ensure that ethical or moral qualms are deeply and sincerely held. (92) It should deter refusals unconnected to significant ethical concerns and bring to the surface factual mistakes or discriminatory attitudes. For instance, the denial of emergency contraception can be based on the mistaken belief that it is an abortion-inducing drug. Over time, conversation can change minds as well. For example, in the 1980s and early 1990s, physicians frequently invoked their sacrosanct ability to choose their own patients in order to refuse care to AIDS patients. Had conscience legislation been enacted at that time, these positions might have ossified, leading to continued and widespread discrimination today.
In response, one might claim that one-sided conscience legislation already allows a diversity of views to flourish. Under a legal regime that permits abortion, legislative protection of refusal is necessary to safeguard pluralism. This argument, however, relies on a weak empirical foundation. The medical profession, while generally accepting of a right to abortion, does not provide abortions in any large number. Although ninety-seven percent of practicing ob-gyns encounter patients seeking abortions, only fourteen percent actually perform them. (93) Nearly nine in ten U.S. counties lack an abortion provider. (94)
Moreover, diversity of views and practices would exist independent of statutory regimes. Doctors regularly disagree on the wisdom of a treatment in a variety of areas not covered by conscience clauses. They do so for reasons of medical, and sometimes moral, judgment and have great freedom to choose their patients and the procedures they will provide.
Third and most fundamentally, if providers or institutions harm a patient through refusal, they should face liability. Legislation that excuses injury to one's patients should not stand. Providers should inform patients of diagnoses and treatments and refer them for care, as required by professional ethics. (95) As a corollary, they should disclose the limits on the services they are willing to provide. (96) This would impose minimal burdens on conscientious refusers, the vast majority of whom take their ethical obligations seriously and refer for and counsel about procedures they find morally objectionable. (97)
The dilemma of conscience is not the doctor's alone. Yet, existing conscience legislation acts as though it were. By ignoring the three-sided relationship of patient, provider, and institution, it undervalues conscientious values on the part of the willing provider and the patient. It also undermines the patient's interest in bodily integrity and the medical profession's commitment to ethical deliberation. Assuming that some legislators are genuinely committed to conscience, I have suggested several principles that might reorient our legislative approach.
As a general rule, however, legislators should display humility in approaching difficult, highly personal moral issues in medicine. Where care is legal and contested, they should help resolve the individual-institution conflict while leaving space for ethical conversations to continue to take place. And we, as citizens and lawyers, should be modest in what we expect law to do in this context and seek to remember that "[p]eople of conscience owe each other, first and foremost, respect for each other's consciences." (98)
(1) Willie Parker, A Perspective on Later Abortion . . . From Someone Who Does Them, CONSCIENCE, Jan. 2012, available at http://www.catholicsforchoice.org/conscience/current/APerspectiveonLaterAbortion.asp.
(2) Interview by Star-Ledger Staff with Willie Parker, Why 1 Perform Abortions: A Christian Obstetrician Explains His Choice, STAR-LEDGER, (May 27, 2012, 6:01 AM), http://blog.nj.com/njv_editorial_page/2012/05/why_i_perform_abortions a chri.html. Regarding threats to abortion providers, see Anti-Choice Violence and Intimidation, NARAL PRO-CHOICE AMERICA, (2013), http://www.prochoiceamerica.org/media/factsheets/abortion-anti-choice-violence.pdf, which compiles examples.
(3) See, e.g., Mireya Navarro, Ethics of Giving AIDS Advice Troubles Catholic Hospitals, N.Y. TIMES, Jan. 3, 1993, at A1 (reporting on Catholic clinics' refusal to provide condoms or counseling on condoms to HIV-positive patients); Ryan E. Lawrence et al., Obstetrician Gynecologists" Beliefs' About Assisted Reproductive Technologies, 116 OBSTETRICS & GYNECOLOGY 127 (2010) (surveying physicians on beliefs about refusal to provide or refer to reproductive technologies); DOCTORS OPPOSING CIRCUMCISION, http://www.doctorsopposingcircumcision.org (last visited Oct. 15, 2012) (arguing in favor of refusal to perform male circumcisions).
(4) Katherine Franke & Elizabeth Sepper, Obama Rule Respects Religious Diversity and Employees' Dignity, U.S. NEWS & WORLD REP., Feb. 9, 2012, http://www.usnews.com/debate-club/should-catholic-and-other-religious-institutionshave-to-cover-birth-control/obama- rule-respects-religious-diversity-and-employees- dignity.
(5) Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220,223 (3d Cir. 2000).
(6) See, e.g., Respect for Rights of Conscience Act of 2011, S. 1467, 112th Cong. (2011).
(7) Legal Tradition on Rights of Conscience, PHYSICIANS FOR LIFE, (last visited April 4, 2013, 10:33 PM), http://www.physiciansforlife.org/content/view/260/29/.
(8) Giles Birchley, A Clear Case for Conscience in Healthcare Practice, 38 J. MED. ETHICS 12, 14 (2012) (noting that "it is a measure of the novelty of these situations that such a large area of study governs the rights and wrongs of its dilemmas").
(9) Jared R. Adams et al., Communicating With Physicians About Medical Decisions: A Reluctance to Disagree, ARCH. INTERN MED. ONLINE FIRST, July 2012.
(10) Douglas Langston, Medieval Theories of Conscience, STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta, ed., 2011), available at http://plato.stanford.edu/entries/conscience-medieval/ (noting that the medieval view "regard[ed] human beings as capable of knowing in general what ought to be done and applying this knowledge through conscience to particular decisions about action").
(11) THOMAS AQUINAS, SUMMA THEOLOGIAE, PART I, Q79, art13 ("[C]onscience may be resolved into cum alio scientia, i.e., knowledge applied to an individual case.").
(12) Dan W. Brock, Conscientious Refusal by Physicians and Pharmacists: Who Is Obligated to Do What, and Why?, 29 THEOR. MED. & BIOETHICS 187, 189 (2008); see also Steven D. Smith, What Does Religion Have to Do with Freedom of Conscience?, 76 U. COLO. L. REV. 911,935 (2005) (asserting that the most plausible rationale for respecting conscience is that it is central to personhood).
(13) James F. Childress, Appeals to Conscience, 89 ETHICS 315,320 (1979) ("A 'conflict of conscience' appears when a person faces two conflicting moral demands, neither of which can be met without at least partially violating the other one.").
(14) James F. Childress, Conscience and Conscientious Actions in the Context of MCOs, 7 KENNEDY INST. OF ETHICS J. 403,403 (1997).
(15) The conflicts can become more complicated still, as when pharmacists are permitted to not dispense prescription drugs as a matter of conscience, thwarting the ability of doctors to provide care. Peggy Peck, AMA: Physicians Charge Pharmacists With Interference in Medical Care, MEDPAGE TODAY (June 20, 2005), http://www.medpagetoday.com/PublicHealthPolicy/HealthPolicy/1215 (reporting that doctors report "a stampede of pharmacists who say they cannot in good conscience dispense certain medications" spreading from Plan B to birth control pills and now to psychotropic drugs and pain medications).
(16) See Debra B. Stulberg et al., Religious Hospitals and Primary Care Physicians: Conflicts Over Policies for Patient Care, 25 J. OF GEN. INTERNAL MED. 725, 726-27 (2010) [hereinafter Stulberg et al., Primary Care Physicians] (reporting that one in five family physicians, general internists, and general practitioners reports having experienced conflict with the religious institution where they worked "regarding its religiously-based policies for patient care"); Debra B. Stulberg et al., Obstetrician-Gynecologists, Religious Institutions, and Conflicts Regarding Patient-Care Policies, 207 AM. J. OF OBSTETRICS & GYNECOLOGY 73el, e4 (2012) [hereinafter Stulberg et al., ObstetricianGynecologists], http://www.musaeduca.cl/site/lib/revistas/Julio% 202012/obstetriciangynecologists,religio usinstitutions.pdf (reporting that thirty-seven percent of ob-gyns who practice in a religiously affiliated institution (and over half of those in Catholic institutions) have faced conflicts over religiously-based policies for patient care).
(17) See, e.g., Emily Berry, Resistance Builds to Managed Care for Dual Eligibles, AMERICAN MEDICAL NEWS (Apr. 9, 2012), http://www.amednews.com/article/20120409/business/304099977/2/.
(18) Catarina Gronlund et al., Feeling Trapped and Being Torn: Physicians' Narratives About Ethical Dilemmas in Hemodialysis Care That Evoke a Troubled Conscience, BMC MED. ETHICS (May 11, 2011), http://www.biomedcentral.com/1472-6939/12/8 (finding that physicians struggled with ethical questions in dialysis, experienced pangs of conscience due to a feeling that they had failed patients, and felt they faced the burden of making the decision about care alone).
(19) See, e.g., Pub. Health Trust of Dade Cnty. v. Wons, 541 So. 2d 96, 98 (Fla. 1989) (stating, with regard to a Jehovah's Witness's refusal of a blood transfusion, that "[s]urely nothing ... is more private or more sacred than one's religion or view of life, and here the courts, quite properly, have given great deference to the individual's right to make decisions vitally affecting his private life according to his own conscience").
(20) Causey v. St. Francis Med. Ctr., 719 So. 2d 1072, 1074 (La. Ct. App. 1998).
(22) Id. at 1075.
(23) James Appleyard, Who Cares? The Declaration of Helsinki and "The Conscience of Physicians', 4 RESEARCH ETHICS 106, 107 (2008); Joseph Clint Parker, Conscience and Collective Duties: Do Medical Professionals Have a Collective Duty to Ensure That Their Profession Provides Non-discriminatory Access to All Medical Services?, 36 J. MED. & PHIL. 28, 39 (2011) ("[I]n most circumstances it is the physician's moral stance toward his patients that protects and benefits the patient.").
(24) Edward M. Spencer, Physician's Conscience and HECs: Friends or Foes?, 10 HEC FORUM 34, 36, 38 (1998).
(25) Annika Jensen & Evy Lidell, The Influence of Conscience in Nursing, 16 NURSING ETHICS 31,40 (2009).
(26) Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261,278 (1990) ("The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions."); Bouvia v. Super. Ct., 225 Cal. Rptr. 297,306 (Ct. App. 1986) (requiring medical staff to treat patient in accordance with her wishes).
(27) About CHA, CATHOLIC HEALTH ASSOCIATION OF THE UNITED STATES, http://www.chausa.org/Pages/About_CHA/Overview/(last visited Apr. 3, 2013) (stating that Catholic healthcare has 1,400 long-term and other health facilities and 600 hospitals); see also Joe Carlson, Seeking Catholic Cohesion: CHA Report Stresses Cooperation over Consolidation, MOD. HEALTHCARE, Aug. 16, 2010, at 10, 10 ("Today the three largest not-for-profit hospital owners in the country are all Catholic[.]").
(28) Ethical and Religious Directives for Catholic Health Care Services, UNITED STATES CONFERENCE OF CATHOLIC BISHOPS, 1, 10 (5th ed. 2009), http://www.usccb.org/issuesand-action/human-life-and-dignity/health-care/upload/ Ethical-Religious-Directives-Catholic-Health-Care:Services-fifth-edition-2009.pdf.
(29) Stulberg et al., Primary Care Physicians, supra note 16, at 727. One thousand general internal medicine, family medicine, or general practice physicians were surveyed as to whether they had worked in a religiously affiliated hospital or practice, whether they had experienced conflict with the institution over religiously based patient care policies, and how they believed physicians should respond to such conflicts, Id. at 726.
(30) Illinois Health Facilities and Services Review Board, Application 10-014 for West Suburban Medical Center, Oak Park, Illinois 991, available at http://www.hfsrb.illinois.gov/Apps/2010-03-18 10-014 CON 2010-03-18 10-014 APPLICATION.pdf (for-profit, investment group Vanguard claiming to "successfully operate faith-based hospitals in San Antonio, Texas and Worcester, Massachusetts while maintaining the values and mission of the founders of these facilities").
(31) MARK HALL, IRA MARK ELLMAN, & DAVID ORENTLICHER, HEALTH CARE LAW AND ETHICS IN A NUTSHELL 155 (3d ed. 2011) (observing that in making medical decisions, staff are "notoriously independent" from administrators, a structure that is "firmly institutionalized both in practice and in law").
(32) MARTHA NUSSBAUM, LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICA'S TRADITION OF RELIGIOUS EQUALITY 52 (2008) (explaining that Roger Williams, Stoic natural law doctrines, and many Christian sects in the American colonies viewed conscience as something "infinitely precious" possessed equally by all people); Darlene Fozard Weaver, Conscience: Rightly Formed and Otherwise, COMMONWEAL, Sept. 23, 2005, at 1 ("Conscience is a capacity for moral knowledge that belongs to human nature.").
(33) For a more detailed analysis of this point, see Elizabeth Sepper, Taking Conscience Seriously, 98 VA. L. REV. 1501 (2012).
(34) See, e.g., S.D. CODIFIED LAWS [section] 34-12D-11 (2012) ("A health care provider need not participate in the withdrawal or withholding of life-sustaining treatment."); TENN. CODE ANN. [section] 32-11-108(a) (2010) (A provider who cannot in good conscience comply with a living will shall inform the patient and assist in transfer but "shall not be subject to civil liability for medical care provided during the interim period until transfer is effectuated."). Federal law expressly allows Medicare providers to refuse to comply with advance directives as permitted under state law. Advance Directives: Requirements for Providers, 42 C.F.R. [section] 489.102(a)(I)(ii) (2011).
(35) State Policies in Brief." Refusing to Provide Health Services, GUTTMACHER INSTITUTE (2013), http://www.guttmacher.org/statecenter/spibs/spib_RPHS.pdf.
(36) Id. (contraception in 14 states; sterilization in 18 states).
(37) See, e.g., 30H. 609, 2006 Leg., Reg. Sess. (Ala. 2006); S. 1141, 85th Gen. Assemb., Reg. Sess. (Ark. 2005); H. 4741, 93d Leg., 1st Reg. Sess. (Mich. 2005); H. 1539, 93d Gen. As-semb., 2d Reg. Sess. (Mo. 2006).
(38) GA. CODE ANN. [section] 49-7-9 (2009).
(39) N.I. STAT. ANN. [section] 2A:65A-3 (West 2000) ("The refusal to perform, assist in the performance of, or provide abortion services or sterilization procedures shall not constitute grounds for civil or criminal liability, disciplinary action or discriminatory treatment.").
(40) The Affordable Care Act, for instance, forbids the federal government or anyone receiving federal health funds from discriminating against any health care entity that will not provide an "item or service furnished for the purpose of causing ... the death of any individual, such as by assisted suicide, euthanasia, or mercy killing." Patient Protection and Affordable Care Act [section] 1553, 42 U.S.C. [section] 18113 (2012).
(41) ARIZ. REV. STAT. ANN. [section] 36-3205(C)(1) (2009) ("[H]ealth care provider is not subject to criminal or civil liability or professional discipline for ... [f]ailing to comply with a decision or a direction [at the end of life] that violates the provider's conscience.").
(42) Only some state conscience clauses contain an emergency exception; see, e.g., CAL. HEALTH & SAFETY CODE [section] 123420(d) (West 2006) (abortion); FLA. STAT. 765.1105 (2011) (abortion); 745 ILL. COMP. STAT. [section][section] 70/6 & 70/9 (2002) (any procedure); IOWA CODE [section] 146.1 (2013) ("medical care which has as its primary purpose the treatment of a serious physical condition requiring emergency medical treatment necessary to save the life of a mother"); LA. REV. STAT. ANN. [section][section] 40:1299.34, 34.5, & 35.9 (2009) (abortion); NEV. REV. STAT. [section] 632.475(3) (2009) (abortion); S.C. CODE ANN. [section] 44-41-40 (2002) ("no hospital or clinic shall refuse an emergency admittance" with regard to abortion); TEX. OCC. CODE ANN. [section] 103.004 (West 2004) ("A private hospital or private health care facility is not required to make its facilities available for the performance of an abortion unless a physician determines that the life of the mother is immediately endangered.").
(43) Amendments to federal law, for example, have broadened the range of services, protecting any individual from being required "to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services"--that is Medicare and Medicaid if participation would violate "his religious beliefs and moral convictions." 42 U.S.C. [section] 300a-7(d) (2000).
(44) See, e.g., WASH. REV. CODE [section] 48.43.065(2)(a) (2011) ("No individual health care provider, religiously sponsored health carrier, or health care facility may be required by law or contract to participate in the provision of or payment for a specific service if they object to so doing for reason of conscience or religion. No person may be discriminated against in employment or professional privileges because of such objection.").
(45) See, e.g., id.
(46) OKLA. STAT. tit. 63, [section] 1-741 (2004) ("No person may be required to perform, induce or participate in medical procedures which result in an abortion which are in preparation for an abortion or which involve aftercare of an abortion patient, except when the aftercare involves emergency medical procedures which are necessary to protect the life of the patient.").
(47) 745 ILL. COMP. STAT. [section][section] 70/3(a), 70/5, & 70/6 (2002).
(48) 61 AM. JUR. 2D Physicians, Surgeons, Etc. [section] 121 (2002).
(49) Sylvia A. Law, Silent No More: Physicians' Legal and Ethical Obligations to Patients Seeking Abortions, 21 N.Y.U. REV. L. & SOC. CHANGE 279,303-06 (1994).
(50) Andis Robeznieks, Battle of the Conscience Clause: When Practitioners Say No, AMERICAN MEDICAL NEWS (Apr. 11,2005), http://www.amednews.com/article/20050411/profession/304119961/4/.
(51) See, e.g., ARIZ. REV. STAT. ANN. [section] 36-3205(C) (2009) ("[H]ealth care provider is not subject to criminal or civil liability or professional discipline for ... [f]ailing to comply with a decision or a direction [at the end of life] that violates the provider's conscience[.]"); N.J. STAT. ANN. [section] 2A:65A-3 (West 2000) ("The refusal to perform, assist in the performance of, or provide abortion services or sterilization procedures shall not constitute grounds for civil or criminal liability, disciplinary action or discriminatory treatment."). There are a few exceptions, such as ALA. CODE [section] 22-8A-8(b) (2010) ("No nurse, physician, or other health care provider may be required by law or contract in any circumstances to participate in the withholding or withdrawal of life-sustaining treatment if such person objects to so doing. No person may be discriminated against in employment or professional privileges because of the person's participation or refusal to participate in the withholding or withdrawal of life-sustaining treatment.").
(52) One might argue that there is a moral distinction between being compelled to perform and being compelled to refrain from an action. The distinction between acts and omissions, however, does not explain moral responsibility in the medical field, even if the theory might generally hold. First, it is often difficult to discern whether a medical treatment is an act or an omission: for example, is the removal of a respirator omitting to continue treatment or acting to end it? PRESIDENT'S COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, DECIDING TO FOREGO LIFE-SUSTAINING TREATMENT 66 (1983). Second, instead of act-omission, role-specific obligations, like beneficence and non-maleficence, are at the heart of determining a medical provider's moral responsibility. John Coggon, On Acts, Omissions and Responsibility, 34 J. MED. ETHICS 576, 577 (2008). For instance, a doctor who unilaterally omits to deliver CPR will be considered morally culpable, even if she cannot be considered to have acted. Third, due to their role specific duties, nurses and doctors themselves may not differentiate between acts and omissions. In fact, many disagreements over the morality of controversial treatments involve differing options for care, not clearly divided into acts and omissions (for instance, care of a sexual assault victim, use of an invasive surgical technique or a medical method for ectopic pregnancies, and virtually all end-of-life care). Finally, the effects on conscience for medical providers are the same, regardless of whether the conscientious belief involves an act or an omission. Mark R. Wicclair, Negative and Positive Claims of Conscience, 18 CAMBRIDGE Q. OF HEALTHCARE ETHICS 14, 16 (2009).
(53) David A. Asch et al., The Limits of Suffering: Critical Care Nurses' Views of Hospital Care at the End of Life, 45 Soc. SCI. & MED. 1661, 1665 (1997).
(54) David A. Asch, The Role of Critical Care Nurses in Euthanasia and Assisted Suicide, 334 NEW ENG. J. OF MED. 1374, 1377 (1996).
(55) One survey found that seventy-five percent of U.S. Catholics believe the Church should allow contraception. In Good Conscience: Respecting the Beliefs of Healthcare Providers and the Needs of Patients, CATHOLICS FOR CHOICE 10 (2010), available at http://www.raisingwomensvoices.net/storage/InGoodConscience2010.pdf.
(56) Amy Frykholm, Going Catholic? Evangelicals and Birth Control, THE CHRISTIAN CENTURY, May 2012, at 13.
(57) Some religious hospitals do not impose restrictions; this number, therefore, may under state the occurrence of conflicts between physicians and refusing hospitals over religious restrictions. Stulberg et al., Primary Care Physicians, supra note 16, at 727.
(58) Stulberg et al., Obstetrician-Gynecologists, supra note 16, at 73e.4.
(59) Peter Bartmann, Physician-Assisted Suicide and Euthanasia: German Protestantism, Conscience, and the Limits of Purely Ethical Reflection, 9 CHRISTIAN BIOETHICS 203, 204 (2003) (making this argument in the context of physician-assisted suicide).
(60) Matter of Storar, 420 N.E.2d 64, 72 (N.Y. 1981).
(61) Suzanne Davis & Paul Lansing, When Two Fundamental Rights Collide at the Pharmacy: The Struggle to Balance the Consumer's Right to Access Contraception and the Pharmacist's Right of Conscience, 12 DEPAUL J. HEALTH CARE L. 67, 89 (2009) (arguing that "conscientious refusals result in only a temporary inconvenience in obtaining emergency contraception"); Elizabeth Fenton & Loren Lomasky, Dispensing with Liberty: Conscientious Refusal and the "Morning-After Pill," 30 J. MED. & PHIL. 579, 583 (2005) (arguing in favor of pharmacist conscience legislation on the ground that it will impose only inconvenience on women).
(62) Carolyn McLeod, Harm or Mere Inconvenience? Denying Women Emergency Con traception, 25 HYPATIA 11, 19 (2010).
(63) Sepper, supra note 33, at 1509-10.
(64) See, e.g., 745 ILL. COMP. STAY. 70/4 (2013) ("No physician or health care personnel shall be civilly or criminally liable ... by reason of his or her refusal to perform, assist, counsel, suggest, recommend, refer or participate in any way in any particular form of health care service which is contrary to the conscience of such physician or health care personnel."); 745 ILL. COMP. STAT. 70/3(a) (2013) defines healthcare as "any phase of patient care, including but not limited to, testing; diagnosis; prognosis; ancillary research; instructions; family planning, counselling [sic], referrals, or any other advice in connection with the use or procurement of contraceptives and sterilization or abortion procedures; medication; or surgery or other care or treatment rendered by a physician or physicians, nurses, paraprofessionals or health care facility, intended for the physical, emotional, and mental well-being of persons[.]"
(65) MISS. CODE ANN. [section][section] 41-107-3 & 41-107-5 (2009).
(66) Lawrence E. Singer, Does Mission Matter?, 6 HOUS. J. HEALTH L. & POL'Y 347, 37677 (2006).
(67) See Sepper, supra note 33, at 1510.
(68) See, e.g., COLO. REV. STAT. [section] 15-14-507(1) (2004) (mentioning "moral convictions or religious beliefs" but not including a definition for either term); FLA. STAT. [section] 765.1105(1)(b) (2005) (requiring written proof of "moral or ethical beliefs" but providing no standard for these beliefs); N.J. STAT. ANN. [section] 26:2H-65(b) (West 1996) (permitting private, religiously-affiliated health care institutes to develop institutional policies under which it can decline to participate in treatment); N.Y. PUB. HEALTH LAW [section] 2984(3)(a) (McKinney 2002) (allowing hospitals to decline to perform treatment if the treatment is contrary to formally adopted policy of the hospital).
(69) John M. Westfall, Ken J. Kallail & Anne D. Walling, Abortion Attitudes and Practices of Family and General Practice Physicians, 33 J. FAM. PRAC. 47, 48 (1991) (finding that only eight percent of U.S. physicians believe that abortion is always wrong).
(70) Law, supra note 49, at 303 (1995); Rebecca S. Dresser, Freedom of Conscience, Professional Responsibility, and Access to Abortion, 22 J.L. MED. & ETHICS 280, 282, 284 (1994).
(71) Christopher Meyers & Robert D. Woods, An Obligation to Provide Abortion Services: What Happens When Physicians Refuse?, 22 J. MED. ETHICS 115 (1996).
(72) Id. at 115.
(73) Id. at 118.
(77) Meyers & Woods, supra note 71, at 118.
(78) Childress, supra note 13, at 329.
(79) See id. at 321-22.
(80) LORI FREEDMAN, WILLING AND UNABLE: DOCTORS' CONSTRAINTS IN ABORTION CARE 80 (2010).
(82) Ryan Blum, Conscience Rules: Implications for Care, HASTINGS CTR. REP., May/June 2011, at 49.
(83) See Nadia N. Sawicki, The Hollow Promise of Freedom of Conscience, 33 CARDOZO L. REV. 1389, 1447 (2012) (arguing that adopting a "content-based view" of conscience means abandoning premise that freedom of conscience as a fundamental principle).
(84) Lawrence et al., supra note 3, at 131 (surveying ob-gyns).
(85) Robert F. Card, Conscientious Objection and Emergency Contraception, 7 AM. J. BIOETHICS 8 (2007), available at http://www.childrensmercy.org/content/uploadedFiles/conscientious%20objection.pdf.
(86) Adam J. Kolber, Alternative Burdens on Freedom of Conscience, 47 SAN DIEGO L. REV. 919 (2010) (arguing in favor of onerous alternative burdens).
(87) See generally Sepper, supra note 33.
(88) Alan Cribb, Integrity at Work: Managing Routine Moral Stress in Professional Roles, 12 NURSING PHIL. 119, 124 (2011).
(89) Andrew Edgar & Stephen Pattison, Integrity and the Moral Complexity of Professional Practice, 12 NURSING PHIL. 94, 100 (2011); Jeffrey Blustein, Doing What the Patient Orders: Maintaining Integrity in the Doctor-Patient Relationship, 7 BIOETHICS 289, 301 (1993).
(90) Edgar & Pattison, supra note 89, at 102.
(91) Blum, supra note 82, at 49.
(92) Eva LaFollette & Hugh LaFollette, Private Conscience, Public Acts, 33 J. MED. ETHICS 249, 252 (2007) (arguing that at minimum objectors need to demonstrate that they hold sincere beliefs supported by moral reasoning); MeTers & Woods, supra note 71; Law, supra note 49, at 303 ("As with military service, society and the professions should not simply assume that every disinclination to serve is conscientious, rather than merely a matter of personal convenience.").
(93) Debra B. Stulberg et al., Abortion Provision Among Practicing Obstetrician Gynecologists, 118 OBSTETRICS & GYNECOLOGY 609 (2011).
(94) Rachel K. Jones & Kathryn Kooistra, Abortion Incidence and Access to Services in the United States, 2008, 43 PERSP. ON SEXUAL & REPR. HEALTH 41 (2011) (noting eighty-seven percent of all U.S. counties lacked an abortion provider in 2008).
(95) Bioethicists and professional societies generally take this position. See, e.g., Thomas May & Mark P. Aulisio, Personal Morality and Professional Obligations: Rights of Conscience and Informed Consent, PERSP. IN BIO. & MED., Winter 2009, at 30, 35; American Academy of Pediatrics Committee on Bioethics, Physician Refusal to Provide Information or Treatment on the Basis of Claims of Conscience, 124 PEDIATRICS 1689, 1691 (2009); American Medical Association Council on Ethical and Judicial Affairs, Report 6-a-07, Physician Objection to Treatment and Individual Patient Discrimination (2007), available at http://www.ama-assn.org/resources/doc/ethics/ceja_6a07.pdf; Brock, supra note 12, at 187.
(96) Maxine M. Harrington, The Ever-Expanding Health Care Conscience Clause: The Quest for Immunity in the Struggle Between Professional Duties and Moral Beliefs, 34 FLA. ST. U. L. REV. 779, 813-14 (2007) ("The duty to inform, grounded as it is in fiduciary principles, also seems broad enough to encompass a patient's fight to know whether a physician has a personal, moral belief that might affect the physician's professional judgment.").
(97) Ryan E. Lawrence & Farr A. Curlin, Physicians' Beliefs About Conscience in Medicine: A National Survey, 84 ACAD. MED. 1276, 1278 (2009).
(98) Daniel P. Sulmasy, What Is Conscience and Why Is Respect for It So Important?, 29 THEOR. MED. BIOETH. 135, 145 (2008).
Elizabeth Sepper, Associate Professor, Washington University School of Law. These remarks were presented at Faulkner Law Review's symposium on Overlapping Jurisdictions: What Role for Conscience and Religion? I would like to extend special thanks to the Faulkner Law Review staff, particularly Ashley Norgard, Samuel White, and William Causby, and to Jonathan Will and Jeffrey Hammond for their thoughtful comments and conversation. My thanks go out to the Faulkner Law School faculty and students and to the other participants in the symposium. I am grateful to Paul Trim and Jennifer Sundook for their research assistance.
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|Title Annotation:||Faulkner Law Review Symposium|
|Publication:||Faulkner Law Review|
|Date:||Mar 22, 2013|
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