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Opinion no. 385: The Limits of Conscientious Refusal in Reproductive Medicine

American College of Obstetricians and Gynecologists

American College of Obstetricians & Gynecologists

Abstract
Health care providers occasionally may find that providing indicated, even standard, care would present for them a personal moral problem-a conflict of conscience particularly in the field of reproductive medicine. Although respect for conscience is important, conscientious refusals should be limited if they constitute an imposition of religious or moral beliefs on patients, negatively affect a patient’s health, are based on scientific misinformation, or create or reinforce racial or socioeconomic inequalities. Conscientious refusals that conflict with patient well-being should be accommodated only if the primary duty to the patient can be fulfilled. All health care providers must provide accurate and unbiased information so that patients can make informed decisions. Where conscience implores physicians to deviate from standard practices, they must provide potential patients with accurate and prior notice of their personal moral commitments. Physicians and other health care providers have the duty to refer patients in a timely manner to other providers if they do not feel that they can in conscience provide the standard reproductive services that patients request. In resource-poor areas, access to safe and legal reproductive services should be maintained. Providers with moral or religious objections should either practice in proximity to individuals who do not share their views or ensure that referral processes are in place. In an emergency in which referral is not possible or might negatively have an impact on a patient’s physical or mental health, providers have an obligation to provide medically indicated and requested care.

ACOG. The Limits of Conscientious Refusal in Reproductive Medicine. ACOG Committee on Ethics. 2007;385):1-6.

Ethical misconduct by abuse of conscientious objection laws

Bernard M Dickens

Abstract
This paper addresses laws and practices urged by conservative religious organizations that invoke conscientious objection in order to deny patients access to lawful procedures. Many are reproductive health services, such as contraception, sterilization and abortion, on which women’s health depends. Religious institutions that historically served a mission to provide healthcare are now perverting this commitment in order to deny care. Physicians who followed their calling honourably in a spirit of self-sacrifice are being urged to sacrifice patients’ interests to promote their own, compromising their professional ethics by conflict of interest. The shield tolerant societies allowed to protect religious conscience is abused by religiously-influenced agencies that beat it into a sword to compel patients, particularly women, to comply with religious values they do not share. This is unethical unless accompanied by objectors’ duty of referral to non-objecting practitioners, and governmental responsibility to ensure supply of and patients’ access to such practitioners.

Dickens BM. Ethical misconduct by abuse of conscientious objection laws. Med Law. 2006 Sep;25(3):513-522.

Does Mission Matter?

Lawrence E Singer

Extract
It is apparent that Catholic health care is suffused with a religious purpose. Its creation is based upon Church interpretation of a duty to Jesus, and its facilities are required to adhere to formal prescriptions of appropriate canonical, ethical and moral behavior. As recently as twenty years ago, questions regarding a facility’s Catholicity and the implications of this calling would rarely have been asked. In part this was because of the highly visible presence of Sisters or Brothers in the facility, making the religious nature of the institution readily apparent to even the casual observer. Too, few Catholic institutions were part of health care systems, and those systems that existed were of a local or regional nature, likely well- known by the communities served.

Today, many Catholic health care facilities have joined together into larger (often multi-state) health care systems with less visible Sister presence and the development of sophisticated corporate management teams distant from day-to-day operations and local community involvement. Many of these systems enjoy significant market power. As discussed below, the heightened visibility of these organizations has led to very public questioning of institutional adherence to religious teaching (especially in the area of sterilizations and, to a lesser extent, abortion), posing a significant challenge to the Catholic mission. Other significant challenges to the mission have also arisen, as the law, the competitive environment, and even changes within the Church present their own hurdles to Catholic facilities. Section III discusses these issues, setting the stage in Part IV for a discussion of whether a religious mission is sustainable in a pluralistic society.

Singer LE. Does Mission Matter? Houston J Health Law Pol. 2006 Sep;6(2):347-377.

“Conscience Clauses” or “Unconscionable Clauses”: Personal Beliefs Versus Professional Responsibilities

Martha S Swartz

Yale Journal of Health Policy, Law and Ethics

Abstract
Conclusion
Ultimately, this Article proposes a new model for such “conscientious objections,” one that presumes the general obligation ‘of health care professionals, who hold monopolistic state licenses, to participate in requested medical care that is not contraindicated or illegal, notwithstanding their personal moral objections. This model is based on “the· premise that it “is the patient’s best interest (as determined by -the patient, but mediated by the health care professional’s medical judgment), not the health care professional’s personal interests, that should govern the professional relationship. This should be the standard taught in professional schools and promoted by professional associations. “Conscientious objections” should be permissible based on prevailing medical ethics; however, to the extent that they are based on the personal morals of the· health care professional, they should be actively discouraged.

Swartz MS. “Conscience Clauses” or “Unconscionable Clauses”: Personal Beliefs Versus Professional Responsibilities. Yale J Health Pol Law Ethics. 2006;6(2):269-359.

What is the relevance of women’s sexual and reproductive rights to the practising obstetrician/gynaecologist?

Dorothy Shaw, Anibal Faúndes

Best Practice and Research Clinical Obstetrics & Gynaecology

Abstract
Women’s sexual and reproductive rights are an integral part of daily practice for obstetricians/gynaecologists and the key to the survival and health of women around the world. Women’s sexual and reproductive health is often compromised because of infringements of their basic human rights, not the lack of medical knowledge. Understanding the relevance of respecting and promoting sexual and reproductive rights is critical for providing current standards of care, and includes access to information and care, confidentiality, informed consent and evidence-based practice. The violation of women’s rights in their daily lives through common problems such as gender-based violence and discrimination results in serious consequences for their health. Obstetricians/gynaecologists are natural advocates for women’s health, yet may be lacking in their understanding of relevant laws or the limits of conscientious objection. This chapter outlines the framework for sexual and reproductive rights, and explores its relevance to the practising clinician.

Shaw D, Faúndes A. What is the relevance of women’s sexual and reproductive rights to the practising obstetrician/gynaecologist? Best Practice and Research Clinical Obstetrics and Gynaecology. 2006 Jun;20(3):299-309.

Committee for the Ethical Aspects of Human Reproduction and Women’s Health. Ethical guidelines on conscientious objection

Gamal I Serour, International Federation of Gynecology and Obstetrics (FIGO)

International Journal of Gynecology & Obstetrics

Abstract
The FIGO Committee for the Ethical Aspects of Human Reproduction and Women’s Health held a combined meeting with the Committee of Women’s Sexual and Reproductive rights to discuss ethical aspects of issues that impact the discipline of Obstetrics, Gynecology, and Women’s Health. The following document represents the result of that carefully researched and considered discussion. This material is not intended to reflect an official position of FIGO, but to provide material for consideration and debate about these ethical aspects of our discipline for member organizations and their constituent membership.

Serour GI, FIGO. Committee for the Ethical Aspects of Human Reproduction and Women’s Health. Ethical guidelines on conscientious objection. Int J Gyn Ob. 2006 Feb 03;92(3):333-334.

(News) Slow progress to reproductive rights

Jocalyn Clark

Canadian Medical Association Journal, CMAJ — Canadian Medical Association Journal

Extract
Religious fundamentalism and a lack of resources are the chief barriers to achieving sexual and reproductive rights for all by 2015, concluded the 2004 International Conference on Population and Development (ICPD) . . . Katherine McDonald, president of Action Canada for Population and Development, said that advocates of the Cairo consensus have been overly distracted by their efforts to isolate and shame US and conservative backlash and must reinvest in a commitment to human rights. “In-depth policy analyses of sexual, reproductive, and abortion rights are lacking,” she said.

Clark J. Slow progress to reproductive rights. Can Med Assoc J. 2004;171(8):841.

New Refusal Clauses Shatter Balance Between Provider ‘Conscience’, Patient Needs

Adam Sonfield

Extract
A series of attention-grabbing lawsuits and a crop of new legislation have spotlighted a long-gathering movement to vastly expand the scope of policies allowing health care providers, institutions and payers to refuse to participate in sexual and reproductive health services by claiming a moral or religious objection. In some cases, these radical new policies are intentionally designed to undermine, if not actually eliminate, the ability of governments at all levels, and even private businesses, to balance providers’ “conscience” rights with the ability of patients to exercise their own conscience and gain access to health care services that they want and need.

Sonfield A. New Refusal Clauses Shatter Balance Between Provider ‘Conscience’, Patient Needs. Guttmacher Rep Public Pol. 2004 August:1-3.

When Free Exercise Exemptions Undermine Religious Liberty and the Liberty of Conscience: A Case Study of the Catholic Hospital Conflict

Brietta R Clark

Extract
Conclusion
Using this framework, I propose a more protective principle for free exercise protection than currently exists, one that requires a heightened scrutiny of all laws that burden religious liberty, even neutral laws of general applicability. This review should examine carefully the need for the government law and the possibility of an exemption or accommodation that will not undermine the purpose of the law. However, I would not go as far as some states in providing almost absolute free exercise protection from government laws serving important government interests. Rather, the principle I advocate requires a balancing of interests tipped to favor laws protecting third parties’ from harm over religious claimants’ objections. The Catholic hospital conflict demonstrates how even under this more protective free exercise principle, the rule of law and the self–limiting principle of the liberty of conscience and religious liberty operate as justifiable limits on the scope of free exercise protection. The hospitals’ free exercise interests must be balanced against the potential harm to patients who cannot access necessary reproductive health care and information, which means that in many cases exemptions for religious hospitals will be denied.

Clark BR. When Free Exercise Exemptions Undermine Religious Liberty and the Liberty of Conscience: A Case Study of the Catholic Hospital Conflict. Oregon Law Review. 2003 Fall;82(3):625-694.

Human Rights Dynamics of Abortion Law Reform

Rebecca J Cook, Bernard M Dickens

Abstract
The legal approach to abortion is evolving from criminal prohibition towards accommodation as a life-preserving and health-preserving option, particularly in light of data on maternal mortality and morbidity. Modern momentum for liberalization comes from international adoption of the concept of reproductive health, and wider recognition that the resort to safe and digniﬁed healthcare is a major human right. Respect for women’s reproductive self-determination legitimizes abortion as a choice when family planning services have failed, been inaccessible, or been denied by rape. Recognition of women’s rights of equal citizenship with men requires that their choices for self-determination be legally respected, not criminalized.

Cook RJ, Dickens BM. Human Rights Dynamics of Abortion Law Reform. Hum Rights Quart. 2003 Feb;25(1):1-59. Available from: