Conscience Clauses, Health Care Providers, and Parents

Nancy Berlinger

Conscience Clauses, Health Care Providers, and Parents

Extract
Conscientious objection in health care always affects someone else’s health or access to care because the refusal interrupts the delivery of health services. Therefore, conscientious objection in health care always has a social dimension and cannot be framed solely as an issue of individual rights or beliefs. . . . Conscience rights are also limited by the foundational duty of care, which must be maintained through referrals and transfers so that a refusal to provide a service does not result in abandonment of a patient. . . Physicians who work in the 11 U.S. jurisdictions that permit terminally ill people, under certain conditions, to request a prescription of lethal medication with the goal of ending their lives may also have mixed emotions and intuitions about participating in medical aid-in-dying. . . Conscientious objection to providing or participating in certain activities on principle should not be used to avoid patient care that a professional finds stressful, or as a remedy for the common problem of moral distress.


Berlinger N. Conscience Clauses, Health Care Providers, and Parents [Internet]. Garrison, NY: The Hastings Center; 2022 May 31.

The Conscience Defense to Malpractice

Nadia N Sawicki

California Law Review
California Law Review

Abstract
This Article presents the first empirical study of state conscience laws that establish explicit procedural protections for medical providers who refuse to participate in providing reproductive health services, including abortion, sterilization, contraception, and emergency contraception.

Scholarship and public debate about law’s role in protecting health care providers’ conscience rights typically focus on who should be protected, what actions should be protected, and whether there should be any limitations on the exercise of conscience rights. This study, conducted in accordance with best methodological practices from the social sciences for policy surveillance and legal mapping, is the first to provide concrete data on the vital but unanswered question of how these laws actually operate–that is, the precise procedural mechanisms by which laws protect medical providers who decline to provide services that violate their deeply held conscientious beliefs.

This Article demonstrates that state laws vary dramatically in the types of protections they offer. States may immunize health care providers from a range of potential adverse consequences including civil liability, criminal prosecution, professional discipline, employment discrimination, discrimination in educational opportunities, and denial of public or private funding, among others. Of these, immunity from civil liability, or “civil immunity,” is by far the most common procedural protection. In a majority of states, civil immunity is absolute–providing no exceptions in cases of malpractice, denial of emergency treatment, or even patient death. In practice, these laws eliminate patients’ common law right to recover monetary damages when they suffer physical injury as a result of a health care provider’s conscience-based deviation from the standard of care.

While many scholars have examined the impact of conscience laws on patient access to medical care, there has been no comprehensive analysis of these laws’ impact on patients’ right to a tort law remedy when they are denied care. This Article not only raises awareness of the previously unrecognized breadth of protections established by U.S. conscience law, but also challenges basic assumptions about tort law’s ability to remedy harms suffered by victims of medical malpractice in reproductive health care contexts. These findings create an important opportunity for further policy discussion about the scope of health care conscience laws.


Sawicki NN. The Conscience Defense to Malpractice. Calif Law Rev. 2020;108(1255):1255-1316.

Systematic Review of Ovarian Activity and Potential for Embryo Formation and Loss during the Use of Hormonal Contraception

Donna Harrison, Cara Buskmiller, Monique Chireau, Lester A. Ruppersberger, Patrick P. Peung Jr.

The Linacre Quarterly
The Linacre Quarterly

Abstract
The purpose of this review was to determine whether there is evidence that ovulation can occur in women using hormonal contraceptives and whether these drugs might inhibit implantation. We performed a systematic review of the published English-language literature from 1990 to the present which included studies on the hormonal milieu following egg release in women using any hormonal contraceptive method. High circulating estrogens and progestins in the follicular phase appear to induce dysfunctional ovulation, where follicular rupture occurs but is followed by low or absent corpus luteum production of progesterone. Hoogland scoring of ovulatory activity may inadvertently obscure the reality of ovum release by limiting the term “ovulation” to those instances where follicular rupture is followed by production of a threshold level of luteal progesterone, sufficient to sustain fertilization, implantation, and the end point of a positive β-human chorionic gonadotropin. However, follicular ruptures and egg release with subsequent low progesterone output have been documented in women using hormonal contraception. In the absence of specific ovulation and fertilization markers, follicular rupture should be considered the best marker for egg release and potential fertilization. Women using hormonal contraceptives may produce more eggs than previously described by established criteria; moreover, suboptimal luteal progesterone production may be more likely than previously acknowledged, which may contribute to embryo loss. This information should be included in informed consent for women who are considering the use of hormonal contraception.


Harrison D, Buskmiller C, Chireau M, Ruppersberger LA,Peung PP.   Systematic Review of Ovarian Activity and Potential for Embryo Formation and Loss during the Use of Hormonal Contraception. Linacre Quarterly. 2019 Jan 03; 85(4):453–469.

(Report) Sexual and reproductive health rights and the implication of conscientious objection

Ludovica Anedda, Lucy Arora, Luca Favero, Nathalie Meurens, Sophie Morel, Martha Schofield

European Union Report: Implications of Conscientious Objection
European Union Report: Implications of Conscientious Objection

Abstract
This study was commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the FEMM Committee. It aims to provide a comparative overview of the situation in the European Union, with particular focus on six selected Member States, in terms of access to sexual and reproductive healthcare goods (such as medicines) and services (such as abortion and family planning), from both legal and practical perspectives. The study looks at the extent to which conscientious objection affects access to sexual and reproductive rights (SRHR). The study will contribute to formulating a clear framework for the improvement of access to sexual and reproductive healthcare goods and services in the EU


Anedda L, Arora L, Favero L, Meurens N, Morel S, Schofield M. (Report) Sexual and reproductive health rights and the implication of conscientious objection. Policy Department for Citizens’ Rights and Constitutional Affairs,
European Parliament. 2018.

There is no defence for ‘Conscientious objection’ in reproductive health care

Christian Fiala, Joyce H. Arthur

European Journal of Obstetrics and Gynecology
European Journal of Obstetrics and Gynecology

Abstract
A widespread assumption has taken hold in the field of medicine that we must allow health care professionals the right to refuse treatment under the guise of ‘conscientious objection’ (CO), in particular for women seeking abortions. At the same time, it is widely recognized that the refusal to treat creates harm and barriers for patients receiving reproductive health care. In response, many recommendations have been put forward as solutions to limit those harms. Further, some researchers make a distinction between true CO and ‘obstructionist CO’, based on the motivations or actions of various objectors. This paper argues that ‘CO’ in reproductive health care should not be considered a right, but an unethical refusal to treat. Supporters of CO have no real defence of their stance, other than the mistaken assumption that CO in reproductive health care is the same as CO in the military, when the two have nothing in common (for example, objecting doctors are rarely disciplined, while the patient pays the price). Refusals to treat are based on non-verifiable personal beliefs, usually religious beliefs, but introducing religion into medicine undermines best practices that depend on scientific evidence and medical ethics. CO therefore represents an abandonment of professional obligations to patients. Countries should strive to reduce the number of objectors in reproductive health care as much as possible until CO can feasibly be prohibited. Several Scandinavian countries already have a successful ban on CO.


Fiala C, Arthur JH. Eur J Obstet Gynecol Reprod Biol. 2017 Jul 23. pii: S0301-2115(17)30357-3. doi: 10.1016/j.ejogrb.2017.07.023. [Epub ahead of print]

Doctors Have no Right to Refuse Medical Assistance in Dying, Abortion or Contraception

Julian Savulescu, Udo Schuklenk

Bioethics
Bioethics

Abstract
In an article in this journal, Christopher Cowley argues that we have ‘misunderstood the special nature of medicine, and have misunderstood the motivations of the conscientious objectors’. We have not. It is Cowley who has misunderstood the role of personal values in the profession of medicine. We argue that there should be better protections for patients from doctors’ personal values and there should be more severe restrictions on the right to conscientious objection, particularly in relation to assisted dying. We argue that eligible patients could be guaranteed access to medical services that are subject to conscientious objections by: (1) removing a right to conscientious objection; (2) selecting candidates into relevant medical specialities or general practice who do not have objections; (3) demonopolizing the provision of these services away from the medical profession.


Savulescu J, Schuklenk U.  (2016) Doctors Have no Right to Refuse Medical Assistance in Dying, Abortion or Contraception. Bioethics. doi:10.1111/bioe.12288

Referrals for Services Prohibited In Catholic Health Care Facilities

Debra B. Stulberg, Rebecca A. Jackson, Lori R. Freedman

Perspectives on Sexual and Reproductive Health
Perspectives on Sexual and Reproductive Health

Abstract
Context: Catholic hospitals control a growing share of health care in the United States and prohibit many common reproductive services, including ones related to sterilization, contraception, abortion and fertility. Professional ethics guidelines recommend that clinicians who deny patients reproductive services for moral or religious reasons provide a timely referral to prevent patient harm. Referral practices in Catholic hospitals, however, have not been explored.

Methods: Twenty-seven obstetrician-gynecologists who were currently working or had worked in Catholic facilities participated in semistructured interviews in 2011–2012. Interviews explored their experiences with and perspectives on referral practices at Catholic hospitals. The sample was religiously and geographically diverse. Referral-related themes were identified in interview transcripts using qualitative analysis.

 Results: Obstetrician-gynecologists reported a range of practices and attitudes in regard to referrals for prohibited services. In some Catholic hospitals, physicians reported that administrators and ethicists encouraged or tolerated the provision of referrals. In others, hospital authorities actively discouraged referrals, or physicians kept referrals hidden. Patients in need of referrals for abortion were given less support than those seeking referrals for other prohibited services. Physicians received mixed messages when hospital leaders wished to retain services for financial reasons, rather than have staff refer patients elsewhere. Respondents felt referrals were not always sufficient to meet the needs of low-income patients or those with urgent medical conditions.

 Conclusions: Some Catholic hospitals make it difficult for obstetrician-gynecologists to provide referrals for comprehensive reproductive services.


Stulberg DB, Jackson  RA, Freedman LR.  Referrals for Services Prohibited In Catholic Health Care Facilities. Perspect Sex Repro H, 48:111–117. doi:10.1363/48e10216

Conscientious Objection in Healthcare Provision: A New Dimension

Peter West-Oram, Alena Buyx

Bioethics
Bioethics

Abstract
The right to conscientious objection in the provision of healthcare is the subject of a lengthy, heated and controversial debate. Recently, a new dimension was added to this debate by the US Supreme Court’s decision in Burwell vs. Hobby Lobby et al. which effectively granted rights to freedom of conscience to private, for-profit corporations. In light of this paradigm shift, we examine one of the most contentious points within this debate, the impact of granting conscience exemptions to healthcare providers on the ability of women to enjoy their rights to reproductive autonomy. We argue that the exemptions demanded by objecting healthcare providers cannot be justified on the liberal, pluralist grounds on which they are based, and impose unjustifiable costs on both individual persons, and society as a whole. In doing so, we draw attention to a worrying trend in healthcare policy in Europe and the United States to undermine women’s rights to reproductive autonomy by prioritizing the rights of ideologically motivated service providers to an unjustifiably broad form of freedom of conscience.


West-Oram P, Buyx A. Conscientious Objection in Healthcare Provision: A New Dimension. Bioethics. 2016 Jun;30(5):336-343.

“Conscientious Objection” in Reproductive Healthcare is Immoral and Should Be Abolished

Joyce H Arthur

Social Science Research Network

Extract
The majority of so-called “conscientious objection” is exercised today in reproductive healthcare and is not really about protecting the right to conscience. It’s about a person in a privileged position of authority (there by choice) imposing their personal beliefs on a vulnerable other in a dependent position (not there by choice).


Arthur JH. “Conscientious Objection” in Reproductive Healthcare is Immoral and Should Be Abolished. Joyce Arthur Blog. 2015.

Conscience and Complicity: Assessing Pleas for Religious Exemptions in Hobby Lobby’s Wake

Amy J Sepinwall

Abstract
In the paradigmatic case of conscientious objection, the objector claims that his religion forbids him from actively participating in a wrong (for example, by fighting in a war). In the religious challenges to the Affordable Care Act’s employer mandate, on the other hand, employers claim that their religious convictions forbid them from merely subsidizing insurance through which their employees might commit a wrong (for example, by using contraception). The understanding of complicity underpinning these challenges is vastly more expansive than the standard that legal doctrine or moral theory contemplates. Courts routinely reject claims of conscientious objection to taxes that fund military initiatives or to university fees that support abortion services. In Hobby Lobby, however, the Supreme Court took the corporate owners at their word: the mere fact that Hobby Lobby believed that it would be complicit, no matter how idiosyncratic its belief, sufficed to qualify it for an exemption. In this way, the Court made elements of an employee’s health-care package the “boss’s business” (to borrow from the nickname of the Democrats’ proposed bill to overturn Hobby Lobby).

Much of the critical reaction to Hobby Lobby focuses on the issue of corporate rights of religious freedom. Yet this issue is a red herring. The deeper concerns that Hobby Lobby raises—about whether employers may now refuse, on religious grounds, to subsidize other forms of health coverage (for example, blood transfusions or vaccinations) or to serve customers whose lifestyles they deplore (for example, gays and lesbians)—do not turn on the organizational form that the employer has adopted. Instead, the more significant issue goes to our understanding of complicity: When is it reasonable for an employer (for-profit or nonprofit, corporate or individual) to think itself complicit in the conduct of its employees or customers? And when is a reasonable claim of complicity compelling enough to warrant an accommodation, especially when that accommodation would impose costs on third parties?


Sepinwall AJ. Conscience and Complicity: Assessing Pleas for Religious Exemptions in Hobby Lobby’s Wake. U Chicago Law Rev. 2015 Fall; 82:1897-1980.