Maxine M. Harrington
Extract
Conclusion
Conscience clauses raise many difficult issues in a pluralistic society. Health care providers have special obligations to patients that are not replicated in many other professional endeavors. Duties prescribed
by law and professional codes of conduct expect health care providers to act out of respect for the patient’s welfare and dignity. While no one suggests that health professionals should abandon their religious or moral principles, patients should not suffer harm or potential harm because of a belief they do not share. It is often appropriate to accommodate individuals who wish to exercise their principles in the care of patients, but conscience clauses that promote blanket immunity for refusals to provide health care services resolve the tension between patient needs and provider autonomy in a onesided manner.
When health care providers deviate from standards of care, engage in unprofessional conduct, or unduly burden their colleagues and employers through refusals to perform services, exemptions from malpractice, disciplinary, or employment actions are not appropriate. . .Accordingly, legislators should not tie the hands of disciplinary boards in addressing such conduct.
The clamor for absolute immunity from employment actions for health care workers asserting moral refusals to treat demonstrates a myopic view of the burdens imposed by such objections on patients, employers, and coworkers. . . . Although legislators may choose to heighten the de minimis accommodation standard under Title VII, abrogation of the undue hardship test is not warranted from either a policy or legal prospective.
. . . the overriding purpose of our health care system is to protect the health and safety of patients. The expansion of refusal legislation to create immunity for health care providers who refuse any service for almost any reason is cause for alarm. Conscience clauses fail to achieve a reasonable balance when they confer a special benefit on those whose religious, moral, or ethical beliefs compel them to deny health care while absolving them of the potentially harmful consequences of their choices. . .
Harrington MM. 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, 816 n.237 (2007)