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The Ever-Expanding Health Care Conscience Clause: The Quest for Immunity in the Struggle Between Professional Duties and Moral Beliefs

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)

Reflexiones a propósito de algunos textos sobre la conciencia de Juan Pablo II y Benedicto XVI

(Reflections regarding some texts on conscience by John Paul II and Benedict XVI)

JL Barragan

Proceedings of the Pontifical Academy for Life

Abstract

Al leer algunos textos de Juan Pablo II y de Benedicto XVI sobre la conciencia, me ha llamado la atención la manera como plantean la relación entre subjetividad y objetividad en la sociedad actual en la que fácilmente se cae en el Relativismo. Este problema se profundiza a tratar las relaciones entre Dios y la conciencia y entre la Teología y el Magisterio de la Iglesia. Mi propósito en esta intervención al inicio del trabajo de la Pontificia Academia de la Vida es aportar una modesta reflexión que pudiera contribuir a iluminar estas relaciones desde el concepto de cultura. Comienzo presentando una selección de textos de ambos Pontífices, donde resalta la problemática aludida. En una segunda parte intentaré profundizar en dicha problemática.

[Translation] Reading some texts by John Paul II and Benedict XVI on conscience has directed my attention to the way in which they present the relationship between subjectivity and objectivity in today’s society which easily falls into Relativism. This problem is deepened to deal with the relationships between God and conscience and between Theology and the Magisterium of the Church. My purpose in this intervention at the beginning of the work of the Pontifical Academy of Life is to contribute a modest reflection that could contribute to illuminate these relationships from the concept of culture. I begin by presenting a selection of texts from both Pontiffs, where they highlight the problem alluded to. In a second part I will try to delve into this problem.

Barragan JL. Reflexiones a propósito de algunos textos sobre la conciencia de Juan Pablo II y Benedicto XVI. In: Sgreccia E, Laffitte J editors. Proceedings of the 13th General Assembly of the Pontifical Academy for Life. 2007;10-20.

Conscientious Objection and Testimonials in the Field of Bioethics Research

Patricio Lopez Barahona

Extract
Man is a free being who establishes his behaviour and forges his will in a series of ethical and/or religious principles. Loyalty to these principles brings the right and the need of conscientious objection. Man, in his own legitimate exercise of freedom, can and must object to exercising any action that is against or transgresses those principles that his conscience dictate. . .

One should have to distinguish between civil disobedience and conscientious objection. The latter comes from a personal motivation. One person feels that he cannot fulfil a certain juridical regulation because it goes against his/her conscience and moral principles, which are based on faith and on ethical considerations. However, civil disobedience , which can also be founded on conscience motivations, is a type of attitude that pretends to put forward a change or a breach in the law. In case of civil disobedience the law is also considered immoral or unjust. Civil disobedience and conscientious objection can happen together because civil disobedience is considered massive conscientious objection, if not massive, at least very numerous.

Barahona PL. Conscientious Objection and Testimonials in the Field of Bioethics Research. In: Sgreccia E, Laffitte J editors. Proceedings of the 13th General Assembly of the Pontifical Academy for Life. 2007;123-126.

Respect for Conscience in Common Law Countries

Carl Anderson

Extract
The trend toward freedom of religion and conscience has been building over the past centuries. Certainly, the last hundred years have brought a greater tolerance of religious ideas in England, with restrictions on Catholic finally lifted in the early 19 th century, and the United States has, since the late
18th century enshrined religious freedom as a preeminent right. There is thus reason to hope that we may be moving toward a situation in which the precedent will be established that provides a greater understanding and accommodation of the conscience of the individual healthcare provider. However, there is not unanimity of opinion and contradictory decisions about the freedom of conscience in this area continue. “This issue is the San Andreas Fault of our culture,” said Gene Rudd of the Christian Medical & Dental Associations. “How we decide this is going to have a long-lasting impact on our society.”

Challenges to the conscience of a health care professional certainly continue in common law countries, and the current system of dealing with such issues in these countries is far from adequate, or uniform. The problems will only grow as new unethical procedures become seen as “the norm” by some and as a “right” by others. . . . Common law countries certainly have much to do to develop more fully the ideal of a conscience clause for those in the medical field. However, the fact that in most common law countries some accommodation at least seems to be made for the conscience of those in the health care field provides hope.

Anderson C. Respect for Conscience in Common Law Countries. In: Sgreccia E, Laffitte J editors. Proceedings of the 13th General Assembly of the Pontifical Academy for Life. 2007;102-114.

Moral Conscience and Christian Innovation: Elements for a Theological Reading

Brian V Johnstone

Extract
The aim of this article is to answer the question: what are the norms that guide conscience in judging whether a proposed innovation ought to be accepted into the Catholic tradition or not? For the purposes of this article, we need to integrate conscience into a wider theological context that embraces faith, the Church, the tradition of the Church and authority in the Church. The first step in the argument will be to clarify the nature of conscience and its relationship to the elements that have just been mentioned. The second step will be to explain the notion of tradition and the relation between conscience and tradition. In this context I will seek to establish the structures of tradition in relation to the two most basic innovations: the innovation of Creation and the innovation of the Incarnation, Death and Resurrection of Jesus. These, I will suggest, provide the source of the norms for accepting or rejecting other prospective innovations into the tradition.

Johnstone B. Moral Conscience and Christian Innovation: Elements for a Theological Reading. In: Sgreccia E, Laffitte J editors. Proceedings of the 13th General Assembly of the Pontifical Academy for Life. 2007.

Pharmacist refusals and third-party interests: a proposed judicial approach to pharmacist conscience clauses

Lora Cicconi

Abstract
The issue of pharmacists refusing to dispense birth control or emergency contraception recently has become a major debate in the battle over reproductive rights. Several states have enacted legislation to protect refusing pharmacists, and many more are considering such laws. I explore these new laws against the backdrop of the existing legal landscape governing the actions of pharmacists, including tort law, Title VII of the Civil Rights Act of 1964, and free exercise jurisprudence. I then consider how courts might interpret refusal clauses upon which pharmacists may rely. I argue that courts should read pharmacist refusal statutes narrowly by limiting the protected act of conscience to the actual refusal to dispense medication, and not extending protection to behavior that could violate the pharmacist’s duty of care to patients. Such an approach will not only minimize the impact of refusals on the interests of patients and employers, but will meld these new statutes with the existing legal framework addressing religious objectors, which has consistently shown concern for third-party rights.

Cicconi L. Pharmacist refusals and third-party interests: a proposed judicial approach to pharmacist conscience clauses. UCLA Law Rev. 2007 Feb;54(3):709-749.

(Correspondence) Access to abortion

Andrée Côté

Canadian Medical Association Journal, CMAJ — Canadian Medical Association Journal

Extract
I am deeply disturbed by the negative responses (posted as e-letters) to the guest editorial by Sanda Rogers and Jocelyn Downie. Most of the authors articulate an uncompromising ideological position in favour of the right to life of a fetus, while ignoring the basic human rights of women who, presumably, are their patients. . . . Why should an individual doctor’s personal beliefs trump the legal definition of “person” and of “human being,” violate the constitutionally entrenched rights of women to sexual and reproductive autonomy, and violate international human rights?

Côté A. (Correspondence) Access to abortion. Can Med Assoc J. 2007 Feb 13;176(4):493-494.

(Correspondence) Access to abortion

Janet Epp Buckingham

Extract
Given that abortion and its regulation and restriction continue to be hotly debated in Canada, it is not simply “like any other medical procedure.” It is also inaccurate to portray a physician who exercises a right of conscientious objection to participating in abortion as violating CMA policy. The 1988 CMA Policy on Induced Abortion specifically allows for such a right of conscientious objection.

Buckingham JE. (Correspondence) Access to abortion. Can Med Assoc J. 2007;176(4):492.

Religion, Conscience and Controversial Clinical Practices (Supplement)

Farr A Curlin, Ryan E Lawrence, Marshall H Chin, John D Lantos

New England Journal of Medicine, NEJM — New England Journal of Medicine

Abstract
This appendix has been provided by the authors to give readers additional information about their work.

Curlin FA, Lawrence RE, Chin MH, Lantos JD. Religion, Conscience and Controversial Clinical Practices (Supplement). N. Engl. J. Med.. 2007;356(593-600.

Religion, Conscience, and Controversial Clinical Practices

Farr A Curlin, Ryan E Lawrence, Marshall H Chin, John D Lantos

Abstract
Background
There is a heated debate about whether health professionals may refuse to provide treatments to which they object on moral grounds. It is important to understand how physicians think about their ethical rights and obligations when such conflicts emerge in clinical practice.

Methods
We conducted a cross-sectional survey of a stratified, random sample of 2000 practicing U.S. physicians from all specialties by mail. The primary criterion variables were physicians’ judgments about their ethical rights and obligations when patients request a legal medical procedure to which the physician objects for religious or moral reasons. These procedures included administering terminal sedation in dying patients, providing abortion for failed contraception, and prescribing birth control to adolescents without parental approval.

Results
A total of 1144 of 1820 physicians (63%) responded to our survey. On the basis of our results, we estimate that most physicians believe that it is ethically permissible for doctors to explain their moral objections to patients (63%). Most also believe that physicians are obligated to present all options (86%) and to refer the patient to another clinician who does not object to the requested procedure (71%). Physicians who were male, those who were religious, and those who had personal objections to morally controversial clinical practices were less likely to report that doctors must disclose information about or refer patients for medical procedures to which the physician objected on moral grounds (multivariate odds ratios, 0.3 to 0.5).

Conclusions
Many physicians do not consider themselves obligated to disclose information about or refer patients for legal but morally controversial medical procedures. Patients who want information about and access to such procedures may need to inquire proactively to determine whether their physicians would accommodate such requests.

Curlin FA, Lawrence RE, Chin MH, Lantos JD. Religion, Conscience, and Controversial Clinical Practices. N. Engl. J. Med.. 2007;356(6):593-600.