Tuesday, June 21, 2005
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LETTING SOMEONE ELSE DO MY RANTING
The Celestial Fire of Conscience — Refusing to Deliver
Medical Care
R. Alta Charo, J.D.
Apparently heeding George Washington's call to "labor
to keep alive in your breast that little spark of
celestial fire called conscience," physicians, nurses,
and pharmacists are increasingly claiming a right to
the autonomy not only to refuse to provide services
they find objectionable, but even to refuse to refer
patients to another provider and, more recently, to
inform them of the existence of legal options for
care.
Largely as artifacts of the abortion wars, at least 45
states have "conscience clauses" on their books — laws
that balance a physician's conscientious objection to
performing an abortion with the profession's
obligation to afford all patients nondiscriminatory
access to services. In most cases, the provision of a
referral satisfies one's professional obligations. But
in recent years, with the abortion debate increasingly
at the center of wider discussions about euthanasia,
assisted suicide, reproductive technology, and
embryonic stem-cell research, nurses and pharmacists
have begun demanding not only the same right of
refusal, but also — because even a referral, in their
view, makes one complicit in the objectionable act — a
much broader freedom to avoid facilitating a patient's
choices.
State Requirements Governing the Refusal by
Pharmacists to Fill Certain Prescriptions.
Illinois has a regulation that requires pharmacies to
fill valid contraception prescriptions in a timely
manner, but a resolution has been introduced to permit
refusals. Massachusetts has a pharmacy-board policy
that requires pharmacists to fill valid prescriptions
in a timely manner. North Carolina has a
pharmacy-board policy that requires pharmacists to
ensure that valid prescriptions are filled in a timely
manner. Wyoming has a bill that would permit providers
to refuse to abide by advance directives that might,
in some scenarios, apply to pharmacists who refuse to
fill certain prescriptions. Adapted from a map
compiled by the National Women's Law Center.
A bill recently introduced in the Wisconsin
legislature, for example, would permit health care
professionals to abstain from "participating" in any
number of activities, with "participating" defined
broadly enough to include counseling patients about
their choices. The privilege of abstaining from
counseling or referring would extend to such
situations as emergency contraception for rape
victims, in vitro fertilization for infertile couples,
patients' requests that painful and futile treatments
be withheld or withdrawn, and therapies developed with
the use of fetal tissue or embryonic stem cells. This
last provision could mean, for example, that
pediatricians — without professional penalty or threat
of malpractice claims — could refuse to tell parents
about the availability of varicella vaccine for their
children, because it was developed with the use of
tissue from aborted fetuses.
This expanded notion of complicity comports well with
other public policy precedents, such as bans on
federal funding for embryo research or abortion
services, in which taxpayers claim a right to avoid
supporting objectionable practices. In the debate on
conscience clauses, some professionals are now arguing
that the right to practice their religion requires
that they not be made complicit in any practice to
which they object on religious grounds.
Although it may be that, as Mahatma Gandhi said, "in
matters of conscience, the law of majority has no
place," acts of conscience are usually accompanied by
a willingness to pay some price. Martin Luther King,
Jr., argued, "An individual who breaks a law that
conscience tells him is unjust, and who willingly
accepts the penalty of imprisonment in order to arouse
the conscience of the community over its injustice, is
in reality expressing the highest respect for law."
What differentiates the latest round of battles about
conscience clauses from those fought by Gandhi and
King is the claim of entitlement to what newspaper
columnist Ellen Goodman has called "conscience without
consequence."
And of course, the professionals involved seek to
protect only themselves from the consequences of their
actions — not their patients. In Wisconsin, a
pharmacist refused to fill an emergency-contraception
prescription for a rape victim; as a result, she
became pregnant and subsequently had to seek an
abortion. In another Wisconsin case, a pharmacist who
views hormonal contraception as a form of abortion
refused not only to fill a prescription for
birth-control pills but also to return the
prescription or transfer it to another pharmacy. The
patient, unable to take her pills on time, spent the
next month dependent on less effective contraception.
Under Wisconsin's proposed law, such behavior by a
pharmacist would be entirely legal and acceptable. And
this trend is not limited to pharmacists and
physicians; in Illinois, an emergency medical
technician refused to take a woman to an abortion
clinic, claiming that her own Christian beliefs
prevented her from transporting the patient for an
elective abortion.
At the heart of this growing trend are several
intersecting forces. One is the emerging norm of
patient autonomy, which has contributed to the erosion
of the professional stature of medicine. Insofar as
they are reduced to mere purveyors of medical
technology, doctors no longer have extraordinary
privileges, and so their notions of extraordinary duty
— house calls, midnight duties, and charity care —
deteriorate as well. In addition, an emphasis on
mutual responsibilities has been gradually supplanted
by an emphasis on individual rights. With autonomy and
rights as the preeminent social values comes a
devaluing of relationships and a diminution of the
difference between our personal lives and our
professional duties.
Finally, there is the awesome scale and scope of the
abortion wars. In the absence of legislative options
for outright prohibition, abortion opponents search
for proxy wars, using debates on research involving
human embryos, the donation of organs from
anencephalic neonates, and the right of persons in a
persistent vegetative state to die as opportunities to
rehearse arguments on the value of biologic but
nonsentient human existence. Conscience clauses
represent but another battle in these so-called
culture wars.
Most profoundly, however, the surge in legislative
activity surrounding conscience clauses represents the
latest struggle with regard to religion in America.
Should the public square be a place for the unfettered
expression of religious beliefs, even when such
expression creates an oppressive atmosphere for
minority groups? Or should it be a place for religious
expression only if and when that does not in any way
impinge on minority beliefs and practices? This debate
has been played out with respect to blue laws, school
prayer, Christmas crèche scenes, and workplace dress
codes.
Until recently, it was accepted that the public square
in this country would be dominated by Christianity.
This long-standing religious presence has made
atheists, agnostics, and members of minority religions
view themselves as oppressed, but recent efforts to
purge the public square of religion have left
conservative Christians also feeling subjugated and
suppressed. In this culture war, both sides claim the
mantle of victimhood — which is why health care
professionals can claim the right of conscience as
necessary to the nondiscriminatory practice of their
religion, even as frustrated patients view conscience
clauses as legalizing discrimination against them when
they practice their own religion.
For health care professionals, the question becomes:
What does it mean to be a professional in the United
States? Does professionalism include the rather
old-fashioned notion of putting others before oneself?
Should professionals avoid exploiting their positions
to pursue an agenda separate from that of their
profession? And perhaps most crucial, to what extent
do professionals have a collective duty to ensure that
their profession provides nondiscriminatory access to
all professional services?
Some health care providers would counter that they
distinguish between medical care and nonmedical care
that uses medical services. In this way, they justify
their willingness to bind the wounds of the criminal
before sending him back to the street or to set the
bones of a battering husband that were broken when he
struck his wife. Birth control, abortion, and in vitro
fertilization, they say, are lifestyle choices, not
treatments for diseases.
And it is here that licensing systems complicate the
equation: such a claim would be easier to make if the
states did not give these professionals the exclusive
right to offer such services. By granting a monopoly,
they turn the profession into a kind of public
utility, obligated to provide service to all who seek
it. Claiming an unfettered right to personal autonomy
while holding monopolistic control over a public good
constitutes an abuse of the public trust — all the
worse if it is not in fact a personal act of
conscience but, rather, an attempt at cultural
conquest.
Accepting a collective obligation does not mean that
all members of the profession are forced to violate
their own consciences. It does, however, necessitate
ensuring that a genuine system for counseling and
referring patients is in place, so that every patient
can act according to his or her own conscience just as
readily as the professional can. This goal is not
simple to achieve, but it does represent the best
effort to accommodate everyone and is the approach
taken by virtually all the major medical, nursing, and
pharmacy societies. It is also the approach taken by
the governor of Illinois, who is imposing an
obligation on pharmacies, rather than on individual
pharmacists, to ensure access to services for all
patients.
Conscience is a tricky business. Some interpret its
personal beacon as the guide to universal truth. But
the assumption that one's own conscience is the
conscience of the world is fraught with dangers. As
C.S. Lewis wrote, "Of all tyrannies, a tyranny
sincerely exercised for the good of its victims may be
the most oppressive. It would be better to live under
robber barons than under omnipotent moral busybodies.
The robber baron's cruelty may sometimes sleep, his
cupidity may at some point be satiated; but those who
torment us for our own good will torment us without
end for they do so with the approval of their own
conscience."
The Celestial Fire of Conscience — Refusing to Deliver
Medical Care
R. Alta Charo, J.D.
Apparently heeding George Washington's call to "labor
to keep alive in your breast that little spark of
celestial fire called conscience," physicians, nurses,
and pharmacists are increasingly claiming a right to
the autonomy not only to refuse to provide services
they find objectionable, but even to refuse to refer
patients to another provider and, more recently, to
inform them of the existence of legal options for
care.
Largely as artifacts of the abortion wars, at least 45
states have "conscience clauses" on their books — laws
that balance a physician's conscientious objection to
performing an abortion with the profession's
obligation to afford all patients nondiscriminatory
access to services. In most cases, the provision of a
referral satisfies one's professional obligations. But
in recent years, with the abortion debate increasingly
at the center of wider discussions about euthanasia,
assisted suicide, reproductive technology, and
embryonic stem-cell research, nurses and pharmacists
have begun demanding not only the same right of
refusal, but also — because even a referral, in their
view, makes one complicit in the objectionable act — a
much broader freedom to avoid facilitating a patient's
choices.
State Requirements Governing the Refusal by
Pharmacists to Fill Certain Prescriptions.
Illinois has a regulation that requires pharmacies to
fill valid contraception prescriptions in a timely
manner, but a resolution has been introduced to permit
refusals. Massachusetts has a pharmacy-board policy
that requires pharmacists to fill valid prescriptions
in a timely manner. North Carolina has a
pharmacy-board policy that requires pharmacists to
ensure that valid prescriptions are filled in a timely
manner. Wyoming has a bill that would permit providers
to refuse to abide by advance directives that might,
in some scenarios, apply to pharmacists who refuse to
fill certain prescriptions. Adapted from a map
compiled by the National Women's Law Center.
A bill recently introduced in the Wisconsin
legislature, for example, would permit health care
professionals to abstain from "participating" in any
number of activities, with "participating" defined
broadly enough to include counseling patients about
their choices. The privilege of abstaining from
counseling or referring would extend to such
situations as emergency contraception for rape
victims, in vitro fertilization for infertile couples,
patients' requests that painful and futile treatments
be withheld or withdrawn, and therapies developed with
the use of fetal tissue or embryonic stem cells. This
last provision could mean, for example, that
pediatricians — without professional penalty or threat
of malpractice claims — could refuse to tell parents
about the availability of varicella vaccine for their
children, because it was developed with the use of
tissue from aborted fetuses.
This expanded notion of complicity comports well with
other public policy precedents, such as bans on
federal funding for embryo research or abortion
services, in which taxpayers claim a right to avoid
supporting objectionable practices. In the debate on
conscience clauses, some professionals are now arguing
that the right to practice their religion requires
that they not be made complicit in any practice to
which they object on religious grounds.
Although it may be that, as Mahatma Gandhi said, "in
matters of conscience, the law of majority has no
place," acts of conscience are usually accompanied by
a willingness to pay some price. Martin Luther King,
Jr., argued, "An individual who breaks a law that
conscience tells him is unjust, and who willingly
accepts the penalty of imprisonment in order to arouse
the conscience of the community over its injustice, is
in reality expressing the highest respect for law."
What differentiates the latest round of battles about
conscience clauses from those fought by Gandhi and
King is the claim of entitlement to what newspaper
columnist Ellen Goodman has called "conscience without
consequence."
And of course, the professionals involved seek to
protect only themselves from the consequences of their
actions — not their patients. In Wisconsin, a
pharmacist refused to fill an emergency-contraception
prescription for a rape victim; as a result, she
became pregnant and subsequently had to seek an
abortion. In another Wisconsin case, a pharmacist who
views hormonal contraception as a form of abortion
refused not only to fill a prescription for
birth-control pills but also to return the
prescription or transfer it to another pharmacy. The
patient, unable to take her pills on time, spent the
next month dependent on less effective contraception.
Under Wisconsin's proposed law, such behavior by a
pharmacist would be entirely legal and acceptable. And
this trend is not limited to pharmacists and
physicians; in Illinois, an emergency medical
technician refused to take a woman to an abortion
clinic, claiming that her own Christian beliefs
prevented her from transporting the patient for an
elective abortion.
At the heart of this growing trend are several
intersecting forces. One is the emerging norm of
patient autonomy, which has contributed to the erosion
of the professional stature of medicine. Insofar as
they are reduced to mere purveyors of medical
technology, doctors no longer have extraordinary
privileges, and so their notions of extraordinary duty
— house calls, midnight duties, and charity care —
deteriorate as well. In addition, an emphasis on
mutual responsibilities has been gradually supplanted
by an emphasis on individual rights. With autonomy and
rights as the preeminent social values comes a
devaluing of relationships and a diminution of the
difference between our personal lives and our
professional duties.
Finally, there is the awesome scale and scope of the
abortion wars. In the absence of legislative options
for outright prohibition, abortion opponents search
for proxy wars, using debates on research involving
human embryos, the donation of organs from
anencephalic neonates, and the right of persons in a
persistent vegetative state to die as opportunities to
rehearse arguments on the value of biologic but
nonsentient human existence. Conscience clauses
represent but another battle in these so-called
culture wars.
Most profoundly, however, the surge in legislative
activity surrounding conscience clauses represents the
latest struggle with regard to religion in America.
Should the public square be a place for the unfettered
expression of religious beliefs, even when such
expression creates an oppressive atmosphere for
minority groups? Or should it be a place for religious
expression only if and when that does not in any way
impinge on minority beliefs and practices? This debate
has been played out with respect to blue laws, school
prayer, Christmas crèche scenes, and workplace dress
codes.
Until recently, it was accepted that the public square
in this country would be dominated by Christianity.
This long-standing religious presence has made
atheists, agnostics, and members of minority religions
view themselves as oppressed, but recent efforts to
purge the public square of religion have left
conservative Christians also feeling subjugated and
suppressed. In this culture war, both sides claim the
mantle of victimhood — which is why health care
professionals can claim the right of conscience as
necessary to the nondiscriminatory practice of their
religion, even as frustrated patients view conscience
clauses as legalizing discrimination against them when
they practice their own religion.
For health care professionals, the question becomes:
What does it mean to be a professional in the United
States? Does professionalism include the rather
old-fashioned notion of putting others before oneself?
Should professionals avoid exploiting their positions
to pursue an agenda separate from that of their
profession? And perhaps most crucial, to what extent
do professionals have a collective duty to ensure that
their profession provides nondiscriminatory access to
all professional services?
Some health care providers would counter that they
distinguish between medical care and nonmedical care
that uses medical services. In this way, they justify
their willingness to bind the wounds of the criminal
before sending him back to the street or to set the
bones of a battering husband that were broken when he
struck his wife. Birth control, abortion, and in vitro
fertilization, they say, are lifestyle choices, not
treatments for diseases.
And it is here that licensing systems complicate the
equation: such a claim would be easier to make if the
states did not give these professionals the exclusive
right to offer such services. By granting a monopoly,
they turn the profession into a kind of public
utility, obligated to provide service to all who seek
it. Claiming an unfettered right to personal autonomy
while holding monopolistic control over a public good
constitutes an abuse of the public trust — all the
worse if it is not in fact a personal act of
conscience but, rather, an attempt at cultural
conquest.
Accepting a collective obligation does not mean that
all members of the profession are forced to violate
their own consciences. It does, however, necessitate
ensuring that a genuine system for counseling and
referring patients is in place, so that every patient
can act according to his or her own conscience just as
readily as the professional can. This goal is not
simple to achieve, but it does represent the best
effort to accommodate everyone and is the approach
taken by virtually all the major medical, nursing, and
pharmacy societies. It is also the approach taken by
the governor of Illinois, who is imposing an
obligation on pharmacies, rather than on individual
pharmacists, to ensure access to services for all
patients.
Conscience is a tricky business. Some interpret its
personal beacon as the guide to universal truth. But
the assumption that one's own conscience is the
conscience of the world is fraught with dangers. As
C.S. Lewis wrote, "Of all tyrannies, a tyranny
sincerely exercised for the good of its victims may be
the most oppressive. It would be better to live under
robber barons than under omnipotent moral busybodies.
The robber baron's cruelty may sometimes sleep, his
cupidity may at some point be satiated; but those who
torment us for our own good will torment us without
end for they do so with the approval of their own
conscience."
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