Healthcare Without Conscience:Unconscionable

Gene Rudd, MD

March 2008

Healthcare Right of Conscience

Healthcare Right of Conscience

The right of institutions and healthcare professionals to exercise their conscience and refuse to participate in or cooperate with certain medical practices or procedures they deem morally of religiously objectionable.

History:Proposed mandatory

abortion training

History:Proposed mandatory

abortion training

1996 Congress considers Accreditation Council for Graduate Medical Education (ACGME) requirement for abortion training

42 U.S.C. §238n was passed to prevent ACGME action

Nevertheless: Mandatory Abortion Training in NYCNevertheless: Mandatory

Abortion Training in NYC

2002: Mayor Bloomberg orders abortion training in All NYC medical schools

Guidelines make it very difficult conscientiously object.

Pharmacist Exercises Conscience

Pharmacist Exercises Conscience

1999: Karen Brauer, while working for Kmart, refused to fill a Rx for a progesterone-only contraceptive on the grounds that it has a post-fertilization mechanism of action

She was fired by Kmart. In 2000, the US District Court

upheld Ms Brauer claim of wrongful dismissal. Case continues.

Illinois Executive OrderForbids Conscience

Illinois Executive OrderForbids Conscience

In 2005, the governor issued an executive order making it a crime to refuse to fill a legal prescription.

Most states have some degree of law that protects right of conscience.

At least 3 states have specific laws that protect pharmacists’ right of conscience

AMA Resolution (June 2005)

AMA Resolution (June 2005)

Resolution 2 (A-05): Pharmacist Conscientious Objection and Effects on Patient Access to Care

RESOLVED, That our American Medical Association call upon our colleagues at the American Pharmacists Association and the American Society of Health System Pharmacists to vigorously reaffirm and take positive steps to enforce their policies supporting the establishment of systems that protect the patient’s right to obtain legally prescribed, medically indicated therapy when an individual pharmacist exercises the right of conscientious refusal; and be it further

AMA’sConscience Clause

AMA’sConscience Clause

“Medical schools should have mechanisms in place that permit students to be excused from activities that violate the students’ religious or ethical beliefs.”

Weldon Amendment2004

Weldon Amendment2004

Prohibits government authorities from requiring any health care professional or institution to participate in or pay for abortions

(Awaiting judgment from California Supreme Court for >1 year)

Benitez vs. North CoastBenitez vs. North Coast

Currently in appeals court Based on conscience concerns,

Dr. Brody declined to perform artificial insemination on Ms Benitez since she was not married

Ms Benitez, a lesbian, sued on grounds of homosexual discrimination

More recentlyMore recently

November 2007: American College of Obstetricians and Gynecologist issue new ethical statement (Committee Opinion #385) on “Limits of Conscientious Refusal”

Conclusion: patient autonomy trumps moral objections of provider

American Board of Obstetrics and Gynecology

American Board of Obstetrics and Gynecology

New policy issued in January 2008: certification contingent on compliance with ACOG ethical principles

ACOG’s DilemmaACOG’s Dilemma

Consequence of allowing patient autonomy become the prevailing right

“Elective” Cesarean Sections

Common DenominatorsCommon Denominators Abortion

“Reproductive Rights”

Those promoting these issues seem willing to give up foundational rights and change the landscape of medical ethics and patient-doctor relationship in order to be successful with their agendas.

Distortion of AutonomyDistortion of Autonomy

Autonomy protects patient’s right to make informed decisions for themselves, not to force others to support their decision

It become choice for one person but not for another.

Right of conscience vs. right of convenience?

Not a New IssueNot a New Issue

Moral Debate 2500 Years AgoI will neither give a deadly drug

to anybody if asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy.

Hippocratic Oath

The other label: “The Right of Refusal”

The other label: “The Right of Refusal”

“A threat to reproductive rights” “Health related decisions made between a

provider and patient should be made on the personal welfare and healthcare needs of the patient - not the morals or belief of the caregivers.”

“While we firmly believe that all people have a right to their own opinions and moral beliefs, it is unethical for healthcare providers to stand in the way of a woman’s access to safe, legal and professional healthcare.”

Refusal ClausesPlanned Parenthood Website

How basic is this right?How basic is this right?

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…"

Bill of Rights,

First Amendment

What does Freedom of Religion mean if you can’t follow your conscience?

Thinking Behind the First AmendmentThinking Behind the First Amendment James Madison, 1789-JUN-7 The Civil Rights of none shall be

abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, nor on any pretext infringed. No state shall violate the equal rights of conscience or the freedom of the press, or the trial by jury in criminal cases.

House Select Committee, JUL-28 No religion shall be established by law, nor shall the equal rights of conscience be infringed,

Livermore, AUG-15 Congress shall make no laws touching religion, or infringing the rights of conscience.

House Version, AUG-20 Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.

Conference Committee SEPT 24 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

Perspective of the Founding FathersPerspective of the Founding Fathers

The rights of conscience we never submitted, we could not submit. We are answerable for them to our God.

I consider the government of the U.S. as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises.

Thomas Jefferson

James MadisonJames Madison

Conscience is the most sacred of all property.

The Religion of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise

it as these may dictate.

Consider Healthcare without Conscience

Consider Healthcare without Conscience

Is our healthcare system in need of more conscience-driven doctors or more ethically-morally neutered doctors?

Do we want medical education to strip our future doctors from all convictions that have not been “approved”?

A doctor's conscience may be the last line of protection between a patient and those who would profit from early death.

Whose Freedom Trumps?Whose Freedom Trumps?

Patient or Provider’s Autonomy? Person’s autonomy does not include

the right to compel someone else to participate.

“Obligation” to Patient Washington v. Glucksberg: Supreme Court & Assisted

Suicide

William Ewart Gladstone British prime minister, speech, Nov. 26, 1879,

Dalkeith, Scotland

William Ewart Gladstone British prime minister, speech, Nov. 26, 1879,

Dalkeith, Scotland

"Remember the rights of the savage, as we call him. Remember that the happiness of his humble home, remember that the sanctity of life in the hill villages of Afghanistan, among the winter snows, is as inviolable in the eye of Almighty God, as can be your own."

(We might use the term “inalienable.”)

“Inalienable Rights”Declaration of Independence

“Inalienable Rights”Declaration of Independence

Life Liberty Pursuit of Happiness

Hierarchy of Rights

Life trumps LibertyLiberty trumps Pursuit of Happiness

“Access to Care” Argument

“Access to Care” Argument

Opponents to Healthcare Right of Conscience argue the it interferes with the “right” to access to healthcare

But are patients denied care or simply inconvenienced?

Freedom for all, or freedom for some

Freedom for all, or freedom for some

Will doctors be required to become second class citizens, having to check their convictions and rights at the door before entering the profession of healthcare?

Who will be next and for what issue?

Protection of Rightsvs.

Endorsement of the Objection

Protection of Rightsvs.

Endorsement of the Objection

Protection of someone’s right to object does not mean be equated with support for their position

Indeed, we must be more careful to protect the right when we do not support the position.

(Nevertheless, claims to conscience rights can be abused.)

AMA StatementAMA Statement

AMA reaffirms that neither physician, hospital, nor hospital personnel shall be required to perform any act violative of personally held moral principles. In these circumstances, good medical practice requires only that the physician or other professional withdraw from the case, so long as the withdrawal is consistent with good medical practice.

AMA Statement (cont.)AMA Statement (cont.)

Except in emergencies, physicians shall be free to choose whom to serve, with whom who to associate and the environment in which to provide medical care.

(Sub.Res.43, A-73; Reaffirmed: I-86; Reaffirmed: Sunset Report, I-96; Reaffirmed by Sub. Res. 208, I-96; Reaffirmed by BOT Rep. 26, A-97)

PharmacistAssociation Statements

PharmacistAssociation Statements

“Pharmacist have a duty to act with conviction of conscience”

Code of Ethics, APhA

“APhA recognizes the individual pharmacist’s right to exercise conscientious refusal”

Pharmacist Conscience Clause, APhA

“the right of pharmacists… to decline to participate in therapies they consider to be morally, religiously or ethically troubling.

American Society of Health-System Pharmacists

State LawsState Laws

45 states have some sort of conscience laws on abortionE.g., Alaska - Sec. 18.16.010. -

Abortions Nothing in this section requires a hospital or

person to participate in an abortion, nor is a hospital or person liable for refusing to participate in an abortion under this section.

State by State Lawshttp://www.consciencelaws.org

Other Countries/CodesOther Countries/Codes European Convention on Human Rights

Everyone has the right to freedom of thought, conscience and religion; this right includes… freedom …to manifest his religion or belief in worship, teaching, practice and observance.

Canadian Medical Association Physicians who object to abortion for reasons of

conscience are advised to inform their patients of their objections so that the patient can consult another physician. The CMA stresses that physicians who decline to participate in abortion should not be discriminated against, and emphasizes the need to respect the rights of conscientious objectors, especially those in training for obstetrics and gynecology, and anesthesia.

CMDA Position(from Ethical Statement on

Health Care Right of Conscience)

CMDA Position(from Ethical Statement on

Health Care Right of Conscience)

“All healthcare professionals have the right to refuse to participate in situations or procedures that they believe to be morally wrong and/or harmful to the patient or others. In such circumstances, healthcare professionals have an obligation to ensure that the patient’s records are transferred to the healthcare professional of the patient’s choice.”

Thomas JeffersonNotes on the State of Virginia (1787), Query 17, p. 159, ed. William Peden

(1954)

Thomas JeffersonNotes on the State of Virginia (1787), Query 17, p. 159, ed. William Peden

(1954)

"[O]ur rules can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God."

Martin Luther KingMartin Luther King"On some positions cowardice asks the

question, 'Is it safe?' Expediency asks the question, 'Is it politic?' Vanity asks the question, 'Is it popular?' But conscience asks the question, 'Is it

right?' And there comes a time when one must

take a position that is neither safe, nor politic, nor popular. But ... because it is right."

Harper LeeTo Kill a Mockingbird, 1960

Harper LeeTo Kill a Mockingbird, 1960

"The one thing that doesn't abide by majority rule is a person's conscience."

Martin Niemoller (1892 - 1984)

Martin Niemoller (1892 - 1984)

"First they came for the Jews. I was silent. I was not a Jew. Then they came for the Communists. I was silent. I was not a Communist. Then they came for the trade unionists. I was silent. I was not a trade unionist. Then they came for me. There was no one left to speak for me."