Advances in medicine allow doctors to keep patients alive longer, tackle fertility problems and extend the viability of premature babies. They also lead to a growing number of moral questions for both the medical provider and patient.
"Across the country, so-called conscience legislation allows doctors and nurses to refuse to provide abortions, contraception, sterilizations, and end-of-life care," says Elizabeth Sepper, JD, health law expert and professor of law at Washington University in St. Louis. "But legislators have totally overlooked the consciences of providers who have made the conscientious judgment to deliver care and of the patients who seek these treatments."
Current laws only protect refusing providers from employment discrimination, civil actions such as malpractice, and regulatory or criminal sanctions. They also allow refusing healthcare facilities, such as hospitals, nursing homes, and clinics, to prohibit nurses and doctors from providing particular treatments due to the institution's moral or religious policies.
"Conscience is not one-sided," Sepper says. "Because existing legislation overlooks the diversity of medical providers' moral beliefs, it creates a new conflict between providers who seek to deliver care and institutions that limit care.
"For instance, Catholic healthcare facilities prohibit dispensing condoms. But a religious nurse who determines life is inviolable could find that his conscience leads him to give condoms to HIV-positive patients to save lives -- setting him up for a conflict with his employer and risking his job."
Sepper, author of "Taking Conscience Seriously," to be published in the forthcoming issue of the Virginia Law Review, notes that restrictions at refusing institutions affect a large percentage of medical providers.
Among refusing institutions, Catholic healthcare is distinguished by its size and the extent of its restrictions on reproductive healthcare, including tubal ligations, vasectomies, and fertility treatments, and end-of-life care. Yet, many healthcare institutions that assert an objection to legal, medically necessary care are not affiliated with any religion.
"Frequent mergers, changes in ownership, and consolidations mean that healthcare providers can find moral restrictions imposed at workplaces that previously allowed them to deliver care their patients need," she says. "The healthcare worker must then choose between complying with moral limits that she does not share and looking for a position elsewhere."
Alternative legal framework needed
Sepper says that conscience in the medical setting needs to be protected more consistently.
"The one-sided protection of refusal cannot stand," she says. "Just as we wouldn't say that giving students vouchers only for Christian schools furthers religious freedom, we can't say that current conscience legislation successfully lives up to its goal of protecting conscience.
"Legislators who are genuinely committed to conscience should be concerned. They should seek a better balance between doctors' consciences, institutional interests, and patients' access to care."
Sepper also strongly believes that immunizing refusing providers for harm to patients in the name of conscience protection cannot be justified.
"Conscience legislation should no longer license harming patients," she says. "If a patient is injured because of a hospital's refusal to provide care, he should be able to seek justice. Some statutes go so far as to allow providers to keep vital information from patients about their diagnosis and options. This means that, in some states, a hospital could simply not tell a woman who had been raped about emergency contraception, yet face no tort liability or sanction. This sort of deception completely undermines patients' trust in the medical profession."
Invocations of conscience are spreading to a broader array of employees and to entities removed from medical decisions, like insurance companies and employers. This past term, the U.S. Congress spent time proposing legislation entitled "Respect for Rights of Conscience Act," that would have permitted any person or entity to refuse to provide any care even if the refusal results in a patient's death. Private employers have sought exemptions from the Affordable Care Act's requirement that all insurance plans cover contraception on the grounds of conscience.
"Commentators often state that no one should have to violate his conscience. But 'conscience' often stands in for refusal to deliver abortions or contraception or to remove or withhold life support," Sepper says.
"Debates over the contraception mandate show that individuals, even within the same faith, come to different conscientious judgments about their reproductive lives. Protecting conscience means acknowledging and respecting these differences. Organizations opposed to contraception cloak their resistance in the language of conscience, but seek to prevent their employees from making their own conscientious decisions."
On Friday, Oct. 26, Sepper will address the potential for conflicts between patients, providers and healthcare facilities over the morality of medical decisions and the approach legislators might take in the future as part of the Faulkner Law Review 2012 Symposium: "Overlapping Jurisdictions: What Role for Conscience and Religion?"
A live webcast of the symposium at Faulkner University will begin at 8 a.m. Oct. 26 at http://www.faulkner.edu/jsl/flr.aspx.
- Elizabeth Sepper. Taking Conscience Seriously. SSRN Electronic Journal, 2012; DOI: 10.2139/ssrn.1888375
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