Letters & Op-Eds 2008
RH Reality Check

President’s Committee on Bioethics Debates Provider, Patient Conscience

As the deadline for public comment on the new Department of Health and Human Services refusal clause regulations nears, the President’s Committee on Bioethics discussed how conscience relates to health care at its meeting last week.


The 34th meeting of the Bioethics Committee took place September 11-12 in the Hotel Palomar in Arlington, VA. A major part of the agenda on the first day centered on the issue of conscience, both from an academic/philosophical perspective, and a practical one, as it relates to the provision of health care. While the regulations themselves were not part of the discussion (though a copy was included in the info pack), the tone of the meeting suggested that the majority of committee members were strong supporters of providing services, rather than seeking ways for providers to opt out of providing services. While three members expressed strong anti-choice views during the discussion, two of those specifically mentioned the onus on doctors and health-care providers to provide services to everybody.


The committee started off on a discordant note, having handed the opening speaking slot to a Catholic priest from Boston College. While his remarks drew on many sources — from ancient Greece through to last year’s Oscar winners, “There Will Be Blood” and “No Country for Old Men” — Dr. John Paris, a Jesuit priest and professor of bioethics in the Department of Theology at Boston College, gave a distinctly Catholic perspective on the issue of conscience. His thesis was that people are creatures of God and that is what gives us our sense of right and wrong.


Paris did acknowledge that there is a social element to the formation of conscience. Laws, rituals, degrees of freedom, relationships and personal character are also involved. However, he argued, this should not be used as an excuse to do as we please.


In the discussion period with members of the council, Paris said that the contemporary understanding of conscience is “autonomy run amok.” Chaos will result, he argued, if we allow everybody to use his or her own judgment.


However, as the morning session drew to a close, the council seemed to acknowledge that no real answers were forthcoming on how conscience was formed and how conscience clauses should or could be regulated when it came to the provision of health care.


The afternoon session concentrated on the practical, health-care related aspects of implementing conscience clauses.


Dr. Anne Drapkin Lyerly from Duke University opened the session. (Lyerly chairs the ethics committee of the American College of Obstetrics and Gynecology — which produced an Opinion on the subject in November 2007 [1] — but she was not representing ACOG at this meeting.) Lyerly gave a brief background of current laws, explained how various professional organizations view conscience clauses, outlined current themes in the debate and provided pointers for ways forward. She noted that issues of conscience relate to a wide range of procedures, not just reproductive health (end-of-life care, blood transfusions and vaccinations were highlighted), and that most professional organizations sought a middle ground that tried to meet both patients’ needs and providers’ views.


Lyerly presented several cases which demonstrated how issues of conscience can affect the health and lives of patients, as well as issues related to fairness and equality of access to care as well as respect for the patient. She suggested that providers need to give patients prior notice and referrals in cases when they do not want to provide a particular service. Institutions should provide appropriate staffing as well as counseling and referrals. While there may be shared responsibility, the onus should be on the individual provider to ensure that the needs of the patient are met.


The next speaker, Dr. Howard Brody, chair of family medicine at the University of Texas, gave an alternative, non-religious view of the formation of conscience, one that relied on how one thinks that a self-selected group of moral mentors — real or imagined — or people whose decision making you admire, would like you to act. How, he asked, does one resolve the conflicts that emerge in practical conscience-related decision making?


Brody argued that doctors who object to the provision of some services have the option of either standing aside from providing those services or actively preventing or interfering with them accessing services. (As an example of the latter, he noted how one pharmacist “stole” a prescription for emergency contraception from a patient in order to prevent her obtaining the medicine elsewhere.)


He agreed with Lyerly that some people who have very strong conscience-related views against some procedures should perhaps choose not to become a doctor or health-care provider. He also noted that in some cases abuse of power was being dressed up as conscientious objection. Addressing religious leaders, he suggested that when they press for a strong interpretation of conscience-related objections, they may be responsible for elevated levels of social conflict making it harder to provide adequate health care. Local accommodations based on mutual respect would seem, in Brody’s view, to be the most reasonable and equitable way forward.


The final speaker, Dr. Farr Carlin, assistant professor of medicine at the University of Chicago, stated at the outset that he disagreed with the previous speakers.

Doctors, he said, often refuse to provide legal treatments to patients if the doctor feels it is inappropriate in that particular case. He said that “good reasons” should be enough to justify refusal of treatment. Doctors cannot be required to do what patients want in all cases, and as long as they outline the reasons why, may refuse treatment as they see fit. In many medical circumstances, there is sufficient room for ambiguity and uncertainty and therefore conscientious refusals are not unethical per se.

Carlin argued that the balance in the doctor-patient relationship had been upset. In seeking to get away from the paternalism that used to dominate the relationship, we have shifted too far in the direction of the patient. Rather than a professional-patient model, patients may now have too much sovereignty or have actually gained control over their physicians, turning doctors into technicians rather than healers. (Every so often Dr. Carlin’s impartial demeanor slipped, as when he tripped over the words abortion provider and referred to “abortionists.”)


Carlin concluded that policies that devalue conscience devalue medicine itself. Moves in this direction “demoralize” medicine as well as those who practice it. Until we can agree on and clearly delineate the ultimate ends of medicine, refusals can and will continue.


In the discussion, council member Dr. Robert George, professor of jurisprudence at Princeton University, editorial board member of the ultra-conservative journal First Things and longstanding anti-choice commentator, used his opening remarks to highlight his criticism of the ACOG statement on conscience. He argued that the terms of the discussion in the paper were ethical and philosophical not scientific and medical, i.e. not based on ACOG members’ specialized training but on their political and philosophical beliefs. It is immoral, he argued, to coerce doctors to partake in the “homicidal practice” of abortion and the authors of the ACOG report sought to impose their own morality on doctors.


Lyerly responded simply by stating that while she was not representing ACOG at this meeting, the members of the ACOG committee on ethics were not just doctors, but did include ethicists and philosophers, deftly pulling the rug from under the whole foundation of George’s comments.


The remaining comments examined the discussion more broadly, looking at some of the themes underlying the discussion, how health and medicine should be defined, the prejudices that people bring to the discussion, and how the world view of those involved informs their positions. Specific concerns were raised about suggestions that people who were not willing to provide all medical services should decide against becoming doctors.


It was unfortunate that the council chose a Jesuit priest, albeit one not wearing clerical garb, to set the tenor of the discussion by presenting the opening remarks. While he noted that conscience formation had a social aspect, Fr. Paris elevated the importance of faith and religious beliefs in the formation of conscience. While this was to some extent tempered by Brody’s presentation, it is precisely this elevation of religious beliefs over other perspectives that we at Catholics for Choice finds most objectionable in the discussion about the proper role for religion in public life.


The meeting was attended by up to 40 people, not including council members, but fewer than 15 were present for the whole event. Some of those present were council staffers and aides or colleagues of the 17 council members present. The three priests in attendance all disappeared before the end of the morning session.


Read “In Good Conscience: Respecting the Beliefs of Health-Care Providers and the Needs of Patients,” the recent Catholics for Choice publication on this subject, here [2].


This article originally appeared on RH Reality Check on September 16, 2008.

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