President’s Committee on Bioethics Debates Provider, Patient Conscience

David J. Nolan

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.

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.

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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

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

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

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.

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