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.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

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
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.

Related Posts

Analysis Politics

The 2016 Republican Platform Is Riddled With Conservative Abortion Myths

Ally Boguhn

Anti-choice activists and leaders have embraced the Republican platform, which relies on a series of falsehoods about reproductive health care.

Republicans voted to ratify their 2016 platform this week, codifying what many deem one of the most extreme platforms ever accepted by the party.

“Platforms are traditionally written by and for the party faithful and largely ignored by everyone else,” wrote the New York Times‘ editorial board Monday. “But this year, the Republicans are putting out an agenda that demands notice.”

“It is as though, rather than trying to reconcile Mr. Trump’s heretical views with conservative orthodoxy, the writers of the platform simply opted to go with the most extreme version of every position,” it continued. “Tailored to Mr. Trump’s impulsive bluster, this document lays bare just how much the G.O.P. is driven by a regressive, extremist inner core.”

Tucked away in the 66-page document accepted by Republicans as their official guide to “the Party’s principles and policies” are countless resolutions that seem to back up the Times‘ assertion that the platform is “the most extreme” ever put forth by the party, including: rolling back marriage equalitydeclaring pornography a “public health crisis”; and codifying the Hyde Amendment to permanently block federal funding for abortion.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Anti-choice activists and leaders have embraced the platform, which the Susan B. Anthony List deemed the “Most Pro-life Platform Ever” in a press release upon the GOP’s Monday vote at the convention. “The Republican platform has always been strong when it comes to protecting unborn children, their mothers, and the conscience rights of pro-life Americans,” said the organization’s president, Marjorie Dannenfelser, in a statement. “The platform ratified today takes that stand from good to great.”  

Operation Rescue, an organization known for its radical tactics and links to violence, similarly declared the platform a “victory,” noting its inclusion of so-called personhood language, which could ban abortion and many forms of contraception. “We are celebrating today on the streets of Cleveland. We got everything we have asked for in the party platform,” said Troy Newman, president of Operation Rescue, in a statement posted to the group’s website.

But what stands out most in the Republicans’ document is the series of falsehoods and myths relied upon to push their conservative agenda. Here are just a few of the most egregious pieces of misinformation about abortion to be found within the pages of the 2016 platform:

Myth #1: Planned Parenthood Profits From Fetal Tissue Donations

Featured in multiple sections of the Republican platform is the tired and repeatedly debunked claim that Planned Parenthood profits from fetal tissue donations. In the subsection on “protecting human life,” the platform says:

We oppose the use of public funds to perform or promote abortion or to fund organizations, like Planned Parenthood, so long as they provide or refer for elective abortions or sell fetal body parts rather than provide healthcare. We urge all states and Congress to make it a crime to acquire, transfer, or sell fetal tissues from elective abortions for research, and we call on Congress to enact a ban on any sale of fetal body parts. In the meantime, we call on Congress to ban the practice of misleading women on so-called fetal harvesting consent forms, a fact revealed by a 2015 investigation. We will not fund or subsidize healthcare that includes abortion coverage.

Later in the document, under a section titled “Preserving Medicare and Medicaid,” the platform again asserts that abortion providers are selling “the body parts of aborted children”—presumably again referring to the controversy surrounding Planned Parenthood:

We respect the states’ authority and flexibility to exclude abortion providers from federal programs such as Medicaid and other healthcare and family planning programs so long as they continue to perform or refer for elective abortions or sell the body parts of aborted children.

The platform appears to reference the widely discredited videos produced by anti-choice organization Center for Medical Progress (CMP) as part of its smear campaign against Planned Parenthood. The videos were deceptively edited, as Rewire has extensively reported. CMP’s leader David Daleiden is currently under federal indictment for tampering with government documents in connection with obtaining the footage. Republicans have nonetheless steadfastly clung to the group’s claims in an effort to block access to reproductive health care.

Since CMP began releasing its videos last year, 13 state and three congressional inquiries into allegations based on the videos have turned up no evidence of wrongdoing on behalf of Planned Parenthood.

Dawn Laguens, executive vice president of Planned Parenthood Action Fund—which has endorsed Hillary Clinton—called the Republicans’ inclusion of CMP’s allegation in their platform “despicable” in a statement to the Huffington Post. “This isn’t just an attack on Planned Parenthood health centers,” said Laguens. “It’s an attack on the millions of patients who rely on Planned Parenthood each year for basic health care. It’s an attack on the brave doctors and nurses who have been facing down violent rhetoric and threats just to provide people with cancer screenings, birth control, and well-woman exams.”

Myth #2: The Supreme Court Struck Down “Commonsense” Laws About “Basic Health and Safety” in Whole Woman’s Health v. Hellerstedt

In the section focusing on the party’s opposition to abortion, the GOP’s platform also reaffirms their commitment to targeted regulation of abortion providers (TRAP) laws. According to the platform:

We salute the many states that now protect women and girls through laws requiring informed consent, parental consent, waiting periods, and clinic regulation. We condemn the Supreme Court’s activist decision in Whole Woman’s Health v. Hellerstedt striking down commonsense Texas laws providing for basic health and safety standards in abortion clinics.

The idea that TRAP laws, such as those struck down by the recent Supreme Court decision in Whole Woman’s Health, are solely for protecting women and keeping them safe is just as common among conservatives as it is false. However, as Rewire explained when Paul Ryan agreed with a nearly identical claim last week about Texas’ clinic regulations, “the provisions of the law in question were not about keeping anybody safe”:

As Justice Stephen Breyer noted in the opinion declaring them unconstitutional, “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

All the provisions actually did, according to Breyer on behalf of the Court majority, was put “a substantial obstacle in the path of women seeking a previability abortion,” and “constitute an undue burden on abortion access.”

Myth #3: 20-Week Abortion Bans Are Justified By “Current Medical Research” Suggesting That Is When a Fetus Can Feel Pain

The platform went on to point to Republicans’ Pain-Capable Unborn Child Protection Act, a piece of anti-choice legislation already passed in several states that, if approved in Congress, would create a federal ban on abortion after 20 weeks based on junk science claiming fetuses can feel pain at that point in pregnancy:

Over a dozen states have passed Pain-Capable Unborn Child Protection Acts prohibiting abortion after twenty weeks, the point at which current medical research shows that unborn babies can feel excruciating pain during abortions, and we call on Congress to enact the federal version.

Major medical groups and experts, however, agree that a fetus has not developed to the point where it can feel pain until the third trimester. According to a 2013 letter from the American Congress of Obstetricians and Gynecologists, “A rigorous 2005 scientific review of evidence published in the Journal of the American Medical Association (JAMA) concluded that fetal perception of pain is unlikely before the third trimester,” which begins around the 28th week of pregnancy. A 2010 review of the scientific evidence on the issue conducted by the British Royal College of Obstetricians and Gynaecologists similarly found “that the fetus cannot experience pain in any sense prior” to 24 weeks’ gestation.

Doctors who testify otherwise often have a history of anti-choice activism. For example, a letter read aloud during a debate over West Virginia’s ultimately failed 20-week abortion ban was drafted by Dr. Byron Calhoun, who was caught lying about the number of abortion-related complications he saw in Charleston.

Myth #4: Abortion “Endangers the Health and Well-being of Women”

In an apparent effort to criticize the Affordable Care Act for promoting “the notion of abortion as healthcare,” the platform baselessly claimed that abortion “endangers the health and well-being” of those who receive care:

Through Obamacare, the current Administration has promoted the notion of abortion as healthcare. We, however, affirm the dignity of women by protecting the sanctity of human life. Numerous studies have shown that abortion endangers the health and well-being of women, and we stand firmly against it.

Scientific evidence overwhelmingly supports the conclusion that abortion is safe. Research shows that a first-trimester abortion carries less than 0.05 percent risk of major complications, according to the Guttmacher Institute, and “pose[s] virtually no long-term risk of problems such as infertility, ectopic pregnancy, spontaneous abortion (miscarriage) or birth defect, and little or no risk of preterm or low-birth-weight deliveries.”

There is similarly no evidence to back up the GOP’s claim that abortion endangers the well-being of women. A 2008 study from the American Psychological Association’s Task Force on Mental Health and Abortion, an expansive analysis on current research regarding the issue, found that while those who have an abortion may experience a variety of feelings, “no evidence sufficient to support the claim that an observed association between abortion history and mental health was caused by the abortion per se, as opposed to other factors.”

As is the case for many of the anti-abortion myths perpetuated within the platform, many of the so-called experts who claim there is a link between abortion and mental illness are discredited anti-choice activists.

Myth #5: Mifepristone, a Drug Used for Medical Abortions, Is “Dangerous”

Both anti-choice activists and conservative Republicans have been vocal opponents of the Food and Drug Administration (FDA’s) March update to the regulations for mifepristone, a drug also known as Mifeprex and RU-486 that is used in medication abortions. However, in this year’s platform, the GOP goes a step further to claim that both the drug and its general approval by the FDA are “dangerous”:

We believe the FDA’s approval of Mifeprex, a dangerous abortifacient formerly known as RU-486, threatens women’s health, as does the agency’s endorsement of over-the-counter sales of powerful contraceptives without a physician’s recommendation. We support cutting federal and state funding for entities that endanger women’s health by performing abortions in a manner inconsistent with federal or state law.

Studies, however, have overwhelmingly found mifepristone to be safe. In fact, the Association of Reproductive Health Professionals says mifepristone “is safer than acetaminophen,” aspirin, and Viagra. When the FDA conducted a 2011 post-market study of those who have used the drug since it was approved by the agency, they found that more than 1.5 million women in the U.S. had used it to end a pregnancy, only 2,200 of whom had experienced an “adverse event” after.

The platform also appears to reference the FDA’s approval of making emergency contraception such as Plan B available over the counter, claiming that it too is a threat to women’s health. However, studies show that emergency contraception is safe and effective at preventing pregnancy. According to the World Health Organization, side effects are “uncommon and generally mild.”

News Abortion

Pennsylvania’s TRAP Law Could Be the Next to Go Down

Teddy Wilson

The Democrats' bill would repeal language from a measure that targets abortion clinics, forcing them to meet the standards of ambulatory surgical facilities.

A Pennsylvania lawmaker on Wednesday introduced a bill that would repeal a state law requiring abortion clinics to meet the standards of ambulatory surgical facilities (ASF). The bill comes in response to the U.S. Supreme Court’s ruling striking down a similar provision in Texas’ anti-choice omnibus law known as HB 2.

A similar so-called targeted regulation of abortion providers (TRAP) law was passed in Pennsylvania in 2011 with bipartisan majorities in both the house and state senate, and was signed into law by former Gov. Tom Corbett (R).

SB 1350, sponsored by Sen. Daylin Leach (D-Montgomery) would repeal language from Act 122 that requires abortion clinics to meet ASF regulations. The text of the bill has not yet been posted on the state’s legislative website.

The bill is co-sponsored by state Sens. Art Haywood (D-Philadelphia), Larry Farnese (D-Philadelphia), and Judy Schwank (D-Berks).

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Leach said in a statement that there has been a “nationwide attack on patients and their doctors,” but that the Supreme Court’s ruling upholds the constitutionally protected right to terminate a pregnancy.

“Abortion is a legal, Constitutionally-protected right that should be available to all women,” Leach said. “Every member of the Pennsylvania General Assembly swore an oath to support, obey and defend the Constitution of the United States, so we must act swiftly to repeal this unconstitutional requirement.”

TRAP laws, which single out abortion clinics and providers and subject them to regulations that are more stringent than those applied to medical clinics, have been passed in several states in recent years.

However, the Supreme Court’s ruling in Whole Woman’s Health v. Hellerstedt that struck down two of the provisions in HB 2 has already had ramifications on similar laws passed in other states with GOP-held legislatures.

The Supreme Court blocked similar anti-choice laws in Wisconsin and Mississippi, and Alabama’s attorney general announced he would drop an appeal to a legal challenge of a similar law.