HHS rules prevent providers from being forced to do things that violate moral convictions

The Hill

Reproduced with permission

Diana Ruzicka*

In the April 4, 2018 article, HHS rule lowers the bar for care and discriminates against certain people, nursing leaders, Pamela F. Cipriano and Karen Cox, wrote that the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) Proposed Rule: Protecting Statutory Conscience Rights in Health Care; Delegations of Authority expands the ability to discriminate, denies patients health care and should be rescinded. These accusations are unfounded and the rule should be supported.

What the rule does is “more effectively and comprehensively enforce Federal health care conscience and associated anti-discrimination laws.” It is not an effort to allow discrimination but an effort to prevent it by enforcing laws already on the books and gives the OCR the authority to oversee such efforts. This is something that nursing should encourage because it supports the Code of Ethics for Nurses (code).

The code reminds us that, “The nurse owes the same duties to self as to others, including the responsibility to promote health and safety, preserve wholeness of character and integrity, maintain competence and continue personal and professional growth.”

It is precisely because nurses are professionals who hold themselves to these standards that patients have come to see nurses as persons worthy of their trust, persons in whose hands they are willing to place their lives. Being granted by the public this weighty and solemn responsibility is humbling and must never be taken lightly. Thus the nurse’s duty to practice in accord with one’s conscience, to be a person of wholeness of character and integrity, is recognized by the.

It is odd that, despite supporting a nurse’s duty to conscience and the right to refuse to participate in an action to which the nurse objects on the grounds of conscience, Cipriano and Cox insist that the nurse, must assure that others make the care available to the patient. This suggests a failure to recognize that referring the patient to someone who will do the objectionable act in place of the nurse can make the nurse complicit.

The culpability of complicity is well recognized in law and ethics, as an accomplice is liable to the same extent as the person who does the deed. Thus, to make a referral and be complicit in an act to which the nurse conscientiously objects, also violates conscience. We doubt nursing leaders actually support this, as the consequences would be chilling.

When persons are made to violate their conscience, to set it aside, to silence it, moral integrity is eroded and moral disengagement progressively sets in. To move from caring for our fellow human beings to acting on them in ways that our conscience tells us we should not, requires powerful cognitive manipulation and restructuring to free ourselves of the guilt associated with this violation of our deeply held moral or religious beliefs.

Moral disengagement has frightening negative consequences, namely a pernicious dehumanization of persons, including oneself and of society as a whole. Rather than a nurse being someone of moral courage, ethical competence and human rights sensitivity, as our code directs, a nurse would have to be someone who is willing to surrender their conscience to expediency, powerful others, or whatever happens to be permitted by law at the time and place.

No longer would patients find that nurses are persons they can trust. It is precisely because nurses practice in accordance with their conscience that the public continues to grant them high scores on honesty and ethics.

None of this is to say that nurses may abandon patients. By promptly seeking a transfer of assignment that does not involve the objectionable act or by transferring the patient elsewhere without making a referral, the nurse continues to uphold the code by “promoting, advocating for and protecting the rights, health and safety of the patient [and, at the same time,] preserving wholeness of character and integrity.”

Clearly, refusal to care for a patient based on an individual attribute is unjust discrimination and has no place in nursing or health care. But that is not what the rule does. It protects the right to object to being forced to participate in an act that violates a person’s deeply held moral convictions or religious beliefs and from discrimination as a result of one’s refusal to participate in such an act.

To call for rescinding the rule, whose purpose is to protect this fundamental human right, would be short-sighted and could make unjust discrimination more likely and harm not only nursing but also the patients we serve.

 

Tongue splitting, bodily harm, and human dignity

BioEdge

Xavier Symons

Contemporary cosmetic surgery has become a tool for realising bizarre personal fantasies. Sometimes it also leads to significant bodily harm. “Tongue-splitting” is an operation whereby a person’s tongue is split from the tip to as far back as the underside base. The operation has become a common alteration for body-modification enthusiasts, who say it heightens their sense of taste and touch.

Some jurisdictions, however, have enacted a ban on the procedure. The operation can be painful, and can temporarily impede one’s capacity for speech.

In a recent post on the blog Practical Ethics, UK lawyer Charles Foster considers the legality and ethics of the procedure.

Foster discusses the case of R v BM, where a Wolverhampton tattooist was found guilty of inflicting grievous bodily harm on a patient after splitting their tongue. Even though the customer consented, the court found that consent was not a defence against having inflicted grievous bodily harm.

Foster argues that the ruling represents a defence of basic human dignity, which transcends the ambit of personal autonomy:

[The ruling] is a salutary reminder that there are limits to the law’s protection of personal autonomy. Factors other than autonomy are in play in the criminal law. I have argued elsewhere that the primary factor (and the foundational factor in the criminal law – in which all other factors, including autonomy, are rooted) is human dignity.

Indeed, Foster argues that in harming another, one does violence to one’s own human dignity:

One might say that X causing injury to Y is doubly culpable because in doing so X outrages not only Y’s dignity but also his own (X’s) dignity…dignity is ‘Janus-faced’.


This article is published by Xavier Symons and BioEdge under a Creative Commons licence. You may republish it or translate it free of charge with attribution for non-commercial purposes following these guidelines. If you teach at a university we ask that your department make a donation to BioEdge. Commercial media must contact BioEdge for permission and fees.

Physician warns of threat to freedom of conscience in Ireland

The Irish Times

Andrew O’Regan

Sir, – I have a number of concerns relating to conscientious objection and abortion.

The recently published heads of Bill define termination of pregnancy as “a medical procedure which is intended to end the life of the foetus”.

If the referendum is passed, this is the procedure that will be available on demand for any reason up to 12 weeks and after 12 weeks on vague health grounds.

First, it is of great worry to Irish practitioners that doctors, nurses and midwives cannot avoid participation in abortion in an increasing number of jurisdictions, including Sweden, Iceland, Finland and Bulgaria.

Second, in the UK supreme court, two midwives lost their battle to be treated as “conscientious objectors”, and to be excused from participating in abortions.

The midwives were told that while they could refuse to carry out the procedures themselves, they were obliged to delegate these duties to other staff and to supervise the staff during the abortions.

Many doctors and nurses consider that if their conscience prevents them from intentionally ending the life of the foetus, they should not be required to supervise and organise this same act.

The legislation proposed if the Eighth Amendment is repealed will oblige GPs and other healthcare professionals who conscientiously object to transfer care to another doctor and to inform the patient in writing that they may seek review of the objecting doctor’s decision.

Third, in 2013 a resolution to restrict the right of doctors and nurses to conscientious objection was narrowly defeated in the European Parliament. Some Irish MEPs voted for this. In the recent Dáil debates some politicians argued against a doctor’s right to avoid participation in abortion.

We have seen how one political party expelled a number of members for voting with their consciences in 2013 and how another party suspended one of the youngest female TDs in Dáil Éireann for exercising her conscience in a vote last month.

Fourth, some academic campaigners have been arguing for the removal of conscientious objection across Europe, claiming that it can be used as a “subtle method for limiting access to abortion”.

Finally, under Minister for Health Simon Harris’s plans for abortion, GPs and others will not be entitled to conscientiously object to participating in the intentional destruction (not delivery) of the foetus where there is a risk to the life or health of the patient in an emergency.

No evidence has been produced to show that intentional destruction of the foetus is necessary to avoid risks to the life or health of a pregnant patient.

I would urge GPs and our colleagues from other disciplines who are also in the front line of patient care to inform themselves fully of the implications for the practice of medicine should this referendum be passed. – Is mise,

Dr ANDREW O’REGAN,

(General Practitioner and Senior Lecturer),
Killarney,
Co Kerry.

Opposing Medical Conscience with a Soft Touch

National Review
Reproduced with permission

Wesley J. Smith

When the Department of Health and Human Services announced its intention to create a new office to emphasize the protection of medical conscience, the screaming from the usual suspects was so loud one would have thought Roe v. Wade had been overturned.

Now, The New England Journal of Medicine has published an abstruse opinion piece by one Lisa Harris, a professor concerned with “issues along the reproductive justice continuum,” whatever that means.

I bring this up because medical conscience is a burning issue for pro-life medical professionals and those who believe in Hippocratic medicine. The issue is whether doctors, nurses, pharmacists, and others can be forced to participate in requested interventions with which they have a strong religious or moral objection — such as abortion, assisted suicide, and suppressing normal puberty in children with gender dysphoria.

But reading Harris, you would think it was just about “partisans” not understanding the gray areas and nuances of contentious social issues. From, “Divisions Old and New–Conscience and Religious Freedom at HHS”:

I feel an angry argument building in response to HHS’s one-sided framing. But I resist it. Because my challenge these days is to avoid further entrenching polarized positions and to reject the divisiveness that poisons contemporary life. Is it possible, once again, to hold in tension seemingly opposite ideas about abortion? Can we understand abortion as both something that “stops a beating heart” and a fundamental right, rather than insisting it’s only one or the other?

But the conscience issue isn’t about whether we can all just get along and understand people have differences of opinion. It isn’t about “holding in tension seemingly opposite ideas.” It is about protecting doctors from being forced to take a human life or engage in another act in the clinical setting that is violative of their faith or moral beliefs.

Harris just doesn’t get it — or doesn’t want to:

Abortion and parenthood are not mutually exclusive; loving children and ending pregnancies are compatible in patients’ lived experience.

So is loving abortion work and questioning it: abortion providers might express an enormous sense of pride, purpose, and fulfillment in their work, and also say they felt weak-kneed the first time they saw a second-trimester abortion. Some feel sad that in different circumstances, many women would continue their pregnancies, in particular if poverty and economic strain were not issues. There is sometimes a point at which, when pressed, ardently pro-choice caregivers become uncomfortable with abortion. For some, it is a matter of pregnancy duration; for others, the circumstances of an abortion, such as sex selection.

Conversely, some caregivers whose religious beliefs lead them to strongly oppose abortion nevertheless offer assistance. Some religious nurses give medications and offer comfort, compassion, and care during an abortion because they see these tasks as shared purposes of nursing and religion. Sometimes doing so requires “sitting with discomfort in real time” and holding “the tension of two contradictory positions simultaneously.”

To which I respond, bully for them, but so what?

Harris should read Ezekiel Emanuel’s article in the NEJM from not too long ago advocating that doctors who refuse to participate in a legal procedures requested by the patient should be kicked out of medicine. No balancing of “tensions” and “sitting with discomfort in real time” for him!

And there is nothing in Harris’s piece to make me think she isn’t just as opposed to medical-conscience rights as Emanuel. She just says it indirectly, in a passive-aggressive manner, and with a softer touch.

I believe the real reason the medical establishment, the secular Left, and bioethicists like Emanuel and (I believe) Harris oppose strong legal conscience protections is precisely due to the powerful moral message sent when a respected doctor or nurse says to a patient: “No. I can’t do this thing you request. It is wrong.”

There is an old saying in pro-abortion advocacy: “If you don’t believe in abortion, don’t have one.”

To which I add a medical-conscience corollary: If you want an abortion, don’t force a doctor to give you one.

Sometimes comity requires living with unambiguity too.

Medical myths about Eighth Amendment must be challenged

Campaign of fear and misinformation has been deployed to tarnish reputation of Irish medicine

Irish Times

Eamon McGuinness

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.’

Those words were inserted into our Constitution by the Irish people in 1983. As a consultant obstetrician, and later as chairman of the Institute of Obstetricians and Gynaecologists, I served Irish women and their children under the auspices of the Eighth Amendment.

It should be a matter of some national pride that Ireland, in that time, has been one of the safest places on earth to be a pregnant woman, and one of the safest places in the world to be an unborn child.

In recent times, a sustained campaign has been waged by some people, including several of my colleagues in obstetrics and gynaecology, to suggest that the words at the beginning of this article put women’s lives at risk.

If that were true, I myself would be leading the charge to have them expunged from the Constitution. A constitutional restriction on my ability, or the ability of any of my colleagues, to save the life of a pregnant woman would indeed be intolerable. Let me therefore be clear: no such restriction exists.

The Eighth Amendment has one medical effect only: it prevents Irish doctors from deliberately, as an elective matter, causing the death of an unborn child. It awards to the child in the womb the right to have their life protected in Irish hospitals, in Irish GP surgeries, and in Irish operating theatres.

That right does not restrict doctors from acting to save the life of a woman where a serious complication arises. . . . [Full text]

You’re a surgeon. A patient wants to look like a lizard. What do you do?

As medical treatments advance, the need to accommodate conscientious objection in healthcare is more pressing

The Guardian
Reproduced with permission

David S. Oderberg*

Imagine that you are a cosmetic surgeon and a patient asks you to make them look like a lizard. Would you have ethical qualms? Or perhaps you are a neurosurgeon approached by someone wanting a brain implant – not to cure a disability but to make them smarter via cognitive enhancement. Would this go against your code of professional ethics? With the rapid advance of medical technology, problems of conscience threaten to become commonplace. Perhaps explicit legal protection for conscientious objection in healthcare is the solution.

There is limited statutory protection for those performing abortion, and there is some shelter for IVF practitioners. Passive euthanasia (withdrawal of life support with intent to hasten death) is also part of the debate over doctors’ conscience rights. That’s about it as far as UK law is concerned – though freedom of conscience is enshrined in numerous conventions and treaties to which we are party. Abortion, artificial reproductive technologies (involving embryo research and storage) and passive euthanasia are the flashpoints of current and historic controversy in medical ethics. The debate over freedom of conscience in healthcare goes to the heart of what it means to be a medical practitioner.

Curing, healing, not harming: these are the guiding principles of the medical and nursing professions. But what if there is reasonable and persistent disagreement over whether a treatment is in the patient’s best interests? What if a practitioner believes that treating their patient in a particular way is not good for them? What if carrying out the treatment would be a violation of the healthcare worker’s ethical and/or religious beliefs? Should they be coerced into acting contrary to their conscience?

Such coercion, whether it involve threats of dismissal, denial of job opportunities or of promotion, or shaming for not being a team player, is a real issue. Yet in what is supposed to be a liberal, pluralistic and tolerant society, compelling people to violate their deeply held ethical beliefs – making them do what they think is wrong – should strike one as objectionable.

Freedom of conscience is not only about performing an act but about assisting with it. There are some people who ask doctors to amputate healthy limbs. If you were a surgeon, my guess is that you would refuse. But what about being asked to help out? Would you hand over the instruments to a willing surgeon? Or supervise a trainee surgeon to make sure they did the amputation correctly? If conscientious objection is to have any substance in law, it must also cover these acts of assistance.

This country has a long and honourable tradition of accommodating conscientious objectors in wartime – those who decline to fight or to assist or facilitate the fighting by, say, making munitions. They can be assigned to other duties that may support the war effort yet are so remote a form of cooperation as not to trouble their consciences. In any war, the objectors are a tiny fraction of the combat-eligible population. Yet when it comes to one’s rights, do numbers matter? Has their existence ever prevented a war from being carried out to the utmost? I fail to see, then, why we are tolerant enough to make adjustments for conscientious objectors in the midst of a national emergency, yet in peacetime would be reluctant to afford similar adjustments to members of one of the most esteemed professions.

Do we think medical practitioners should be no more than state functionaries, dispensing whatever is legal no matter how much it is in conflict with personal conscience and professional integrity – lest they be hounded out of the profession? Some academics think expulsion is not good enough. Or should healthcare workers be valets, providing whatever service their patients demand? Perhaps when practitioners find themselves faced with demands for the sorts of treatment I’ve mentioned – or perhaps gene editing treatments or compulsory sterilisation, society will act. Or maybe by then it will be too little, too late.

David S Oderberg is professor of philosophy at the University of Reading, and author of Declaration in support of conscientious protection in medicine

 

 

‘Medical Conscience’ Is Becoming a Partisan Controversy

National Review
Reproduced with permission

Wesley J. Smith

Should doctors and nurses be forced to participate in interventions they find morally abhorrent or unwarranted? As one example, should ethical rules require pediatricians to medically inhibit normal puberty as demanded by parents to “treat” their child’s gender dysphoria — even if they are morally opposed to the concept and/or the supposed treatment?

Some say yes. Thus, influential bioethicist Ezekiel Emanuel argues that medical professionals are obligated to accede to the patient’s right to receive legal interventions if they are generally accepted within the medical community — specifically including abortion. Emanuel stated doctors who are morally or religiously opposed, should do the procedure anyway or procure a doctor they know will accede to the patient’s demands. Either that, or get out of medicine.

Supporters of “medical conscience” argue that forcing doctors to participate in interventions they find morally abhorrent would be involuntary medical servitude. They want to strengthen existing laws that protect doctors, nurses, and pharmacists’ who refuse participation in legal interventions to which they are morally or religiously opposed.

Now, medical conscience looks to become another battlefront in our bitter partisan divide. After the Trump administration announced rules that will place greater emphasis on enforcing federal laws protecting medical conscience, Democratic state attorneys general promised to seek a court order invalidating the new rule. From the New York Law Journal story:

But 19 state attorneys general, led by New York’s Eric Schneiderman, argue that it is the patients who will be discriminated against under the proposed rule. This is particularly true, they argue, in the cases of marginalized patients who already face discrimination in trying to obtain health care, such as lesbian, gay, bisexual and transgender patients and male patients seeking HIV/AIDS preventative medications, according to the comments filed in opposition to the rule.

“If adopted, the proposed rule … will needlessly and carelessly upset the balance that has long been struck in federal and state law to protect the religious freedom of providers, the business needs of employers, and the health care needs of patients,” they state.

The stakes can only increase as moral controversies in health care intensify in coming years. As just two examples, some bioethicists are lobbying to enact laws that would give dementia patients the right to sign an advance directive requiring nursing homes to starve them to death once they reach a specified level of cognitive decline. There are also increasing calls to do away with the dead-donor rule in transplant medicine so that PVS patients can be organ-harvested while still alive

If these acts become legal, should doctor and nurses who practice in these fields be forced to participate? If Emanuel’s opinion prevails, the answer could be yes. If medical professionals are protected by medical conscience legal protections, the answer would be no.

Medical conscience is not just important to personally affected professionals. All of us have a stake. Think about the potential talent drain we could face if we force health-care professionals to violate their moral beliefs. Experienced doctors and nurses might well take Emanuel’s advice and get out of medicine — while talented young people who could add so much to the field may avoid entering health-care professions altogether.

Comity is essential to societal cohesion in our moral polyglot age. Medical conscience allows patients to obtain morally contentious procedures, while permitting dissenting medical professionals to stay true to their own moral and religious beliefs. I hope the Democrats’ lawsuits are thrown out of court.

Protecting conscience: Why this House of Lords bill is aimed at defending healthcare professionals

Christian Today

Laurence Wilkinson

With the Brexit legislation receiving the lion’s share of attention in Parliament, there has been little to no coverage on the progression of any other bill in recent months. This is usually the time of year where activity on private members’ bills (which have only a small chance of passing into law) winds down. However, with the current Parliamentary Session being extended to two years to deal with the magnitude of the Brexit legislation, we are in extraordinary times.

There is one such private member’s bill before the House of Lords which has seen a surprising ramp-up in activity over the last few months. The bill is sponsored by Baroness O’Loan – a widely respected legal mind from Northern Ireland who was the first Police Ombudsman – and will have its committee stage today, Friday. It is focused on the relatively niche area of protection of conscience for healthcare professionals. . . [Full text]

 

Why conscientious objection in the medical profession must be protected

The House Magazine

Fiona Bruce, MP

Accommodation of conscientious objection is a long-respected matter of liberty and equality in this country. This respect should be as relevant today as ever, writes Fiona Bruce

The Conscientious Objection (Medical Activities) Bill is scheduled for Committee Stage in the House of Lords this Friday, and I have been watching its progress with interest. The Bill’s sponsor is Baroness Nuala O’Loan – a widely respected legal mind in the Lords who served as first Police Ombudsman in Northern Ireland, and is a former Chair of the Equality and Human Rights Commission’s Human Rights Inquiry. Among those who spoke in favour of the Bill at Second Reading were the former Conservative Lord Chancellor, Lord Mackay of Clashfern, and senior Conservative Peers Lord Elton, Baroness Eaton and the renowned surgeon, Lord McColl of Dulwich. . . [Full text]

 

Assisted-Suicide Pushers Want Forced MD Participation

National Review
Reproduced with permission

Wesley J. Smith*

Assisted-suicide advocates pretend they want assisted suicide limited to the terminally ill.

They pretend that they favor strict guidelines.

And they pretend they would never want doctors forced to participate in intentionally ending the life of a patient. Indeed, the laws they have passed all contain conscience protections.

Except, sometimes they show their true hands. For example, when the Canadian Supreme Court imposed a broad right to lethal-injection euthanasia — certainly not limited to the dying — Compassion and Choices (formerly the Hemlock Society) issued a laudatory press release — later scrubbed because it told the truth about the movement’s true goals.

And now, Compassion and Choices — again, which has included conscience protections in laws it sponsored as a necessary predicate to passage — has come out strongly against a proposed Trump-administration office in HHS to protect medical professionals from forced participation in procedures against their consciences and/or religious beliefs. From an email sent to its supporters (my emphasis):

The new division marks one of the greatest threats we’re facing to the future of the end-of-life choice movement and patient-centered care.

Under the HHS proposed rules, providers who object to various procedures could impose their own religious beliefs on their patients by withholding vital information about treatment options from them — including options such as voluntarily stopping eating and drinking, palliative sedation or medical aid in dying. And your federal tax dollars will be used to protect physicians who make the unconscionable decision to willfully hold back information from a patient and abandon them when they are at their most vulnerable.

This is unacceptable and needs to be stopped.

Note the warning that conscience protections threaten “the future” of the assisted-suicide movement. It is abundantly clear that these suicide advocates believe forcing doctors to participate in suicide is essential to implementing their lethal agenda.

C & C already tried to impose such a duty on doctors in Vermont in support of a regulation that sought to force doctors to share information on assisted suicide with patients. That violated the assisted-suicide law’s conscience protections. Dissenting doctors sued and forced the bureaucrats to retreat. C & C tried to intervene legally to (unsuccessfully) thwart that settlement.

So, this is the truth: If C & C prevails in legalizing assisted suicide (and eventually, euthanasia) across the country, pressure will soon begin to force dissenting MDs, nurses, and pharmacists to either get on the death train or get out of medicine.

For those with eyes to see, let them see.

 

Accessed 2018-03-28