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in Health Care; Delegations of Authority expands the ability to discriminate, denies patients health care and should be rescinded.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.

 

Discrimination isn’t always wrong

America

John J. Conley

Is discrimination always wrong?

To listen to the current national debate on the topic, it would appear to be so. Virtually all international human-rights covenants categorically reject discrimination on the basis of race, religion and gender. Even contemporary professional philosophers tend to treat discrimination as an unalloyed evil. The University of Chicago’s Brian Leiter has led a very public philosophical campaign to eliminate religious exemptions to anti-discrimination laws and to declare unethical religious practices that appear to be discriminatory, especially in the area of gender and sexual orientation.

But our crusade against discrimination seems to rest on a fundamental confusion. There is a difference between discriminating against someone because of the group to which he or she belongs and discriminating against someone on the basis of his or her actions. . . . [Full text]

Conscience claims, metaphysics, and avoiding an LGBT eugenic

Abram Brummet

Abstract

Novel assisted reproductive technologies (ART) are poised to present our society with strange new ethical questions, such as whether lesbian, gay, bisexual, and transgender (LGBT) couples should be allowed to produce children biologically related to both parents, or whether trans-women who want to experience childbirth should be allowed to receive uterine transplants. Clinicians opposed to offering such technologies to LGBT couples on moral grounds are likely to seek legal shelter through the conscience clauses enshrined in U.S. law. This paper begins by briefly discussing some novel ART on the horizon and noting that it is unclear whether current conscience clauses will permit fertility clinics to deny such services to LGBT individuals. A compromise approach to conscience is any view that sees the value of respecting conscience claims within limits. I describe and critique the constraints proposed in the recent work of Wicclair, NeJaime and Siegel as ultimately begging the question. My purpose is to strengthen their arguments by suggesting that in the controversial situations that elicit claims of conscience, bioethicists should engage with the metaphysical claims in play. I argue that conscience claims against LGBT individuals ought to be constrained because the underlying metaphysic—that God has decreed the LGBT lifestyle to be sinful—is highly implausible from the perspective of a naturalized metaphysic, which ought to be the lens through which we evaluate conscience claims.


Brummett A. Conscience claims, metaphysics, and avoiding an LGBT eugenic. Bioethics. 2018;00:1–9.

Divisions, New and Old — Conscience and Religious Freedom at HHS

Lisa H. Harris

January, the U.S. Department of Health and Human Services (HHS) announced the creation of its Conscience and Religious Freedom Division, explaining that it will allow HHS’s Office of Civil Rights to “more vigorously and effectively enforce existing laws protecting the rights of conscience and religious freedom” and will ensure that “no one is coerced into participating in activities that would violate their consciences, such as abortion, sterilization or assisted suicide.”1 Responses were as expected: religious conservatives hailed the new division as a needed intervention; public health and clinical leaders and advocates decried it, worrying about its impact on access to care and harm to patients.

HHS leaders’ comments to date suggest that they are uninterested in discrimination against health care providers whose consciences compel them to provide care, and uninterested in injuries to patients caused by care refusals. This framing makes conscience yet another issue dividing Americans, largely along partisan lines.


Harris LH.  Divisions, New and Old — Conscience and Religious Freedom at HHS. N Eng J Med 2018 Apr 12;378(15):1369-1371. doi: 10.1056/NEJMp1801154. Epub 2018 Mar 14

Opposing Medical Conscience with a Soft Touch

National Review

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. . . [Full text]

Declaration in Support of Conscientious Objection in Health Care

Introduction

The Declaration and associated texts you find here are my attempt, as a concerned academic, to provide a platform for the public support of freedom of conscience in health care.

Please read all of the material here. If you agree with the Declaration overall – even if you disagree with or are neutral on various details – I encourage you to add your electronic signature as a demonstration of support.

Signatures from health care professionals and academics in related fields are especially welcome, but you are encouraged to sign simply if you share my concerns and agree with the general way I have expressed them. You do not need an institutional affiliation, professional title, or any particular background. The more signatures this Declaration obtains, the more likely it is to come to the attention of policy makers and people who can amplify the message.

The texts ancillary to the Declaration are not part of its contents; they simply explain how I see and interpret the issues raised in the Declaration, and how I would like to see policy develop. By signing the Declaration, you do not indicate support for anything I say in the ancillary texts.

You will be asked only for your name, professional title (if you have one), institutional affiliation (if you have one), email address, and the country in which you reside. I may use your email occasionally to send you information about the Declaration, such as media coverage, but I will not use your email address for any other purpose. You will not be asked be involved in any other activity. The information you provide will be used solely to represent support for freedom of conscience in health care to professionals in the field (both clinical and academic), policy makers, and other interested parties who might be able to help with the promotion of this issue.

Acknowledgement and Disclaimer
I am grateful to the University of Reading for its support in hosting this material. The views and proposals presented here, however, represent my opinions alone. They do not, in any way, necessarily represent the views of the University of Reading or any of its officers, employees, or students.
David S. Oderberg

Sign the Declaration in Support of Conscientious Objection in Health Care

Show your support by signing the declaration.

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.

The “Medical Conscience” Civil Rights Movement

First Things

Wesley J. Smith*

Until recently, healthcare was not culturally controversial. Medicine was seen as primarily concerned with extending lives, curing diseases, healing injuries, palliating symptoms, birthing babies, and promoting wellness – and hence, as a sphere in which people of all political and social beliefs were generally able to get along.

That consensus has been shattered. Doctors today may be asked to provide legal but morally contentious medical interventions such as sex selection abortion, assisted suicide, preimplantation genetic diagnosis of IVF embryos, even medications that inhibit the onset of puberty for minors diagnosed with gender dysphoria. As a consequence, medical practice has become embroiled in political and cultural conflict. . .
Full Text

How to be an Odd Doc Without Getting Your Goose Cooked

Dan Reilly

A presentation at a medical students’ forum hosted by Canadian Physicians for Life.

2:38 – 4:12  Ethical disputes: disagreeing about an “ought”

4:12 –  11:22  World views: dominant culture, ethics, law, decision making processes, religion, society, culture, experience, philosophy

11:22 – 13:58  The patient wants what you will not provide: ct scan, antibiotics, opioids, abortion, life support, contraception, pre-natal genetic tests, CPR, plastic surgery, elective C-sections, elective induction of labour

13:58 – 1834  fiduciary duty, patient access, moral distress

18:34 – 19:43  When patient asks for what you would like to provide, but can’t

19:43 –  21:44  When professional consensus is that you should say no

21:44 – 25:22  When physicians differ on what fiduciary duty dictates: full information, no abandonment

25:22 – 27:18  In some jursidictions, when refusing on moral grounds, in emergencies – provide service; otherwise- effective referral

27:18 –  32:55 Odd Docs and patients: why disputes arise, best practices: communication, compassion, care, honesty

32:55 – 36:24  Odd Docs and administrators: communication, compassion, do other work