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Health Care; Delegations of Authority expands the ability to discriminate, denies patients health care and should be rescinded.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

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.

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

Loss of right to conscience costing NHS new midwives it needs

Catholic Universe-The Catholic Times

Nick Benson

Pro-life groups have claimed that the recent drop in applications to midwifery courses could be rectified by enshrining conscientious objection.

Recent figures show that there has been a 35 per cent drop in the number of applicants to midwifery courses since 2013. The Royal College of Midwives (RCM), which analysed the latest Ucas data for England, said the biggest reduction was in those aged 21 or over.

In 2013, more than 12,000 people aged over 21 applied for a midwifery course in England, but by 2017 that figure had dropped to just 6,700 – a decrease of 45 per cent. . . [Full text]

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]

When can a doctor conscientiously object?

America

Bernard G. Prusak

Over the last decade, the culture wars in the United States have broken new ground: They have become battles over the rights of conscience. For example, now that same-sex marriage is a right, the question before the U.S. Supreme Court in the case of Masterpiece Cakeshop is whether its sympathetic, telegenic owner, Jack Phillips, is within his rights to refuse to make a wedding cake for a gay couple. Similarly, under the Obama administration, the court heard arguments more than once over whether employers who object on religious grounds to contraceptives or abortion should be exempted from having to provide employees health insurance that includes such services.

By contrast, debates over conscientious objection in medicine have not had the same notoriety, though they have broken out repeatedly among health care professionals and medical ethicists since the turn of the century, when there was a flare-up over pharmacists’ refusing to fill prescriptions for emergency contraceptives. . . [Full text]

Hawaii legalizes assisted suicide: Refusing to refer for suicide may incur legal liability

Sean Murphy*

Assisted suicide will become legal in Hawaii on 1 January, 2019, as a result of the passage of the Our Care, Our Choice Act. Introduced in the state House of Representatives only in January, it passed both the House and Senate and was approved by Governor David Ige on 5 April. Beginning next year, physicians will be able to write prescriptions for lethal medications for Hawaiian residents who are capable of informed consent, who are at least 18 years old, and who have been diagnosed with a terminal, incurable disease expected to result in death within six months.1

And beginning next year, Hawaiian physicians who refuse to facilitate assisted suicide by referring patients to a willing colleague may face discipline — including expulsion from the medical profession — or other legal liabilities. Hawaii could become one of only two jurisdictions in the world where willingness to refer patients for suicide is a condition for practising medicine.2 . . . [Full text]