Michael Fragoso*
The American College of Obstetricians and Gynecologists (ACOG) and the
American Board of Obstetricians and Gynecologists (ABOG) are restricting
opportunities for healthcare professionals to object to abortion and
contraception on grounds of conscience. This will accelerate the growing
problem of physician shortage.
Against the backdrop of current debates about health care and conscience
protection, a federal judge for the District of New Jersey has issued a
temporary restraining order against the University of Medicine and Dentistry
of New Jersey (UMDNJ) that prohibits them from forcing twelve nurses to
assist in abortions against their conscientious objections. While much has
been written on medical providers' conscience rights as a moral
imperative and as a means of
maintaining diversity within the profession, the potential relationship
between conscience and the supply of medical providers-in particular,
obstetric specialists and nurses-should make the issue salient to anybody
interested in health care reform, especially those seeking to expand access
and reduce costs.
The contours of physicians' conscience rights and their correlative
obligations have been contested for decades. Indeed, the last half century
has seen profound changes in both the practice of medicine and the state of
law that necessarily implicate the position of the physician vis-à-vis
the patient and the procedures that the physician may be asked to provide.
As Azgad Gold notes, increasingly "the medical field became more
'subjective' than 'objective,' as reflected by the shift to measuring
outcomes of treatments by 'quality of life' parameters rather than the
traditional objective 'morbidity' and 'mortality' parameters." This, coupled
with the liberalization of abortion following Roe v. Wade,
has increased internal and external pressures on the medical field to see
abortion as simply another valid medical choice to which the patient is
subjectively entitled, regardless of the ethical-or medical-views of her
attending physician.
Nevertheless mainstream medical ethics maintains that physicians have the
right to refuse service to patients. It is a professional prerogative that
covers everything from a disagreement over the soundness of a requested
procedure to wanting to avoid notorious bill dodgers. Furthermore, on a
traditional understanding, "hospital employees have the right to refuse
to participate in performing an abortion, and a hospital cannot dismiss the
employee for insubordination. An employee can abstain from assisting in an
abortion procedure as a matter of conscience or religious conviction."
On the other side of this debate, there is a sense that the principle of
"patient autonomy" should be paramount, and what is conscientious objection
to one person is burdensome refusal to another. Under
this view,
The widely accepted ethical principle that patients are autonomous
individuals with the right to make the final decisions concerning their
medical care, along with the corresponding principle that appears in all
medical professionals' codes of ethics that the 'patient's interest comes
first' leads to the following general rule: patient care decisions should be
based on patient autonomy, as mediated by the clinician's conclusion that
the requested therapy (1) is not medically contraindicated (since it is both
medically effective and not considered unethical within the profession's
generally accepted concept of ethical practice) and (2) is not illegal.
Prior to November 2007, the American College of Obstetricians and
Gynecologists (ACOG) had not taken a definitive stance on the issue of
conscientious objection. The organization had
established ethical guidelines for the permissibility of abortion, but
these included an acknowledgement of "physician autonomy" in the right of
obstetricians not to perform abortions.
By 2007, ACOG
massaged its view, issuing Ethics Committee Opinion #385, "The Limits of
Conscientious Refusal in Reproductive Medicine." While conceding that
conscience is a question of "moral integrity," the Ethics Opinion ultimately
concludes "there are clearly limits to the degree to which appeals to
conscience may justifiably guide decision making." This gives precedence,
ultimately, to the principle of "patient autonomy." In the end, obstetric
physicians who have a conscientious objection to performing an abortion or
sterilization, or to providing contraception, must (1) provide notice to
patients of this fact, (2) refer patients to other providers for such
procedures if they are unwilling to provide them, and (3) perform the
procedures themselves regardless of conscientious objection if referral is
not feasible.
The likely result of such rules is clear to pro-abortion scholars: fewer
pro-life doctors. As Professor Julie Cantor argued in the New England
Journal of Medicine, "As the gate-keepers to medicine, physicians and
other health care providers have an obligation to choose specialties that
are not moral minefields for them. Qualms about abortion, sterilization, and
birth control? Do not practice women's health." Likewise, Oxford ethicist
Julian Savulescu opined in the British Journal of Medicine, "If
people are not prepared to offer legally permitted, efficient, and
beneficial care to a patient because it conflicts with their values, they
should not be doctors." When conscience rights are not a priority in
medicine, purposeful exclusion of dissenting voices is the desired norm.
The danger of these associational norms comes from the enforceable ethics
rules of the American Board of Obstetricians and Gynecologists, which
still references ABOG's ethics guidelines in its Bulletin for
Maintenance of Certification (the rules by which obstetricians keep their
board certification). Thus the threat exists that pro-life obstetricians
could be decertified by their specialty board for any number of
conscientious decisions: failing to notify patients that they don't perform
abortions, not referring for abortions, or even not performing them in
certain cases.
While there are various legislative protections for such physicians
through laws like the Church Amendments and the Weldon Amendment, they are
attached to appropriated funds and it is unclear that any such protections
will apply to the unique revenue streams of the Patient Protection and
Affordable Care Act (so-called "Obamacare"). Likewise, while the previous
legislative enactments were enhanced by conscience protection regulations
under President Bush, President Obama revoked the lion's share of those
regulatory protections (in many ways specifically designed to prevent an
ABOG decertification on conscience grounds).
While nurses are protected under traditional medical ethics, as well as
the legislative conscience protections and the (mostly defunct) Bush
regulations, they too have faced increasing pressure to assist with
abortions. Unlike obstetricians who mostly worry about peer retaliation
through their Board-and, through decertification, a loss of hospital
admitting privileges-nurses typically face more direct consequences in
exercising their conscience rights, such as disciplinary action by superiors
or even termination.
As the UMDNJ case
shows, a dozen day-surgery nurses were told to prepare to assist with
abortions or be terminated. Likewise, a
previous case in New York's Mt. Sinai Hospital involved a labor and
delivery nurse who faced discipline after refusing to assist in a late-term
abortion on (well-known) grounds of conscientious objection. These are
recent cases from high-profile hospitals in which the message is clear:
nursing is (or ought to be) a pro-abortion field.
What effects do pro-life obstetric decertification and nurse termination
have on the supply of such medical professionals? The enforcement of
obstetric ethics norms that would require the performance of-or referral
for-abortions would effectively exclude from the practice of obstetric
medicine a substantial percentage of the population that either (a)
identifies as pro-life or (b) would prefer non-complicity in abortion on
medical grounds. The same would hold for hospital nursing should more
institutions follow the lead of hospitals like UMDNJ. While the precise
percentage of such objectors is unknown, the effects of such anti-conscience
norms are not: by erecting a new barrier to entry into the practice of
obstetric medicine-a pro-abortion norm-ABOG decertification for
conscientious objection would reduce the supply of obstetric physicians;
depending on the nature of the rule, an "assist or leave" rule would reduce
the supply of nurses, potentially beyond simply labor and delivery (as in
the UMDNJ case). A reduced supply, coupled with a static or increased
demand, will result in a shortage of obstetricians and nurses.
There is already a growing physician shortage, affecting some communities
more severely than others. The shortage will increase without any
of the supply reductions that are likely to occur as a result of
decertifying practicing obstetricians who refuse to perform abortions and
deterring future obstetricians who will choose a different career or
specialty rather than violate their consciences. While physician shortages
have been most acute in the field of
primary care, they are predicted to
grow in both primary care and
specialties, and have already
beenfelt
in obstetrics. Though the causes of these current and probable shortages are
manifold, crowding out pro-life individuals from obstetric practice would
surely exacerbate this problem.
Likewise we are in the midst of a nursing shortage. As the American
Association of Colleges of Nursing
notes, "The United States is projected to have a nursing shortage that
is expected to intensify as baby boomers age and the need for health care
grows." The Bureau of Labor Statistics
estimates that there will be over 600,000 more nursing jobs available in
2012 than there were in 2002. The need for nurses is so great that nursing
is one of the few fields in which employers seeking to hire foreign labor do
not need to file a labor certification with the Department of Labor; in
effect, the government just assumes that medical employers need the
nurses. And yet in the face of these persistent supply problems, UMDNJ says
that a dozen nurses (and any number of others with similar beliefs) are not
fit to practice nursing simply because they oppose abortion.
Such potential reductions in the supply of obstetricians (and further
reductions of the supply of nurses) should be of particular concern to those
interested in health care reform. It is particularly inconsistent with the
underlying policies of President Obama's health care reform measures. As the
Office of Management and Budget
noted, "The Administration will explore all serious ideas that, in a
fiscally responsible manner, achieve the common goals of constraining
[health care] costs, expanding access, and improving quality." A reduction
in the supply of obstetricians and nurses will, by definition, restrict
access and increase costs as the supply diminishes. Likewise, even if an
obstetrician decides to recertify in another specialty or practice
generally, such a restructuring further disrupts the supply of physicians by
imposing both transition costs as the obstetrician retrains and opportunity
costs given the obstetrician's potential to continue practicing in his or
her chosen specialty.
These preventable supply-reduction outcomes are not consistent with goals
(shared by liberals and conservatives alike) of constraining costs,
increasing access, and improving quality in health care. If those shared
goals truly are important, then conscience protection is a relatively simple
policy to maintaining the supply of needed health care workers: first do no
harm.
Notes
This article was adapted from the author's Note, Taking Conscience Seriously or Seriously Taking Conscience?:
Obstetricians, Specialty Boards, and the Takings Clause, 86 Notre Dame L. Rev. 1687 (2011).