Review of Protecting the Rights of Conscience of Health Care Providers

Lynn D. Wardle, J.D, Professor of Law, J. Reuben Clark Law School, Brigham Young University. The Journal of Legal Medicine, 14:177-230, 1993.

In 1993 Professor Lynn Wardle published a detailed survey of what he called the "patchwork" of American protection of conscience laws (Wardle 226). The article not only addressed numerous relevant issues, but included extensive citations of American case law and statutes. While it is a particularly valuable resource for U.S. researchers, a number of his observations and arguments have more general application.

Inadequacy of U.S. Laws

Professor Wardle described existing U.S. legislation as "obviously and profoundly inadequate" (Wardle 210). Having been drafted primarily to deal with the aftermath of Roe vs Wade (180), the statutes addressed only a few procedures (chiefly abortion), often provided protection to only some individuals or classes of persons, and failed to include mechanisms for remedy or redress (178).

Moreover, he observed that "serious moral conflicts are sometimes brushed aside or cavalierly disregarded" by hostile judges bent on "imposing their own moral preferences" upon health care workers and institutions (221). Alternatively, some judges ruled so as to completely subordinate the rights of health care providers to "the wishes and convenience of their patients and their patients' families", a precedent that would cause health care licenses to become "lttle more than badges of moral slavery." (214)

Existing and Projected Abuses

Compounding the lack of legal protection afforded vulnerable religious minorities, Wardle cited reported cases - "only the tip of the iceberg" (220) - as evidence that "significant numbers of health care providers are subject to direct and indirect coercion and mistreatment" (178). These experiences included "threats, harassment, transfer, demotion and firing of nurses," civil liability imposed upon conscientious objectors, and government orders to carry out directives to withdraw food and fluids from dependent patients (219-220).

Wardle forecast even more serious and widespread violations of conscience as a result of pressure at both ends of life's continuum. On the one hand, he noted attempts by pro-abortionists to make participation in abortion mandatory for medical students (221-222. See also Frank, Michael J., Safeguarding the Consciences of Hospitals and Health Care Personnel: How the Graduate Medical Education Guidelines Demonstrate a Continued Need for Protective Jurisprudence and Legislation. Saint Louis University Law Journal, Vol. 41 No. 1, Winter, 1996). On the other, he worried that the increased medical costs associated with an aging population would generate pressure on health care workers to assist in euthanasia (222-223).

Further, he postulated that growing religious and cultural diversity in the U.S. would increase the potential for a "conflict of moralities". He pointed out, for example, that some religious minorities object to autopsies, organ transplants and blood transfusions, and asserted that "no rational justification" existed for excluding these and other widely accepted procedures from the ambit of conscience legislation (181).

New Technologies and Policies

While he expressed concern that federal health care reforms might destroy what legal protection existed at the the state level (223-226), Wardle was also cognizant of the difficulties that might arise due to emerging reproductive and genetic technologies (181 n.16). Since that time the situation has become further complicated by the marketing of new drugs and the lobby for physician assisted suicide. Significant ethical problems have arisen in each area since the publication of Wardle's review, and it is unlikely that the problems will diminish with the passage of time.

Institutional and Individual Protection

Professor Wardle criticized the policy of extending conscience protection to individuals while denying it to health care institutions. The latter, he argued, exist to actualize the "will and purposes" of the former (186). To protect the individual but not the collective is, he asserted, like granting freedom of speech to individuals, one-to-one, while denying freedom to forms of "collective speech" like that of corporations, television or newspapers (187). He observed, with some irony, that "[t]he greatest opposition to laws protecting the rights of conscience of health care institutions has come from advocates of absolute reproductive choice." (186)

State and Private Institutions

A further inconsistency he noted was the practice of denying legal protection of conscience in state institutions while granting such protection in private ones (188). Adopting the 'values language' characteristic of much modern ethical discourse, the Professor explained this as the result of "a conflict of values". The state, while 'valuing' provision of a controversial service, also 'valued' the rights of health care workers to refuse to provide the service. The solution to this conflict, ceding the rights of private judgement within private spheres and insisting that public policy prevail in the public domain, was criticized by Wardle as "unprincipled from the perspective of both values; it achieves neither and offends both." (189)

Instead, he maintained that a "values dilemma" is best resolved by assigning a priority to one value over others. In this case, "protection for the rights of conscientious refusal to participate in morally objectionable government-valued activities has a stronger and longer claim to priority and preference than the efficient provision of morally controversial medical services", and on this basis Wardle insisted that rights of conscience should be respected in public and well as private institutions (189).

Unfortunately, this amounts to an assertion that a 'traditional value' must prevail simply because it is 'traditional'. Professor Wardle attempted to buttress his position by citing "overwhelming evidence" that protection of conscience is "a significant contemporary American value" (189 n. 55). But this simply mirrors the first argument; we must give priority to a 'traditional value' because it is traditional, or to a 'significant value' because it is significant.

The case thus put fails to engage those who believe that the 'value' in question needs to be changed, or that it should be superseded by other 'values' in this or that health care institution, or state, or situation. And it fails to address the circumstances prevailing outside the United States.

A further problem is presented by the admission that the state, no less than a citizen collective, is "an entity created to express and enforce collective will" (187). If the will of a private collective may be implemented in a private institution, why should the will of a public collective - the state - not be effectuated in public institutions? If a Muslim hospital may insist that none of its employees may perform abortions, why may a state hospital not insist that all of its employees must do so?

The Muslim would answer that his hospital's policy against abortion is moral, thus binding, but the state's pro-abortion policy is immoral, and, therefore, not binding. Wardle elsewhere noted the (unexamined) moral assumptions underlying decisions to provide or not to provide abortions (186), but the standard 'values resolution/clarification' approach used at this point in his article precludes a solution predicated upon moral judgement. As a result, when he pointed out that both private and public health care workers are likely to encounter moral conflicts, his moral conclusion (that both are thus entitled to protection) was insufficiently grounded in his premises (189).

Saving

A few of the statutes examined in the article contained 'saving' provisions. Such provisions exempt from the prohibitions against discrimination those facilities (or parts of facilities) that specialize in the procedures to which objection is taken (194). Wardle was somewhat ambivalent about this, conceding that "it seems curious to deny (legal facilities) the ability to refuse to hire people who find the work they do morally objectionable." On the other hand, he suggested the need for reasonable accommodation of employees whose beliefs change after they are hired(195). He wrote that one of the advantages of conscience clauses is that they permit people to change their moral convictions and protect those convictions, "whether consistent or not"(206).

In practice, however, it is unlikely that a workable alternative to a blanket exemption can be drafted, at least with respect to facilities that are mainly involved in controversial procedures. It is enough to hope that the law can prevent injustice: too much to expect that it can undo all of the consequences that flow from one's past decisions.

Emergencies

An interesting observation was that most conscience legislation did not make exceptions for medical emergencies. This Wardle plausibly explained as arising from "the general belief that few persons will have moral or religious objections to providing such services when they are truly therapeutic procedures (in real medical emergencies), rather than elective procedures." (194)

Nonetheless, Professor Wardle proposed that carefully drafted exceptions should be made "for life-threatening emergencies in which the controversial procedure provides the best hope of saving a patient's life." (195) On this point he parts company with those who insist that a good end, even the saving of a life, cannot justify an immoral act.

Remedies

"Overall," the article states, "the existing conscience clauses manifest an appalling absence of attention to effectuating the rights of conscience, and to remedies." However, the Professor deemed criminal penalties unnecessary if appropriate awards for minimum damages, multiple/punitive damages and attorney's fees were made available (196).

Rules of Evidence

In reviewing legal decisions involving discriminatory conduct, Wardle cited Swanson v St. John's Lutheran Hospital (Montana) as "the most careful interpretation of a conscience clause provision to date, and the most consistent with its undelying policies." Of particular interest was the trial court's
judgement that, once a complainant establishes that her dismissal was substantially due to her conscientious objection, the burden of proof shifts to the defendant to show that she would have been fired for some different reason. (207)

Preference in Legislation

In the appendix to the article Professor Wardle provided A Proposal for Comprehensive Conscience Clause Legislation. With his permission, his proposed statute is reproduced on this website.