Protecting the Health Care Provider's Right of Conscience
The Center for Bioethics and
Human Dignity
27 April, 2004
Reproduced with permission
Teresa Stanton Collett, JD
*In Alaska, the state supreme court has opined
that private hospitals receiving state or federal
funds must make their surgical suites available for
the performance of elective abortions, due to their
having become (according to state constitutional
law) "quasi-public" institutions upon receipt of
such funds.1
While the Court has not yet been directly presented
with the question of whether religiously affiliated
hospitals are encompassed by the ruling, statements
in the opinion suggest that the ruling does apply to
such hospitals.2
In Texas, a jury found a private hospital liable
for an excess of $42 million for disregarding
parental objections and providing life-sustaining
care to an infant born after twenty-three weeks of
gestation.3
Only through the intervention of the appellate
courts was the hospital relieved from this
liability.
In California, a physicians' group has been sued
for violating state anti-discrimination laws due to
a doctor's refusal to artificially inseminate a
patient involved in a lesbian relationship. Dr.
Brody, a Christian and an employee of the group, had
agreed to treat the patient for infertility;
however, the doctor had clearly stated from the
outset that she was unwilling to artificially
inseminate the patient. The patient concurred with
this plan, and the treatment began.4
Subsequent circumstances resulted in the patient
obtaining care from other providers and ultimately
conceiving and giving birth to a baby boy.5
Nonetheless, the patient sued Dr. Brody, as well as
the physicians' group, for violating California law
prohibiting discrimination on the basis of sexual
orientation. The trial court dismissed the case,
finding that it was subject to the Employee
Retirement Income Security Act ("ERISA") since the
medical care was to be administered pursuant to an
employer-provided health care plan.6
The intermediate appellate court reversed the
decision, however, on the basis that ERISA was not
meant to preempt claims of discrimination in the
provision of medical care. The matter is now
awaiting trial.
The common thread running through these cases is
the insistence that health care providers comply
with patient demands, regardless of the nature of
the requests--and regardless of any conflicting
demands of the health care providers' consciences.
In addition to the cases described above, patients
or patients' representatives have, at various times,
insisted that artificially administered nutrition
and hydration be removed from patients who appear to
have no hope of regaining their health.7
Patients or their representatives have also sought
to require Catholic hospitals to permit
obstetricians to perform sterilizations of women
immediately after giving birth8
and have demanded that Catholic hospitals provide
"emergency contraception" to rape
victims--notwithstanding the fact that such
medication may act as abortifacients when used by
women during the post-ovulation periods of their
menstrual cycles.9
In all of these cases, the patients or their
representatives have claimed that their "rights" to
particular procedures are paramount and trump all
other considerations, including consideration of any
moral or conscientious objections expressed by
health care providers. The purpose of this article
is to explore the legitimacy of this claim.
The Rights of Patients and Health Care Providers
Under existing principles of American law,
patients receiving medical care ultimately retain
the right to choose what is to be done to their
bodies.10
This ability to choose has limits, however. For
example, in the vast majority of states, patients
may not choose to have physicians assist with their
suicide.11
In so far as the treatment or therapy the patient
seeks is outside the established norms of medicine,
a health care provider who declines to provide the
treatment or therapy will be protected and in fact
may be required to decline the requested care. The
disputed question is, when the treatment or therapy
is well within the established norms of medicine, to
what extent can a patient demand that a physician or
hospital provide a particular treatment or therapy
over the health care provider's objection?
At the beginning of the physician-patient
relationship, a physician typically may limit the
extent and scope of his obligation to treat a
patient.12
Similarly, in most circumstances, a private hospital
may limit the procedures it offers to the patients
it serves.13
This power to prospectively define the limits of
medical procedures and therapies a physician or
hospital is willing to provide, combined with the
historical ability of private hospitals and doctors
to define their areas of specialty or to reject
patients altogether, traditionally created
substantial protection against claims by patients or
would-be patients to services that offended the
consciences of the health care providers.
This is still true to a large extent today. By
informing prospective patients prior to entering
into the patient-health care provider relationship
that certain procedures or therapies will not be
provided, doctors and hospitals often are protected
against subsequent claims that they either are
wrongfully denying patients appropriate therapies or
abandoning the patients.14
By setting such limits at the outset of the
relationship, both the patient and the health care
provider have the option of declining to enter into
the relationship upon the terms offered. Any
attempts to establish limits on procedures or
therapies after the patient-provider relationship
has been established may be subject to the
provider's fiduciary obligations to the patient that
arose upon the establishment of the patient-provider
relationship.15
Such delay also risks the possibility that the
patient's condition may become such that seeking or
obtaining other medical assistance is unrealistic.
Failure to set any desired limits on procedures or
therapies prior to establishing the relationship may
therefore expose providers to judicial orders
requiring that they comply with patient demands.16
Challenges to Health Care Providers' Right of
Conscience
The general consensus recognizing the right of
physicians and hospitals to limit the treatments and
procedures they provide is, however, under attack.
Often thought of as a contemporary problem, this
conflict between a patient's demands and the
physician's concept of ethical medical care is as
old as the medical profession itself. The
Hippocratic Oath speaks directly to two issues
likely to invoke sharp disagreement today--the role
of the physician in bringing about the death of the
patient, and abortion: "I will neither give a deadly
drug to anybody if asked for it, nor will I make a
suggestion to this effect. Similarly I will not give
to a woman an abortive remedy."17
The inclusion of such statements evidences the moral
debate regarding such practices 2500 years ago.
Today it is often argued that the right to
abortion, artificial means of contraception,
assisted reproductive technology, physician-assisted
suicide, or other legally permissible procedures or
medications becomes meaningless without physicians
who are willing to provide such services. That is, a
patient's very ability to choose these procedures or
medications is dependent upon the existence of a
doctor who is willing to facilitate whatever choice
the patient makes. Consequently, a doctor's
unwillingness to act in a particular way due to her
conscience becomes a barrier to a patient's
self-realization.
When understood in this manner, the question
becomes that of whose freedom should trump. Should
the doctor remain free to act in accordance with her
conscience, or should the patient be free to obtain
a legally permissible service from every doctor?
Either way, someone's liberty will be restricted. If
the law compels physicians to provide treatments in
conflict with their conscience, the freedom of a
physician to practice medicine in accordance with
his conscience is diminished. If the law leaves the
matter to the private agreement of each individual
patient and physician, the patient's freedom to
obtain certain procedures or medications is
diminished by the possibility that her treating
physician will not offer the full array of legally
permissible options. Which ruling is more just?
In order to answer this question, the two
freedoms at stake must be examined. The patient's
claim is often presented in one of two ways; either
in terms of personal autonomy or relief of
suffering. The autonomy claims, while perhaps
compelling when articulating a reason to be free
from coerced medical care, are less persuasive when
articulated as a reason to compel another to act.
"My right to be free requires you to do X" seems
easily balanced by the doctor's claim "I have a
right not to do X," absent some promise or prior
undertaking.
Alternatively, patients claim, "I am suffering
due to my condition, and by doing X, my condition
will be relieved, so you (doctor, nurse, pharmacist,
hospital) must do X, as a part of your commitment to
the relief of suffering." This was the patients'
claim in Washington v. Glucksberg, in which the
patients claimed a constitutional right to
physician-assisted suicide.18
While the Court acknowledged the reality of the
suffering endured by the patients, the Court
recognized that the legitimacy of other societal
values precluded doctors from being forced to
relieve the suffering of their patients in this
manner.
The doctor or health care provider's freedom to
act in accordance with his conscience is often
defended in contemporary discussions by the claim
that forcing people to violate their consciences
forces them to deny their uniquely constructed
self-identities and is unjust. The more traditional
justification for freedom of conscience is the right
of all humans to serve God before people, and the
ultimate futility of government demands to the
contrary.
Now is the time for health care providers to
search their consciences and consider their
commitments. Because there are interventions within
medicine that are legally--but not
morally--permissible, health care providers must
"choose this day whom [they] will serve."19
CBHD
1 Valley Hosp. Association. Inc. v.
Mat-su Coalition for Choice, 948 P.2d 963
(Alaska 1997).
2 Id. at 971 n. 18.
3 Miller v. HCA, 118 S.W.3d 758
(Tex. 2003).
4 Benitez v. North Coast Women's
Medical Care Group, 131 Cal.Rptr.2d 364, 367
(2003).
5 Peter Y. Hong, Lesbian Sues Over
Doctor's Refusal to Help, Seattle Times, Feb.
25, 2003, available
https://seattletimes.nwsource.com
6 Benitez v. North Coast Women's
Medical Care Group, 131 Cal.Rptr.2d 364, 366
(2003). The plaintiff's appellate brief can be
viewed at Human Rights Campaign Foundation, Law
Briefs (Mar. 2003) available at
www.hrc.org/publications/lawbriefs/v06n01.pdf.
7 Gray v. Romeo, 697 F. Supp. 580
(D.R.I. 1988).
8 Taylor v. St. Vincent's Hospital,
369 F. Supp. 948 (D. Mont. 1973); and Allen v.
Sisters of St. Joseph, 361 F.Supp. 1212 (D.C.
Tex. 1973).
9 At least eight state legislatures
considered bills relating to emergency contraception
in 2002 as of October 7, 2002 according to the
Center for Reproductive Rights. State Trends in
Emergency Contraception Legislation at
https://www.crlp.org/st_ec.html. Compare United
States Conference of Catholic Bishops, Ethical
and Religious Directives for Catholic Health Care
Services ΒΆ36 (4th ed. 2001) available
at www. nccbuscc.org./bishops/directives.htm and
Guidelines for Catholic Hospitals Treating
Victims of Sexual Assault available at
www.pacatholic.org/bishops'%20statements/guidelines.htm.
10 Schloendorff v. Society v. New York
Hospital , 105 N.E. 92 (N.Y. 1914).
11 See Washington v. Glucksberg,
521 U. S. 702, 710 n. 8 (1997).
12 Giallanza v. Sands, 316 So. 77, 83
(Fla. App. 4th Dist. 1975)(C.J. Walden, dissenting),
Brandt v. Grubin, 329 A.2d 82 (N.J. 1974), Childers
v. Frye, 158 S.E. 744, 746 (N.C. 1931), Ricks v.
Budge, 64 P.2d 208 (Utah 1937), and McNamara v.
Emmons, 97 P.2d 507 (Cal. App. 4th Dist. 1939).
13 See e.g.Ham v. Holy Rosary Hosp., 529
P.2d 361 (Mont. 1974).
14 Giallanza v. Sands,
316 So. 77,
83 (Fla. App. 4th Dist. 1975)(C.J. Walden,
dissenting), Brandt v. Grubin, 329 A.2d 82
(N.J. 1974), Childers v. Frye, 158 S.E. 744,
746 (N.C. 1931), Ricks v. Budge, 64 P.2d 208
(Utah 1937), and McNamara v. Emmons, 97 P.2d
507 (Cal. App. 4th Dist. 1939).
15 See Maxwell J. Mehlman, Fiduciary
Contracting Limitations on Bargaining Between
Patients and Health Care Providers, 51 U. Pitt.
L. Rev. 365 (1990).
16 Compare Gray v. Romeo, 697 F.
Supp. 580, 591 (D.R.I. 1988)(finding that hospital
did not advise patient or patient's family of its
unwillingness to remove artificially administered
nutrition and hydration from patient at the time of
patient's admission, and therefore ordering hospital
to comply with request of patient's family); Matter of Jobes, 529 A.2d 434, 450 (N.J.
1987)(same); with Brophy v. New England Sinai
Hosp., Inc., 497 N.E.2d 626, 639 (Mass.
1986)(where hospital opposes removal of artificially
administered nutrition and hydration, patient should
be transferred to another facility or home).
17 "The Hippocratic Oath" reprinted in
Stephen E. Lammers & Allen Verhey, eds., On
Moral Medicine 107 (1998).
18 521 U.S. 702 (1997).
19Joshua 24:15.
Copyright 2004 by The Center for Bioethics and
Human Dignity
The contents of this article do not necessarily
reflect the opinions of CBHD, its staff, board or
supporters.