Conscience and the Healthcare Worker
Reproduced with permission
Abstract
Healthcare advances are rapidly changing treatments available for any
number of conditions. Some of these treatments create a moral dilemma for
those in the healthcare field and they are being faced with a decision to
either deny delivery of service and perhaps compromise their employment, or
compromise their conscience. This paper is a brief summary of history,
current law, and attempts being made to resolve the conflict.
My first contact with a health care professional who had a conscience
issue with her employer came in the Summer of 1999. I had been asked by the
editor of the newsletter for the National Association of Pro-life Nurses to
write about conscience issues in the wake of the successful conclusion of a
delivery room nurse's dispute with Lutheran General Hospital in Park Ridge,
Illinois.
Accompanying a thank you letter from nurse Kathleen Hantel published in
our quarterly PulseLine, I wrote a brief article about the state of legal
protection for health care workers, particularly nurses, who had conscience
issues in the workplace. What I discovered in writing it was that the
recourse for health care professionals with such issues was very limited.
Seven years later, legal recourse still remains very limited. What I did
not know at the time was that the debate was about to escalate. A new
controversy over the conscience of pharmacists' rights to refuse to fill
prescriptions was emerging and has now reached critical proportions. In
addition, other circumstances under which health care individuals are faced
with situations in which participation violates their conscience was
beginning to grow at an alarming rate.
Modern medicine is capable of delivering treatment for an astonishing
number of conditions which were never imagined just a few short years ago.
These advances come at the price of what many consider a violation of
medical ethics. There are those in the health care field who cannot in good
conscience participate in the delivery of some of these treatments. Much of
the concept of medicine and the attitude towards the patients being treated
has changed. Long held traditions are being challenged in order to accept
these advances in science. Nigel Cameron in "The New Medicine" reports that
the regard for the Hippocratic Oath, once sacred in the4Conscience and the
Healthcare Worker medical profession, has been eroding for several years now
and could soon be obsolete. Utilitarian and even eugenic considerations are
replacing centuries old traditions of how medicine should be practiced. In
addition, current debate over what it means to be human has affected every
aspect of life, particularly that of medicine. Not only abortion, but the
entire delivery of health care is under siege by today's utilitarian
philosophers and practitioners.
Much research now involves the use of embryonic stem cells and fetal
tissue from the unborn. It raises concern not only for those employed in
research, but for the health care worker at the bedside employing the
medication or treatment so developed. Organ transplantation has come under
criticism for lax criteria for declaration of death for the purpose of
harvesting organs. Can a transplant team member refuse to participate in
transplant operations if he or she disputes the diagnosis of death? Should
there be fear for one's employment?
It has only recently been realized that vaccines developed years ago used
aborted fetal tissue for the original development. There is no alternative
for many of these vaccines. Is it ethical to continue to use these vaccines
even though no babies are currently being killed for the production of the
vaccine? Does the obligation of the health care worker administering such
vaccines lie in obedience to his or her conscience or to the employer? In-
vitro fertilization has come under criticism for lack of ethical
considerations such as the number of embryos created and implanted, the
dilemma created for what to do with excess embryos, and the criteria for who
is a candidate for IVF. To what extent can one refuse to participate in the
facilitation of IVF without suffering legal consequences if the refusal is
based on a violation of one's conscience? Questions of nutrition and
hydration in the elderly and debilitated are repeated multiple times daily
throughout the country. What of the health care worker who has a conscience
issue with discontinuing enteral feeding or other treatment? What about the
recent concept of "futile care" if one objects for ethical reasons to this
label for the basis of discontinuing care?
The practitioner, whether it be the physician, the nurse, any of the
professionals or paraprofessionals, and even the janitor who is asked to
clean the delivery room following an abortion, are all required to follow
his or her conscience. How does this fit into the workplace? One recent case
involved an Illinois EMT asked to transport a woman in her ambulance to a
clinic for an abortion. Her refusal resulted in his dismissal from her
employment. The ambulance company contends in its defense of its actions
that the EMT was not fired for her religious beliefs but because her actions
created a threat to the patient's safety, although the patient was in no
danger to her health and the abortion was elective. Should an employee have
aright to refuse to participate if it is in violation of one's conscience
without fearing repercussions?
Over thirty years after Roe v. Wade, the goal of the abortion
activists remains the same; promotion of abortion even by coercion. The web
site of the Maryland National Abortion and Reproductive Rights Action League
(NARAL) bluntly states "The goal of the Hospital Provider Project is to
increase access to abortion services by requiring Maryland hospitals to
provide abortion and other reproductive health care." (Kramlich,
2002) Overall, NARAL assigns the country a "D+", even though abortion is
essentially legal through all nine months of pregnancy, for any reason, in
every state. The most pro-choice state (Washington) lost points because it
allows doctors to opt out of doing abortions if it violates their
conscience. (Brennan, 1999)
Nurse-ethicist Nancy Valko cites a number of examples in her Women for
Faith and Family article
"Are Pro-Life Healthcare Providers Becoming an Endangered Species."
Noting that these cases are but a sample of what is taking place in the
health care system, she notes that "Slowly but surely, more and more
pro-life doctors, nurses and other healthcare professionals are getting the
message that they and their views are unwelcome in today's healthcare
system. But these public cases tell only a small part of the story.
Intimidation, harassment and coercion are becoming increasingly common as
pro-life health care providers try to advocate for both their patients and
their professional ethics....the medical professions have now become virtual
war zones." (Valko, 2003)
Laws based on the Constitution's First Amendment guaranteeing the free
exercise of religion have been enacted on a limited basis to protect the
health care worker under some circumstances. AUL in its Defending Life 2006
points out that an early draft of the Amendment by James Madison stated more
clearly the intent of the Amendment when he wrote that "The Civil Rights of
none shall be abridged on account of religious belief or worship, nor shall
any national religion be established, nor shall the full and equal rights of
conscience be in any manner, nor on any pretext infringed. No state shall
violate the equal rights of conscience or the freedom of the press, or the
trial by jury in criminal cases." (AUL, 2006) Jonathan
Imbody of the Christian Medical Association points out that James Madison
also said that "Conscience is the most sacred of all property." (Imbody,
2004)
The first conscience clause law enacted followed on the heels of Roe
v. Wade in 1973.Congress passed the Church Amendment which states
that public officials may not require individuals or entities who receive
certain public funds to perform abortion or sterilization procedures or to
make facilities or personnel available for the performance of such
procedures if such performance "would be contrary to (the individual or
entity's) religious beliefs or moral convictions" (Feder,
2005). It also declared that the receipt of federal funds in various
health programs will not require hospitals to participate in abortion and
sterilization procedures and forbids hospitals in these programs to make
willingness or unwillingness to perform these procedures a condition of
employment (Kramlich, 2002).
In the year after Roe, twenty seven states enacted laws protecting
health care providers from being forced to participate in abortions and five
more states enacted laws in one form or another within the next two years (Kramlich,
2002). Eventually, forty-seven states enacted laws protecting health
care providers who conscientiously object to participating in abortion to
some degree. Only two of these states have laws broad enough to protect
healthcare providers in other situations (AUL, 2006).
When Congress enacted the Civil Rights Restoration Act in 1988, it
adopted the Danforth Amendment which mandated neutrality on abortion.
Additional conscience clause legislation was enacted in the Omnibus
Consolidated Rescissions and Appropriations Act of 1996. It prohibits
state and local governments from discriminating against health care entities
that refuse to undergo abortion training, to provide such training, to
perform abortions, or to provide referrals for such training or abortions. (Feder,
2005)
The following year, Congress again visited the abortion conscience clause
issue when it enacted the Balanced Budget Act of 1997. The effect of
the 1997 legislation was to extend the coverage of conscience clause laws
beyond the individuals who provide medical care to the companies that pay
for such care under the Medicaid and Medicare programs. Furthermore, the new
conscience clause law is broader because it allows Medicaid and
Medicare-funded health plans to refuse to provide counseling and referral
for abortion-related services, whereas earlier conscience clause laws
permitted providers to opt out only of the actual provision of such
services. (Feder, 2005)
And in 2004 the Hyde-Weldon Conscience Protection Amendmentwas
passed providing that no federal, state, or local government agency or
program that receives federal health and human services funds may
discriminate against a healthcare provider because the provider refuses to
provide, pay for, provide coverage of or refer for abortion. (AUL,
2006) Like the Hyde Amendment of 1976 prohibiting the use of
federal funds to provide abortion, though, it is subject to annual renewal.
And Hyde-Weldon has been challenged in federal court.
The vast majority of these laws, both federal and state, address only the
abortion issue and offer little, if any, protection to the health care
worker in on any other issue. Even on abortion, protection is weak for most
laws and there are few punitive measures if an employer breaches the law. It
is unclear whether these laws could be expanded to include other conscience
issues. The general consensus seems to be that they would not, that they are
inadequate for conscience protection outside the abortion context. Because
of the growing number ethical concerns involving the practice of health care
research and delivery, there is an urgent need for expanded protection of
the worker in the health care field under a variety of circumstances.
Efforts have been underway, particularly at the state level, to expand
these protections. Americans United for Life (AUL) has written model
legislation to be adopted by state legislatures and makes its legal
resources available for consultation for anyone who wishes to promote such
legislation. The Protection of Conscience Project has been promoted by Sean
Murphy of British Columbia, Canada since 1988 and encourages legislation
worldwide to protect healthcare workers. Their board of advisors is
comprised of members from several countries. (Web
site, 2006)
Unfortunately, many of the professional organizations representing the
very workers intended to be protected by these laws are often opposed to
them. In response to the current pharmacists' debate, the American Medical
Association (AMA) on June 20 of 2005 adopted a measure in favor of
legislation mandating that pharmacists fill prescriptions for all legal
drugs, including those that cause abortions. "This is an issue of access to
care for patients." Dr. Mary Frand, a California physician told delegates
before the vote. (La Rue, 2005) The AMA and the
American Nurses Association (ANA) have both held the position for a long
time that abortion "rights" for the patient are to be respected, but have
not respected the rights of its members who hold that abortion is a moral
wrong.
The ANA Code of Ethics proclaims to recognize the importance of the right
of a nurse not to participate in unconscionable acts, but this does not
translate into practice. It is discouraging to offer testimony in favor of
conscience clause legislation and to be opposed by representatives of the
state nurses organization as I have been on three occasions in the Wisconsin
legislature. Also opposing this Wisconsin legislation have been
representatives of the Wisconsin Medical Association. The representative of
the professional pharmacists organization in Wisconsin gave halfhearted
testimony if favor of on one occasion, spoke "for informational purposes
only" on another, and in opposition on a third. This in spite of the fact
that an aspect of the law was to protect pharmacists from being forced to
dispense either contraceptives or the morning after pill, both of which have
been incriminated as abortifacient in at least some circumstances. In
Washington and California, state organizations "representing" pharmacists
also recently caved to political pressure after initially coming to the
defense of their pharmacists with conscience issues in support of conscience
clause legislation. (LifeNews.com, 2006)
Opposition to the Wisconsin Conscience Clause laws was joined at one hearing
by the manager of public and government relations of ThedaCare, one of the
larger health care systems in the state. (Jones, 2004)
California has long been noted for its agenda favoring politically
correct posturing. Washington is not far behind. In Wisconsin, the current
governor, Jim Doyle, has long been an opponent of conscience clause
legislation vetoing its legislature approved enactment three times to date.
Criticism of attempts at legislation have run the gamut. On one occasion,
Gov. Doyle's excuse was that it is an unnecessary law. Current protections
were described as adequate. If they were adequate, the issue would not have
arisen and there would be no need to consider legislation for such
protection. On another occasion, he claimed "it would be unconscionable to
deny our citizens the full range of needed medical treatment in order to
satisfy the ideological views of some health care providers" even though
consumers would not be denied any services; inconvenienced some, perhaps,
but not denied. And much of the "service" in question is not providing
actual "health care" in the first place since abortion and contraception,
among other issues, occupy a questionable place in "health care."
To its credit, the Pharmacists Association recently reaffirmed its policy
that pharmacists can refuse to fill prescriptions as long as they make sure
customers can get their medications some other way. "We don't have a
profession of robots. We have a profession of humans. We have to acknowledge
that individual pharmacists have individual beliefs," said Susan C.
Winckler, the association's vice president for policy and communications.
(Rob Stein, 2005) It is individual organizations which have caved to
political pressure which do not defend the pharmacists right to
conscientious objection.
In contrast to most of those involved in public policy, House Small
Business Committee Chairman Don Manzullo (R-IL) in pointing out that five
states require pharmacists to dispense the morning-after pill even if they
oppose it on moral or religious grounds, stated that "Pharmacists shouldn't
be forced to choose between their business and their beliefs." (Pharmacists
for Life, 2005) That situation is, of course, subject to change depending on
who it is that heads up this or any other government agency.
The situation regarding conscience issues for healthcare workers is not
really much different today from that written in 1999. The advice remains
the same. If your state has a conscience clause statute, use it. It is your
best protection. If your state does not have such a statute, or one
addressing the area you are contesting, you may still have a claim under
Title VII if your facility is a private employer. Your employer is obligated
under this federal measure to make reasonable accommodation to employees who
object to certain tasks on religious grounds. (Most existing statutes spell
out those grounds as abortion.) If your employer is a federal provider, you
may have a claim under the Religious Freedom Restoration Act. Your
employer must have a compelling interest to make you violate your religious
beliefs. If you are state employed, you may still have a claim for religious
freedom under the First and Fourteenth Amendments to the U.S. Constitution.
Any claims in the absence of a conscience clause statute may not be
successful, but many health care professionals believe so strongly in their
objection they are led to challenge their employer even in the absence of
such laws. In the case of nurse Kathleen Hantel, her state of Illinois was
considered to have one of the strongest statutes protecting conscience
rights, yet shestill faced many obstacles and a ten year battle before a
favorable resolution.
Just do not expect any support from your professional organization. It is
likely that it will not be forthcoming.
In addition to promoting legislation to guarantee rights of conscience to
health care workers, there are a number of organizations who have come to
the aid of those challenged in the workplace by their employers. Some have
been out and out firings like the EMT above, others, as pointed out by Nancy
Valko, have been reprimanded or denied employment or promotions based on the
objections to some of the practices employed by the facility. Kathleen
Hantel was "relocated" without her consent from the delivery room to a
nursing home a much greater distance from her home for her refusal to
participate in abortions.
The American Center for Law and Justice (ACLJ) founded in 1990 and now
based in Washington, D.C. specializes in constitutional law. According to
their web site, the ACLJ is "dedicated to protecting your religious and
constitutional freedoms ...through our work in the courts and the
legislative arena." They provide legal services at no cost to their clients
and focus on issues which include protecting human life. (ACLJ
web site, 2006) Their web site lists 27updates on current conscience
clause cases in which they are involved. At this writing, three of the ten
most recent news briefs concerned pharmacists conscience issues. ACLJ lists
12 senior attorneys on its staff.
It is not just pharmacists with issues of dispensing abortifacient
medications. Nurses, too, have been dismissed for doing so. Defense
organizations took up their cause and the ACLJ wona significant victory in
California. Most recently the ACLJ took up the cause of nurse Carla Sauer
Iyer who was threatened with loss of her license for speaking up on behalf
of Terri Schiavo's family in the hearings regarding guardianship. At the
urging of Terri's former husband, Michael Schiavo, the Florida State Board
of Nursing threatened to remove her license because of breach of
confidentiality even though her testimony was under subpoena. That situation
was successfully resolved without going to court and Ms. Iyer retains her
license to practice nursing.
The Life Legal Defense Foundation in Napa, California describes itself as
"A legal network in support of life". (LLDF web site, 2006)
Although it has been primarily engaged in the right to exercise of free
speech regarding demonstrations and sidewalk counseling, it has represented
nurses with a conscience issue in the workplace and recently defended nurses
in two of these situations. (LLDF Lifeline, 2005)
The Rutherford Institute is another a non-profit conservative legal
organization dedicated to the defense of civil, especially religious,
liberties and human rights. (Web site 2006) It also expresses a willingness
to represent health care workers with a conscience dispute in the course of
employment although there is no record of such defense posted. Although it
is a not-for-profit public interest bioethics law firm dedicated to changing
law to protect human life state by state, Americans United for Life (AUL
web site, 2006) has been involved in a number of conscience cases and
has counseled several litigants, particularly in Illinois where they are
located. While their focus is on changing the law, they also have a bevy of
attorneys willing to defend health care workers with conscience issues.
The Christian Legal Society represents lawyers throughout the country who
practice law from a Christian perspective. Although their pro-bono efforts
are more limited, many of their members are willing to represent individuals
with conscience issues as in the case of Atty. Paul Esposito of Chicago who
successfully represented nurse Kathleen Hantel in her dispute with Lutheran
General in Park Ridge. In a recent conversation, Christian Legal Society
Executive Director Sam Casey stated that his organization was actively
seeking medical personnel with conscience issues in order to have a test
case and set precedent. The Society has a special division, the Center for
Law and Religious Freedom, which has also taken up the defense of
pharmacists.
The Thomas More Society is an association of Catholic lawyers and many of
the local groups have provided pro-bono counsel to those individuals with
conscience issues in the workplace. The society is comprised of mostly
autonomous local groups, some more involved than others. There is no central
governing body. The Orange County, California group describes its mission as
a directive from Micah, "To act justly, to love tenderly, and to walk humbly
with your God." That presumably could be a mantra for all the Thomas More
groups as well as the Christian Legal Society. Recently, a Thomas More group
in Ann Arbor, Michigan, associated with the Ave Maria School of Law, has
promoted itself as a national organization of Catholic Lawyers offering
counsel for a number of civil liberties cases. While not in any competition
with each other, except perhaps excellence in the practice of legal defense,
it does make for some confusion among the uninitiated.
Most famously, Tom Brecja of the Chicago Thomas More Society was the lead
defense of Joe Schiedler in his many years battle with NOW and its charge
that Schiedler's pro-life group was a racketeering group to be charged under
RICO laws. Mr. Brecja also represented Wisconsin nurse, Beth LaChance, in
her conscience dispute with Waukesha Hospital over its new interpretation of
its policy on abortion to provide for abortions of infants deemed to have a
terminal condition which would result in death at or soon after birth.
In addition, while most official professional organizations have either
taken a passive or even outright opposition to conscience clause
legislation, there are many alternative groups representing those in the
professions who cherish and respect life. The Christian Medical and Dental
Association, Catholic Medical Association, Pro Life OB Gyns, National
Association of Pro-life Nurses, Pharmacists for Life and a host of local
groups represent those members of the medical profession who are likely to
have an issue regarding conscience objection to certain medical practices.
Most have referral services for their members who are faced with such a
challenge.
But joining the politicians and professional groups who oppose
pharmacists conscience clauses are the editorial pages of almost every major
newspaper in the country. Syndicated columnists Rob Stein of the
Washington Post, and Leonard Pitts of the Miami Herald along with
others have written widely disseminated columns in opposition to conscience
clauses and many like the New York Times and Washington Post
have carried editorials criticizing pharmacists who object to filling
prescriptions for morning after pills and contraceptives. ABC, CBS, NBC and
CNN have all carried stories with slants opposing conscience measures. The
list is extensive.
Some background explaining the current controversy over pharmacists
conscience rights is appropriate here. In September of 1998, Gynetics
morning after pill, Preven, (actually a kit oftwo ordinary birth control
pills and a pregnancy test kit) was approved by the FDA for use. The
following year, the FDA approved its DuraMed counterpart, Plan B. Both
contain similar hormones and have the same reported actions. Without getting
too technical, according to PlanB's manufacturer, one of its three actions
is to create an environment in the uterus inhibiting the implantation of a
newly fertilized egg in the uterine wall. Those who accept the fact that a
new human being is conceived at fertilization regard such mechanism as
abortive and object to use of this practice. In addition, the morning after
pill is chemically the same as the birth control pills used today.
Pharmacists for Life and others have maintained for years that oral
contraceptives, too, can act as an abortifacient.
The approval of the "emergency contraception" drugs raised the awareness
of the action of both the EC itself and the oral contraceptives, thus the
growing opposition to its use. So we have, beginning in 1998, a number of
situations involving pharmacists where they, in good conscience, refuse to
fill the prescription. Illinois and Wisconsin have been high profile, but
there have been cases reported in California, Washington, Washington,
Georgia, Massachusetts, Texas, New Hampshire, Ohio and North Carolina as
well. In response, by March of 2005 there were 11 states considering
conscience clause laws aimed at protecting pharmacists' objections. (Rob
Stein, 2005)
It is important to consider the political and philosophical significance
of the debate. Going back to Susan Winckler's comment that "We don't have a
profession or robots," there are some far ranging effects for the delivery
of health care which merit consideration.
In addition to the legal aspect of protecting Constitutionally guaranteed
rights, we would do well to look at the nature of the healthcare profession.
As part of my testimony on behalf of the National Association of Pro-life
Nurses, I pointed out that nursing has always been and, because of its
service nature, always will be, comprised primarily of individuals of
altruistic motivation who will rise to the defense of the vulnerable and
defenseless. To discourage them from participating in the care of those in
medical need for fear of negative consequences would indeed lead to a sorry
situation for those patients and for all of society.
Many in the healthcare professions are motivated by these same altruistic
ideals. As the way medicine is delivered changes in the world and there is
greater economic incentive for workers, others are enticed into the field,
but the basic desire to serve is a cornerstone of medicine and the consumer
of healthcare has come to expect this caring attitude from its
practitioners. Does the public really want to drive out those who believe
that human beings have worthy based solely on their intrinsic worth as
members of the human species, especially those who are willing to risk their
employment to honor this respect? What sort of care could they expect from
those who would be left to deliver that care? Many health care professionals
adhere to the belief that our mission is to treat and heal patients to the
best of our ability, not to engage in actions that deliberately destroy
human life, thereby creating an atmosphere in which human life is no longer
respected.
Pharmacists for Life President, Karen Bauer, recently commented "Nothing
in the Oath ofa Pharmacists requires me to participate in killing." (St.
Louis Post Dispatch, 2005) Indeed, it is only recently that the
field of medicine has included practices and treatments that include those
that result in death. It contradicts the noble desires of many in the
professions and has caught them blind sided.
Political commentator Paul Chapman pointed out in an article in April of
2005 that "Abortion rights advocates cherish the right of choice. But not
all choices are created equal. People who uphold a woman's right to make her
own reproductive decisions want to deny others the right not to take part in
those decisions. The demand for freedom has been turned into a pretext for
compulsion." His article concludes with a proposal for a compromise: "Let
individual pharmacies decide what drugs to dispense, and let pharmacists who
disagree find other places to work. Let patients who can't get their
prescriptions filled at one pharmacy go to another pharmacy with a different
policy. That may create some inconveniences, sometimes, for some people. But
it's a small price to pay for protecting the freedom of everyone." (Chicago
Tribune,2005)
Well said, Paul, and let's extend those protections to all in the
healthcare field.
Deep within his conscience man discovers a law which he has not
laid upon himself but which he must obey. Its voice, ever calling him to
love and to do what is good and to avoid evil, sounds in his heart at
the right moment...For man has in his heart a law inscribed by God...his
conscience is man's most secret core and his sanctuary. There he is
alone with God whose voice echoes in his depths. Catechism of the
Catholic Church, 1776
References
ACLJ Web site
AUL Web site
Bauer, Karen (2005) 9/6/05
Letter to the Editor: Forced Morality St. Louis Post Dispatch
Brennan, Ann E., (1999)NARAL
issues gloom and doom summary, NRL News
Burke, Denise, Ed. (2006) Defending Life 2006 AUL
Chicago, IL 2006.
Chapman, Steve (2005)Right
to choose vs. Power to compel. Chicago Tribune
Feder, Jody, J.D. (2005) The history and effect of
abortion Conscience clause laws. Congressional Research Service Report for
Congress.
Imbody, Jonathan (2004) Doctors, Medical
Professionals Deserve Conscience Protection on Abortion
LifeNews.com,Sept.
28
Jones, Ben (2004) Doyle vetoes "Conscience Clause"
Wisconsin State Journal,
Kramlich, Maureen (2002)The
assault on Catholic health care. United States Conference of Catholic
Bishops Office of Pro-Life Activities
LaRue, Jan M. (2005) Hippocratic Oath to Hypocrisy.Town
Hall
LLDF Web site
Pharmacists for Life Press Release Manzullo: Pharmacists shouldn't be
forced to choose betweentheir business, beliefs, July 25, 2005 (Mike
Arlinsky).
Rutherford InstituteWeb
site
Sean Murphy Protection of Conscience Project
Web site
Stein, Rob (2005)Pharmacists'
Rights at Front of New Debate. Washington Post, March 28.
Valko, Nancy (2003)
Are pro-life healthcare
providers becoming an endangered species, Voices,the publication of
Women for Faith and Family vol. XVIII: No. 2 2003.