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Healthcare Without Conscience: Unconscionable


Healthcare Without Conscience: Unconscionable Gene Rudd, MD March 2008 * * * * Rosa Parks refusal to give up her seat on the bus is considered the seminal act of ... – PowerPoint PPT presentation

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Title: Healthcare Without Conscience: Unconscionable

Healthcare Without Conscience Unconscionable
  • Gene Rudd, MD
  • March 2008

Healthcare Right of Conscience
  • The right of institutions and healthcare
    professionals to exercise their conscience and
    refuse to participate in or cooperate with
    certain medical practices or procedures they deem
    morally of religiously objectionable.

History Proposed mandatory abortion training
  • 1996 Congress considers Accreditation Council for
    Graduate Medical Education (ACGME) requirement
    for abortion training
  • 42 U.S.C. 238n was passed to prevent ACGME

Nevertheless Mandatory Abortion Training in NYC
  • 2002 Mayor Bloomberg orders abortion training in
    All NYC medical schools
  • Guidelines make it very difficult conscientiously

Pharmacist Exercises Conscience
  • 1999 Karen Brauer, while working for Kmart,
    refused to fill a Rx for a progesterone-only
    contraceptive on the grounds that it has a
    post-fertilization mechanism of action
  • She was fired by Kmart.
  • In 2000, the US District Court upheld Ms Brauer
    claim of wrongful dismissal. Case continues.

Illinois Executive Order Forbids Conscience
  • In 2005, the governor issued an executive order
    making it a crime to refuse to fill a legal
  • Most states have some degree of law that protects
    right of conscience.
  • At least 3 states have specific laws that protect
    pharmacists right of conscience

AMA Resolution (June 2005)
  • Resolution 2 (A-05) Pharmacist Conscientious
    Objection and Effects on Patient Access to Care
  • RESOLVED, That our American Medical Association
    call upon our colleagues at the American
    Pharmacists Association and the American Society
    of Health System Pharmacists to vigorously
    reaffirm and take positive steps to enforce their
    policies supporting the establishment of systems
    that protect the patients right to obtain
    legally prescribed, medically indicated therapy
    when an individual pharmacist exercises the right
    of conscientious refusal and be it further

AMAs Conscience Clause
  • Medical schools should have mechanisms in place
    that permit students to be excused from
    activities that violate the students religious
    or ethical beliefs.

Weldon Amendment 2004
  • Prohibits government authorities from requiring
    any health care professional or institution to
    participate in or pay for abortions
  • (Awaiting judgment from California Supreme Court
    for gt1 year)

Benitez vs. North Coast
  • Currently in appeals court
  • Based on conscience concerns, Dr. Brody declined
    to perform artificial insemination on Ms Benitez
    since she was not married
  • Ms Benitez, a lesbian, sued on grounds of
    homosexual discrimination

More recently
  • November 2007 American College of Obstetricians
    and Gynecologist issue new ethical statement
    (Committee Opinion 385) on Limits of
    Conscientious Refusal
  • Conclusion patient autonomy trumps moral
    objections of provider

American Board of Obstetrics and Gynecology
  • New policy issued in January 2008 certification
    contingent on compliance with ACOG ethical

ACOGs Dilemma
  • Consequence of allowing patient autonomy become
    the prevailing right
  • Elective Cesarean Sections

Common Denominators
  • Abortion
  • Reproductive Rights
  • Those promoting these issues seem willing to give
    up foundational rights and change the landscape
    of medical ethics and patient-doctor relationship
    in order to be successful with their agendas.

Distortion of Autonomy
  • Autonomy protects patients right to make
    informed decisions for themselves, not to force
    others to support their decision
  • It become choice for one person but not for
  • Right of conscience vs. right of convenience?

(No Transcript)
Not a New Issue
  • Moral Debate 2500 Years Ago
  • 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.
  • Hippocratic Oath

The other label The Right of Refusal
  • A threat to reproductive rights
  • Health related decisions made between a provider
    and patient should be made on the personal
    welfare and healthcare needs of the patient - not
    the morals or belief of the caregivers.
  • While we firmly believe that all people have a
    right to their own opinions and moral beliefs, it
    is unethical for healthcare providers to stand in
    the way of a womans access to safe, legal and
    professional healthcare.

Refusal Clauses Planned Parenthood Website
How basic is this right?
  • "Congress shall make no law respecting an
    establishment of religion, or prohibiting the
    free exercise thereof"
  • Bill of Rights,
  • First Amendment

What does Freedom of Religion mean if you cant
follow your conscience?
Thinking Behind the First Amendment
  • James Madison, 1789-JUN-7 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
  • House Select Committee, JUL-28 No religion shall
    be established by law, nor shall the equal rights
    of conscience be infringed,
  • Livermore, AUG-15 Congress shall make no laws
    touching religion, or infringing the rights of
  • House Version, AUG-20 Congress shall make no law
    establishing religion, or to prevent the free
    exercise thereof, or to infringe the rights of
  • Conference Committee SEPT 24 Congress shall make
    no law respecting an establishment of religion,
    or prohibiting the free exercise thereof.

Perspective of the Founding Fathers
  • The rights of conscience we never submitted, we
    could not submit. We are answerable for them to
    our God.
  • I consider the government of the U.S. as
    interdicted by the Constitution from
    intermeddling with religious institutions, their
    doctrines, discipline, or exercises.
  • Thomas Jefferson

James Madison
  • Conscience is the most sacred of all property.
  • The Religion of every man must be left to the
    conviction and conscience of every man and it is
    the right of every man to exercise it as these
    may dictate.

Consider Healthcare without Conscience
  • Is our healthcare system in need of more
    conscience-driven doctors or more
    ethically-morally neutered doctors?
  • Do we want medical education to strip our future
    doctors from all convictions that have not been
  • A doctor's conscience may be the last line of
    protection between a patient and those who would
    profit from early death.

Whose Freedom Trumps?
  • Patient or Providers Autonomy?
  • Persons autonomy does not include the right to
    compel someone else to participate.
  • Obligation to Patient
  • Washington v. Glucksberg
  • Supreme Court Assisted
  • Suicide

William Ewart Gladstone British prime minister,
speech, Nov. 26, 1879, Dalkeith, Scotland
  • "Remember the rights of the savage, as we call
    him. Remember that the happiness of his humble
    home, remember that the sanctity of life in the
    hill villages of Afghanistan, among the winter
    snows, is as inviolable in the eye of Almighty
    God, as can be your own."
  • (We might use the term inalienable.)

Inalienable Rights Declaration of Independence
  • Life
  • Liberty
  • Pursuit of Happiness
  • Hierarchy of Rights
  • Life trumps Liberty
  • Liberty trumps Pursuit of Happiness

Access to Care Argument
  • Opponents to Healthcare Right of Conscience argue
    the it interferes with the right to access to
  • But are patients denied care or simply

Freedom for all, or freedom for some
  • Will doctors be required to become second class
    citizens, having to check their convictions and
    rights at the door before entering the profession
    of healthcare?
  • Who will be next and for what issue?

Protection of Rights vs. Endorsement of the
  • Protection of someones right to object does not
    mean be equated with support for their position
  • Indeed, we must be more careful to protect the
    right when we do not support the position.
  • (Nevertheless, claims to conscience rights can be

AMA Statement
  • AMA reaffirms that neither physician, hospital,
    nor hospital personnel shall be required to
    perform any act violative of personally held
    moral principles. In these circumstances, good
    medical practice requires only that the physician
    or other professional withdraw from the case, so
    long as the withdrawal is consistent with good
    medical practice.

AMA Statement (cont.)
  • Except in emergencies, physicians shall be free
    to choose whom to serve, with whom who to
    associate and the environment in which to provide
    medical care.
  • (Sub.Res.43, A-73 Reaffirmed I-86 Reaffirmed
    Sunset Report, I-96 Reaffirmed by Sub. Res. 208,
    I-96 Reaffirmed by BOT Rep. 26, A-97)

Pharmacist Association Statements
  • Pharmacist have a duty to act with conviction of
  • Code of Ethics, APhA
  • APhA recognizes the individual pharmacists
    right to exercise conscientious refusal
  • Pharmacist Conscience Clause, APhA
  • the right of pharmacists to decline to
    participate in therapies they consider to be
    morally, religiously or ethically troubling.
  • American Society of Health-System Pharmacists

State Laws
  • 45 states have some sort of conscience laws on
  • E.g., Alaska - Sec. 18.16.010. - Abortions
  • Nothing in this section requires a hospital or
    person to participate in an abortion, nor is a
    hospital or person liable for refusing to
    participate in an abortion under this section.
  • State by State Laws
  • http//

Other Countries/Codes
  • European Convention on Human Rights
  • Everyone has the right to freedom of thought,
    conscience and religion this right includes
    freedom to manifest his religion or belief in
    worship, teaching, practice and observance.
  • Canadian Medical Association
  • Physicians who object to abortion for reasons of
    conscience are advised to inform their patients
    of their objections so that the patient can
    consult another physician. The CMA stresses that
    physicians who decline to participate in abortion
    should not be discriminated against, and
    emphasizes the need to respect the rights of
    conscientious objectors, especially those in
    training for obstetrics and gynecology, and

CMDA Position (from Ethical Statement on Health
Care Right of Conscience)
  • All healthcare professionals have the right to
    refuse to participate in situations or procedures
    that they believe to be morally wrong and/or
    harmful to the patient or others. In such
    circumstances, healthcare professionals have an
    obligation to ensure that the patients records
    are transferred to the healthcare professional of
    the patients choice.

Thomas Jefferson Notes on the State of Virginia
(1787), Query 17, p. 159, ed. William Peden
  • "Our rules can have authority over such natural
    rights only as we have submitted to them. The
    rights of conscience we never submitted, we could
    not submit. We are answerable for them to our

Martin Luther King
  • "On some positions cowardice asks the question,
    'Is it safe?'
  • Expediency asks the question, 'Is it politic?'
  • Vanity asks the question, 'Is it popular?'
  • But conscience asks the question, 'Is it right?'
  • And there comes a time when one must take a
    position that is neither safe, nor politic, nor
    popular. But ... because it is right."

Harper Lee To Kill a Mockingbird, 1960
  • "The one thing that doesn't abide by majority
    rule is a person's conscience."

Martin Niemoller (1892 - 1984)
  • "First they came for the Jews. I was silent. I
    was not a Jew. Then they came for the Communists.
    I was silent. I was not a Communist. Then they
    came for the trade unionists. I was silent. I was
    not a trade unionist. Then they came for me.
    There was no one left to speak for me."