Monday, January 30, 2006

Objections to Proposed Conscience Laws: A Right Not to Treat?

Washington Post's Rob Stein reports on a disturbing surge of legislation in the states that reflect the intensifying tensions between asserting individual religious values and defending patients' rights and providing truly informed consent: More than a dozen states are considering new laws to protect health workers who do not want to provide care that conflicts with their personal beliefs.

The problems with such legislation are numerous: First of all, patients are a captive audience, a vulnerable population. An individual who feels that they need the protection of the law because t because they don't want to engage in some healthcare practice that they find morally repugnant, is saying 'my rights supercede the rights of the patient'. In healthcare, where the healthcare provider is put in a position of power and trust and the relationship is inherently unequal, this is an abuse of power. R. Alto Charo, bioethicist at the University of Wisconsin, gives a good example in the Post article: Doctors opposed to fetal tissue research, for example, could refuse to notify parents that their child was due for a chicken pox inoculation because the vaccine was originally produced using fetal tissue cell cultures, and be immune from state disciplinary action and malpractice suits.

Could you imagine? A doctor refusing to treat an AIDS patient because she/he finds that the patient's lifestyle is 'morally repugnant'. The American Medical Association has addressed this in its Principles of Medical Ethics: “the physician has an ethical obligation to help the patient make choices from among the therapeutic alternatives consistent with good medical practice” (Opinion E-8.08, “Informed Consent”).

From a legal standpoint, this legislation could be challenged on a variety of levels: Aside from affecting an employers unfettered right to hire someone 'at will', this legislation is attempting to create a protected class when there is none – you can’t give more rights to one group by taking away rights from another group (particularly a captive audience or vulnerable population).
On a constitutional level, other challenges include violation of the interstate commerce clause, and denial of individual liberties (a possible 42 USC section 1983 action, based on the state nexus of licensing boards.)

Currently, employers are dealing with the issue on a case-by-case basis -- does the heavy hand of the law have a place in this?

[Updated Feb 16, 2006] Check out what our partner blog, Business Ethics, has to say about this and Walmart.


Bob Koepp said...

Linda -
On what theory of law is a refusal to engage in activity one believes immoral an infringement of the rights of others? This isn't a matter of one person's rights superceding those of another; rather, its a matter of giving equal recognition to the rights of each.

Also, refusing to provide a _treatment_ one thinks is immoral is entirely different from refusing to provide a treatment to _persons_ one thinks are immoral. Nobody has proposed a "conscience law" that would allow refusals based on who or what the patient is.

If the heavy hand of the law is to be invoked, we'd better at least get the legal parameters right.

Anonymous said...


As an employment attorney and judge, I feel compelled to respond to your blog, Bob, in which you legitimately ask “on what theory of law is a refusal to engage in activity one believes immoral an infringement of the rights of others?” Depending upon the relationship – patient/physician, priest/penitent, agent/principal, good samaritan/injured stranger, employer/employee, individuals have common law rights and obligations (developed over years of American jurisprudence) which are imposed by those relationships. It would be negligence, intentional infliction of emotional distress, dereliction of duty, or even breach of fiduciary duty to impose your own notions of “morality” to exculpate you from duties to treat, care, or counsel which you have undertaken when you enter a given profession or occupation. Bob, your “moral views” do not relieve you of your obligation to act as a “reasonably prudent person.” A reasonably prudent person who knows that their views are at variance with the treatment requirements of a profession should find another career.


Bob Koepp said...

Thank you TT for your response. Of course, once the specifics of a particular relationship are made explicit, there might well be the makings of rights and duties. The problem is to establish that provision of the requested services does, indeed, fall within the scope of professional duties/requirements. But in most cases known to me where healthcare workers have claimed to be "conscientious objectors," it isn't clear that they neglected any professional obligations.