injured Black woman lying in the street at night

Bioethics Forum Essay

Legalized Medical Discrimination Violates Medical Ethics

Florida Governor Ron DeSantis recently signed SB 1580, a bill that that shields health care providers, institutions, and insurers who decline to treat patients or refuse to pay for care when they have “conscience-based objections” meaning “sincerely held religious, moral, or ethical beliefs.”

Under this law, a physician who fervently believes in the danger of vaccines could refuse to give them. A physician could also refuse to prescribe contraception by stating a religious opposition to it. And an insurance company could deny coverage for gender-affirming care because of its leaders’ sincerely held conscience-based objections. The law not only buffers health care workers and companies from civil lawsuits, but also prevents any state agency or licensing board from taking action against them. 

In short, the law permits health care workers and institutions to discriminate against their patients and potential patients without any limits or protection for patient well-being.

Such a law flies in the face of medical law and ethics. This legislation is a perfect example of what I teach my students, that sometimes what is legal and what is ethical are very different things.

For a health care worker to use such a power violates beneficence and nonmaleficence since depriving someone of medical care on arbitrary grounds harms the patient’s autonomy as well as their physical and mental health. SB 1580 also breaches justice in the Aristotelean sense of “treating likes alike,” since the entire purpose of the law is to permit discrimination.

The American Medical Association Council on Ethical and Judicial Affairs has written that doctors have the right to follow their moral conscience, but within limits: “Physicians are expected to provide care in emergencies, honor patients’ informed decisions to refuse life-sustaining treatment, and respect basic civil liberties and not discriminate against individuals in deciding whether to enter into a professional relationship with a new patient.” That means they cannot decline “to provide care in emergency situations when no other qualified professional is available, discriminating against patients, imposing care against a competent patient’s informed refusal” all of which would be legal under Florida’s new law.

The World Medical Association’s International Code of Medical Ethics states, in principle 2, “The physician must practise medicine fairly and justly and provide care based on the patient’s health needs without bias or engaging in discriminatory conduct on the basis of age, disease or disability, creed, ethnic origin, gender, nationality, political affiliation, race, culture, sexual orientation, social standing, or any other factor.”

Beyond conflicting with both U.S. and international medical ethics, Florida’s new law also raises potential issues with federal law. An example is the 1986 Federal Emergency Medical Treatment and Labor Act (EMALTA), which requires Medicare-participating hospital emergency departments to screen and stabilize patients who request examination or treatment for an emergency medical condition, regardless of their ability to pay. On one hand, SB 1580 says that it “may not be construed to override any requirement to provide emergency medical treatment,” but, on the other hand, it also says that health care workers who “exercise their moral conscience” cannot be punished or even reported.

Some people might think that this is simply a local Florida issue. I argue that this bill is likely to be a model for other states whose legislatures share its repressive, anti-autonomy principles. As we have seen in the year since the Dobbs decision and in the half decade since the first anti-trans bills appeared in North Carolina, the restrictive law that one state passes is often adopted by several surrounding states. Florida may be the first, but it will not be the last place to pass legal medical discrimination.

So, what do we do against such inhumane and dangerous laws?

From a health professional standpoint, any physician unethically refusing to treat a patient should be brought up for review for violating the AMA Code of Conduct. If the offending health care worker has a license in Florida and in another state, they should be brought up on professionalism charges under the other state’s licensing board.

Congress can pass a law and the White House can press federal agencies to issue regulations that threaten to withhold federal funding for any medical institution that permits this discrimination. If a hospital or an insurance company refuses to treat gay people, or trans people, or people of color, then they would lose all federal dollars.

As patients and their families, we can refuse to remain under the care of any hospital or health care provider who exercises discriminatory, anti-patient powers under this bill. Of course, insurance companies often dictate where one goes for care, so this action has limits. We can also lobby our employers to drop any insurance plan that supports or follows this legislation.

As bioethicists, we should immediately refuse to hold any meetings or events in states that adopt such policies and laws. The argument can be made that those who would be punished by this action—the hotels, transportation drivers, restaurants, and the low-wage staff who work in the travel industry—would be the most affected, which is true, but these meetings generate tax revenue, and we should refuse to financially support a state that adopts such inhumane laws. We can also write letters and op-eds against these laws and write amicus briefs in support of the inevitable lawsuits that will challenge these statutes.

As citizens, we should vote against the legislators who pass and governors who sign these bills. And we should run for office in local (school board, municipal boards, city council, mayor), county, state (legislature, governor, judge), and federal (congressional, presidential) elections.

As educators in the clinic and the classroom we can advance the message that all patients are deserving of care. When that student in the lecture hall inevitably asks, “My religion says that being X is wrong, how can I keep my beliefs and still be a practicing health care provider?” We can let them know that the ethics of their profession overrides their personal biases and that if they can’t provide care for everyone, they should find a new profession.

[This essay has been updated.]

Craig Klugman, PhDis the Vincent de Paul Professor of Bioethics and Health Humanities at DePaul University. @CraigKlugman

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  1. When a nurse or physician declines to provide a specific intervention for a patient the nurse or physician typically finds another nurse or physician to provide the intervention. A nurse or physician is bound not to abandon the patient and this is done by professionals working together. Transporting a patient is considered essential in providing care and i doubt any nurse or physician would decline transport of any patient. The nurse and physician are bound to “do not harm”. This is done routinely in health care and hospitals.

  2. As a legislative action is scary enough. the complete abandonment of moral and ethical mandate behind it and anyone who would cooperate, is inhumane if not psychopathic. To pretend that the transgression of omission is not deadly, speaks of a savaged mind.

  3. Of course, is not ethical to discriminate by law when it comes to live-and-death situations

  4. I’m wondering if Prof. Klugman, who, let it be noted, takes his paycheck from a Catholic university actually read the bill he so stridently decries. There is a glaring inaccuracy right in the beginning: he claims that an EMT in Florida could refuse treatment to shooting victims at a gay nightclub out of conscience, but if you actually read the bill in question, that’s specifically prohibited:

    2: (b) The exercise of the right of medical conscience is
    136 limited to conscience-based objections to a specific health care
    137 service. This section may not be construed to waive or modify
    138 any duty a health care provider or health care payor may have to
    139 provide or pay for other health care services that do not
    140 violate their right of medical conscience, to waive or modify
    141 any duty to provide any informed consent required by law, or to
    142 allow a health care provider or payor to opt out of providing
    143 health care services to any patient or potential patient because
    144 of that patient’s or potential patient’s race, color, religion,
    145 sex, or national origin.

    Only specific treatments- presumably gender transition care and abortion being the big one here- can be protected under right of conscience, and then only with advanced notice to the healthcare worker’s supervisor and the patient when making an appointment, if it’s known in advance. (That’s all in the bill.) So the EMT example is specifically, precisely wrong on not only that account, but also because of Section 2, paragraph 6, which specifically exempts emergency treatment from the right of conscience and says that emergency treatment has to be consistent with EMTALA.

    “In short, the law permits health care workers and institutions to discriminate against their patients and potential patients without any limits or protection for patient well-being.”

    Actually there are several limits in the law, but I urge all readers of this blog to read the law themselves- it’s not hard- to see what you think.

    But I have other questions, such as:

    If autonomy is a fundamental principle of medical ethics, does it apply only to patients and not to caregivers?

    If an South or East Asian couple came to a feminist doctor asking for an abortion of a healthy fetus, because it was a girl, and they wanted a boy, could the feminist doctor refuse on conscience grounds?

    What about a man who wants a vasectomy, and offers to pay in cash, so it won’t show up on his health insurance account, so his wife won’t find out? Can a doctor refuse to participate in deception and deceit on moral grounds?

    OK, here’s another: a physical therapist has a neo-Nazi patient , covered with swastika tattoos and suchlike, who wants to regain full upper body strength after an injury. The physical therapist knows it’s because his neo-Nazi group likes to go out and beat up Jews and African-Americans. Can the PT say, I’m not comfortable with this patient?

    Would progressives say there is no right of conscience in any of the above scenarios? And if there is, why is right of conscience limited to certain medical procedures and not others?

    I’m on the left, but I mightily appreciate consistency.

  5. This law is potentially problematic but there is a provision mandating emergency medical treatment:
    (from the statute) REQUIREMENT TO PROVIDE EMERGENCY MEDICAL TREATMENT.— 203 This section may not be construed to override any requirement to provide emergency medical treatment in accordance with state law 205 or the Emergency Medical Treatment and Active Labor Act, 42 206 U.S.C. s. 1395dd.

  6. Let me play devil’s advocate, be a little tongue-in-cheek humorous, make a serious plea the medical profession and perhaps point out the danger of trying to legislate what should be a private decision between patient and medical provider. And potentially do it all with the same example.

    What if these laws were turned on their heads? What if these laws were used to possibly confront one of society’s ills – gun violence?

    Let’s extend the example of the physical therapist and the neo-Nazi patient. Can the physical therapist refuse treatment based on his ethical and moral standards and beliefs and conscious based objection which make him uncomfortable with the patient and the potential consequences of treating him?

    Medical practitioners are dedicated to advocating for, preserving and saving life and health, on both an individual and societal level. What if a majority of healthcare providers in Florida took the position that other than for a well regulated militia, meaning law enforcement and organized armed services, firearm ownership and carrying by any one else was against their ethical and moral standards and beliefs and constitutes a conscience based objection as it contributes to the plague of gun violence and unnecessary deaths of innocent men, women and children. And so, like the neo-Nazi patient example, they all refuse to provide medical care to anyone, outside a well regulated militia, that owns or carries a firearm as they are not comfortable with the potential consequences of that.

    So how will something like this play out?
    Will this help contribute to a discussion and reconning with gun violence and gun regulation in this country?
    Will this lead to a change in the law to add that “medical care can not be refused to gun owners under penalty of fines and imprisonment “?
    Will this lead to a rethinking of these laws altogether?
    So many possible permutations.

    I am on the left also. I am also a retired physician. I abhor the gun violence in this country. I don’t know if turning these laws on their heads will accomplish anything. But I am also not in favor of the idea of medical practitioners refusing care to anyone, irrespective of political or religious or any other view.
    But most of all I am opposed to politicians trying to legislate what occurs between patients and healthcare providers. It leads to all kinds of crazy permutations as I have tried to point out. Let decisions on an individual’s health care and a practitioner’s comfort in providing care stay in the confidentiality of their private conversations. It does not belong in the public sector, in our laws, eventually in our courtrooms and who knows where else.

    So, Florida medical practitioners, do we try to change the gun culture in this country? Do we try to eliminate these laws altogether? Do we do nothing?

  7. Whether the law contains clarifications for what are considered acceptable treatments or not is almost aside as its issuance immediately provoked debate amongst political parties. While I cannot speak for the motivation of DeSantis in passing this law, it very publicly aligns the governor with a certain sentiment in politics. The law itself does not provide any additional clarification as to what is not already known by health care providers. In the above hypothetical scenarios presented by my colleagues, a provider is faced with determination of whether or not they hold judgment upon the livability of the patient-to which I say that is hardly up for debate. All people have the right to receive medical care as it is the right of a person to sustain their livability. What follows the sustainment of the respective life must inevitably be justice. Justice, however, is not at the hands of the medical provider.
    While on the subject, the law should not make accessibility unreasonably challenging. Furthermore, there may be conflict if there is involvement of outside persons in the concealment of providing care. To this, I refer the practitioner to use tools such as the family covenant per Douglas and Berg found in the The American Journal of Bioethics, Volume 1, Number 3, Summer 2001. Accountability must be shared between the provider and the one seeking care.

  8. As a previous Florida resident myself, it is disappointing but not surprising to see Governor Ron DeSantis signing a bill such as this one. I agree with the major points made in this blog post by Dr. Klugman, and particularly with the last sentiment shared in the post stating, “…the ethics of their profession overrides their personal biases and that if they can’t provide care for everyone, they should find a new profession.” To expand on this a bit, there is a difference between professional values and personal values and this difference needs to be acknowledged, especially in the medical field. Physicians can let their personal moral conscience influence their choices, but this law is allowing physicians to let their personal moral conscience take precedence over the internal values of medicine that they agreed to adopt when they attended medical school. A wonderful example of this problem, as mentioned in the blog post, is when a physician refuses to prescribe contraception because of their religious beliefs. The physician who makes this type of conscientious objection is allowing their personal religious beliefs to deny a patient a treatment that they have a right to. This does not align with the internal values of medicine, as confirmed by principle 2 of the World Medical Association’s International Code of Medical Ethics, because it allows physicians to use their biases when providing care which prevents fair and just care that is based solely on the patient’s needs. Additionally, denying treatment solely based on one’s personal moral conscience could cause major harm to a patient. Critics may say that this argument denies physicians their right to autonomy. Once again, I would draw attention back to my emphasis on the separation of personal moral conscience and internal values of medicine. A physician has autonomy to make choices, but those choices must be guided by the internal values of medicine because this is what they agreed to when they began this career path in the first place. If their personal moral conscience conflicts with the internal values of medicine to the degree that it motivates them to deny a patient care that the patient has a right to, then that physician should not be in the position in the first place to have the power to deny that care.

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