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Contents

From Bioethics Briefings

Conscience Clauses, Health Care Providers, and Parents

Highlights
  • Conscientious objection in health care is the refusal to perform a legal role or responsibility because of moral or other personal beliefs.
  • Most states have “conscience clauses” that describe the right of physicians and other health care providers to refuse to provide services such as abortions.
  • Most states also permit parents to get nonmedical exemptions to vaccinating their children. Vaccination refusal is associated with local outbreaks of preventable serious illness, including measles, in the U.S. and other nations.
  • Conscientious objection in health care cannot be framed solely as an issue of individual rights or beliefs because it always affects someone else’s health or access to care.
  • Health care providers with moral objections to providing specific services have an obligation to minimize disruption in delivery of care and burdens on other providers.
  • The refusing professional or institution should not block the patient’s health care access or decision-making rights.

Framing the Issue

Conscientious objection in health care is the refusal of a health care professional  to provide or participate in the delivery of a legal, medically appropriate health care service to a patient because of personal beliefs. Debates about the practice and limits of conscientious objection in health care often arise in relation to the beginning or end of life – specifically, to pregnancy termination, pregnancy prevention, and actions that may hasten death in the context of terminal illness. Refusal by parents to comply with childhood vaccination mandates may take the form of a conscientious objection to a civic duty to public health. A moral commitment that conflicts with a professional (or other) duty may or may not reflect religious teachings.

Conscientious objection in health care always affects someone else’s health or access to care because the refusal interrupts the delivery of health services. Therefore, conscientious objection in health care always has a social dimension and cannot be framed solely as an issue of individual rights or beliefs. Parents’ decisions not to vaccinate their children for a particular disease can increase the risk of that disease not only for their own children but also for others in their community. At what point does refusal to consent to treatment constitute medical neglect? At what point does a clinician’s moral objection to providing a treatment interfere with a patient’s access to treatment, and violate professional ethical standards? Laws and professional guidelines on conscientious objection in health care must balance the respect for an individual’s beliefs against the well-being of the general public.

Conscience Clauses: Too Much Protection for Some, Not Enough for Others

The right of refusal by a doctor or other health care provider, based on a conflict between a personal moral commitment and a professional duty, is well protected in federal and state law, professional codes of ethics, and institutional policy. These laws and policies are often known as conscience clauses, protecting “conscience rights” or “freedom of conscience.” This right is necessarily constrained by the rights of patients. Conscience rights are also limited by the foundational duty of care, which must be maintained through referrals and transfers so that a refusal to provide a service does not result in abandonment of a patient. In his comprehensive ethical analysis of conscientious objection in health care, philosopher Mark Wicclair observes that law and policy concerning conscientious objection often provide “too much protection.” Conscience clauses protecting rights of refusal by professionals or institutions may pay scant attention to the equivalent rights and needs of patients, the conscience rights of willing providers, and the public health consequences of refusal. Political appeals for greater “conscience rights” contribute to this lack of balance by presenting professionals and institutions as needing greater protection than patients, and by implying that these protections do not already exist. Wicclair also notes that when law and policy concerning conscience emphasize objection, the idea of “positive appeals to conscience” remains underdeveloped as a force for improving health systems.

A professional or an institutional refusal should never be a surprise to patients, colleagues, supervisors, or the public served by a health system. When the conflict cannot be avoided, it must be disclosed as a matter of ethical practice; a personal moral commitment that affects the rights and lives of others cannot be concealed from others. In this situation, the professional or institution with the conscientious objection should maintain the duty of care through timely referral to a willing professional or institution. Responsibility to patients, including respect for their rights, is the duty that must always matter most in this work.

Reproductive Choice and Legal Medical Aid-in-Dying

Health care services that are often affected by conscience policy are pregnancy termination and medical aid in dying. Pregnancy termination has been a Constitutionally protected right in the U.S. since 1973 following the Supreme Court decision in Roe v. Wade. This right is hard to put into practice in  states that impose restrictions that resemble conscience clauses but go beyond protecting refusal rights to restricting access to willing providers or imposing questionable legal requirements on these providers. (See “Abortion.”)

Physicians who work in the 11 U.S. jurisdictions that permit terminally ill people, under certain conditions, to request a prescription of lethal medication with the goal of ending their lives may also have mixed emotions and intuitions about participating in medical aid-in-dying. (See “Physician-Assisted Death.”) A key political difference between pregnancy termination and medical aid-in-dying is that access to the latter is determined at the state level. When a state moves toward legalization, physicians and other health care professionals must consider how they will respond when patients ask about the provision, whether they will agree to provide a prescription if requested, and whether and how they will refer patients to other professionals (or institutions). This decision calls for health care professionals to reflect on their moral commitments, determining what they really think and feel in response to a non-hypothetical situation. Professional societies, hospital-based ethics services, hospice associations, and other networks can support this process through education and opportunities for discussion. Legalization of medical aid-in-dying requires institutions to develop policies concerning their agreement or refusal to participate, including referral and transfer procedures.

Why Conscientious Objection Isn’t the Right Remedy for Moral Distress

Health care work is stressful, pressured work and feelings of moral uncertainty are common. Sometimes routine moral stress, unavoidable as professionals respond to suffering while coping with the demands of the system, rises to a feeling of wrongness and powerlessness termed “moral distress.” This strong moral intuition can be hard to put into words. It may be situational, or it may be directed at the system itself and associated with feelings of burnout. Conscientious objection to providing or participating in certain activities on principle should not be used to avoid patient care that a professional finds stressful, or as a remedy for the common problem of moral distress. As health care ethicist Alan Cribb writes, “We may exercise conscientious objection to involvement in certain activities – but surely we cannot entirely float above the network of obligations in which we have immersed ourselves.”

Professional moral integrity in health care work is maintained in relation to the foundational duty of care to patients, which includes respect for patients’ rights to make choices concerning their health care. Conscience rights to accommodate professional or institutional refusal should be balanced by equivalent attention in policy and practice to the rights of patients and of willing providers, as persons and moral agents. The use of administrative power to block health care access or encourage stigma directed at patients or populations is unethical and unjust. Invoking “conscience” does not make it right.

Nancy Berlinger, PhD, is a research scholar at The Hastings Center.

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Resources
  • Lisa Harris, “Divisions, New and Old – Conscience and Religious Freedoms at HHS” New England Journal of Medicine 2018; 378:1369-1371
  • Marilynne Robinson, “What Is Freedom of Conscience?” in What Are We Doing Here?: Essays (Picador, 2018).
  • Katie Watson, Scarlet A: The Ethics, Law & Politics of Ordinary Abortion (Oxford University Press, 2018).
  • Physician-Assisted Death: Scanning the Landscape: Proceedings of a Workshop (National Academies Press, 2018).
  • Nancy Berlinger, Are Workarounds Ethical? Managing Moral Problems in Health Care Systems (Oxford University Press, 2016).
  • Nancy Berlinger, Bruce Jennings, and Susan M. Wolf, The Hastings Center Guidelines for Decisions on Life-Sustaining Treatment and Care Near the End of Life: Revised and Expanded Second Edition (Oxford University Press, 2013).
  • Alan Cribb, “Integrity at Work: Managing Routine Moral Stress in Professional Roles” Nursing Philosophy 12 (2011): 119-27.
  • Mark R. Wicclair, Conscientious Objection in Health Care: An Ethical Analysis (Cambridge University Press, 2011).
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