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.

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