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Service, not Servitude

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Conscience and the Healthcare Worker

Reproduced with permission

Marianne Linane *
Abstract

Healthcare advances are rapidly changing treatments available for any number of conditions. Some of these treatments create a moral dilemma for those in the healthcare field and they are being faced with a decision to either deny delivery of service and perhaps compromise their employment, or compromise their conscience. This paper is a brief summary of history, current law, and attempts being made to resolve the conflict.


My first contact with a health care professional who had a conscience issue with her employer came in the Summer of 1999. I had been asked by the editor of the newsletter for the National Association of Pro-life Nurses to write about conscience issues in the wake of the successful conclusion of a delivery room nurse's dispute with Lutheran General Hospital in Park Ridge, Illinois.

Accompanying a thank you letter from nurse Kathleen Hantel published in our quarterly PulseLine, I wrote a brief article about the state of legal protection for health care workers, particularly nurses, who had conscience issues in the workplace. What I discovered in writing it was that the recourse for health care professionals with such issues was very limited.

Seven years later, legal recourse still remains very limited. What I did not know at the time was that the debate was about to escalate. A new controversy over the conscience of pharmacists' rights to refuse to fill prescriptions was emerging and has now reached critical proportions. In addition, other circumstances under which health care individuals are faced with situations in which participation violates their conscience was beginning to grow at an alarming rate.

Modern medicine is capable of delivering treatment for an astonishing number of conditions which were never imagined just a few short years ago. These advances come at the price of what many consider a violation of medical ethics. There are those in the health care field who cannot in good conscience participate in the delivery of some of these treatments. Much of the concept of medicine and the attitude towards the patients being treated has changed. Long held traditions are being challenged in order to accept these advances in science. Nigel Cameron in "The New Medicine" reports that the regard for the Hippocratic Oath, once sacred in the4Conscience and the Healthcare Worker medical profession, has been eroding for several years now and could soon be obsolete. Utilitarian and even eugenic considerations are replacing centuries old traditions of how medicine should be practiced. In addition, current debate over what it means to be human has affected every aspect of life, particularly that of medicine. Not only abortion, but the entire delivery of health care is under siege by today's utilitarian philosophers and practitioners.

Much research now involves the use of embryonic stem cells and fetal tissue from the unborn. It raises concern not only for those employed in research, but for the health care worker at the bedside employing the medication or treatment so developed. Organ transplantation has come under criticism for lax criteria for declaration of death for the purpose of harvesting organs. Can a transplant team member refuse to participate in transplant operations if he or she disputes the diagnosis of death? Should there be fear for one's employment?

It has only recently been realized that vaccines developed years ago used aborted fetal tissue for the original development. There is no alternative for many of these vaccines. Is it ethical to continue to use these vaccines even though no babies are currently being killed for the production of the vaccine? Does the obligation of the health care worker administering such vaccines lie in obedience to his or her conscience or to the employer? In- vitro fertilization has come under criticism for lack of ethical considerations such as the number of embryos created and implanted, the dilemma created for what to do with excess embryos, and the criteria for who is a candidate for IVF. To what extent can one refuse to participate in the facilitation of IVF without suffering legal consequences if the refusal is based on a violation of one's conscience? Questions of nutrition and hydration in the elderly and debilitated are repeated multiple times daily throughout the country. What of the health care worker who has a conscience issue with discontinuing enteral feeding or other treatment? What about the recent concept of "futile care" if one objects for ethical reasons to this label for the basis of discontinuing care?

The practitioner, whether it be the physician, the nurse, any of the professionals or paraprofessionals, and even the janitor who is asked to clean the delivery room following an abortion, are all required to follow his or her conscience. How does this fit into the workplace? One recent case involved an Illinois EMT asked to transport a woman in her ambulance to a clinic for an abortion. Her refusal resulted in his dismissal from her employment. The ambulance company contends in its defense of its actions that the EMT was not fired for her religious beliefs but because her actions created a threat to the patient's safety, although the patient was in no danger to her health and the abortion was elective. Should an employee have aright to refuse to participate if it is in violation of one's conscience without fearing repercussions?

Over thirty years after Roe v. Wade, the goal of the abortion activists remains the same; promotion of abortion even by coercion. The web site of the Maryland National Abortion and Reproductive Rights Action League (NARAL) bluntly states "The goal of the Hospital Provider Project is to increase access to abortion services by requiring Maryland hospitals to provide abortion and other reproductive health care." (Kramlich, 2002) Overall, NARAL assigns the country a "D+", even though abortion is essentially legal through all nine months of pregnancy, for any reason, in every state. The most pro-choice state (Washington) lost points because it allows doctors to opt out of doing abortions if it violates their conscience. (Brennan, 1999)

Nurse-ethicist Nancy Valko cites a number of examples in her Women for Faith and Family article "Are Pro-Life Healthcare Providers Becoming an Endangered Species." Noting that these cases are but a sample of what is taking place in the health care system, she notes that "Slowly but surely, more and more pro-life doctors, nurses and other healthcare professionals are getting the message that they and their views are unwelcome in today's healthcare system. But these public cases tell only a small part of the story. Intimidation, harassment and coercion are becoming increasingly common as pro-life health care providers try to advocate for both their patients and their professional ethics....the medical professions have now become virtual war zones." (Valko, 2003)

Laws based on the Constitution's First Amendment guaranteeing the free exercise of religion have been enacted on a limited basis to protect the health care worker under some circumstances. AUL in its Defending Life 2006 points out that an early draft of the Amendment by James Madison stated more clearly the intent of the Amendment when he wrote that "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 cases." (AUL, 2006) Jonathan Imbody of the Christian Medical Association points out that James Madison also said that "Conscience is the most sacred of all property." (Imbody, 2004)

The first conscience clause law enacted followed on the heels of Roe v. Wade in 1973.Congress passed the Church Amendment which states that public officials may not require individuals or entities who receive certain public funds to perform abortion or sterilization procedures or to make facilities or personnel available for the performance of such procedures if such performance "would be contrary to (the individual or entity's) religious beliefs or moral convictions" (Feder, 2005). It also declared that the receipt of federal funds in various health programs will not require hospitals to participate in abortion and sterilization procedures and forbids hospitals in these programs to make willingness or unwillingness to perform these procedures a condition of employment (Kramlich, 2002).

In the year after Roe, twenty seven states enacted laws protecting health care providers from being forced to participate in abortions and five more states enacted laws in one form or another within the next two years (Kramlich, 2002). Eventually, forty-seven states enacted laws protecting health care providers who conscientiously object to participating in abortion to some degree. Only two of these states have laws broad enough to protect healthcare providers in other situations (AUL, 2006).

When Congress enacted the Civil Rights Restoration Act in 1988, it adopted the Danforth Amendment which mandated neutrality on abortion. Additional conscience clause legislation was enacted in the Omnibus Consolidated Rescissions and Appropriations Act of 1996. It prohibits state and local governments from discriminating against health care entities that refuse to undergo abortion training, to provide such training, to perform abortions, or to provide referrals for such training or abortions. (Feder, 2005)

The following year, Congress again visited the abortion conscience clause issue when it enacted the Balanced Budget Act of 1997. The effect of the 1997 legislation was to extend the coverage of conscience clause laws beyond the individuals who provide medical care to the companies that pay for such care under the Medicaid and Medicare programs. Furthermore, the new conscience clause law is broader because it allows Medicaid and Medicare-funded health plans to refuse to provide counseling and referral for abortion-related services, whereas earlier conscience clause laws permitted providers to opt out only of the actual provision of such services. (Feder, 2005)

And in 2004 the Hyde-Weldon Conscience Protection Amendmentwas passed providing that no federal, state, or local government agency or program that receives federal health and human services funds may discriminate against a healthcare provider because the provider refuses to provide, pay for, provide coverage of or refer for abortion. (AUL, 2006) Like the Hyde Amendment of 1976 prohibiting the use of federal funds to provide abortion, though, it is subject to annual renewal. And Hyde-Weldon has been challenged in federal court.

The vast majority of these laws, both federal and state, address only the abortion issue and offer little, if any, protection to the health care worker in on any other issue. Even on abortion, protection is weak for most laws and there are few punitive measures if an employer breaches the law. It is unclear whether these laws could be expanded to include other conscience issues. The general consensus seems to be that they would not, that they are inadequate for conscience protection outside the abortion context. Because of the growing number ethical concerns involving the practice of health care research and delivery, there is an urgent need for expanded protection of the worker in the health care field under a variety of circumstances.

Efforts have been underway, particularly at the state level, to expand these protections. Americans United for Life (AUL) has written model legislation to be adopted by state legislatures and makes its legal resources available for consultation for anyone who wishes to promote such legislation. The Protection of Conscience Project has been promoted by Sean Murphy of British Columbia, Canada since 1988 and encourages legislation worldwide to protect healthcare workers. Their board of advisors is comprised of members from several countries. (Web site, 2006)

Unfortunately, many of the professional organizations representing the very workers intended to be protected by these laws are often opposed to them. In response to the current pharmacists' debate, the American Medical Association (AMA) on June 20 of 2005 adopted a measure in favor of legislation mandating that pharmacists fill prescriptions for all legal drugs, including those that cause abortions. "This is an issue of access to care for patients." Dr. Mary Frand, a California physician told delegates before the vote. (La Rue, 2005) The AMA and the American Nurses Association (ANA) have both held the position for a long time that abortion "rights" for the patient are to be respected, but have not respected the rights of its members who hold that abortion is a moral wrong.

The ANA Code of Ethics proclaims to recognize the importance of the right of a nurse not to participate in unconscionable acts, but this does not translate into practice. It is discouraging to offer testimony in favor of conscience clause legislation and to be opposed by representatives of the state nurses organization as I have been on three occasions in the Wisconsin legislature. Also opposing this Wisconsin legislation have been representatives of the Wisconsin Medical Association. The representative of the professional pharmacists organization in Wisconsin gave halfhearted testimony if favor of on one occasion, spoke "for informational purposes only" on another, and in opposition on a third. This in spite of the fact that an aspect of the law was to protect pharmacists from being forced to dispense either contraceptives or the morning after pill, both of which have been incriminated as abortifacient in at least some circumstances. In Washington and California, state organizations "representing" pharmacists also recently caved to political pressure after initially coming to the defense of their pharmacists with conscience issues in support of conscience clause legislation. (LifeNews.com, 2006) Opposition to the Wisconsin Conscience Clause laws was joined at one hearing by the manager of public and government relations of ThedaCare, one of the larger health care systems in the state. (Jones, 2004)

California has long been noted for its agenda favoring politically correct posturing. Washington is not far behind. In Wisconsin, the current governor, Jim Doyle, has long been an opponent of conscience clause legislation vetoing its legislature approved enactment three times to date.

Criticism of attempts at legislation have run the gamut. On one occasion, Gov. Doyle's excuse was that it is an unnecessary law. Current protections were described as adequate. If they were adequate, the issue would not have arisen and there would be no need to consider legislation for such protection. On another occasion, he claimed "it would be unconscionable to deny our citizens the full range of needed medical treatment in order to satisfy the ideological views of some health care providers" even though consumers would not be denied any services; inconvenienced some, perhaps, but not denied. And much of the "service" in question is not providing actual "health care" in the first place since abortion and contraception, among other issues, occupy a questionable place in "health care."

To its credit, the Pharmacists Association recently reaffirmed its policy that pharmacists can refuse to fill prescriptions as long as they make sure customers can get their medications some other way. "We don't have a profession of robots. We have a profession of humans. We have to acknowledge that individual pharmacists have individual beliefs," said Susan C. Winckler, the association's vice president for policy and communications. (Rob Stein, 2005) It is individual organizations which have caved to political pressure which do not defend the pharmacists right to conscientious objection.

In contrast to most of those involved in public policy, House Small Business Committee Chairman Don Manzullo (R-IL) in pointing out that five states require pharmacists to dispense the morning-after pill even if they oppose it on moral or religious grounds, stated that "Pharmacists shouldn't be forced to choose between their business and their beliefs." (Pharmacists for Life, 2005) That situation is, of course, subject to change depending on who it is that heads up this or any other government agency.

The situation regarding conscience issues for healthcare workers is not really much different today from that written in 1999. The advice remains the same. If your state has a conscience clause statute, use it. It is your best protection. If your state does not have such a statute, or one addressing the area you are contesting, you may still have a claim under Title VII if your facility is a private employer. Your employer is obligated under this federal measure to make reasonable accommodation to employees who object to certain tasks on religious grounds. (Most existing statutes spell out those grounds as abortion.) If your employer is a federal provider, you may have a claim under the Religious Freedom Restoration Act. Your employer must have a compelling interest to make you violate your religious beliefs. If you are state employed, you may still have a claim for religious freedom under the First and Fourteenth Amendments to the U.S. Constitution.

Any claims in the absence of a conscience clause statute may not be successful, but many health care professionals believe so strongly in their objection they are led to challenge their employer even in the absence of such laws. In the case of nurse Kathleen Hantel, her state of Illinois was considered to have one of the strongest statutes protecting conscience rights, yet shestill faced many obstacles and a ten year battle before a favorable resolution.

Just do not expect any support from your professional organization. It is likely that it will not be forthcoming.

In addition to promoting legislation to guarantee rights of conscience to health care workers, there are a number of organizations who have come to the aid of those challenged in the workplace by their employers. Some have been out and out firings like the EMT above, others, as pointed out by Nancy Valko, have been reprimanded or denied employment or promotions based on the objections to some of the practices employed by the facility. Kathleen Hantel was "relocated" without her consent from the delivery room to a nursing home a much greater distance from her home for her refusal to participate in abortions.

The American Center for Law and Justice (ACLJ) founded in 1990 and now based in Washington, D.C. specializes in constitutional law. According to their web site, the ACLJ is "dedicated to protecting your religious and constitutional freedoms ...through our work in the courts and the legislative arena." They provide legal services at no cost to their clients and focus on issues which include protecting human life. (ACLJ web site, 2006) Their web site lists 27updates on current conscience clause cases in which they are involved. At this writing, three of the ten most recent news briefs concerned pharmacists conscience issues. ACLJ lists 12 senior attorneys on its staff.

It is not just pharmacists with issues of dispensing abortifacient medications. Nurses, too, have been dismissed for doing so. Defense organizations took up their cause and the ACLJ wona significant victory in California. Most recently the ACLJ took up the cause of nurse Carla Sauer Iyer who was threatened with loss of her license for speaking up on behalf of Terri Schiavo's family in the hearings regarding guardianship. At the urging of Terri's former husband, Michael Schiavo, the Florida State Board of Nursing threatened to remove her license because of breach of confidentiality even though her testimony was under subpoena. That situation was successfully resolved without going to court and Ms. Iyer retains her license to practice nursing.

The Life Legal Defense Foundation in Napa, California describes itself as "A legal network in support of life". (LLDF web site, 2006) Although it has been primarily engaged in the right to exercise of free speech regarding demonstrations and sidewalk counseling, it has represented nurses with a conscience issue in the workplace and recently defended nurses in two of these situations. (LLDF Lifeline, 2005)

The Rutherford Institute is another a non-profit conservative legal organization dedicated to the defense of civil, especially religious, liberties and human rights. (Web site 2006) It also expresses a willingness to represent health care workers with a conscience dispute in the course of employment although there is no record of such defense posted. Although it is a not-for-profit public interest bioethics law firm dedicated to changing law to protect human life state by state, Americans United for Life (AUL web site, 2006) has been involved in a number of conscience cases and has counseled several litigants, particularly in Illinois where they are located. While their focus is on changing the law, they also have a bevy of attorneys willing to defend health care workers with conscience issues.

The Christian Legal Society represents lawyers throughout the country who practice law from a Christian perspective. Although their pro-bono efforts are more limited, many of their members are willing to represent individuals with conscience issues as in the case of Atty. Paul Esposito of Chicago who successfully represented nurse Kathleen Hantel in her dispute with Lutheran General in Park Ridge. In a recent conversation, Christian Legal Society Executive Director Sam Casey stated that his organization was actively seeking medical personnel with conscience issues in order to have a test case and set precedent. The Society has a special division, the Center for Law and Religious Freedom, which has also taken up the defense of pharmacists.

The Thomas More Society is an association of Catholic lawyers and many of the local groups have provided pro-bono counsel to those individuals with conscience issues in the workplace. The society is comprised of mostly autonomous local groups, some more involved than others. There is no central governing body. The Orange County, California group describes its mission as a directive from Micah, "To act justly, to love tenderly, and to walk humbly with your God." That presumably could be a mantra for all the Thomas More groups as well as the Christian Legal Society. Recently, a Thomas More group in Ann Arbor, Michigan, associated with the Ave Maria School of Law, has promoted itself as a national organization of Catholic Lawyers offering counsel for a number of civil liberties cases. While not in any competition with each other, except perhaps excellence in the practice of legal defense, it does make for some confusion among the uninitiated.

Most famously, Tom Brecja of the Chicago Thomas More Society was the lead defense of Joe Schiedler in his many years battle with NOW and its charge that Schiedler's pro-life group was a racketeering group to be charged under RICO laws. Mr. Brecja also represented Wisconsin nurse, Beth LaChance, in her conscience dispute with Waukesha Hospital over its new interpretation of its policy on abortion to provide for abortions of infants deemed to have a terminal condition which would result in death at or soon after birth.

In addition, while most official professional organizations have either taken a passive or even outright opposition to conscience clause legislation, there are many alternative groups representing those in the professions who cherish and respect life. The Christian Medical and Dental Association, Catholic Medical Association, Pro Life OB Gyns, National Association of Pro-life Nurses, Pharmacists for Life and a host of local groups represent those members of the medical profession who are likely to have an issue regarding conscience objection to certain medical practices. Most have referral services for their members who are faced with such a challenge.

But joining the politicians and professional groups who oppose pharmacists conscience clauses are the editorial pages of almost every major newspaper in the country. Syndicated columnists Rob Stein of the Washington Post, and Leonard Pitts of the Miami Herald along with others have written widely disseminated columns in opposition to conscience clauses and many like the New York Times and Washington Post have carried editorials criticizing pharmacists who object to filling prescriptions for morning after pills and contraceptives. ABC, CBS, NBC and CNN have all carried stories with slants opposing conscience measures. The list is extensive.

Some background explaining the current controversy over pharmacists conscience rights is appropriate here. In September of 1998, Gynetics morning after pill, Preven, (actually a kit oftwo ordinary birth control pills and a pregnancy test kit) was approved by the FDA for use. The following year, the FDA approved its DuraMed counterpart, Plan B. Both contain similar hormones and have the same reported actions. Without getting too technical, according to PlanB's manufacturer, one of its three actions is to create an environment in the uterus inhibiting the implantation of a newly fertilized egg in the uterine wall. Those who accept the fact that a new human being is conceived at fertilization regard such mechanism as abortive and object to use of this practice. In addition, the morning after pill is chemically the same as the birth control pills used today. Pharmacists for Life and others have maintained for years that oral contraceptives, too, can act as an abortifacient.

The approval of the "emergency contraception" drugs raised the awareness of the action of both the EC itself and the oral contraceptives, thus the growing opposition to its use. So we have, beginning in 1998, a number of situations involving pharmacists where they, in good conscience, refuse to fill the prescription. Illinois and Wisconsin have been high profile, but there have been cases reported in California, Washington, Washington, Georgia, Massachusetts, Texas, New Hampshire, Ohio and North Carolina as well. In response, by March of 2005 there were 11 states considering conscience clause laws aimed at protecting pharmacists' objections. (Rob Stein, 2005)

It is important to consider the political and philosophical significance of the debate. Going back to Susan Winckler's comment that "We don't have a profession or robots," there are some far ranging effects for the delivery of health care which merit consideration.

In addition to the legal aspect of protecting Constitutionally guaranteed rights, we would do well to look at the nature of the healthcare profession. As part of my testimony on behalf of the National Association of Pro-life Nurses, I pointed out that nursing has always been and, because of its service nature, always will be, comprised primarily of individuals of altruistic motivation who will rise to the defense of the vulnerable and defenseless. To discourage them from participating in the care of those in medical need for fear of negative consequences would indeed lead to a sorry situation for those patients and for all of society.

Many in the healthcare professions are motivated by these same altruistic ideals. As the way medicine is delivered changes in the world and there is greater economic incentive for workers, others are enticed into the field, but the basic desire to serve is a cornerstone of medicine and the consumer of healthcare has come to expect this caring attitude from its practitioners. Does the public really want to drive out those who believe that human beings have worthy based solely on their intrinsic worth as members of the human species, especially those who are willing to risk their employment to honor this respect? What sort of care could they expect from those who would be left to deliver that care? Many health care professionals adhere to the belief that our mission is to treat and heal patients to the best of our ability, not to engage in actions that deliberately destroy human life, thereby creating an atmosphere in which human life is no longer respected.

Pharmacists for Life President, Karen Bauer, recently commented "Nothing in the Oath ofa Pharmacists requires me to participate in killing." (St. Louis Post Dispatch, 2005) Indeed, it is only recently that the field of medicine has included practices and treatments that include those that result in death. It contradicts the noble desires of many in the professions and has caught them blind sided.

Political commentator Paul Chapman pointed out in an article in April of 2005 that "Abortion rights advocates cherish the right of choice. But not all choices are created equal. People who uphold a woman's right to make her own reproductive decisions want to deny others the right not to take part in those decisions. The demand for freedom has been turned into a pretext for compulsion." His article concludes with a proposal for a compromise: "Let individual pharmacies decide what drugs to dispense, and let pharmacists who disagree find other places to work. Let patients who can't get their prescriptions filled at one pharmacy go to another pharmacy with a different policy. That may create some inconveniences, sometimes, for some people. But it's a small price to pay for protecting the freedom of everyone." (Chicago Tribune,2005)

Well said, Paul, and let's extend those protections to all in the healthcare field.

Deep within his conscience man discovers a law which he has not laid upon himself but which he must obey. Its voice, ever calling him to love and to do what is good and to avoid evil, sounds in his heart at the right moment...For man has in his heart a law inscribed by God...his conscience is man's most secret core and his sanctuary. There he is alone with God whose voice echoes in his depths. Catechism of the Catholic Church, 1776


References

ACLJ Web site

AUL Web site

Bauer, Karen (2005) 9/6/05 Letter to the Editor: Forced Morality St. Louis Post Dispatch

Brennan, Ann E., (1999)NARAL issues gloom and doom summary, NRL News

Burke, Denise, Ed. (2006) Defending Life 2006 AUL Chicago, IL 2006.

Chapman, Steve (2005)Right to choose vs. Power to compel. Chicago Tribune

Feder, Jody, J.D. (2005) The history and effect of abortion Conscience clause laws. Congressional Research Service Report for Congress.

Imbody, Jonathan (2004) Doctors, Medical Professionals Deserve Conscience Protection on Abortion

LifeNews.com,Sept. 28

Jones, Ben (2004) Doyle vetoes "Conscience Clause"

Wisconsin State Journal,

Kramlich, Maureen (2002)The assault on Catholic health care. United States Conference of Catholic Bishops Office of Pro-Life Activities

LaRue, Jan M. (2005) Hippocratic Oath to Hypocrisy.Town Hall

LLDF Web site

Pharmacists for Life Press Release Manzullo: Pharmacists shouldn't be forced to choose betweentheir business, beliefs, July 25, 2005 (Mike Arlinsky).

Rutherford InstituteWeb site

Sean Murphy Protection of Conscience Project Web site

Stein, Rob (2005)Pharmacists' Rights at Front of New Debate. Washington Post, March 28.

Valko, Nancy (2003) Are pro-life healthcare providers becoming an endangered species, Voices,the publication of Women for Faith and Family vol. XVIII: No. 2 2003.