When Policy Produces Moral Distress: Reclaiming Conscience

 Hastings Center Report

Nancy Berlinger


For too long, bioethics has followed law in reducing “conscience” to “conscientious objection,” in other words, to laws and policies permitting and protecting refusal. In “Reframing Conscientious Care: Providing Abortion Care When Law and Conscience Collide,” Mara Buchbinder and colleagues draw our attention to one dimension of the problem of reducing conscience to refusal to provide certain forms of medical care: what about the conscience problems experienced by the professionals who are attempting to provide safe, effective health care that includes services that others associate with conscientious objection? In seeking to disrupt a specific medical practice – one that is legal, desired by the patient, and conducted in accordance with medical standards – North Carolina House Bill 854, The Women’s Right to Know Act, and laws like it, appear to be designed to produce moral distress in physicians and other professionals involved in the provision of abortions. For abortion providers in North Carolina and other states, conscientious objection to the mandates of laws like HB 854 isn’t a realistic option. So what can bioethics offer to professionals bound by such laws? We can start by reclaiming the idea of “conscience” as something that can say “yes” to providing health care.

Berlinger, N. (2016), When Policy Produces Moral Distress: Reclaiming Conscience. Hastings Center Report, 46: 32–34. doi: 10.1002/hast.547 [Full text]


Conscience, Courage, and “Consent”

Hastings Center Report

Mark A. Hall, Nancy M. P. King


How should we think about physicians who object to what law in North Carolina and many other states requires them to tell patients seeking legal abortions? A federal appellate court helped to place this situation in perspective when it struck down the part of the Woman’s Right to Know Act, North Carolina’s mandatory informed consent statute for abortions, that required physicians to show such patients real-time ultrasound images of their fetuses and describe the stage of fetal development. In this court’s view, the state’s WRTK Act forces physicians to express a viewpoint that may be contrary to their medical judgment. Moreover, the ultrasound-viewing provision “simultaneously threaten[s] harm to the patient’s psychological health, interfer[es] with the physician’s professional judgment, and compromis[es] the doctor-patient relationship.” The court continued, “Transforming the physician into the mouthpiece of the state undermines the trust that is necessary for facilitating healthy doctor-patient relationships, and through them, successful treatment outcomes.” Based on this reasoning, the court invalidated the ultrasound-viewing portion of the statute, but the other provisions remain in effect, mandating a long list of disclosures; similar laws exist in many other states.

In this essay, we want to consider what the abortion legislation says about the state’s regard for professional judgment. At the same time that these laws threaten patient trust in physicians – a point Mara Buchbinder and colleagues explore in “Reframing Conscience: Providing Abortion Care When Law and Conscience Collide” (in this same issue of the Report) – the laws display a deep-seated distrust by government in the integrity of medical professionals. The WRTK statute bristles with measures that control physicians’ interactions with patients. In addition to the most egregious example of coerced display and discussion of live ultrasound images, which has now been invalidated, this statute and others like it script in great detail what treating physicians must say to patients in specified settings at prescribed times.

Hall, M. A. and King, N. M. P. (2016), Conscience, Courage, and “Consent”. Hastings Center Report, 46: 30–32. doi: 10.1002/hast.546 [Full text]


Reframing Conscientious Care: Providing Abortion Care When Law and Conscience Collide

Hastings Center Report 

Mara Buchbinder, Dragana Lassiter, Rebecca Mercier, Amy Bryant, Anne Drapkin Lyerly


“It’s almost like putting salt in a wound, for this person who’s already made a very difficult decision,” suggested Meghan Patterson (an alias), a licensed obstetrician-gynecologist whom we interviewed in our qualitative study of the experiences of North Carolina abortion providers practicing under the state’s Woman’s Right to Know Act (House Bill 854; 2011). The act requires that women receive counseling with state-mandated information at least twenty-four hours prior to obtaining an abortion. After the law was passed, Patterson worked with clinic administrators, in consultation with a lawyer, to write a script to be used in the state-mandated counseling procedure. She and her colleagues took particular steps to mitigate the effects of what she described as HB 854’s “forced language” – such as referring to the “father of the child.” While HB 854 stipulated that patients must be informed of the medical risks associated with the particular abortion procedure as well as those of carrying the child to term, Patterson’s script made explicit the magnitude of comparative risks, emphasizing that the risks of carrying a pregnancy to term are substantially greater than the risks of an early-term abortion. She felt that these contextualization strategies helped to facilitate trust and rapport in a clinical care situation that proved relationally and morally challenging.

In this article, we take up and expand on this point by elucidating an empirically grounded approach to ethically justified care when health care providers face legal or institutional policy mandates that raise possible moral conflicts. Our approach builds on recent bioethics discourse addressing conscience in the practice of medicine. While the concept of conscience has broad philosophical underpinnings relating to moral judgment, agency, and discernments of right and wrong, debates in bioethics have tended to engage the concept primarily vis-à-vis rights of conscientious objection or refusal. Here, we suggest a broader frame for thinking about claims of conscience in health care. Our approach draws on the feminist bioethics and the ethics of care literatures to highlight how providers may be motivated by matters of conscience, including relational concerns, in the active provision of certain forms of care. What emerges are two possibilities: not only conscientious refusal to comply with a policy mandate but also conscientious compliance – working conscientiously within a mandate’s confines.

Buchbinder, M., Lassiter, D., Mercier, R., Bryant, A. and Lyerly, A. D. (2016), Reframing Conscientious Care: Providing Abortion Care When Law and Conscience Collide. Hastings Center Report, 46: 22–30. doi: 10.1002/hast.545 [Full text]


Canadian physicians warned to get ready for euthanasia and assisted suicide

Re: Downar J, Bailey TM, Kagan J, Librach SL.  Physician-assisted death: time to move beyond Yes or NoCMAJ 2014 May 13;186(8):567-8. doi: 10.1503/cmaj.140204. Epub 2014 Apr 7.

Sean Murphy*

Three physicians and a lawyer have written an article published in the May issue of the Canadian Medical Association Journal. The lead author, Dr. James Downar, is co-chair of a euthanasia/assisted suicide advocacy group.

Anticipating a change in the law, the authors warn that “well-rehearsed debates” about sanctity of life and personal autonomy “may become obsolete.”

“We need to start to answer some challenging questions in preparation for the possibility that physician-assisted death will be available in Canada soon,” they write.

Among the questions they pose, one raises two particularly sensitive issues:

Will physicians who are conscientious objectors be obliged to present physician-assisted death as an option to patients and facilitate transfers of patients to other physicians or facilities?

As a matter of law and ethics, physicians are expected to advise patients of all reasonable legal options for treatment so that patients can provide informed consent to it.  However, many physicians who are strongly opposed to euthanasia and assisted suicide may view the “presentation of an option” for either procedure as inherently abusive of vulnerable patients.  This problem does not usually arise with respect to other morally contested procedures, like abortion or contraception.

A requirement to “facilitate transfers” of patients would probably be acceptable if it involved only the kind of  cooperation normally involved in the transfer of records when a patient is taken on by a different physician; this is all that is required in Belgium, Oregon and Washington State.  However, a demand that objecting physicians refer patients or actively initiate transfers would be resisted by those who would consider such actions to involve unacceptable complicity in killing.  The Supreme Court of the Philippines recognized this issue when it struck down a mandatory referral requirement in the country’s Reproductive Health Law as an unconstitutional violation of freedom of conscience.