The President's Council on Bioethics
Thursday, September 11, 2008
Session 3: Conscience in the Practice of the Health Professions
DR. LYERLY: Well, thank you very
much, Dr. Pellegrino , and thank you for inviting me to
speak today. I'm absolutely honored to have the
opportunity to speak to such a distinguished group and
on such an important topic. I've been asked by Drs.
Pellegrino and Davis to, in their words, map the
contemporary domain regarding issues of conscience in
the health professions. As Dr. Pellegrino noted, I
should clarify that I'm speaking for myself.
In the last several years I've had the opportunity to think seriously
about the question of conscience in the practice of medicine, both in my
role as an obstetrician/gynecologist caring for patients, working with
colleagues, training residents, and as someone who spends most of her time
thinking about ethical issues in reproductive medicine.
I chaired and I currently chair the ethics committee of the American
College of Obstetricians and Gynecologists, and I learned quite a bit about
the topic of conscience during our deliberations. But as Dr. Pellegrino
noted, the views I express today are my own.
Patients and their care providers do not always agree about health care
decisions. Such differences are expected and usually, if uncomfortable or
frustrating, are not morally - or not deeply morally - problematic. Yet
occasionally a situation arises when a physician may find requested or
indicated care to be morally objectionable and decline to provide such care
on the basis of conscience. That is, of course, at the heart of our
Such situations create challenges for professional ethics and social
policy. What are the obligations of providers to their patients to provide
information, referral, or care? To what degree should public policies be
restrictive or protective of provider referrals, and what are the moral
considerations that shape the answers to these questions?
So a quick overview. I'll begin with just a brief background, touch on
current laws, policies, and the published views of professional
organizations, again just to orient, since the question is how we ought to
be managing issues of conscience going forward. I'll then turn to the
contemporary ethical debate and highlight just a few themes that have
emerged with some consensus as relevant to determining how restrictive or
protective we should be of conscientious refusals. Finally, I'll end by
looking squarely - or at least naming - some of the fundamental distinctions
that may be helpful in framing a discussion.
Another disclaimer: I'm not a legal scholar, so I'm just going to stick
to the basics here. Since the early 1970s laws have accumulated that are
protective of providers' rights of conscience. Operative federal regulations
include the Church Amendment, the Coats Amendment, and the Weldon Amendment.
The force of these regulations is to protect individuals, institutions'
training programs, insurance companies, and others from requirements to
participate, or discrimination for not participating, in abortion and
As noted in your briefing book, state laws also protect practitioners and
institutions from participating not only in abortion and sterilization, but
in the provision of contraception, and in some cases protections have
extended to any health care task that is against a provider's conscience.
In response to concerns about access to needed reproductive services, a
number of state laws have been passed which press in the other direction
which are suggestive of a need to limit refusals in the interests of patient
well-being. Twenty-seven states have passed contraceptive equity laws which
require insurers who cover prescription drugs to offer a full range of
contraceptives approved by the FDA.
Sixteen states have passed emergency contraceptive laws, such as the
"Compassionate Care for Rape Victims" law, which requires that emergency
departments provide information about emergency contraception to special
assault victims, dispense EC on demand, or both.
Finally, a handful of states and pharmacy boards have passed laws or
policies that say pharmacies must fulfill all valid prescriptions. And so
you see the tension reflected in the state and federal laws on the one hand
pressing for the protection of providers' conscientious refusals and on the
other hand protecting the rights of access for patients.
I think it is important at the outset to note that while the bulk of
these conversations have taken as their central concern the provision of
elective abortion or abortion on demand, as some call it, there are a
breadth of services that some consider morally objectionable. These range
from the provision of oral contraception to blood transfusion to the
provision of vaccines whose development depended on the use of fetal tissue.
Most of the examples I use today will be situated in
the realm of reproductive medicine, but it is important to remember the
breadth when we look toward policy, and as we do, to be careful that our
policies about conscience in general are not dominated by the question of
restrictions on abortion.
Most of the examples I use today will be situated in the realm of
reproductive medicine, but it is important to remember the breadth when we
look toward policy, and as we do, to be careful that our policies about
conscience in general are not dominated by the question of restrictions on
ACOG document on conscience has garnered considerable attention in the
last several months... issues of conscience have been addressed by a number
of both national and international professional organizations. And I've
listed just a few of them here. I'll concentrate on statements from the
AMA's Council on Ethical and Judicial Affairs, the UK 's General Medical
Council, and the International Federation of Gynecology and Obstetrics or
Most of these documents begin, or at least at some point in the document
there is a statement about the primacy of patient welfare. You must make the
care of your patient your first concern. The primary commitment of
obstetrician/gynecologists is to serve women's reproductive health and
well-being. A physician while caring for a patient must regard
responsibility to the patient as paramount.
The second thing is that most of these organizations have advocated
finding a middle ground, a middle ground between categorical views on either
side, either that there's an absolute right to the expression of conscience
or there's no right to object. These organizations suggest instead that
rights to object should be protected but limited.
The AMA put it this way: "Physician's conscientious objection must be
counterbalanced with obligations that will respect patients' autonomy and
ability to access medical services." The UK General Medical Council says
that their guidelines were meant to balance doctors' and patients' rights,
including the right to freedom of thought, conscience, and religion and
entitlement to care and the treatments to meet clinical needs and advise us
on what to do when these rights conflict.
In striking the balance, professional organizations
tend to comment on three areas of particular controversy with respect to
individual providers: obligations of providers to give information about
treatment options, obligations to refer patients to another physician if the
service cannot be provided in good conscience, and obligations to provide
the service itself when referral is not possible or practicable in emergency
In striking the balance, professional organizations tend to comment on
three areas of particular controversy with respect to individual providers:
obligations of providers to give information about treatment options,
obligations to refer patients to another physician if the service cannot be
provided in good conscience, and obligations to provide the service itself
when referral is not possible or practicable in emergency situations.
Of course, all of these issues raise the important concerns that Father
Paris raised this morning about cooperation. So let's take a closer look.
The General Medical Council with regard to information says, "Patients have
a right to information about their condition and the options available to
them. You must not withhold information about the existence of a procedure
or a treatment because carrying it out or giving advice about it conflicts
with your religious or moral beliefs."
The AMA says, "The patient has the right to receive information from
physicians and to discuss the benefits, risks, and costs of appropriate
treatment alternatives." FIGO says that "Practitioners have duties to inform
their patients of all medically indicated options for their care, including
options in which the practitioners decline to participate."
A referral is also addressed by most of these organizations. Again,
referral has been an even more contentious matter than the provision of
information as it brings up the concerns of cooperation and moral
complicity. The AMA says, "A physician who refuses to provide a treatment
still owes an ethical responsibility toward the patient. In most
circumstances physicians who refuse to provide treatments on the basis of
religious or moral objections should refer patients to other physicians or
health care facility."
Referral actually brings up practical questions among practitioners about
what exactly is meant by referral. Must you identify a specific physician?
How sure must you be that that provider in question provides the service in
question? The UK developed a description that captures a spirit that some
have found helpful. "You must tell patients of their right to see another
doctor with whom they can discuss their situation and ensure that they have
sufficient information to exercise that right. In deciding whether the
patient has sufficient information, you must explore with the patient what
information they might already have or need. If the patient cannot readily
make their own arrangements to see another doctor, you must ensure that
arrangements are made without delay for another doctor to take over their
And, finally, while almost all organizations affirm that providers are
justified in refusing to participate in procedures that they find
objectionable on moral grounds, they uphold the obligation to provide care
in emergency situations. Patients are entitled to be referred - well, this
is another referral one, but it essentially says the same thing.
So provision of care. "In emergency situations to preserve life or
physical or mental health practitioners must provide medically indicated
care of their patient's choice regardless of the practitioner's moral
Similarly the American Academy of Physician Assistants says something
along those lines: "Physician's assistants are obligated to care for
patients in emergency situations and to responsibly transfer established
patients if they cannot care for them."
So what are some of the ethical considerations that have emerged with
some consensus as salient to moral deliberation and policy making around
conscientious refusals? Many conversations will begin with the importance of
conscience in the profession, the idea that it is critical to good medicine
and bioethics that physicians exercise independent judgment, that they
should not forsake moral integrity when they enter the practice of medicine,
and that conscience is critical to democracy, bioethics, humanity. I suspect
that we will hear - we've heard some on this already, and I suspect that
we'll hear more from the other panelists with regard to this.
When we hear these arguments, it's easy at first blush to say no when
asked about whether a physician should ever act in opposition to her
conscience. But I'm going to take a few minutes to discuss a sampling of
moral considerations that press against the starker, simpler way of thinking
about these topics.
Many of these considerations focus, as I have focused in my career, on
the patient who is often in the position of vulnerability in the context of
the asymmetrical patient/physician relationship as a need that must be met
and who is unable to walk away from the situation.
So what considerations are . . .? Three areas tend
to emerge. The first are questions of health or welfare and the harms that
might derive from non-provision of information, referral, or care. Second
are questions of fairness, and third are questions of respect.
So what considerations are relevant to her? Three areas tend to emerge.
The first are questions of health or welfare and the harms that might derive
from non-provision of information, referral, or care. Second are questions
of fairness, and third are questions of respect. So I'm going to take these
one at a time.
Let's talk about health. Consider a case in 2000 known as Shelton versus
the University of Medicine and Dentistry [Shelton v. University of
Medicine & Dentistry, 223 F.3d 220, 224 (3d Cir. 2000)]. This was in
the year 2000. In this case a woman presented to a New Jersey hospital 18
weeks pregnant with a condition known as placental previa. She was bleeding
significantly. She had had a couple of other episodes of bleeding in the
previous days, and this was a significant hemorrhage.
Now, you have to understand that placental hemorrhage associated with
previa is not like bleeding from a cut on your arm or even on your head. As
some of you who may have had children know, those can be significant, but
it's more than that. In fact, the volume of blood that can be lost in
minutes is tremendous, like a garden hose turned on full blast.
The attending physician called for an emergency C-section, but the nurse
on duty declined to scrub in since the surgery would result in fetal death
due to the delivery prior to viability. The surgery was delayed for 30
minutes. Fortunately in this case that was not too long. The patient was
able to be supported while another nurse was identified to take the
objecting nurse's place, but it may just as easily have gone the other way.
So there was the potential for harm associated with refusal, even mortal
The expression of conscience here kept the life and health of a pregnant
woman in harm's way. This case is famous actually - or known - for the fact
that this nurse was offered a position elsewhere in the hospital but
declined and was eventually fired and sued the hospital for discrimination,
but she lost because the hospital had tried to accommodate her.
In other cases the welfare setbacks may be less obvious, but they are
there. The woman who requests sterilization at the time of Caesarian
section, for example, when her abdomen is open, her fallopian tubes are in
reach, a couple of minutes and the operation is over, but due to her
physician's objections to the sterilization procedure she's required to
undergo a second operation weeks later and take on the risks of anesthesia
and entry into her abdomen. So the patient incurs risk, and there's
potentially harm to herself due to these objections.
Other harms can be described. I myself have accompanied a patient who,
following a rape, was declined access to EC in an emergency room. I
witnessed the harm associated with a traumatic decision she had to face
between pregnancy termination and gestation, birth, and parenthood of a
child conceived as a result of a profound bodily violation.
The second are concerns about fairness. How do we think about
conscientious refusals when they differently affect different groups? Dr.
Paris noted that he hesitated about mentioning the case of Guadalupe Benitez
, but I will mention it, a woman who was denied intrauterine insemination
for the treatment of infertility.
And while the terms of refusal have been a point of contention, the
refusal seems to have been based on the provider's objection to fertility
treatment for lesbians. In broader brush strokes, many have highlighted the
fact that conscientious refusals to dispense contraception may place a
disproportionate burden on disenfranchised women, reinforcing an unfair
distribution of benefits and burdens. And while the scope of conscientious
refusal, of course, stretches beyond areas of reproductive medicine, when
reproductive issues are at stake, women are disproportionately affected.
Third and perhaps most importantly are questions about respect. Some will
call this respect for autonomy, about how refusals affect women's bodily and
others' bodily dominion. In many ways this brings up the stark question of
choice and the divisive topic of abortion on demand, but let me bring up a
As many of you know, for some women pregnancy is life-threatening. For
women with pulmonary hypertension, for instance, mortality associated with
pregnancy can approach 50 percent. Consider the case of a young woman with
just such a cardiopulmonary condition. Imagine her pregnancy is desired.
Imagine that politically she is pro-life, perhaps conscientiously she's
pro-life, and her provider shares her view. So despite the morbidity
associated with her anticipated gestation, the topic of abortion is not
raised, she's not counseled about termination of a pregnancy that may
threaten her life.
The fact of the matter is that pregnancy in the setting of a
life-threatening medical condition is a difficult situation and a situation
that entails the critical human question, what am I willing to die for? By
not raising the question of abortion, the provider fails to respect in a
very deep way the patient's right to consider that question for herself.
Another set of considerations derives specifically
from the fact that we're talking about the practice of medicine, which
carries role-specific responsibilities, and these considerations actually
press in both directions. As legal scholar Alta Charo has famously noted, an
absolute right to refusal cannot be supported since medicine has duties that
derive from its status as a monopoly.
Another set of considerations derives specifically from the fact that
we're talking about the practice of medicine, which carries role-specific
responsibilities, and these considerations actually press in both
directions. As legal scholar Alta Charo has famously noted, an absolute
right to refusal cannot be supported since medicine has duties that derive
from its status as a monopoly.
She states, "States give these professionals the exclusive right to offer
such services. By granting a monopoly, states turn the profession into a
kind of public utility obligated to provide service to all who seek it.
Claiming an unfettered right to personal autonomy while holding monopolistic
control over a public good constitutes an abuse of the public trust."
Others have argued that individuals enter the practice of medicine
cognizant of the fiduciary duties it entails. Again, provocatively,
Savulescu noted in the British Medical Journal, "If people are not prepared
to offer legally permitted, efficient, and beneficial care to a patient
because it conflicts with their values, they should not be doctors."
In the other direction, proponents of conscience protections look to the
nature of the medicine itself as a healing profession in justifying refusals
to perform services they see as non-beneficial, harmful, or deeply, morally
wrong. And then, of course, there's the question of scientific integrity,
and this speaks both to the question of the validity of the claim based on
the idea that the practice of medicine should be evidence-based and that
refusals based on inaccurate or incomplete understanding of science should
Of particular concern have been claims about the mechanism of action of
emergency contraception. Despite a broad misconception that this medication
works to prevent implantation, the literature indicates that it prevents
fertilization, like other forms of oral contraception. A review in the
Journal of the American Medical Association in 2006 indicated that the
ability of Plan B to interfere with implantation remains speculative since
virtually no evidence supports that mechanism and some evidence contradicts
it. The best available evidence indicates that Plan B's ability to prevent
pregnancy can be fully accounted for by mechanisms that do not involve
interference with post-fertilization events. The authors of this article
advocated at the very least women should be apprised of such. This can
obviously play out in other arenas - refusal to withdraw nutrition and
hydration based on the view that it's cruel to starve a person a death, et
So moving forward, how might we think about these considerations? How
should we think about balancing patients' needs and providers' critical
interests in maintaining their personal integrity? Public policy is at best
a blunt instrument. What it can't be is subtle and expansive enough to be
responsive to the breadth of provider convictions or the nature of meaning
and the consequence for the patient.
What it can do is provide rough guidance that sets a presumption about
how we should reason. There is an ongoing debate about what that presumption
should be. There are those that advocate that the rights of conscience
should prevail in all cases, but there is a strong case for an approach that
balances the immediate needs of patients with the interests of doctors. The
question is how to balance.
Some considerations in terms of balancing might be fairly
straightforward. So we know in situations outside of medicine that the
validity or authenticity of a claim can determine whether we allow
conscientious refusals to guide decision-making. In medicine those things
might also be important considerations. Professor Dresser has written
eloquently about the ways that distaste for certain procedures or
discriminatory factors may be masked by claims of conscience.
But then there are harder questions. It seems to me that there may be a
qualitative difference in the way that we balance claims of conscience with
patients' interests depending on what is at stake, depending on whether the
question is one of welfare, differential access, and, perhaps the most
challenging, questions about bodily dominion.
The economies of how we balance may be different depending on what is at
stake. If we want to talk about the conditions that must be met to
conscientiously refuse to inform, refer, or provide care, how we balance may
be different depending on what morally is at stake.
Moving forward, just a few things to consider. At
the level of the individual provider, ongoing debate centers around
obligations - how should we think specifically about the responsibilities of
prior notice, the provision of information and referral.
Moving forward, just a few things to consider. At the level of the
individual provider, ongoing debate centers around obligations - how should
we think specifically about the responsibilities of prior notice, the
provision of information and referral.
Of considerable interest - and Dr. Curlin and I spoke about this over
lunch - is the role that conversations might have in the process. Might
there be a role for respectful conversations involving disclosure of a
physician's moral views? Could that soften the sense of complicity?
At the level of institutions some have considered establishment of
systems to provide information and referral and staffing that maximizes
protection of patient interests and providers' rights of conscience.
Finally, some have advocated shared responsibilities so that the
responsibility to uphold the interests of patients does not lie with the
individual provider, but it's shared with the institution in which that
provider works. But it is in part a responsibility of the individual.
In Portugal , for example, physicians are required to register refusals
and then are prohibited from counseling patients seeking elective abortion.
The law there states that the health system is obligated to ensure that
patients receive care within a time frame responsive to patients' needs.
In the end the question of conscience presents important challenges for
professional ethics and public policy. As the Council moves forward, I
encourage you to do so acknowledging the nuance of balancing and with an eye
not just on the integrity of health professionals but on the asymmetry of
the patient/physician relationship and the vulnerability and fragility of
patients who request our help.
Thank you very much. [. . . H. Brody]