We live in a culturally diverse society in which people vary greatly in
their moral beliefs about the importance of human life. These profound
differences are most bitterly expressed in the medical context, particularly
with regard to issues such as abortion, physician-assisted suicide,
embryonic stem cell research, and other life and death policies and
Some of these practices - specifically abortion and assisted suicide -
contravene explicit provisions of the Hippocratic Oath (at least as it has
been understood traditionally). Yet today, physicians, nurses, and other
medical professionals whose moral beliefs prevent them from participating in
these legal but ethically controversial acts, find themselves under
increasing pressure to either violate their consciences or be driven out of
Until recently, dissenting medical professionals have been protected by
so-called "conscience clauses" that permit them to opt out of performing
abortions or participating in assisted suicide (where it is legal) without
professional consequence. But in recent years, legislative proposals have
been filed that would require all professionals participate in such
life-terminating procedures if asked by a patient, or be complicit in them
by referring the requesting patient to another doctor who will do the deed.
The controversy over conscience clauses came to an angry head recently
when the Bush Administration promulgated a rule protecting professionals
from being discriminated against in employment for refusing to perform
medical procedures to which they morally object. The "Bush Conscience
Clause" set off howling opposition among the medical intelligentsia,
including the American Medical Association and the American College of
Obstetricians and Gynecologists (ACOG). Connecticut, California, and five
other states sued to have the regulation declared invalid. The new Obama
Administration has already started regulatory action to revoke the policy.
Opposition to protecting the right of conscience has suddenly grown so
intense that it is easy to foresee physicians, nurses, and pharmacists who
hold to the orthodox understanding of the Hippocratic Oath being forced out
of medicine altogether, a draconian approach explicitly proposed in a
December 24, 2008 editorial in the St. Louis Post Dispatch, which
"Doctors, nurses, and pharmacists choose professions
that put patients' rights first. If they foresee that priority becoming
problematic for them, they should choose another profession."
Imagine: being declared persona non grata in medicine merely for
wishing to abide by an ethic that was considered mandatory for all doctors
as recently as forty years ago.
It isn't just abortion or assisted suicide. In the next decade, we could
see the legalization of currently criminal and unethical medical acts - such
as harvesting organs from patients with catastrophic cognitive impairments
(which has repeatedly been advocated in some of the most prestigious medical
journals), eugenic infanticide (now practiced openly in the Netherlands),
perhaps even cloned fetal farming for organs or experimental purposes
(already permitted by law in New Jersey). Crafting effective conscience
clauses to allow medical professionals to opt out of such programs is thus a
matter of increasing urgency.
But this isn't as easy as it might seem. For example, overly broad
wording could inadvertently protect doctors who refuse wanted
life-sustaining treatment based on a moral belief that the patient's life is
not worth living (futile care theory), perhaps even the abortion clinic
nurse who refuses to save the life of a surviving baby based on her deeply
held moral belief that an aborting mother has the right to a dead fetus.
To avoid this and other unintended consequences, I suggest that
conscience clauses be drafted following these general principles:
- No medical professional should be forced to take, or be complicit in
the taking of human life, whether of an embryo, fetus, or born member of
- Conscience clauses should distinguish generally between elective
procedures - e.g., interventions not immediately necessary to
save the patient's life or prevent serious physical harm - and
non-elective procedures. Refusing elective procedures should be broadly
protected, but not non-Elective procedures.
- To prevent conscience clauses from becoming safe harbors for
discrimination, the requested procedure should generally be what
violates the conscience of the health-care professional, not bias
against the patient. In this way, for example, an oncologist would
not be able to refuse to treat a lung-cancer patient because the patient
- Finally, those covered by conscience clauses should be bona fide
health-care professionals such as nurses, pharmacists, and physicians.
Custodians or bandage suppliers, as two examples, should not be covered.
Doctors, nurses, and other medical professionals who refuse to
participate in life-terminating procedures send a clarion message to society
that killing in the medical context is morally wrong. By protecting the
conscience rights of these courageous professionals, we also protect the
weak and vulnerable who are increasingly threatened by the growing influence
of utilitarian bioethics. Or, to put it more bluntly: The life you save by
supporting conscience clauses could be your own.