Beyond the White Coat

The right of conscientious objection


 

A well-formed conscience is an important part of being a physician. This particularly is true for those who consider medicine a vocation, or a calling, rather than just a job.

Concerned doctor looking through a window Juanmonino/Getty Images

On May 2, 2019, the Department of Health and Human Services made public a 440-page document known as the Final Conscience Rule.1 It isn’t quite final. And the state of California already is suing to stop it.2 But the document represents the culmination of years of legal wrangling over whether physicians are allowed to have consciences or whether they must function as automatons providing any legally permitted care that a patient might demand. This comprehensive document provides a history of the issues, but was written in dense legalese, as if it expected to be answering challenges in court.

The short answer in the United States is that religious liberty continues to triumph over editorials in the New England Journal of Medicine. Consciences are allowed. The Final Conscience Rule begins with “The United States has a long history of providing protections in health care for individuals and entities on the basis of religious beliefs or moral convictions.” That history includes the Religious Freedom and Restoration Act of 1993.3 RFRA was introduced into the Senate by Sen. Ted Kennedy (D-Mass.), a bastion of liberal health care policies, and passed by a 97-3 vote. It was introduced into the House by then-Rep. Chuck Schumer (D-N.Y.) and passed by a unanimous voice vote. RFRA is not the invention of Republican fundamentalists.

For my colleagues in Canada, the Ontario Court of Appeals (ONCA, the highest provincial court) decided on May 15, 2019, that the opposite situation is the law in Canada. A recent Ontario law concerning medical assistance in dying (also known as physician-assisted suicide) requires Ontario physicians to either provide the assistance when requested or to make an effective referral, defined as “a referral made in good faith, to a non-objecting, available, and accessible physician, other health-care professional, or agency.” Some Canadian physicians objected to this requirement as a violation of their consciences and their Hippocratic Oaths. They lost. The ONCA decision is 74 readable, double-spaced pages and spells out the ethics and legal principles. In summary, the ONCA said the policies on requiring an effective referral “strike a reasonable balance between patients’ interests and physicians’ Charter-protected religious freedom. In short, they are reasonable limits prescribed by law that are demonstrably justified in a free and democratic society.”4

The California physician-assisted dying law, known as the End of Life Option Act, which became effective in 2016, has policies which are very different from the Ontario policies. The California law has clear protections for the consciences of physicians. The law empowers them to avoid being compelled or coerced into cooperating with these deaths. “Participation in activities authorized pursuant to this part shall be voluntary. … A person or entity that elects, for reasons of conscience, morality, or ethics, not to engage in activities authorized pursuant to this part is not required to take any action in support of an individual’s decision under this part.”5 If it seems strange that California would strongly protect conscience with its own statute but challenge the new federal regulations, welcome to tribal politics.

Dr. Kevin T. Powell, a pediatric hospitalist and clinical ethics consultant in St. Louis.

Dr. Kevin T. Powell

The point is that the role of physicians in abortion, physician aid in dying, and other controversial practices is not going to be decided by philosophical discussions about the ideal scope and purpose of medicine. Compromises are involved that reflect the values of society. Canada is more anticlerical than the United States, and Ontario chose a different path. French culture is even more extreme. Recently, mayors in two towns in France told their elementary schools to stop offering alternative entrées on days when pork was served for hot lunches. Secular schools were not to provide accommodation for students (Muslim and Jewish) who religiously objected to pork. Since the French Revolution, the emphasis is on assimilation and laïcité (France’s principle of secularism in public affairs). The cathedral Notre-Dame de Paris – recently damaged by fire – is owned by the state, not the Catholic Church. The United States has a different history and culture. It has supported religious liberty and reasonable accommodations. That is the loving thing to do. But as a reminder, the Peace of Westphalia in 1648, which ended European religious wars between Protestants and Catholics, was not a result of enlightened thinking and agapeic love. The fighting parties looked in the abyss of mutual annihilation and opted for coexistence instead.

Dr. Powell is a pediatric hospitalist and clinical ethics consultant living in St. Louis. Email him at pdnews@mdedge.com.

References

1. Department of Health and Human Services, “HHS Announces Final Conscience Rule Protecting Health Care Entities and Individuals,” May 2, 2019.

2. “California sues Trump administration over ‘conscience rule’ that could limit abortions,” Los Angeles Times, May 21, 2019.

3. Wikipedia, “Religious Freedom Restoration Act of 1993

4. Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393.

5. California Assembly Bill No. 15, End of Life Option Act.

The article was updated on June 21, 2019.

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