-: Before I introduce our speaker,
I wanted to let you know about next month's
May Ethics Grand Rounds Lecture,
Arthur Art Dercy, M.D., J.D., who runs the Ethics Program
at the Medical College of Wisconsin is going to talk
about ethical issues faced by physicians
and other health care professionals
interfacing with the police in the Criminal Justice System.
And I know those of you that are listening
in Parkland and possibly the university hospitals,
these issues come up fairly regularly,
particularly in the Emergency Room setting.
So it should be a very interesting discussion.
I'm delighted to introduce Professor Elizabeth Seppar
who is currently a Professor of Law
at Washington University, and am I allowed
to disclose your new job?
And will be soon returning to Texas.
She's a Dallas native that will be returning to Texas
as a Professor of Law at the University of Texas at Austin.
So maybe we can see more of you in the future,
would be very nice.
So Professor Seppar is a nationally recognized scholar
of public accommodations, religious liberty, and health law.
Her recent work focuses on legal, theoretical,
and policy debates related to
anti-discrimination obligations of public accommodations.
That is, businesses, social service providers,
and membership organizations that are open to the public.
Her article on the issue of religious objection
to gay rights, titled, "Doctoring Discrimination
in the Same Sex Marriage Debates" has won multiple awards.
She received a BA from Boston University,
her J.D. and L.L.M. from NYU School of Law.
But prior to entering academia,
she clerked for the Honorable Marjorie Rendell
of the U.S. Court of Appeals for Third Circuit
and practiced human rights law
with a focus on human, women's rights
at the Center for Reproductive Rights.
Apropos to her moving to Austin, her book is finishing up,
will be, is titled, "Sex in Public Accommodation Law
from the Civil War to the Bathroom Wars."
So she's going to the land of the bathroom war
so we'll hopefully hear more about that in the future.
Please welcome Professor Seppar.
(applause)
-: Thank you, Dr. Sadler, and I wanna thank also
Ruth Vinseguerra and all of you at UT Southwestern
who've really shown me a very, very warm welcome.
So I'm very happy to be here.
Today I wanna talk to you about the law and ethics
of conscientious refusal.
And I'm gonna start with some of the basics.
What is conscience?
And what is conscientious refusal?
And once we have that grounding, I'll turn to the approach
that ethics and law take to conscience protection
in health care.
And from there I wanna start critiquing the legal framework,
in particular, exploring the ethical concerns raised
by existing statutes and illuminate where the law
is overprotective of conscience
and where it is actually underprotective.
Along the way, I'm gonna offer a few narratives
from people involved and case studies
of current legal issues, if I have time.
So I wanna take it's a central proposition
for today's topic that healthcare
presents morally complex questions
that few people encounter in their day-to-day lives.
And many decisions involve multiple options
with no single correct choice and some serious consequences.
For example, quality of life requires a judgment
that varies according to how each person
defines a good or a sufficient life.
And scientific advances often challenge
historical and religious conceptions around life and death
in the field of healthcare.
In these conflicts which can manifest as conscience
emerge often as a tug-of-war
between providers, patients, and institutions
like hospitals, insurance companies, and so on.
So patients and doctors may disagree
over the appropriate decisions on ethical, moral,
or religious bases.
A nurse may oppose a physician's orders.
A hospital may prohibit, for example,
dispensing emergency contraception
to sexual assault victims,
causing a provider to then struggle
to reconcile her duty to comply with institutional policy
and her duty to do no harm to patients.
In the course of these disagreements,
physicians and nurses, as well as their patients,
may invoke conscience.
Now, even though there's no single definition of conscience,
the term generally refers to consciousness of
and decision-making about right or wrong.
So to exercise conscience,
a person identifies moral principles, assesses context,
and decides whether to do or omit a particular act.
Now, we may disagree over fundamental questions
of right and wrong, but each person experiences conscience
in determining the morality of his or her own actions.
Now some of us are more conscientious than others,
feeling pangs of conscience in a variety of context.
Others may feel them every decade or so,
but everyone should have a conscience.
Now conscience has real importance, not just in healthcare,
but in human life, because it's closely related
to one's moral integrity or sense of self.
So across moral traditions, we tend to recognize
that failing to follow one's conscience
causes a sort of psychological schism
between what one has done or failed to do
and who one really is at one's moral core.
Now in medicine, conscientious refusals, specifically,
take place when a provider consults her conscience
and determines that she cannot participate
in a procedure that the profession has determined
to be ethically and legally permissible to perform.
The exercise of conscience arises
in the specific circumstance where a patient,
institution, or the state requests or requires
that she perform the procedure
that's consistent with the standard of care
and then the provider refuses.
Now conscientious refusals arise across medicine,
and I could give you a number of different examples,
but they tend to be most salient
with regard to reproductive health care,
end of life care, and increasingly care for LGBT patients.
So patient's right to control treatment decisions
in accordance with their values
may collide with judgments of medical providers
in each of these areas.
And futility determinations, of course,
are a classic example relying on decisions
about the nature of life and death.
Providing condoms as part of HIV counseling
has been an issue.
Sterilization, contraception,
removal or refusal of respirators,
artificial hydration or nutrition, pain management,
stem cell-derived therapies, vaccines,
and, of course, abortion.
So what should we do then about refusal
based on religious or conscientious reasons
rather than on medical reasons alone?
In a pluralist profession, how do we deal with dissenters
from consensus positions?
To give a modern example,
a doctor who opposes withdrawing hydration or nutrition
from a patient in accordance with the surrogate's wishes,
something that some decades ago was quite highly contested,
now the ethical position is that it's acceptable
and quite firmly so.
Now with regard to conscientious objection,
the position of professional organizations
and the vast majority of ethicists, here you have the AMA
and the ANA, takes this form of an ethical compromise.
It differs at the margin, but basically it affirms
that acting according to conscience,
including through the refusal of healthcare,
has significance because it is central
to each person's moral integrity or sense of self.
Accommodation is then justified,
not by the objective truth
of the objector's moral commitments, not by saying yes,
removing hydration and nutrition is wrong,
but rather saying we should protect you
from the harm of doing something
that would violate your integrity.
The ethical compromise is a compromise.
So it recognizes there are values
other than the provider's conscience,
values of access to healthcare, bodily integrity,
and decisional autonomy.
And it generally recommends ensuring access
through some combination of informed consent and referral
from the provider in return for the right
to refuse services.
So refusing medical professionals should inform patients
of diagnoses and treatment options
and refer for medically appropriate treatments
that they cannot in good conscience provide.
Or, as you see in the ANA version,
they should ensure continuity of care and nonabandonment
of the patient even as they themselves
refuse to continue to participate.
So and this reflects the position we know
from some empirical studies
of the vast majority of physicians
who refer for and counsel patients
about procedures they find morally objectionable
and don't provide.
So in theory at least, this ethical compromise
avoids patient harm while simultaneously protecting
provider conscience.
Now, the legal framework, as we'll see,
differs in some important ways from the ethical compromise.
So I'm a lawyer and a law professor
so I'm gonna start with the basic legal rules,
law and religion 101.
So protections for religious liberty exist
at both the federal and the state levels.
They come in three flavors.
So we have constitutional provisions,
think the first amendment of the U.S. Constitution.
There are typically state constitutions
with like protections.
Statues entitling religious believers
to seek exemptions in court.
So this is what the Hobby Lobby case
was actually adjudicated under.
It's not a constitutional case
and involves the Religious Freedom Restoration Act,
which is a statute allowing people to object
to federal laws.
Then we have statutory exemptions
and those are built into the statutes themselves.
So a state legislature might decide to pass a statute
and include a religious exemption within it,
say for ceremonial peyote use from drug laws,
Amish buggies could be exempted
from vehicle light requirements,
or kosher butcheries from food safety
or animal cruelty regulations.
And these are pretty standard.
Thousands and thousands of these exist
at federal and state levels.
Now statutory exemptions are also what govern
conscientious refusals.
And we're generally speaking here about a conflict
between a provider and a patient,
or alternatively, an institution and a provider.
So the Constitution, then, is not at play.
There's no law requiring a nurse
to provide pre-operative care.
Rather, it's a conflict between the nurse
and the healthcare facility where he works.
And we're not talking about these statutes again
where you can seek religious exemptions
because, again, we don't have laws in place
requiring, for instance, that all OBs
facilitate abortions, let's say.
So what we have are these sorts of statutes
known as conscience legislation,
sometimes refusal legislation,
and they exist at the national level and the state level.
Now these laws operate,
they vary to some extent between them.
There are many of them.
But you have two kinds here.
So up top you have the Federal Church Amendment
that's named for Senator Frank Church,
not after a house of worship.
And that's a lot of words to say
that the receipt of federal funding
doesn't require facilities to provide abortions.
There can't be consequences to federal funding
if a hospital refuses to allow sterilizations
or abortions to be provided in the facility.
And below you have an example of a state law,
here in New Jersey.
And there's a number of things to note here.
So in almost every state, a healthcare provider
or an institution may refuse to comply
with a patient's request
to withdraw or withhold life-sustaining treatment.
As one might guess, refusals to participate in abortion
are virtually uniformly covered by state laws.
And in approximately one third of states, contraception
and sterilization also fall within the scope of legislation.
And a typical law works at three levels.
So first, it imposes a duty on institutions
to accommodate individual providers
who refuse to participate in certain procedures,
whichever ones are specified by statute.
So institutions can't discriminate
against these refusing individuals
in hiring, promotion, or staff privileges.
So in this way, conscience legislation works
as employment anti-discrimination law.
So if a nurse won't prep patients for a D and C
due to religious conscience reasons,
a hospital has an obligation to accommodate her,
perhaps by switching her shifts or staffing her together
with nurses known not to object.
Second, the government can't penalize refusing providers
in government programs.
So state has to allow a provider who won't, for example,
perform vasectomies to none-the-less participate
in the Medicaid program.
And finally, the legislation typically immunizes
refusing institutions and individuals
from civil and criminal liability, as you see in New Jersey,
or professional discipline related to harm
that is accrued to patients as a result of their refusal.
So I wanna back up for a minute
to review the framework of legal and ethical duties
that you're already familiar with
in order to show how conscience laws change that framework.
Okay, so as a general rule, of course,
medical personnel in institutions
have no legal or ethical duty
to accept any specific person as a patient
or deliver any particular service.
So if a stranger shows up at your office needing care,
you can tell her to take a hike.
And if an existing patient wants fertility treatments
from you, but you don't provide them,
no law requires you to do so.
Now federal and state statutes
put some duties in place, right?
Most significantly, of course,
in hospital Emergency Departments,
all patients suffering from emergency medical conditions
or in active labor must be stabilized, right?
That's EMTALA.
And in many states, there are other requirements,
for instance, to offer emergency contraception
to sexual assault victims in the Emergency Department.
And providers generally must comply
with laws and ethical norms that prohibit discrimination,
as is most relevant here, on the basis of sex,
sexual orientation, religion, and gender identity.
And once a doctor accepts a person as a patient,
he then has ethical and legal duties to treat her
in accordance with the standard of care,
inform her of treatments and the risks and benefits,
and refer her for services he is not able to provide.
And as we know, doctors may not abandon a patient
and may be held liable for ending the relationship
without reasonable notice
while the patient still needs care.
Now conscience legislation changes this framework
for religious objectors and institutions.
In almost every law, the law operates to exempt providers
from common law duties in the form of, say,
duties of nonabandonment, and statutory duties,
at least under state EMTALAs.
I'll talk about that a little bit.
So what this means is patients harmed
by refusal of medical care have no recourse to courts
or state medical boards.
So for example, whereas a pregnant woman
normally would have an informed consent claim
if deprived of information about prenatal testing,
some conscience laws strip her of any remedy.
In recent years, legislatures across the United States
have expanded the coverage of conscience laws substantially.
So a list of procedures has grown
and the broadest legislation,
which exists in just under a handful of states,
you see here an example proposed recently
in Texas which failed.
The broadest legislation permits conscientious objections
to any medical treatment at all.
In fact, defining healthcare service so broadly
as to get into testing, diagnosis, prognosis, and so on.
In the few states with these laws,
this means that Jehovah's Witnesses
could refuse to transfuse patients,
a vegan could withhold vaccines that contain egg proteins,
and we'll get into the informational problem in a second.
But these are very, very broad laws
and they come up pretty routinely, as you might expect.
Okay, so having surveyed the lay of the legislative land,
I wanna consider the flaws in conscience legislation
with regard to access and then I wanna consider whether
and how conscience legislation meets it's goals,
that is, the goal of protecting conscience in healthcare.
So the question of access is central to the accommodation
of conscientious refusal.
Healthcare providers act as gatekeepers to care
so their refusals can deprive patients of access altogether.
In emergency situations and institutional refusals
up the ante on the issue of access.
So I wanna start there with access
in my critique of these laws.
So here you see two patients whose experience
of miscarriage and labor, respectively,
were affected by the laws I've described.
The first is Tamesha Means, pictured here with her children,
who says, "When I was 18 weeks pregnant, my water broke"
"and I began to miscarry."
"I rushed to the only hospital"
"in Muskegan County, Michigan,"
"where it was clear to the doctors at the time"
"that the pregnancy wasn't going to make it."
"But rather than telling me that,"
"the doctors at Mercy Health Muskegan sent me home"
"and told me to rest."
"They told me I should try to wait at home for nine days"
"and that everything would be okay."
"I tried to do as they said,"
"but the pain made it impossible."
"I started bleeding profusely"
"and returned to the hospital the next day."
"Again, they told me to go home."
"The pain persisted and I developed a fever."
"I went back to the hospital again,"
"the third time in 48 hours, and begged for help."
"As they prepared the discharge paperwork"
"from my third visit, I went into labor."
"Only as I was giving birth"
"with the actual baby coming out of me"
"did the hospital admit me."
"They delivered the baby who died a few hours later."
"Thankfully, I was able to recover."
Then we have Jessica Mann
who had what is becoming an increasingly common experience
with tubal ligation in Catholic, formerly Catholic,
or Catholic-affiliated hospitals.
So Jessica has a brain tumor that makes it very risky
for her to get pregnant.
And during her third pregnancy,
her doctor recommended she receive a tubal ligation
after her c-section so that she couldn't get pregnant again.
But Genesis Hospital in Grand Blanc, Michigan
allegedly refused to perform the procedure.
Her doctors then petitioned the ethics board to no avail.
She had to find another hospital.
Because she had an established relationship
with her doctors, one in which they fully understood
her quite complex medical condition
and the best ways to treat it,
this was especially difficult
because she suddenly had to find a new doctor
and, of course, deal with the wonders that is insurance
just a few weeks before giving birth.
Now religious exemptions, particularly for institutions,
make these types of experiences and related injuries likely.
And the law helps structure the outcome of cases like these
where a religious institution and provider or patient
come into conflict and patient safety is at stake.
So access to healthcare is a central concern,
as we saw, under the ethical compromise.
By contrast, statutes do not explicitly balance
access and conscience.
So first, conscience legislation ignores the difficulties
created by the lack of willing providers
and fails to offer clear guidelines for emergencies.
So even where there is no alternative provider,
virtually all conscience legislation
allows institutions and providers to refuse care
without qualification.
The exception are statutes governing compliance
with advance directives and surrogate decision-making
at the end of life where objectors are required
to at least provide notice of what they are unwilling to do
and to assist in finding a willing provider.
Otherwise, unlike the ethical compromise,
most conscience statutes do not require
referral and information.
To the extent they endorse referral,
they do so only by implication.
So they exempt providers from performing or participating,
let's say in sterilization,
but are silent on the issue of referral.
And the status of emergencies is less clear.
In many states, conscience laws clearly supersede
state emergency medical treatment acts
and authorize denial of care in emergencies.
So if you look at New Jersey, for instance,
there's nothing, nothing about emergencies.
So refusal to provide or participate in abortion
is absolute here, right?
Doesn't matter if it's an emergent situation,
at least for purposes of state law.
Now the reason that the status of emergencies is less clear
is that irrespective of state law,
all hospitals retain obligations under the federal EMTALA.
But it's narrow definition of emergency, right,
where quote "the absence of immediate medical attention"
"could reasonably be expected to result"
"in placing the health of the individual"
"in serious jeopardy,"
"serious impairment to bodily functions,"
"or serious disfunction of any bodily organ or part"
excludes many situations
in which refusal would none-the-less result in harm.
And the U.S. Congress has repeatedly proposed
to amend the federal EMTALA to include a conscience clause
that would trump the EMTALA,
allowing refusal of abortion and sterilization
even in emergency situations.
Now, the risk to patients, of course,
like Tamesha Means and Jessica Mann, is magnified
where we're not talking about an individual,
but an entire institution or system of institutions
that refuse to deliver common medical procedures.
First of all, of course,
access becomes a more significant issue.
As we know, patient's choice of healthcare facility
is much more limited than their choice of a doctor.
In many parts of the country,
only one hospital is accessible.
And even in communities with more than one hospital,
the wave of hospital mergers can mean nearly all
or all hospitals operate under religious restrictions.
And managed care may further require patients
to receive treatment at a particular institution
and it could be one that won't provide them
with the care they need or the care that they seek.
And of course, hospitals in particular deal with patients
during emergent or urgent situations
in the way that private practice might not.
And so you see here the market share of Catholic-owned
and affiliated hospitals across various states.
And I use the example of Catholic healthcare, of course,
because they have the widest ranging number of restrictions
impacting lots of assisted reproductive technology,
reproductive healthcare, and end of life care,
and where they have become quite serious
about cracking down on violations and departures
from their policies.
And we've actually seen the law expand pretty dramatically
in this area.
The new generation of conscience legislation
covers insurance companies, pharmacies,
hospitals and the like.
In addition to direct providers,
we've also seen a new generation cover pharmacists,
medical secretaries, orderlies, billing clerks,
and the like.
So a broadening both of the category of institutions
and individuals who can claim recourse.
Now even as conscience legislation
gives inadequate consideration to access,
I'd submit it also fails to live up to its goal
of protecting conscience.
And the problem's two-fold.
First of all, it treats (mumbles).
Just one second.
Flip the slides.
There we go.
First of all, existing legislation treats the conscience
of the refusing provider as an overriding value
without considering the conscience
hangs in the balance for patients as well, right?
And a patient has at least an equal,
if not a stronger interest,
in preserving her moral integrity
in medical decision-making.
And patients, as we know, can be motivated
by religious faith to seek out care.
We know that virtually all women of reproductive age
will use contraception.
And the vast majority judge it
to be morally unproblematic or good.
We also know that the majority of people
in the United States support access to abortion
and that they do so consistent with their religious
and moral positions.
So the second problem is this current legislation
undermines conscience for healthcare providers
who are dedicated to delivering contested procedures
as a matter of conscience.
And legislatures in crafting conscience legislation
have largely failed to acknowledge
that conscience is not equivalent to an anti-abortion
or anti-withholding of life support position.
As a result, legislation recognizes claims of conscience
of refusing providers and institutions alone.
So nurses can refuse to participate
in the removal of life support
even though an employer would otherwise require it.
Refusing healthcare providers can prohibit sterilization
following c-section and require staff
to go along with the restrictions.
But the conscientious judgments
of providers and institutions, frankly,
if you think there is such a thing,
which I do not think there is such a thing
as a hospital conscience, but that's for another day, right?
These are not one-sided issues.
For some doctors and nurses,
the decision to provide abortion, contraception,
or comply with patients' wishes at the end of life
implicates deeply-felt moral, ethical, and religious values.
These providers may be constrained by conscience
to perform these procedures
irrespective of the consequences.
So some nurses, in empirical studies,
invoke their religious beliefs in favor of withholding care
and indicate that God would not want patients
to suffer the way they do.
Others explain their participation
in assisting patient suicide in moral terms.
And empirical studies actually show
that disagreement persists irrespective of shared faith.
But the rates of conflict, for instance,
between a Catholic institution and Catholic physicians
are virtually the same as those
between a Catholic institution and non-Catholic physicians.
Okay, so because our legislation overlooks the diversity
of moral beliefs, it just shifts the conflicts
of conscience.
It creates a new tension between providers
who seek to deliver care
and institutions that limit care for moral,
not medical, reasons.
And this isn't an abstract problem.
We know that one in five physicians
who practice at religious hospitals experience conflicts
over religious-based policies
and a full 52% of OBGYNs in Catholic facilities
experience these conflicts.
Now federal law does, or at least should,
provide some protection.
The Church Amendment that I showed you piece of earlier on
also prohibits discrimination against physicians
because the physician performed
or assisted in the performance
of a lawful sterilization procedure or abortion
or because of his religious beliefs or moral positions
respecting sterilization procedures or abortions.
So this means that providers at least should be able
to perform abortions or sterilizations outside of hospitals
with policies of refusal and that they may publicly express
pro-choice, religious, and moral convictions
without repercussion.
But it's less protection than refusing providers get, right?
Religious objectors can wait for a miscarrying woman
to go septic rather than perform a D and C
or they can perform a c-section,
but not a subsequent tubal ligation,
all while working within a hospital that would prefer
that they perform those procedures
or that even has a pro-choice religious perspective,
like say a Jewish hospital.
Okay, so what can we do here?
Well, the other thing that we have,
I wanna make sure I leave enough time.
So the other thing we have to consider
with regard to conscience legislation
and the degree with which it fails to protect conscience
is that even as it's under-inclusive
with regard to willing providers and patients,
it is over-inclusive in ways that denigrate
the very conception of conscience.
So what do I mean by that?
So conscience legislation, as we saw in New Jersey,
uses terminology of refusal.
Now not all statutes are the same.
Some specify religious, moral, or ethical convictions,
but others encourage refusal, not acts of conscience.
Few define or limit the grounds
on which conscientious objection can be claimed.
And none of them set forth a test, right?
If you think back
to the professional organization statements
that I put up before, they really emphasize
that this should be about conscience.
It shouldn't be about bias,
it shouldn't be about preferring to do something else.
It should be about conscience.
There's nothing in the statutes that really examined
that point deeply.
So well, does this matter?
Well, ethicists Christopher Meyers and Robert Woods
studied the experience of a California county hospital
which bears a legal obligation to provide abortions
to incarcerated women.
So faced with requests to perform
a second trimester abortion,
all of the physicians simply signed a form
as required by state conscience legislation,
it's much more stringent in California actually
than almost anywhere else, stating that they hold quote,
"a moral, ethical, or religious objection."
Upon inquiry, one expressed concern
that participation might cost him patients
at his fertility clinic,
another wanted to limit his practice to gynecology
rather than obstetrics,
and a third admitted he did not wanna become
an abortion provider because it is not lucrative.
A final physician came closest
to expressing a moral objection,
stating that second trimester abortions
are quote "complex and, frankly, ugly."
None of the objections clearly involved moral reasoning,
but they were all accepted as conscientious
and each of those physicians was excused
from performing abortions.
Now this approach has some serious costs.
It risks suspending ethical development altogether.
When disagreements arise, a refusing provider's
appeal to conscience just short-circuits
ethical deliberation.
So after invoking conscience legislation,
a nurse in the ICU may simply no longer encounter
terminally ill patients requesting palliative sedation,
for instance.
She won't have to test her judgements or face uncertainties
that might challenge her convictions.
Yet being a person of conscience means doing exactly that,
consulting one's conscience and being receptive to change.
So as one OBGYN tells it, her training in a hospital
that provided abortions opened her eyes
to patients' realities and prompted her to adopt
a more nuanced view of the morality of abortion.
Although she ultimately did not go on to provide abortions,
she describes herself as better able
to care for her patients because she was forced
to engage in that kind of thinking and conversation.
Now I also wanna pause to note that current debates
over conscientious refusal hold significant risk
for the scientific integrity of healthcare practice.
So traditional refusals of care invoke disagreements
over the meaning of life and death.
So despite rifts over the morality of the procedure,
whether withdrawal of life support or abortion,
opposing sides did not necessarily contest
its scientific definition or mechanism.
So under such circumstances,
objectors were basically raising claims
that could not be tested.
So legislatures could reasonably conclude
that the law is ill-equipped to evaluate the correctness
of answers to these metaphysical questions,
and accordingly, could safeguard conscience
without regard to the truth of when life begins,
when death occurs, and so on.
Some objections, however, depend on misinformation
rather than metaphysics.
For example, in the early days of AIDS,
Catholic bishops prohibited handing out condoms
in their hospitals, suggesting that the use of condoms
could result in the spread of AIDS.
Today, many Americans express moral concerns
about the HPV vaccine, of course,
based on the belief that it causes promiscuity in teens.
And others insist that vaccines cause autism.
So unlike claims that life begins at conception,
these objections are susceptible to empirical testing.
Courts have been reluctant to engage in this enterprise
and legislatures in many states,
so if we think about that really broad statute from Texas,
that would have encompassed claims like these,
claims about refusing to provide the HPV vaccine
because it causes promiscuity, right?
So we could consider a pharmacist
who asserts he cannot dispense Plan B
because he believes three things.
One, life begins with the fertilization of an egg.
Two, providing medications that interfere
with the implantation of a fertilized egg is killing.
Three, Plan B is a mechanism with this,
is a medication with this mechanism of action.
So one could accept those first two contentions,
but reject the third because of the scientific evidence
of which he should be aware
that establishes that it's highly unlikely
that Plan B affects a fertilized egg.
So this pharmacist refusal would not be accommodated
because the drug does not work as he believes,
and thus, doesn't create the moral dilemma that he assumes.
By contrast, a pharmacist who is morally opposed to Plan B
because it prevents fertilization is not incorrect
on the scientific evidence and could be accommodated.
So inquiries into scientific fact
may be particularly important in healthcare
because the objector is simultaneously the member
of a religious tradition and a professional community
and that comes with a duty
to possess and exercise the best
and most advanced scientific knowledge.
Now the other key concern in these days
has to do with discrimination.
So religious and moral refusals are often discussed
as though they were inherently non-discriminatory.
Yet, women and sexual minorities
disproportionately bear their brunt.
So consider our typical conscientious refusals.
Fertility clinics refuse to perform
intrauterine insemination for lesbian patients.
Physicians deny fertility treatments to HIV positive women.
Others do not describe contraception to unmarried women.
Hospitals prohibit abortions
unless the woman is miscarrying.
Others don't dispense emergency contraception
unless there has been sexual assault.
Now reimagine each of these.
A physician denies fertility treatments
to interfaith couples.
Another withholds contraception from people of his own race
because of a religious-based conviction
about promulgating the race.
A hospital prohibits abortions
unless the woman agrees to sterilization.
Another refuses to deliver emergency contraception
to a woman who has been raped by her husband
based on the religious teaching
that rape cannot occur within a marriage.
Although these horribles could be invoked
as obvious examples of discrimination,
no clear principle distinguishes them
from our run-of-the-mill conscientious objections.
Indeed, virtually all conscience laws
authorize selective refusals
where providers withhold treatment
only from a select category of patients,
as in the examples above.
And recent research suggests that certainly with regard
to assisted reproductive technology,
providers routinely deny care
to certain categories of patients,
care that they would provide in other contexts.
And the issues of discrimination
are particularly pointed in 2019.
Ongoing litigation in Texas
has permitted the Franciscan Health System,
among other plaintiffs, to withhold services
from transgender people
and reproductive healthcare from women.
The Department of Health and Human Services
has recently created a new and generously funded
conscience and religious freedom division
in the Office of Civil Rights of HHS.
It's charge, according to HHS, is to guarantee victims
of unlawful discrimination based on religion
and conscience justice.
But many of the laws that the division aims to enforce
have nothing to do with conscience or religion.
They simply straightforwardly allow or encourage
refusal of reproductive care.
They don't require that the refusal be
for conscientious or religious reasons.
So they protect someone who won't dispense birth control
for political reasons unrelated to any religious conviction.
And they apply to institutions
that wanna avoid public protest
for permitting non-therapeutic abortions.
And HHS has proposed to define these laws quite broadly
to allow refusal of many kinds of services,
aiming in particular to allow providers
to discriminate against LGBT people
and to define virtually everything
as participation in contested procedure.
Under the proposed regulations,
a billing manager could refuse to bill insurance
for a sterilization, a volunteer could object
to delivering flowers to a woman with an ectopic pregnancy,
a translator could not translate documents,
et cetera, et cetera.
Now unlike the ethical compromise,
HHS doesn't plan on asking whether alternatives exist,
if the situation is emergent or urgent,
if the patient has autonomy and resources
necessary to carry out her decision-making.
Now in my last few minutes,
I wanna sketch out three principles that might move us
toward a better and more coherent system.
Some of this drawing on the ethical compromise,
some of it going a bit further
to respond specifically to the ways
in which the legal framework functions.
So first, if the concern of this body of legislation
is conscience, the one-sided protection
for refusal alone can't stand.
So in my view, the clear place for legislation
lies in resolving the conflict between healthcare providers
on the one hand and medical facilities on the other.
Classic employment law.
This side of our sort of triangular relationship,
patients, providers, institutions, is irresolvable
without legislative involvement.
And a more balanced system, I think, would ensure
that providers of all convictions
on controversial procedures are accommodated
in at minimum large and pluralistic facilities
like hospitals.
So these institutions would not be allowed
to dictate moral positions in medical care.
And this would apply evenhandedly,
both to willing and refusing healthcare providers.
By placing the burden on the larger institution,
this approach would largely resolve the potential
for conflict between patients and institutions.
It also improves the situation
of refusing doctors and nurses
as they should be able to transfer care seamlessly
without intractable disagreements with patients.
Second, legislation should encourage ethical deliberations
over contested care.
Healthcare providers, of course,
have their own ethical evaluations
of practices like abortion, but they also hold values
like concern for respecting other's belief and autonomy
as a matter of professional ethics.
So in such situations, true integrity
requires navigating morally complex decisions
and reconciling the plurality of values one person holds.
And struggling between two commitments,
say to Christian religious beliefs
and a role as an ethical professional can be valuable.
So more conversation and consultation
could foster better understanding of
and greater respect for each other's views.
Now requiring discussions of ethical concerns
also would allow for an informal way
to ensure that ethical and moral convictions are sincere
and deeply held.
So it should deter the kind of refusals that I discussed
that are unconnected to significant ethical concerns
and it should bring to the surface factual mistakes
or discriminatory attitudes in refusal.
And I think this could work.
Over time, conversation can change minds.
Granting exemptions as a matter of law ossifies instead.
So think to the 1980s and early 90s,
when physicians routinely invoked their ability
to chose their own patients in order to refuse care
to AIDS patients.
Had conscience legislation been enacted in that time period,
these positions would have been fixed.
They wouldn't have had the opportunity to evolve.
So finally, access, of course,
should be balanced against conscience.
And I think here, the ethical compromise
broadly gets it right.
The provider should inform patients
of diagnoses and treatment and refer them for care.
As a corollary, they should disclose the limits
on what they are willing to provide,
and ideally this would happen up front, right,
when a patient calls, for instance,
to schedule an appointment.
This is not obviously always possible,
but to the extent possible.
And this would impose minimal burdens
on conscientious objectors, the vast majority of whom
take these ethical duties seriously
and do engage in referral and counseling
for procedures that they find morally objectionable.
And I can't say this part strongly enough.
The legislation probably most strongly errs
by licensing harm to patients.
There is no call to grant a hospital or a provider immunity
from medical malpractice and professional discipline
and the like if their refusal injures a patient, right?
The moral integrity of a hospital
or of an individual provider simply doesn't weigh that much
when we're talking about someone who goes septic
and suffers disability.
She should be able to make a claim for her injury.
Now ultimately, as society committed
to the tolerance of religious belief,
moral pluralism, and individual conscience
should accommodate our equal claims to conscience equally.
Its law should negotiate between public health
and professional conscience.
And those laws should take into account
competing claims of conscience between providers,
facilities, and patients, whether they refuse
or are willing to provide care.
So I look forward to your questions.
I understand there are people out there in space
listening to this.
So I'll pause for a second
and see if there are any questions from out there
at the hospitals.
(audience member mumbles)
Is there a question?
(feedback)
Audience Member: Yeah, we're getting a lot of feedback.
-: Yeah, we are too.
Audience Member: I know, and I can't (mumbles).
-: Maybe I'll take a question here
and then we'll come back to you.
Did you, did you have a question?
(audience member mumbles)
Globally?
That's pretty far outside of my wheelhouse.
So Italy has a problem of having policies
of conscientious refusal while also providing access.
Poland does too, but their problem is
that too many OBGYNs in particular
are conscientious refusers.
So that can become a barrier to access, right?
So it does put emphasis on staffing.
Now those countries are quite different too
because they do have a system of national healthcare
with private, public facilities
and also health insurance, right?
So you don't have the delays in getting access to care
in the same way as you do in the U.S.
That's a little, I'm unfortunately outside my depth.
(audience member mumbles)
Right, so by putting the emphasis on the institution,
you do have to focus on hiring, on staffing adequately,
which does mean discriminating maybe against refusers
once they become too numerous within the institution
because that does challenge the ability of the institution.
Yeah.
Audience Member: I just wanted to say
that people here are not aware of this,
but the Citadel passed a (mumbles).
-: As broadly as the one I showed?
Yeah.
(audience member mumbles)
It comes up quite frequently across the U.S.
Yeah.
(audience member mumbles)
Audience Member: I know where I stand on that point.
One is I don't want to take care of children
whose parents are (mumbles).
And two is I've always wanted to see polio
and as a virologist, I never got to see it
so I'm excited.
But can I refuse as a pediatrician
to care for non-vaccinated children?
I can see medical reasons not to,
but I also don't get to see those (mumbles).
(laughter)
-: I hadn't realized this conflict of interest
of the pro-polio position.
(laughter)
So, well.
So, yes, you can refuse to treat them.
They don't fall within the protected group, right?
You're not discriminating because of a protected trait.
Though I could imagine the universe
in which the Texas legislature decides
that you may not do precisely that,
refuse to treat unvaccinated children.
And then, perhaps you need to invoke your conscientious
and religious beliefs in favor of vaccination
and bring a suit under the Texas
Religious Freedom Restoration Act.
Put that in your back pocket.
(laughter)
Just in case.
Document your religious beliefs now.
Just saying.
Yeah.
Do I have the question over the phone maybe?
Or did we lose you?
Okay.
Yes.
Audience Member: I've gotta say
this is the most unexpected ethics lecture I've been to.
I expected to be (mumbles) about end of life
and you connected it amazingly with all the other things
that (mumbles), but this is amazing.
Well done.
I have no question.
-: Thank you.
I wasn't sure how, whether unexpected was good or not.
I think these issues do cross a lot of areas
and perhaps an increasing number of areas.
Yeah.
Audience Member: But you tied it all up.
-: Yes.
Audience Member: So how do you balance the view
of separating them, the duty of the individual
versus the duty of the institution?
With the recent (mumbles) Supreme Court cases
that are recognizing rights and conscientious use
of the entities themselves.
-: Yes.
So you're referring primarily to Hobby Lobby,
which found religious free exercise rights
of a for-profit corporation for the very first time.
And actually Master P's Cake Shop then just imported
that statutory holding into the constitution,
just assumed that Master P's Cake Shop,
another for-profit business,
had a right to exercise religion.
Yeah.
So as we see in the healthcare space
what happens is a conflict, right?
Once you think of the institution
as having religious beliefs,
what happens when there obviously are people who work for
or within the institution are being treated
by the institution have those religious beliefs.
So it doesn't necessarily tell you
which way that should be resolved,
that particular conflict.
And it sort of depends how you think about the institution.
Lots of people think about Hobby Lobby,
Justice Alito thought about Hobby Lobby
as an association.
So that puts a lot of emphasis on saying look,
if you don't like our viewpoint,
we're a Catholic hospital, go work somewhere else.
Whether that hospital is in another,
the next hospital is another county
or doesn't have any need
for your particular specialty, right?
We are an association that somehow everyone
within the institution is united in the belief system.
I think that generally doesn't work for large institutions
because they're genuinely pluralistic
and it's actually a real value in the United States
that we have so many pluralistic institutions.
But my view is the individual should win,
not the institution.
Yeah.
Audience Member: Could you comment on
it's either a recent reg or executive order
(mumbles) funding and whether that addresses
the information and referral types of content
(mumbles) the provider.
Seems like there's something hanging out there right now
that ties federal funds to prohibition, I guess,
to use those funds for not just providing (mumbles).
-: Yeah, so there's a lotta action under Title 10.
One action is that now Title 10 funds can go
to organizations that don't provide the full universe
of family planning services, for instance,
that focuses on natural family planning
rather than providing contraception at all.
So that was one big change.
The other big change is to focus on, right,
we've had rules about separating abortion
from other family planning services
and Planned Parenthood being sort of the flashpoint,
but now saying that we have to have a line
between those who would refer for abortion
and then the Title 10 family planning dollars.
So that is a big change.
Another thing done by this office that I referred to
of religion and conscience is actually to put out a regs
telling states that they can exclude Planned Parenthood
from their state Medicaid programs.
It's not right.
They're acting under particular authorities
that they're invoking
and claiming that it's about conscience and religion.
It's clearly not about conscience and religion,
unless it's about the religion of the U.S. government,
which then becomes very problematic
when we're thinking about the separation of church and state
and the other part of the first amendment,
the establishment clause,
or for thinking maybe they just wanna
protect Texas's religion, right?
But that's problematic for the same reasons.
Dr. Sadler: Thank you so much.
-: Thank you, thank you all.
(applause)