Tuesday, April 14, 2009

Conscientious Objection in Medicine

Julie Cantor, MD JD, has a Commentary in the New England Journal of Medicine, April 9, 2009, titled “Conscientious objection gone awry – restoring selfless professionalism in medicine”,[1] in which she discusses the aggressive content and insidious effect of the “conscious” laws and the more extensive impact of Department of Health and Human Services (DHHS) regulations put into effect in the last months of the Bush administration. Current laws protect providers from being forced to be involved in the performance of abortion or sterilization. If hospitals or other agencies receive federal funds, people cannot be discriminated against for failing to perform, discuss, or refer patients for abortion. “On their face, these laws are quite broad. But the Bush administration’s rule is broader still. It restates existing laws and exploits ambiguities in them”, in ways which will definitely limit patients’ access to health care. “Now everyone connected to health care may opt out of a wide range of activities, from discussions about birth control to referrals for vaccination. As the rule explains, ‘an employee whose task it is to clean the instruments used in a particular procedure would also be considered to assist in the performance of the particular procedure,’ and would therefore be protected. Taken to its logical extreme, the rules could cause health care to grind to a halt.”

Is Dr. Cantor overstating the issue? I don’t think so. The goal of these regulations is to eliminate – by creating as many barriers as possible – abortion, and while they are at it sterilization or anything else that these policy makers and their supporters oppose. It is not really at all to worry about the implications for patient care, or the way that these rules could be interpreted to restrict access to all sorts of care. The rule, Dr. Cantor points out, “…sidesteps courts, which interpret statutory ambiguity and discern congressional intent…” by offering “…sweeping definitions. It defines ‘individual’ as physicians, other health care providers, hospitals, laboratories and insurance companies, as well as ‘employees, volunteers, trainees, contractors and other persons’ who work for an entity that receives DHHS funds”. She also notes that the regulation conflicts with other existing federal law, Title VII of the Civil Rights Act, “…which requires balancing reasonable accommodations for employees who have religious, moral, or ethical objections to certain aspects of their jobs with undue hardship for employers.” The regulation goes MUCH farther, putting the entire responsibility of accommodation on the employer (“ …if an employee objects, for example, to being a scrub nurse during operative treatment for an ectopic pregnancy, subsequently reassigning that employee to a different department may constitute unlawful discrimination….”) But, if we understand that the goal of the regulations is not to protect the employee’s moral objections but to put as many obstacles as possible in the way of anyone doing anything that, while legal, these regulators object to, it is completely understandable.

My remembrance of “conscientious objection” goes back to when there was a military draft and draftees could petition for an exemption based on their religious, ethical or moral objections to killing and war. It was not that easy; long-time members of recognized “peace churches” such as the Quakers had a much easier time making the case than people whose objections were not based in formal religion. And a case had to be made. And the military could reject the petition. In addition, a “mid-range” classification (I-A-O) existed between I-A (draftable) and I-O (conscientious objector), which allowed the individual to be drafted and serve in war, but not be required to kill; many medics came from the I-A-O group. The remarkable difference is that the current “conscientious objector” regulations are both far more sweeping in their “protections” of an individual’s “conscience” and yet require far less investigation – indeed, none – all a person has to do to enjoy all these protections is assert them. Imagine if that had been the case for conscientious objectors in the Vietnam era! Thus, it is clear that the rules are never what the rules say they are about; in the era of the draft it was to get as many young men drafted as possible; in this era it is to block abortions, sterilizations, provision of birth control and other “objectionable” (to someone) procedures as possible.

When these regulations went into place to “protect” pharmacists with such objections from having to dispense emergency (or sometimes any) contraception, access to these legal, and even over-the-counter medications were severely restricted in many communities. There was a “joke” that went around the internet “Did you hear about the Christian Scientist pharmacist? He refused to fill any prescriptions!” Funny? Maybe not. While not their intention, these regulations would actually protect him!

This is all complete and utter nonsense. People should not be forced to perform procedures that they morally or ethically (or religiously) object to; current civil rights law more than adequately protects them. Dr. Cantor suggests that people should not enter fields where their beliefs will prevent them from serving their patients:

“As the gatekeepers to medicine, physicians and other health care providers have an obligation to choose specialties that are not moral minefields for them. Qualms about abortion, sterilization and birth control? Do not practice women’s health. Believe that the human body should be buried intact? Do not become a transplant surgeon. Morally opposed to pain medication because your religious beliefs demand suffering at the end of life? Do not train to be an intensivist. Conscience is a burden that belongs to the individual professional; patients should not have to shoulder it.” If you are a Christian Scientist, then do not become a pharmacist.

”Patients,“ Cantor says, “need information, referrals, and treatment. They need all legal choices presented to them in a way that is true to the evidence, not the randomness of individual morality.” I agree with her, but the fact is that the morality is not random, it is agenda-driven. It is not about protecting the moral beliefs of individuals who are providers, but forcing the choices of others, patients, to conform to those beliefs.

Let’s get right to the crux of the matter: abortion. Despite the proclamations of the virulent anti-abortion movement, it is not about life. While many anti-abortion activists are consistent in their pro-life views, opposing war and capital punishment, most are not. And do not support the living, are not advocating for financial support for the food, clothing and education of the born. The issue is about choice, or more properly, self-determination. No one is “pro” abortion. But people on the “pro-choice” side believe that the decision belongs to the individual, always a “her”, with the counsel of those she trusts and whose opinions she values: family, friends, clergy, physicians, etc. It is perfectly possible to be “anti-abortion”, to never have one for oneself and to do one’s best to talk those one cares about and can influence out of having one, but still believe the decision is ultimately that of the pregnant woman. The “anti-choice” side believes that the decision should be theirs, not the woman’s. And that is what this is all about. How can “we” (in this case, the Bush administration) develop policies that force everyone to do what we believe to be right, whether on abortion, sterilization, stem cells, gay rights, or even having sex for other than procreation within marriage?

Yes, the Obama administration needs to repeal these regulations, post-haste and completely. And yes, the Congress needs to change the actual statutes to be consistent and first protect patients, not providers. And yes, people should choose professions and specialties where they can meet the needs of all patients who come to them, not just those who share their beliefs. And yes, laws protecting health care providers from providing services that they see as morally objectionable should never protect them from not giving patients full information and referral for those services. And yes, we need “truth in advertising laws” so that clinics whose goal is to prevent abortion by withholding information and delaying cannot be advertised as “Crisis Pregnancy Centers” but as “No abortion – Keep your Pregnancy! Centers”. And yes, we need to strip the hypocrisy of these regulations and all these efforts, and to end anti-scientific bias.

But most of all, we need to focus on the health care of the patients. On making sure they are fully informed about issues, have resources to further explain them, helping in making informed decisions, and supported in the decisions they make.

[1] Cantor J, “Conscientious objection gone awry – restoring selfless professionalism in medicine”, NEJM 2009Apr9;360(15):1484-5.

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