Are healthcare conscience laws needed?
February 1, 2018
by Jonathan Imbody
This excerpt is the fifth in a series of essays on conscience in healthcare, by Jonathan Imbody, Vice President for Government Relations of the Christian Medical Association and Director of Freedom2Care. The essays respond to "Physicians, Not Conscripts — Conscientious Objection in Health Care," Ronit Y. Stahl, Ph.D. and Ezekiel J. Emanuel, MD, PhD, New England Journal of Medicine 376;14, April 6, 2017.
Someone forwarded to me a Facebook comment about the news that the U.S. Department of Health and Human Services had established a new division to address conscience and religious freedom in healthcare.
"So I just read this article and can't really even wrap my head around this. Perhaps because of my personal and professional opinion I cannot understand how this 'division' was created. I would love to hear the opinions of other professionals. I promise I am not trying to troll or create controversy, but simply attempting to understand how opting out of providing medical care or performing procedures despite the medical need/request can coexist with our professional ethics and obligations."
Conscience laws protect professional ethical decision-making
When a professional follows a code of medical ethics, the professional makes a choice—for example, either to perform or not to perform an abortion. Without legal protections for alternative choices, only one choice is allowed, and the dissenting professional can suffer job loss, license loss and other forms of discrimination.
Federal conscience laws protect professionals on both sides of ethical issues.
For example, if one subscribes to the ethical theory that a medical professional must perform an abortion if the patient wants one, what recourse does that professional have if an employer forbids you from performing an abortion? Federal conscience law (in this case, the Church Amendments) actually protects professionals from discrimination either for performing or for not performing the abortion. (Read more about federal conscience laws here.)
The alternative to federal conscience laws is excluding from medicine all professionals who do not follow a prevailing ethic.
In the two and a half millennia during which the Hippocratic oath prevailed, that would mean no doctors whose ethic required or permitted assisted suicide or abortion would be allowed to practice medicine. Currently, with fewer doctors taking the Hippocratic oath, an absence of conscience protections could mean that only doctors who do not follow the Hippocratic oath would be allowed to practice medicine.
Conscience laws protect patient access and choice
Some today insist that conscience freedoms end upon entrance to medical school. The result of repealing conscience laws and excluding from medicine all professionals who do not follow the "ethic du jour" would be a massive loss of patient access to healthcare. With pro-life, faith-based and Hippocratic professionals excluded from medicine, far fewer professionals would be left to treat patients. Those allowed to remain in the profession would experience a lack of freedom for professional judgment, since any judgment departing from the current consensus would disqualify them from continuing in medicine.
Our forbears fled to this land because they had experienced discrimination for their beliefs. Our Constitution's First Amendment spells out the priority that Americans place on freedom of belief and the right to conscientiously exercise those beliefs in the public square.
The source and stability of medical ethics matters
One final question to ask regarding medical ethics is what is the source? Who makes the decisions on what is ethical and what is not? Is the ethic a constant, or does it change?
As outlined in previous essays in this series, the original Declaration of Geneva oath published by the World Medical Association unequivocally asserted, "I will maintain the utmost respect for human life from the time of conception." But the same oath later dropped the commitment of respect for human life from the time of conception and now requires simply, "I will maintain the utmost respect for human life."
In contrast to the over two-millennia-old Hippocratic oath, the Declaration of Geneva changes every 10 years.
What of health professionals who still follow the original oath and decline to perform abortions because they "respect human life from the time of conception?"
Should they now be driven out of medicine because their views no longer reflect the prevailing ethic—an ethic that shifted over a period of a few years?
Conscience freedoms and time-tested ethical standards stabilize medicine
Polling indicates that patients place a high priority on the ability to choose health professionals who share the patient's ethical positions. Polling also indicates that faith-based physicians will leave medicine apart from conscience protections.
Should patients and our healthcare system prepare for massive expulsions of health professionals every decade, as medical ethics shifts from one point to another?
Health professionals who follow faith tenets such as biblical standards do not change their ethical stances from year to year. Their convictions do not and cannot flex with the ever-changing consensus within the medical community; they rest upon an unchanging standard. These faith-driven health professionals rely on conscience protections to continue to practice medicine.
Their non-religious colleagues, who may for the moment diverge from a consensus ethic that has shifted, also rely upon the same conscience protections to protect their professional medical and ethical judgment.
Conscience protections serve to stabilize our healthcare system by maximizing the number of professionals able to practice medicine. Such laws also buttress American constitutional freedoms of faith and speech while protecting the rights of patients to associate with like-minded professionals.