COMMENTARY

Should Clinicians With Conscientious Objections Be Protected?

Arthur L. Caplan, PhD

Disclosures

March 30, 2018

You may have heard that there's a new Conscience and Religious Freedom Division in the US Department of Health and Human Services (HHS) Office for Civil Rights. The Trump Administration has decided that it wants to make sure that healthcare professionals, doctors, pharmacists, and nurses who have conscientious objections about doing certain things for patients get their rights protected. This has been greeted with a lot of criticism, and I have to admit I'm part of that critical response.

The division is projected to cost hundreds of millions of dollars, which seems to me to be an overreaction to the problem. There are very few legal cases that have been filed where doctors or pharmacists have gone to court to assert their right of conscience. It's not that it's not an issue, but it's not a gigantic problem, nor is it the biggest problem in healthcare.

When we do have a situation where a doctor says, "I can't perform abortions," or a pharmacist says, "I can't fill emergency contraception or the day-after pill," or a nurse says, "I can't remove artificial hydration and feeding from a patient; it violates my conscience," I understand that; I respect that. There are certainly people in some states who say, "I'm not going to do physician-aided dying. I can't supply my patient, even in states where it's legal, with an agent that they would use to end their lives."

I'm not saying that healthcare professionals don't have some right of conscience. What I'd like to see us do is work toward mediating those differences so that people can be told, "This doctor, this nurse, this pharmacist—they can't do it, but here's where you can go to get it done."

I think every healthcare professional who doesn't want to do something has an obligation, presuming the procedure or whatever it is that the patient might need is legal and allowed in the United States, to tell patients where they can go and how they can go about getting it.

The pharmacist may not want to fill the day-after pill for whatever reason, but they ought to know the pharmacy that will, or say that there is a pharmacist who will be here in the next 6-hour shift who will do it. I know people are saying, "But that violates my conscience," but I think the patient's right to know what they have available trumps the doctor's right of conscience.

It's one thing to say, I can't do this, I can't bring this about; it's another thing to say, I'm not going to tell you where you could get it done. A hospital may not want to perform in vitro fertilization because it fears destruction of the embryos, but it ought to be willing to tell the couple, "These are the centers; go on this website, and you'll see the programs that accept people for in vitro fertilization." That bites into their conscience, but it's not asking them to do something that completely violates their personal beliefs.

I think the balance has to still come out in favor of patients' interests. You can't be an ethical doctor, pharmacist, or nurse and just say, "I'm not doing it, and I'm not going to tell you where it could be done."

If your nursing home doesn't like removing feeding tubes, then there ought to be a discussion on admission telling people that, in case they want to go somewhere else with their loved ones.

If a pharmacy isn't going to be able to fill legal prescriptions, people ought to know that. They ought to get a brochure, and the government should spend some money on that, saying this is where you go in your community, in your state, online, to get the things that are legally available to you.

Conscience is important. I'm not going to argue that individuals shouldn't try to follow their personal values, but I don't think it's right when we create a Conscience and Religious Freedom Division that doesn't capture patient values, interests, and rights along with those of providers.

I'm Art Caplan at the NYU School of Medicine. Thanks for watching.

Talking Points: Should Clinicians With Conscientious Objections Be Protected?

Issues to consider:

  • Some healthcare professionals are concerned that if a physician refuses to perform a procedure or service because they have a conscientious objection (CO), patients will have to look for another doctor, thereby delaying their treatment.

  • Some healthcare professionals say that if a physician refuses to perform a procedure or service because they have a CO, some patients may not even know what services they are entitled to and won't get the treatment or procedures that they need.

  • There have been reports that women who are denied abortions because of CO might seek unsafe abortions, leading to morbidity and increased costs to the healthcare system. [1]

  • Some believe that CO may increase the workload on overburdened willing providers and threaten quality of care.[1]

  • Almost all CO is exercised for abortion, as well as other reproductive health care, such as contraception and sterilization.[2]

  • Some healthcare professionals contend that conscience protections could lead to discrimination of people, especially the LGBTQ community and those who seek medical assistance for the procedures not mentioned on the US Department of Health and Human Services website.[3]

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