Conscience clauses: Giving doctors an ‘out’
Conscience clauses: Giving doctors an out’
How to legally say no’
So-called conscience-clause laws that permit physicians to refuse to perform certain procedures or deliver certain types of care came into popularity after the Roe v. Wade decision legalized abortion in 1973. The laws’ original intent was to protect physicians from disciplinary and legal penalties when their consciences prevented them from performing abortions or delivering other types of contraceptive medicine.
But some states are looking at expanding those laws to include wording that some say would permit physicians to override advance directives or "living wills" if those documents contradict the physicians’ own beliefs, or could allow pharmacists to refuse to fill prescriptions they are morally against.
Physicians’ groups around the country are walking the line between supporting laws that allow doctors’ freedom of conscience, but not when it comes at the expense of patient safety, they say.
Conscience vs. patient rights
Wisconsin has long had a conscience clause that permits physicians to opt out of performing abortions or other contraceptive procedures, but two years ago, an amendment was introduced that caused many doctors in the state, as well as the state medical society, to object.
The amendment would have permitted physicians to decline to adhere to a patient’s advance directive when the patient was dying — an allowance made in other states, as well — but went too far in that it could have let a physician not only ignore advance directives but also refuse to refer that patient on to a physician who would follow the patient’s wishes, according to Mark Grapentine, vice president of government relations for the Wisconsin Medical Society.
"The physician could effectively put the patient in limbo, not adhere to the directive, and not refer the patient, putting the onus on the family to object, or the patient, if he or she was capable of objecting. And we thought that was a bad burden," he says.
Over the medical society’s objections, Wisconsin’s legislature passed the amendment, but it was vetoed by the governor.
A new version of the bill has been introduced this year, and Grapentine says it is less objectionable.
"That provision on end of life is not in the bill this time, but it does have a problem with the pharmacist aspect of the bill," he says.
Pharmacist stole’ prescription
A pharmacist in the Green Bay, WI, area earned headlines two years ago when he not only refused to fill a college student’s prescription for oral contraceptives, but refused to return the prescription to her so she could have it filled elsewhere.
The young woman had to return to the pharmacy the next day with police before pharmacist Neil Noesen relinquished the prescription, which was filled by the store’s managing pharmacist. Noesen was fired, reprimanded by the state licensing board, and fined. He was later arrested in Minnesota for disorderly conduct after being fired from a pharmacy there for refusing to fill a prescription.
Noesen objected to the use of birth control, he told the licensing board, and should have been permitted to refuse to fill the prescription. The board unanimously determined that his actions denied the customer access to legal medication, and that his exercise of conscience should not be permitted to violate patients’ rights to care.
Grapentine says the bill currently before the Wisconsin legislature could allow such "interception" of prescriptions by pharmacists.
"It would allow a pharmacist to veto a physician’s very valid and legal prescription, and we have concerns about that," he explains. "The bill has not been voted out of committee yet, and so we hope that [the committee currently holding the bill] will take care of the pharmacist aspect of it."
The proposed bill would not allow physicians to opt out of prescribing birth control, including the so-called morning-after pill, and the medical society wants to make sure, if physicians write the prescriptions, pharmacists won’t be permitted to take matters into their own hands to stop distribution of the medication, Grapentine says.
"The worst-case scenario is that a woman walks into a pharmacy and not only does the pharmacist not fill the prescription, but won’t give the prescription back to her," he says. "That’s what we want to avoid."
The state’s pharmacy board chairman, Michael Bettiga, said at the time of Noesen’s hearing, that the board wants balance between patients’ rights and pharmacists’ rights.
Four states — Arkansas, Georgia, Mississippi, and South Dakota — allow pharmacists to refuse to fill prescriptions for contraceptives, and several others are considering similar laws. Conversely, West Virginia is considering "must-fill" legislation.
Many states considering change
In the last two years, half the states have considered expanding their conscience-clause laws. Few have passed, but like Wisconsin’s earlier attempt, are undergoing revamping and are likely to be resubmitted.
Forty-seven states have conscience clauses that apply primarily to health care professionals who choose to decline to perform abortions or sterilization procedures. Proposals to expand those laws to include end-of-life wishes, assisted suicides, and stem cell research are meeting with varying degrees of resistance, according to state medical boards. Many state boards have issued public statements opposing the measures as overstepping the relationship between patient and physician.
It’s not just state laws that concern physicians. In the late 1990s, the American College of Obstetricians and Gynecologists issued recommendations that all obstetric and gynecology residents know how to perform abortions, but allowed conscientious objections. More recently, however, New York mayor Michael Bloomberg issued a requirement that all obstetric and gynecology residents in that city’s hospitals participate in abortions. Though Bloomberg allowed for a conscience exclusion, John T. Dunlop, MD, a fellow of the Waukegan, IL-based Center for Bioethics and Human Dignity, wrote that the exception "is so tight that Mother Teresa herself would not have qualified."
Medical societies have traditionally been in favor of conscience clauses, because they allow physicians to exercise their own moral judgment when faced with performing a procedure that flies in the face of their beliefs. But they balk at clauses that not only let physicians opt out of procedures, but also allow physicians to refuse to refer patients to physicians who will perform the procedures.
Right-to-life groups concerned
On the other side of the conscience clause coin are right-to-life groups that fear the clauses give physicians the right to ignore patient wishes, particularly at the end of life.
According to a report released in April by the National Right to Life Committee’s Robert Powell Center for Medical Ethics, the laws of all but 10 states may allow doctors and hospitals to disregard advance directives when they call for treatment, food, or fluids.
Coming in the wake of the Terri Schiavo case, many Americans are completing advance directives, such as living wills, to state how or if they would want medical treatment, food, and fluids if they become incapable of making these decisions. However, the Powell Center report charges that health care providers who consider a patient’s quality of life "too low" are "defying these directives to deny treatment against patient and family wishes."
A poll commissioned by the National Right to Life Committee in April indicates that 76 % (n = 500; margin of error 4.5%) of those polled who were told, "A seriously ill patient has indicated they want food and fluids but the doctor thinks the patient’s quality of life is too low," say the patient should be able to receive food and fluids, even if state law gives the physician the right to act on his or her conscience. Only 14% felt the doctor should be allowed to withhold nutrition and hydration. Those polled showed similar feelings when the question concerned life support measures when a physician has deemed that the patient’s "quality of life is too low," the committee’s report states.
Dorothy Timbs, JD, legislative counsel for the Powell Center for Medical Ethics, says, "We believe most Americans will be deeply disturbed that four-fifths of the states do not clearly protect their right to choose food, fluids, or life-preserving medical treatment. It is important to fill out an advance directive such as the [living will] to make your wish not to be denied food or treatment clear. However, it is equally important to work for legal reform so that your choice for life will be honored."
AMA calls for respect for patients
The American Medical Association’s (AMA) Council on Ethical and Judicial Affairs states that the AMA recognizes that physicians have a right to opt out of performing procedures that violate their religious and moral principles, but the association requires that physicians respect patient choices.
The association’s policy on abortion states that physicians, hospitals, and hospital personnel are not required to perform acts that violate personally held moral principles.
A proposal in California pertaining to pharmacists, now before the state senate, would allow pharmacists to refuse to fill prescriptions only if they have previously notified their employer in writing of their concerns, and only then if the employer is able to accommodate the customer by having another person fill the prescription or forwarding the prescription to another pharmacy.
Meanwhile, in California, assemblyman Lloyd Levine introduced a bill that would make it a crime for pharmacists not to fill a prescription for contraceptives or any other drug they find objectionable. Levine’s bill would require pharmacists to fill any valid prescription they receive, and a similar bill is under consideration in New Jersey.
The Joint Commission on Accreditation of Healthcare Organizations indirectly addresses conscientious objections and emphasizes patient care in a standard in its ethics, rights, and responsibilities chapter, stating, "[Hospital or institution] leaders ensure that care, treatment, and services are not negatively affected when the hospital grants a staff member’s request to be excused from participating in an aspect of the care, treatment, and services."
Sources
- Mark Grapentine, Vice President, Government Relations, Wisconsin Medical Society. Phone: (608) 442-3768. E-mail: [email protected].
- Dorothy Timbs, JD, Legislative Counsel, Powell Center for Medical Ethics, National Right to Life Committee, 512 10th St. N.W., Washington, DC 20004. Phone: (202) 626-8800.
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