American Journal of Law & Medicine

Essay: the limits of conscience: moral clashes over deeply divisive healthcare procedures.

INTRODUCTION

Refusals by individual pharmacies and pharmacists to fill prescriptions for emergency contraceptives ("EC") have dominated news headlines, from the Washington Post to the Miami Herald. (1) In the act that sparked a firestorm of controversy, an Eckerd pharmacist refused to fill a rape victim's prescription for Plan B. (2) A few months later, 11 Alabama nurses resigned positions at state clinics rather than provide EC against their moral convictions. (3) These refusals do not seem to be driven by moral concerns about promiscuity, since pharmacists have refused to dispense Plan B to married couples as well. (4) Instead, the refusals reflect moral and religious concerns about facilitating an act that would cut-off a potential human life. (5)

Recently, conscience-based refusals have ballooned far beyond EC. Pharmacists are refusing to fill prescriptions for birth control, and other ancillary care professionals are asserting their own conscience concerns. (6) In Chicago, an ambulance driver refused to transport a woman to a hospital for an abortion because the driver objected to the procedure. (7) In California, doctors refused to artificially inseminate an unmarried lesbian woman. (8) Nurses in New Mexico have refused to participate in infant circumcisions because they believe the procedure violates an infant's human rights. (9)

Some professionals have gone far beyond simple refusals to participate, acting instead to affirmatively block the patient from receiving the service. Pharmacists have altered patient prescriptions to allow for no refills, in effect holding the prescription--and the patient--hostage. (10) Some have berated patients. (11) Some have lied to patients, telling them that the store did not carry the drug. (12) Not surprisingly, these refusals have drawn complaints from civil liberties groups, which have urged regulators to discipline the professionals who refused to perform requested medical services. (13) Although refusals to dispense have been treated as a monolithic whole, they encompass a range of conduct, some of which is already illegal under existing law.

Worried about access issues, some state legislatures have responded with special legislation. In December, 2005, for example, Massachusetts directed all hospitals--including private denominational ones--to offer EC to rape victims. (14) The Catholic Action League of Massachusetts then urged the state's Roman Catholic hospitals to defy the new emergency contraception law. (15)

Other state legislatures also leaped to action, albeit in very different ways. Some states protected the conscientious refusals of both individual pharmacists and pharmacies, bringing them within the scope of traditional conscience clauses that date back to Roe v. Wade. (16) Significantly more states mandated the provision of EC, either by statute, executive order, or pharmacy board regulation. (17) Approximately twenty states are actively considering what action, if any, to take. (18)

In those states that have imposed a duty to fill prescriptions for Plan B, cases testing the mandate's constitutionality are now wending their way through the court system. On November 8, 2007, the United States District Court for the Western District of Washington preliminarily enjoined a Washington state regulation that would have prevented both pharmacies and pharmacists from refusing to fill prescriptions for reasons of conscience or religion. (19) The Court held that the regulation required pharmacists to engage in conduct that their religious beliefs defined as murder and thus violated their right to free exercise of religion. After the injunction, a pharmacist in Washington may refuse to fill a prescription if she "immediately refers the patient either to the nearest source of Plan B or to a nearby source for Plan B." (20) Stunned by the decision, some legal commentators criticize its application of U.S. Supreme Court precedent. (21)

This Essay does not address the constitutionality of duties to fill prescriptions for Plan B. Instead it asks whether states should provide conscience clause protections even if they are not constitutionally mandated. In other words, this Essay asks whether such protections are good public policy. It begins in Part I by mapping the ethical terrain of competing interests and by explaining why the recent decision by the United States Food and Drug Administration ("FDA") to make Plan B available behind the counter eases, but does not erase, the opportunities for conscientious refusals. Part II then reviews the rich history of conscience protections dating back to Roe v. Wade. This Part illustrates that conscience protections need not be all-or-nothing, winner-take-all accommodations. Instead, many traditional conscience clauses balance the patient's need for access to a medical service with the need to respect a provider's religious or moral convictions. Parts III and IV then examine how the policy trade-offs change when the policy focus is on pharmacies as opposed to individual pharmacists. Part V assesses the role that urgency should play when deciding how to proceed. It rejects as inadequate both regulatory directives to individual pharmacists to fill all valid prescriptions and laissez-faire, market-based approaches that impose no duties. Drawing on traditional conscience clauses, Part VI offers a live-and-let-live response to the collisions over EC and other divisive healthcare procedures. This approach addresses valid concerns about patient access while preserving an individual provider's ability to step aside when the costs are minimal. This proposal rests on the core proposition that society should be more concerned with the autonomy of individual providers than the autonomy of pharmacies. Furthermore, placing duties on pharmacies is more likely to effectively address patient access issues than duties on individual pharmacists.

I. MAPPING THE ETHICAL TERRAIN

The debate about EC and other services has been cast, at bottom, as a debate about access. The public, members of the media, and family planning advocates find it shocking that one person's religious or moral convictions could override another person's medical needs. Clearly, holding a prescription "hostage" or lying to patients is beyond the pale; we may presume that current law sanctions such acts. (22) A respectful refusal by an individual who is morally opposed to providing a service poses a much harder question, however.

Whether discussed as a legal problem or an ethical one, conscientious refusals produce a set of trade-offs that policymakers must navigate. Both patients and providers have potentially conflicting expectations and interests going into the relationship. Patients expect:

* timely and nondiscriminatory access to services or prescribed medications;

* respect for their personal autonomy, including the freedom to determine the care they will receive;

* respect for their privacy and confidentiality;

* that providers will act beneficently toward them, or at least to do no harm; and

* that medical need will govern their care, not someone else's beliefs.

Providers expect many of the same things. They expect:

* respect for their personal autonomy, including the freedom to refuse to provide a service;

* respect for their religious liberty and that this liberty will not be pushed aside by a patient's personal autonomy;

* freedom from employment discrimination for moral or religious convictions; (23)

* respect for their judgments including the decision to do no harm. (24)

For some providers, the latter translates into respect for their choice between two harms, harm to the patient in front of them and harm to the "potential life" that patient carries. (25) When collisions like these occur, the $64,000 question becomes "whose rights are more important?" The answer to this question is complicated by the fact that the interests of persons on both sides of the equation may have constitutional dimensions. (26)

The FDA and other regulators have recently taken actions that appear at first glance to solve these collisions between providers and patients. (27) After a more than five-year battle, in August of 2006, the FDA approved Plan B for sale over the counter to women age 18 and older, making Plan B available to adults without a prescription. (28) This move initially appears to solve the problem of patient access. (29) The policy, however, places pharmacists squarely between the patient and the drug, making them de facto gatekeepers of Plan B. (30) Since the FDA's approval, pharmacists opposed to dispensing Plan B have refused to open the gate. In Ohio, for example, a pharmacist refused to provide Plan B to a young woman and her boyfriend after a "contraceptive mishap." (31) Making Plan B available without a prescription did not avert the collision between the pharmacist who objected to dispensing Plan B and the patient who sought it. (32)

Despite the recent furor over refusals to dispense Plan B, questions of conscience in health care are far from new. Nearly every state has carved out a space for individuals of conscience to continue in their roles without participating in acts they find immoral. They do this with conscience clauses that authorize some providers and entities--mainly doctors and hospitals--to refuse to participate in certain procedures, usually sterilization and abortion. (33) The question raised by refusals to dispense EC--and the increasing number of professionals making conscience-based refusals--is whether states should extend conscience protections outside these core services and this short list of providers. (34) As the next Part explains, the nearly half century of experience with conscience protections after Roe v. Wade can help policymakers tease out and evaluate the competing interests implicated by such expansions.

II. THE BIRTH OF CONSCIENCE PROTECTIONS IN MEDICINE

Early legislative accommodations for conscience concerns date back to Roe v. Wade, when family planning advocates argued that the receipt of federal funds required an individual hospital, even a Catholic one, to provide access to abortion. Shortly before the United States Supreme Court's landmark decision in Roe, a federal district court in Montana, in Taylor v. St. Vincent's Hospital, enjoined a private, non-profit, charitable hospital in Billings, Montana, from refusing to perform a tubal ligation. (35) The hospital had prohibited a patient's physician from performing a sterilization procedure on her during the birth of her child by Caesarian section.

The patient brought suit under 42 U.S.C. [section] 1983, which provides a remedy to those whose rights are violated as a result of state action. (36) In denying the hospital's motion to dismiss for lack of jurisdiction, the court stated that "the fact that the [hospital received] Hill-Burton Act ... funds is alone sufficient to support ... an assumption of jurisdiction." (37) The Hill-Burton Act made funds available to hospitals to modernize and construct medical facilities in exchange for the facilities' promise to provide certain community benefits. (38) The hospital's tax immunity and licensing by the State also established a connection between the hospital and the State sufficient to support jurisdiction. (39)

Almost before the ink could dry on the injunction, Congress reacted with the Church Amendment. (40) It provided that:

(b) The receipt of any grant, contract, loan, or loan guarantee under the [act that created the Hill-Burton funds and other acts] by any individual or entity does not authorize any court or any public official or public authority to require--

(1) such individual to perform or assist in the performance of any sterilization procedure or abortion if [it] would be contrary to his religious beliefs or moral convictions; or

(2) Such entity to--

(A) make its facilities available for the performance of any sterilization procedure or abortion if [it] is prohibited by the entity on the basis of religious beliefs or moral convictions, or

(B) provide any personnel for [such services] if [their performance] would be contrary to the religious beliefs or moral convictions of such personnel. (41)

The Church Amendment also protected individuals in disputes with employers or facilities in which they practice:

(c) No entity which receives [certain federal monies] may--

(1) discriminate in the employment, promotion, or termination of employment of any physician of other health care personnel, or

(2) discriminate in the extension of . …

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