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Clashes of conscience
Medicine, faith, and the law
The sharp polemics that have marked the public conversation about laws and proposed laws to exempt health care providers from performing services that would violate their religious beliefs were nowhere in sight or sound on April 13 when a priest who directs health care services for the Boston Archdiocese, a leading obstetrician/gynecologist at Massachusetts General Hospital, and a prominent scholar of religion in American public life addressed the issue before a mostly student audience of 90 in Higgins 310. Their discussion was sponsored by the Boisi Center for Religion and American Public Life.
The first panelist to speak, Fr. J. Bryan Hehir, secretary of health and social services for the Boston Archdiocese, likened such exemptions for health care providers to those that excuse military personnel from service at a nuclear installation on grounds of conscience. In both cases, he said, the question of exemption involves the intersection of “macro questions”—how a society has resolved its ethical conundrums—with strongly held personal values.
Hehir, the Mongomery Professor of the Practice of Religion and Public Life at Harvard’s Kennedy School of Government, argued that the country’s unparalleled diversity of religious belief and “contested public agenda” necessitate “protections for the individual conscience.” Exemptions are also needed, he said, because of the key role played by religious organizations in carrying out American social policy. Compared with other industrialized democracies, “we expect less of the state, more of the market, and a lot from nonprofits,” many of them religion based, said Hehir, noting that the country has some 600 Catholic hospitals. If we don’t achieve a “fair adjudication” to thorny questions such as whether a gynecologist who refuses to perform abortions must refer a patient to an abortion provider or whether a pharmacist can be required to supply a morning-after contraceptive, we put at risk the health care profession, the patient requesting the services, and the role of nonprofits in the social welfare system, Hehir said.
The session’s second panelist, Michael F. Greene, a professor at Harvard Medical School and chief of obstetrics at Massachusetts General Hospital, listed several duties placed on all physicians by the medical profession’s code of ethics, including discussion of the full range of treatments for a patient’s condition “without regard to the personal philosophy of the provider”; informing the patient of each treatment’s risks and benefits; and honoring a patient’s refusal of a treatment on religious or other grounds.
To illustrate the conflicts that can arise between these duties and the doctor’s personal beliefs, Greene told the story of a patient of his who required a surgery that typically results in massive blood loss but who refused, on religious grounds, to sign a form agreeing to a blood transfusion. After trying but failing to change her mind, Greene and his team “made fairly extraordinary arrangements” to adhere to her wishes, and they operated successfully. Nevertheless, he was mindful throughout that his “commitment to honor [the patient’s] decision to refuse care—in this case, transfusion”—might result in her death. “It was a situation,” he summed up, “where I had to adjust . . . my conscience to the patient’s conscience.”
The third panelist, Melissa Rogers, a lawyer who directs the Center for Religion and Public Affairs at Wake Forest University, began by citing the fundamental American belief—going back to the War for Independence, she said—that “certain convictions” can override our duty to the civil order. “We’ve struggled,” she said, “with how to have a functioning . . . society while also honoring” religious convictions.
Reviewing the ways in which First Amendment jurisprudence has honored the belief that conscience can sometimes override law, Rogers said that, for most of our history, government has had to prove “a compelling interest—something like health or safety”—to justify burdens placed on the expression of religion. In the 1990 case Employment Division v. Smith, however, the Supreme Court ruled that if a law doesn’t target religion directly, it can be presumed to comply with the free expression clause of the First Amendment without further scrutiny, even if the law has the effect, if not the intent, of restricting religious practice. (In that case, two drug counselors, members of the Native American Church, were denied government unemployment compensation because their private employer had deemed their ceremonial peyote use to be job-related “misconduct.”) The Court’s decision, Rogers said, means that governments can still carve out religious exemptions to their laws if they wish, but they aren’t required to carve them out—one reason that exemptions have turned into a topic of sharp debate.
When it comes to abortion, the Church Amendment—named for U.S. Senator Frank Church of Idaho and passed a few weeks after Roe v. Wade (1973)—and other similar laws have established that doctors who receive federal funds (Medicaid included) cannot be required to perform procedures or provide facilities for procedures to which they have religious objections. More recently, however, with the availability of “Plan B” morning-after contraception, Rogers said, “some pharmacists have experienced a dilemma similar to some physicians’ dilemma in the 1970s.” To deal with the conflict between patients and these pharmacists, she said, “states have passed a spate of [laws], some requiring pharmacies to stock this emergency contraception without conscientious exemptions being recognized, and some other laws that recognize conscientious objection . . . in various ways, some more absolutist, some less absolutist. And that’s been a continuing debate, both at the federal and state level.”
In addition to providing an overview of religious exemptions, the panelists suggested ways to move toward a societal consensus—the “fair adjudication” hoped for by Hehir—while quieting the noisy, sometimes angry debates between those who believe the state must honor any claim of conscience made by a health care provider and those who think the state should automatically deny such claims. Hehir called for “civility, attention to evidence in the arguments, making the arguments on the basis of reason, not on innuendo and ad hominem.” He also said that providers should claim exemptions “only for essential issues, not capaciously.”
Greene echoed this point when he chided doctors who won’t even refer a patient for a procedure that they refuse, on religious grounds, to perform themselves. He compared these doctors’ reasoning with that underlying a mythical court case against a farmer whose corn was made into whiskey that, in turn, fueled the misdeeds of someone the farmer never met. “There has to be a limit,” Greene asserted, “to the reach and realm of conscience.” He also cited doctors’ ethical duty to avoid situations where moral conflict might arise. “If . . . you have an objection to providing emergency contraception or abortion care services,” he quipped, “you shouldn’t volunteer” at your local Planned Parenthood office.
Rogers, too, advocated “early disclosure” by physicians of their religious objections to any procedure that they might be called on to perform. “That should not be something [the patient discovers] down the road,” she said, “in a crisis, in a conflict.” In addition, she called for a balancing of the provider’s right of conscience with the patient’s right to treatment. “We need to respect the moral autonomy of both patients and health care providers,” she said. Of pharmacists who refuse to provide morning-after contraception, she said, “If there’s [another] pharmacy close by that can provide the service . . . that would be a mere inconvenience. But it’s something else where there’s an actual lack of access, and we need to differentiate between those” situations. In the political debate over religious exemptions, “we often see a complete unwillingness to recognize” the other side’s point of view, Rogers added, and thus she called for respectful dialogue, conducted outside the political arena, between people on all sides of the issue, with a goal of finding “common ground principles” that could then be presented as model legislation.
There followed 20 minutes of audience questions, toward the end of which an older audience member added his voice to the panelists’ in hoping for a calmer, more reasoned debate. “Would it help the discussion,” he inquired mildly, “to start off by seeing ways in which conscience leads people to serve their neighbors, instead of seeing conscience as something that says, ‘Stay away from me’?”
David Reich is a writer in the Boston area.
Editor’s note: This piece was revised on May 26, 2010.
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