The question of whether health care professionals may decline to participate in medical procedures that they find objectionable is being met with increasing controversy. Forty-five states now have legislation protecting clinicians from being required to act against their consciences. Such legislation is primarily geared toward issues of abortion and sterilization; however, the state of Wisconsin has recently delved further into the debate. This summer the lower house passed legislation (AB67) amending previous "conscience" law to include not only abortion and sterilization, but also any activity involving embryo destruction, the use of fetal tissue, or the removal of artificial nutrition or hydration with the intent of causing death. In addition, the legislation—which the upper chamber is slated to debate in September—also speaks to assisted suicide and euthanasia.
It is notable that the Wisconsin Medical Society opposes this bill because it drops the requirement that a physician who opts out of a medical procedure or intervention for conscience sake must refer her patient to another provider. The WMS maintains that a high standard of medical practice requires the referral and transfer of records as a means of maintaining quality care. Several physician groups involved in end-of-life care assert that advance directives must always be followed, even if they violate the conscience of the clinician instructed to implement them. They worry that if a physician is not obligated to honor his patient's wishes to (for example) forego use of a feeding tube in the instance of persistent vegetative state, it may be difficult to transfer care to a physician who will abide by those directives—especially in underserved areas. This is viewed as a significant problem in access to care.
Although the WMS objects to the bill on the above grounds, several arguments can be made in favor of conscience clauses.
First, respect for conscience is the precedent of law and medical practice. The precedent of conscience has indeed been well established in U.S. case law. One frequently cited case is Brophy v. New England Sinai Hospital, Inc. 398 Mass. 417, 497 N.E.2d 626 (1986). In this case, the court stated that physicians have the right to refuse to participate in actions that violate their ethical and moral standards. For some time JCAHO, the group that accredits medical institutions, has required all hospitals to have a policy allowing employees to opt out—on the basis of conscience—of what would otherwise be considered duties. In 1996, the controversy over conscience really came to the fore when the American College of Obstetricians and Gynecologists (ACOG) issued recommendations that all OB/GYN residents learn how to do abortions (though objections on the basis of conscience were regarded as valid). This debate again drew attention earlier this year when New York Mayor Michael Bloomberg ordered that all OB/GYN residents in New York City hospitals be required to participate in abortions. Though he also allowed for a conscience exclusion, it has been deemed "so tight that Mother Teresa herself would not have qualified."
Second, a system that would require a clinician to violate his conscience and assent to the demands of a patient would be totally destructive to the clinician/patient relationship. Health care professionals are called to serve their patients, but that service must be rendered in the context of an assumed covenant of mutual respect. The clinician must respect the patient and the patient must at the same time respect the clinician. In his book The Physician's Covenant, William F. May distinguishes such a covenant from a mere contract, which is more stark in nature. As a physician, I am extremely reticent to push my patient to do anything in violation of his conscience. I may offer, educate, argue, and strongly encourage, but I will not demand. My respect for my patient will on occasion require me to allow her to make what I consider to be a mistake. Though I can envision extreme situations in which I might require a patient to change physicians, I would never require a competent patient who was not harming another to violate his conscience. If a patient did not show the same respect for me, I would consider that to be a grave violation of the covenant of mutual respect that I seek to promote between my patients and myself. I have cared for patients who do not have enough respect for me to pay their bills when they could easily do so and even for patients who have sued me, but if a patient showed so little respect that he demanded that I violate my conscience I would not be able to continue his care. I would, however, still feel an obligation to him and would ensure an orderly transfer of care and appropriate medical records.
Third, there is no reason why a patient's autonomy should take precedence over that of the health care professional. When a clinician is forced to violate her conscience in deference to the directives of a patient or supervisor, the underlying message is that the clinician's autonomy is intrinsically less valuable than that of the other party or parties. Unless there is a contract that specifically dictates this, there is no basis for such an arrangement.
In conclusion, I believe that the Wisconsin legislators have written a good law, which the WMS should respect. I am sympathetic to the society's concern about the responsible transfer of care, but I do not believe that this necessitates the commendation that is implied in a referral. Furthermore, the end-of-life advocates who are concerned about the implications the conscience clause might have for advance directives must acknowledge that such implications are a small price to pay for the defense of the freedom of conscience that our nation has historically cherished.