By Judy Stone | March 20, 2012 | Comments2
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The struggle between conscience and refusal, or individual rights vs. that of the community good, goes far back, and is not limited to reproductive choices. It also forms the foundation of civil rights rulings—prohibiting discrimination and segregation, and discrimination based on race or religion. Unfortunately, there are still ongoing battles regarding discrimination based on sexual orientation.
In Benitez, Doctors at the North Coast Women’s Care Medical Group denied Ms Benitez infertility treatment because she is a lesbian, “claiming that their personal conservative Christian beliefs gave them a right to withhold care that they routinely provide to heterosexual patients.” The California Supreme Court issued a “unanimous, landmark decision that lesbians are entitled to the same treatment as other patients and that constitutional protections for religious liberty do not excuse unlawful discrimination.”
“Conscience,” or personal beliefs, was also used to deny care to HIV/AIDS patients. I started practice well before HIV-AIDS was recognized, when little was known about its transmission. I clearly recall the struggles both of patients and of health care workers who wanted to refuse to provide care to AIDs patients—either because of their religious beliefs or because of their own fears of becoming ill. Despite these concerns, it was demanded that health care workers care for all, and put the patients’ needs first.
We have always had societal expectations for the behavior of physicians and the presumption that they would put patients needs first. For example, British apothecary William Boghurst wrote of those who fled London during the Great Plague in 1666, “Every man that undertakes to be of a profession or takes upon him any office must take all parts of it, the good and the evil, the pleasure and the pain, the profit and the inconvenience altogether and not pick and choose; for ministers must preach, captains must fight, physicians attend upon the sick…. ”
The AMA code of 1847 similarly asserted the physician’s duty to treat, “And when pestilence prevails, it is their duty to face the danger and to continue their labors for the alleviation of suffering, even at the jeopardy of their own lives.” This was later altered to give greater weight to physicians, who shall, “except in emergencies, be free to choose whom to serve.” Especially since the HIV/AIDS era began, the consensus has been that along with whatever benefits and status being a physician brings, is also a unique social responsibility.
Most recently, the issues of conscience and responsibility came to the forefront during the SARS and Ebola epidemics, and during the aftermath of disasters such as Hurricane Katrina. In a thoughtful post, “Virulent Epidemics and Scope of Healthcare Workers’ Duty of Care,” Daniel Sokol provides a more nuanced exploration of competing duties—to patients, but also to their families and other responsibilities. He thus argues that the duty to patient needs must be put in the context of the other responsibilities and especially of the level of risk.
In each of these historical cases and discussions regarding the duty to treat, the only exceptions have related to health care worker’s personal risk, usually due to epidemics. Nowhere has there been sanctioned denials of care—and even emergency medical care for (miscarrying) women—because it offended a provider’s beliefs.
An illuminating comparison can be made between women’s healthcare issues and other issues that some in our society find morally or religiously objectionable. In an excellent post, “Not all Choice is Free,” Louis A. Ruprecht appropriately concludes, “The question that should be asked is why the US Catholic Bishops are exerting so much energy and money and time on the matter of contraception, with no similarly public cries of outrage against the death penalty, state-sponsored torture, or the two preemptive wars in which the U.S. has involved itself for fully a decade. Clearly there is a lot more to this debate than the First Amendment. It has to do with one of the most powerful patriarchal religious organizations in the world—be sure to recall that the bishops are all men, every last one of them—placing itself squarely in opposition to women’s sexual equality and autonomy.”
In 1985, a North Carolina resident withheld a penny from his taxes to protest the death penalty and execution of Velma Barfield. He claimed “a religious exemption from paying for state services to which he was opposed on moral and religious grounds. The state’s answer was simple in the spring of 1985: you don’t get to pick and choose the services you pay for, regardless of the reason.”
Catholic hospitals provide 20-30% of the hospital care in the United States. Religious health systems received more than $45 billion in public, taxpayer-supported, funds, including Medicare and Medicaid funding. The Catholic Health Association, for example, also receives huge tax breaks as a “non-profit, charitable” organization. Thus, religiously-affiliated health systems have an enormous influence on health care, especially in rural areas, where they are often the sole provider.
Particularly in light of the 1985 court’s decision in the death penalty tax case—“you don’t get to pick and choose the services you pay for, regardless of the reason,”—and given the huge amount of public monies they receive, should religious health care institutions be allowed to impose their beliefs on others? Should their beliefs trump the medical needs of patients who are seriously ill and may not have anywhere else to go for care? There is simply no precedent for such a demand based on personal beliefs.
Refusal clauses deny our patients the care that they need. They are not benign clauses, euphemistically referred to as “conscience” clauses. They are, instead, unconscionable clauses, shirking the professional responsibility to put our patients first.