Conscience clause (medical)
Conscience clauses are legal clauses attached to laws in some parts of the United States which permit pharmacists, physicians, and other providers of health care not to provide certain medical services for reasons of religion or conscience. In many cases, the clauses also permit health care providers to refuse to refer patients to unopposed providers. Those who choose not to refer or provide services may not be disciplined or discriminated against. The provision is most frequently enacted in connection with issues relating to reproduction, such as abortion, sterilization, contraception, and stem cell based treatments, but may include any phase of patient care.
Health care providers opposed to abortion or contraception support the clauses because they believe that disciplinary or legal action for refusing to perform services obliges providers to supply services which their moral or religious principles forbid.
Reproductive rights organizations, such as Planned Parenthood and NARAL Pro-Choice America, oppose the provision because they maintain that pharmacists, doctors, and hospitals have a professional duty to fulfill patients' legal medical needs, regardless of their own ethical stances. Opponents see conscience clauses as an attempt to limit reproductive rights in lieu of bans struck down by Supreme Court rulings such as Roe v. Wade.
As a result, the term "conscience clause" is controversial and primarily used by those who support these provisions. Those who oppose them often prefer to use the term "refusal clause," implying that those who exercise the clauses are refusing to treat a patient.
The earliest national conscience clause law in the United States, which was enacted immediately following the Supreme Court's decision in Roe v. Wade, applied only to abortion and sterilization. It was sponsored by Senator Frank Church of Idaho. The Church Amendment, passed by the Senate on a vote of 92-1, exempted private hospitals receiving federal funds under the Hill-Burton Act, Medicare and Medicaid from any requirement to provide abortions or sterilizations when they objected on “the basis of religious beliefs or moral convictions.” Nearly every state enacted similar legislation by the end of the decade—often with the support of legislators who otherwise supported abortion rights. Supreme Court Justice Harry Blackmun, the author of Roe vs. Wade, endorsed such clauses “appropriate protection” for individual physicians and denominational hospital.
Conscience clauses have been adopted by a number of U.S. states. including Arkansas, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Pennsylvania, and South Dakota. There are some recent comprehensive reviews of federal and state conscience clause laws across the United States and in select other countries.
The Obama administration has proposed reversing recent additions to the conscience clause enacted by the Bush administration.
An informed consent clause, although allowing medical professionals not to perform procedures against their conscience, does not allow professionals to give fraudulent information to deter a patient from obtaining such a procedure (such as lying about the risks involved in an abortion to deter one from obtaining one) in order to impose one's belief using deception. These principles were reaffirmed in the Utah Supreme Court's decision in Wood v. University of Utah Medical Center (2002). Commenting on the case, bioethicist Jacob Appel of New York University wrote that "if only a small number of physicians intentionally or negligently withhold information from their patients significant damage is done to the medical profession as a whole" because "pregnant women will no longer know whether to trust their doctors."
|This article needs additional citations for verification. (December 2013)|
Some pharmacies in U.S. jurisdictions with conscience clauses, including CVS and Target, allow pharmacists to choose, without penalty, not to dispense birth control pills. Target requires the objecting pharmacist to recommend another Target location that will dispense the medication.
The conscience clause is widely invoked in Catholic universities, hospitals, and agencies because the Catholic Church opposes abortion, contraceptives, sterilization, and embryonic stem cell treatments. Opponents of related FOCA legislation have interpreted the possible end of the conscience clause as a demand to either "do abortions or close." Archbishop Dolan has said, "“In effect, the president is saying we have a year to figure out how to violate our consciences." However, conscience clauses are sometimes interpreted differently and their use will often depend on the given context.
Public health specialists have questioned whether "conscience clauses" are ethical, observing in an article on the danger to miscarrying patients created by hospital anti-abortion policies that "in some Catholic-owned hospitals, the private patient–physician relationship, patient safety, and patient comfort are compromised by religious mandates that require physicians to act contrary to the current standard of care in miscarriage management."
- Mlsna, Lucas J. (2010). "Stem Cell Based Treatments and Novel Considerations for Conscience Clause Legislation". Indiana Health Law Review (United States: Indiana University Robert H. McKinney School of Law) 8 (2): 471–496. ISSN:1549-3199. LCCN:2004212209. OCLC:54703225.
- Refusal Clauses: A Threat to Reproductive Rights
- Appel, Jacob M. 'Conscience' vs. Care: How Refusal Clauses are Reshaping the Rights Revolution, Medicine and Health, Rhode Island, August 2005 Viewed: 12-23-08
- Thaddeus Mason Pope, Legal Briefing: Conscience Clauses and Conscientious Refusal, 21(2) Journal of Clinical Ethics 163-180 (2010), http://clinicalethics.com/
- Conscience Rollback
- Appel, JM. Physicians, "Wrongful life" and the Constitution. Med Health R I. 2004 Feb;87(2):55-8. Viewed: 12-23-08
- "Obama's Threat to Catholic Hospitals" Melinda Henneberger writing in Slate
- Obama administration gives groups more time to comply with birth control rule. Washington Post. NC Aizenman. January 20, 2012. 8:51 AM.
- "Sterilization or Abortion" US Code § 300a–7.
- When There's a Heartbeat: Miscarriage Management in Catholic-Owned Hospitals, Am J Public Health. 2008 October; 98(10): 1774–1778.
- Appel, Jacob M. 'Conscience' vs. Care: How Refusal Clauses are Reshaping the Rights Revolution, Medicine and Health, Rhode Island, August 2005.
- Appel, Jacob M. Physicians, 'Wrongful Life' and the Constitution, Medicine and Health, Rhode Island, February 2004.
- A Pro-Choice Litmus Test for Obstetricians
- Roshelli, Kristin M. Religiously Based Discrimination: Striking a Balance Between a Health Care Provider's RIght to Religious Freedom and a Woman's Ability to Access Fertility Treatment Without Facing Discrimination, 83 St. John's Law Review 977 (Summer 2009).
- ^ State-by-state information from the Alan Guttmacher Institute
- United States Protection of Conscience Laws
- Ascension Health
- Pharmacists for Life International