CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, August 18, 2022

Fox on Medical Disobedience

Dov Fox (University of San Diego: School of Law) has posted Medical Disobedience (Harvard Law Review, Vol. 136, Forthcoming) on SSRN. Here is the abstract:
The conscience regime that governs American healthcare is broken. When physicians or pharmacists deny treatment by appeal to their heartfelt convictions, conscience laws in most states shield them from being fired or disciplined. In many, they can’t be held liable for malpractice or prosecuted for endangering patients, however badly they needed care, or serious the resulting harm. Refusers don’t even have to tell patients which procedures are medically indicated, let alone help them to access those options elsewhere. So long as refusers invoke conscience, they almost always go scot-free. There’s virtually no such protection for clinicians who have equally conscientious reasons to perform interventions that their employer or state rules out. Emboldened by recent Supreme Court decisions in Little Sisters of the Poor and Dobbs, hospitals and legislatures are prohibiting more and more services, as clinicians lay their careers and freedom on the line to supply forbidden forms of care that range from abortion, emergency contraception, and long-term birth control to puberty blockers, advance directives, and aid-in-dying.
These treatments bear crucial differences, to be sure. Some the law prohibits, others it permits. Some are safer or work better than others. Some require pricey facilities and staff. Others, no more than a prescription pad. Some fall squarely within the medical norm, while others push its boundaries, or cross them. These particulars matter. But they also miss a simple fact: Providers honor patients’ wishes, while refusers override them. Yet only refusers’ conscience counts under the law. This overstated asymmetry selectively burdens conscientious providers and drives desperate patients underground.

Fixing our conscience regime demands principled reforms, tailored to distinct levels of authority: the employer and the state. Workplace exemptions must mediate two kinds of costs: the ones that conscientious refusal can inflict to patients’ access and dignity; and those that conscientious provision poses to institutional missions and resources. Clinicians should clearly disclose their objections and pay reasonable objector fees, targeted to offset the burdens they impose. Employers ought to adopt distancing measures, where feasible, to mitigate associational harms that come from having to accommodate practices they oppose. The stakes are different when doctors and nurses defy restrictions that are imposed by the government. A limited excuse should take the edge off of the penalties that otherwise attach to clinically reasonable treatments supplied in the name of conscience. This partial defense of medical disobedience wouldn’t justify malpractice, invidious discrimination, or breach of informed consent. But consistent with these non-negotiable duties that clinicians assume, those who claim conscience in good faith should get a break from the punishment or collateral consequences of conviction. This defense would afford a modest measure of space for dissent and debate about especially divisive matters of life and death, impairment and identity. On these controversies of our time, that space equips our pluralistic democracy to adapt to moral change from within. It also helps us to resolve a long-simmering tension between the practice of medicine and the rule of law that’s reached a boiling point today.

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