HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Wednesday, July 28, 2021

Medical Disobedience and the Conscientious Provision of Prohibited Care

Dov Fox (University of San Diego), Medical Disobedience and the Conscientious Provision of Prohibited Care, 21 Am. J. Bioethics (2021):

Should doctors ever be allowed to offer care that their state or employer forbids? What if their deeply held personal values or beliefs demand they treat patients in need? We’re used to hearing about physicians, nurses, EMTs, pharmacists, and even entire hospitals refusing to perform, participate, or inform patients about care they’re conscientiously opposed to. These conflicts pit clinician conscience against patient welfare, professional norms, or a fair allocation of scarce resources. But restrictions on medical practice raise a question that’s been largely missing from debates in medicine, ethics, and law: When should appeals to conscience exempt a clinician from penalty or prosecution for delivering proscribed care?

The American legal system treats clinician conscience in radically different ways, depending on whether it’s invoked to turn patients away, or to take them in. All but two states carve out conditions under which doctors who conscientiously refuse care can’t be fired, disciplined, or sued. But for those who conscientiously deliver care their government or institution rules out, just three states spare even their jobs. There may be good reasons for this asymmetry. Perhaps being made to do something your conscience forbids is worse than being prevented from doing something your conscience demands. Or maybe conscientious provision is no less worthy, just more onerous for facilities, medical teams, and healthcare payers to accommodate. Yet taking conscience seriously seems to call for an openness to extending protections comparable to those our laws afford conscientious refusal to clinicians whose conscience instead compels them to deliver care that law or policy otherwise prohibits.

The foreseeable consequences of non-compliance might make it intolerable. But there are circumstances in which I think health professionals should be let off the hook for conscientiously providing standard-of-care treatment the rules forbid. This short essay -- which previews a longer law review article that develops, defends, and applies a conceptual framework for medical disobedience -- sets forth considerations for when, why, and how to vindicate conscientious provision. Is care ruled out by a private institution or public one? By state law, or federal? What interests does that prohibition serve? Does the proscribed treatment comply with the medical standard of care? Is it a matter of life and death? Are other options available to those in need? Did consent come from the patient, or a guardian? Is defiance secret, or open? Have clinicians exhausted reasonable efforts to change the prohibition itself? Or shown it would be futile to work around it?

The answers to these in turn raise other hard questions what shape exemptions might take, and how broadly they should sweep. Should protections be limited to job loss and tort liability, or cover criminal indictment too? Should they take shape in explicit, upfront permission via statute or common law? Or unspoken, backend forgiveness via prosecutorial discretion or jury nullification? Should they sweep broadly, or be narrowly specified? The reproductive health context alone features a range of contested procedures I consider: from sex selection, female genital cutting, and gag rules on informing patients about birth control and other family planning measures; to in vitro fertilization for same-sex couples, emergency contraception or sterilization for young, unmarried, or childless women, and advance directives that comatose women had left to forgo life-sustaining treatment even if they were pregnant.

https://lawprofessors.typepad.com/healthlawprof_blog/2021/07/medical-disobedience-and-the-conscientious-provision-of-prohibited-care.html

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