Monday, July 25, 2022
Dov Fox has posted to SSRN Medical Disobedience. The abstract provides:
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 the Supreme Court’s recent decisions in Little Sisters of the Poor and Dobbs, hospitals and legislatures increasingly prohibit services from abortion, emergency contraception, and long-term birth control to puberty blockers, advance directives, and aid-in-dying. Now clinicians are laying their careers and freedom on the line to supply these forbidden forms of care. The treatments that they seek to provide bear crucial differences, to be sure. Some the law prohibits, others it permits. Some are safer, or more effective, than others. Some require facilities and staff. Others, a prescription pad. Some fall squarely within the medical norm. 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. This asymmetry selectively burdens conscientious providers and drives desperate patients underground.
Fixing this regime demands principled reforms, tailored to distinct levels of authority: the employer and the state. To offset the costs of workplace exemptions, this Article proposes disclosure mandates and objector fees for conscience-claiming clinicians, and distancing measures for the institutions that employ them to mitigate the expressive harms that come from accommodating practices they oppose. The stakes differ when doctors and nurses defy government restrictions. This Article introduces a partial excuse that would take the edge off of the penalties that otherwise attach to certain practices that clinicians undertake in the name of conscience. This limited defense of “medical disobedience” would afford modest space for dissent and debate that a pluralistic democracy needs, in negotiating the controversies of our time, to adapt to moral change from within. That compromise also equips us to resolve the long-simmering tension between the practice of medicine and the rule of law that has reached a boiling point today.