The case against institutional conscience.

• Author: Durland, Spencer L.

INTRODUCTION

In the United States today, federal laws immunize healthcare providers who refuse, on moral or religious grounds, to perform or assist in performing certain procedures. These "conscience clauses" cover not just individual providers, but institutions as well. Catholic hospitals (1) are chief among those institutions receiving conscience protection. Catholic hospitals operate in accordance with the Ethical and Religious Directives for Catholic Health Care Services ("Directives"), promulgated by the U.S. Conference of Catholic Bishops (USCCB). (2) The Directives define Catholic healthcare's mission of caring for the underserved and also limit or prohibit particular medical treatments, including abortion, tubal ligation, vasectomy, advance directives, and other end-of-life procedures. (3) Catholic hospitals assert the right, as an entity, to act in accord with the Directives, which are deemed to be a hospital's conscience. Further, all employees must comply with the Directives. (4) Therefore, the recognition of institutional conscience restricts the full protection of individual conscience for those employees whose moral or religious persuasions diverge from the Directives.

That restriction is possible because a Catholic hospital's conscience overrides individual conscience when the two conflict, sometimes causing practitioners serious dilemmas. In December of 2000, a Catholic hospital asked its Chief of Obstetrics and Gynecology, Dr. Yogendra Shah, to step down from that position because he performed abortions at a private clinic. (5) In March of 1998, a Roman Catholic hospital in New York forced Dr. David Mesches out of his position as Chairman of the Department of Family Medicine. (6) In an attempt to ensure the completion of a merger between one Catholic and two secular hospitals, Dr. Mesches had offered to lease space in his offices as a clinic to provide the reproductive services that the surviving hospital would no longer offer. (7) Dr. Mesches commented to a local newspaper that the right to an abortion is "the law of the land" and added "it's the right thing to do." (8) He was afterwards dismissed. (9)

A recent article, which published the results of thirty interviews with obstetrician-gynecologists who described their experiences treating miscarriages in Catholic hospitals, documented the challenge faced by those who work in Catholic hospitals and struggle to abide by the Directives. (10) Dr. S, who used to work in an urban Catholic hospital in the Northeast, described the following situation:

I'll never forget this; it was awful--I had one of my partners accept this patient at 19 weeks. The pregnancy was in the vagina. It was over.... And so he takes this patient and transferred her to [our] tertiary medical center, which I was just livid about, and, you know, "we're going to save the pregnancy." So of course, I'm on call when she gets septic, and she's septic to the point that I'm pushing pressors on labor and delivery trying to keep her blood pressure up, and I have her on a cooling blanket because she's 106 degrees. And I needed to get everything out. And so I put the ultrasound machine on and there was still a heartbeat, and [the ethics committee] wouldn't let me because there was still a heartbeat. This woman is dying before our eyes. I went in to examine her, and I was able to find the umbilical cord through the membranes and just snapped the umbilical cord and so that I could put the ultrasound--"Oh look. No heartbeat. Let's go." She was so sick she was in the [intensive care unit] for about 10 days and very nearly died.... She was in DIC [disseminated intravascular coagulpathy].... Her bleeding was so bad that the sclera, the white of her eyes, were red, filled with blood.... And I said, "I just can't do this. I can't put myself behind this. This is not worth it to me." That's why I left. (11) Dr. G, a physician at a southern Catholic hospital, described this situation:

She was 14 weeks and the membranes were literally out of the cervix and hanging in the vagina. And so with her I could just take care of it in the [emergency room] but her cervix wasn't open enough ... so we went to the operating room and the nurse kept asking me, "Was there heart tones, was there heart tones?" I said "I don't know. I don't know." Which I kind of knew there would be. But she said, "Well, did you check?".... I said, "I don't need an ultrasound to tell me that it's inevitable ... you can just put, 'The heart tones weren't documented,' and then they can interpret that however they want to interpret that."... I said, "Throw it back at me ... I'm not going to order an ultrasound. It's silly." (12) Dr. H, at a midwest Catholic hospital, discussed sending a patient ninety miles away by ambulance to get treatment after the hospital's ethics committee denied her case (13):

She was very early, 14 weeks. She came in ... and there was a hand sticking out of the cervix. Clearly the membranes had ruptured and she was trying to deliver.... There was a heart rate, and [we called] the ethics committee, and they [said], "Nope, can't do anything." So we had to send her to [the university hospital].... You know, these things don't happen that often, but from what I understand it, it's pretty clear. Even if mom is very sick, you know, potentially life threatening, can't do anything. (14) Cases like these, which present difficult moral or ethical questions, are likely infrequent and do not, in themselves, justify the adoption or rejection of any public policy. Rather, they are valuable because they better illustrate the fundamental issue driving the more routine instances of conflict between individual and institutional conscience, (15) which, although less serious, have no less moral validity.

Conscience clauses permit a section of the populace to opt out from the application of a law that would ordinarily have universal application. This is too serious an enterprise to rest on an unsteady theoretical foundation. As Dr. Edmund D. Pellegrino writes, the complexity of the ethical issues presented "is significant because once the ethical issues are expressed in law, the debate may be reduced to instrumental and procedural details that cannot resolve underlying moral sources of controversy." (16) Yet the justification for institutional conscience has not been rigorously tested and scrutiny reveals significant flaws. If individual conscience is to be protected, then it must be a complete recognition of individual conscience--a recognition which includes not just the right of refusal, but also a physician's right to make medical decisions consistent with her ethical code and prevailing medical standards, unhindered by an institution's assertion of conscience.

The right of conscience is rooted in autonomy, an interest that patients and doctors share. As a necessary precursor to autonomous decision making, patients have an informational right as well. The goal is to lessen (or, ideally, eliminate) the gap between the patient's and doctor's understanding of the medical condition and available treatment options, empowering the patient to make an informed decision. At the same time, a physician has a moral right to refuse to recommend or perform medical interventions that conflict with her moral or religious principles. Conscience clauses explicitly protect this interest. But this is only part of the physician's right of conscience. A physician also has a powerful interest in affirmatively providing medically indicated care as dictated by her clinical morality (17) and prevailing medical standards. (18) Conscience clauses fail to adequately protect this interest. In fact, the expansion of conscience clauses to include institutions--commonly Catholic hospitals (19)-undercuts the affirmative aspect of individual conscience by requiring physicians to refrain from acting in accord with their clinical morality or prevailing best practices if doing so would violate the institution's conscience.

Institutional conscience is fundamentally different from individual conscience but is mistakenly treated in legislation (20) and academic discussion (21) as equivalent. Legal fiction aside, a hospital is not a person; it is a physical structure within which providers give medical care. It does not perform procedures or counsel patients. It does not take lunch hours or vacations. And it does not have a conscience. In practice, institutional conscience serves as a trump card whenever (and to the extent that) the institution's religious principles diverge from the physician's own religious or ethical principles. Such an arrangement is illogical and unwise, and must be remedied by limiting conscience clause protection to individuals.

In Part I of this Note, I discuss the pattern of hospital mergers in the 1980s and 1990s and the part played by Catholic healthcare institutions. Catholicism's substantial presence in modern healthcare is of particular importance because of the sectarian framework (the Directives) which guides the operation of Catholic hospitals. The Directives embody both Catholic healthcare's uncontroversial mission to minister to the underserved and their more divisive policies, which limit or completely ban particular procedures inconsistent with Catholic teaching. Catholic healthcare's growth creates new possibilities for conflict between the Directives' edicts and individual conscience.

Part II recounts the shift from a strong recognition of physician autonomy toward today's strong protection of patient autonomy. To provide the groundwork for a discussion of conscience, I posit four characteristics of conscience: (1) conscience is inherently human; (2) conscience reflects a private, internal judgment; (3) conscience is predicated on recognition of the autonomous moral agent; and (4) conscience compels a person to act or refrain from acting. The protection of these same characteristics in other aspects of American...