Conscience as contract. Conscience as covenant.

• Author: Hammond, Jeffrey B.
• Position: Faulkner Law Review Symposium

I. INTRODUCTION

This essay is oriented in two main directions. First, I will provide a working definition of conscience. (1) Second, I will develop two ways of thinking about the outworking of conscience in the patient-physician relationship that Professor Sepper has not adequately accounted for in her application of conscience to certain state refusal regulatory schemes: one, a conception of the doctor-patient relationship grounded in contract (2) and two, the relationship grounded in the richer concept of covenant. (3)

II. DEFINITION

First, it is important to define the term that is the pivot point for conscientious refusals to provide healthcare goods and services. If one were to look under the hood of the word "conscience," one would see three important characteristics. The first characteristic encapsulates the sacred space in which a person holds safe her most closely-held values and makes her most important judgments. Here, it is instructive to draw upon the great German Reformer, Martin Luther. Many are familiar with the most famous line of Luther's religious trial before the Imperial Diet of Worms in 1521, usually recorded as: "Here I stand. I can do no other. God help me. Amen." (4) However, in this same monologue, Luther made a couple of arresting statements about conscience. He confessed, "my conscience is captive to the Word of God." (5) Luther was bound by the Gospel and could do nothing but proclaim it in (what he thought was) its unvarnished state. He was completely hemmed in by it and could do nothing that was in violation of it or that added to it. (6) Luther was formed by his conscience. His habits, his ways of thinking, his actions, and his relationships were all filtered and reflected through this lens of conscience as the Word of God. (7) The second, and equally important, characteristic of conscience is that it is a guide for the conscience holder. Luther went on to state in his plea before his jury that "it is neither safe nor sound" to abrogate one's conscience. (8) In this sense, conscience served as the narrow road on which Luther had to walk. He was faced with a choice between walking down the path that his conscience, formed by the Word of God, provided for him, or falling into the pit of religious conventionalism and error that he was fighting against. (9) The third characteristic of conscience is derived from the word "safe" that is particularly striking in Luther's statement. To violate his conscience, recant, and then slide into obscurity under his accusers' thumbs would be to do violence against himself. It would be to harm himself, the actor. (10) This, Luther was not willing to do.

I will grant that my use of Luther the Reformer is idiosyncratic, and that his context is temporally divergent from our con text here. But the lessons of Luther's conscience have traction for contemporary physicians who themselves must exercise their consciences when hard decisions must be made about treating or withholding treatment from their patients--decisions that are now protected at law. As an overall conception of conscience, these ideas borrowed from Luther--conscience as that which binds the physician, conscience as a clear path in the storm and fog of medical decision-making, and conscience as that which is perilous to violate --are important ones that can ground most any physician's professional practice. But first, I would like to examine two foundational premises upon which I believe Professor Sepper's remarks rest and why these premises do not adequately (or accurately) represent the state of the conscientious physician or religious hospital that takes a principled stand based on its values.

III. CONTRACT

Professor Sepper concedes that medical services are different than any other services purchased in a free marketplace. (11) Perhaps this is surprising--or perhaps not--to most peoples' ears. After all, we like to think of our doctors as beneficent, compassionate, and allied with our own particular interests in wellness. (12) In fact, in some contexts, I suspect that we might even be happy with a bit of mild paternalism from our physicians--recognizing that they are experts in the human body and we are not. (13) In short, we are lucky if we have a special relationship with our doctors. We respect their expertise, and we would like to think that they actually care for us.

This relational image shared between doctor and patient is something to which I will return in my second point, because I think that it actually bolsters my case for conscientious refusal by the doctor; however, here I claim that the doctor-patient relationship --notwithstanding the comforting and trust-filled elements fostered in the relationship--is actually one built upon the foundation of contract. (14) Contemporary contract theory has been perverted by libertarians like Richard Posner who claim that a contract means nothing more than what a breaching party is willing to bear in damages in order to secure a "better" deal. (15) In contrast, what is central to the best of modern contract theory is this: something real is created when parties agree on an exchange; indeed something "moral" is created--the parties have invested their respective free wills to help coordinate competing interests in society, thereby co-creating a new thing called the "contract." (16) Importantly, this new moral enterprise functions only upon the parties' ability to freely and completely exercise will, judgment, and discernment "on the front end," as it were. Students of contracts will recognize this as the Objective Theory of Contract. (17)

Here, then, is the application: generally speaking, the doctor is free to enter into a contract with a patient, and a patient is free to enter into a contract with a doctor. (18) A great deal of contemporary health law is built on the premise that the patient and the doctor freely enter into their relationship with each knowing their respective responsibilities up front--the doctor to provide agreed upon treatment, and the patient to pay for those services. (19) Of course, much of the texture and richness of the case law that has developed around this premise focuses on doctors failing to perform contracted services. (20) And this is, ironically enough, where I...