Not only the doctor's dilemma: the complexity of conscience in medicine.

• Author: Sepper, Elizabeth
• Position: Faulkner Law Review Symposium

I am going to begin by telling you about Dr. Willie Parker who grew up here in Alabama and studied to become an obstetrician-gynecologist. Dr. Parker spent the first dozen years of his career without thinking much about abortion. But over the years, again and again he encountered women whose pregnancies endangered their lives, girls who had suffered rape or incest, and mothers who were too poor to raise another child. He came to wrestle with the morality of abortion--torn between his religious tradition's teaching against abortion and his moral commitment to compassion for his patients. He listened to Dr. Martin Luther King's sermon on the Good Samaritan. According to Dr. King, the Good Samaritan was "good" because he did not consider the effects on himself but instead asked "What will happen to this person if I don't stop to help him?" Dr. Parker was moved to examine his own conscience and to ask, "What happens to women who seek abortion if I don't serve them?" (1) From that time, he began to perform abortions, compelled by women's situations and his respect for their moral agency. Today, he is one of three abortion providers in Mississippi. His conscience demands it, despite the risks of harm to himself. (2)

Over the past several years, conscience has become a national catch phrase, invoked regularly in health policy discussions. Rarely, however, do we hear about medical providers like Dr. Parker. Legislators do not seem interested in his conscientious judgments and the conflicts that might develop if a hospital denies him admitting privileges for his conscientious acts or interferes in his treatment of patients.

Instead, the word "conscience" often stands in for refusal to deliver abortions or contraception or to remove or withhold life support. Reported refusals cut across a large range of care, including condoms as part of HIV counseling, circumcision, fertility treatments, and pain management, to name a few. (3) In the last year, employers and insurance companies asserted a right of "conscience" against contraceptive insurance coverage required by the Affordable Care Act. (4) A group of nurses filed suit against a New Jersey hospital where they work, stating their consciences would not allow them to care for patients who had had abortions? The U.S. Congress spent its time proposing legislation, entitled "Respect for Rights of Conscience Act," that would have permitted any person or entity to refuse to provide any care even if the refusal results in a person's death. (6)

In discussions of conscience, one hears commentators baldly assert that no one should be forced to violate his or her conscience. (7) Instead, it is claimed, doctors and nurses should be able to freely refuse to provide any medical help to which they object. Hospitals, clinics, and insurance companies similarly should be able to set moral or religious policies against providing (or paying for) controversial care.

Conscience, however, is not so one-sided. Nor is medical decision-making so straightforward. First, medical decisions-especially those involving questions of life and death--inspire divergent moral convictions. Second, as I will explain, medical decisions do not simply implicate conscience for the provider. They should be thought of instead as involving, at minimum, three parties: patients, providers, and institutions. This three-sided relationship complicates moral decision-making, with each party asserting potentially conflicting claims. Third, I will describe how lawmakers have responded to conflicts over medical decisions. Finally, I will argue that existing legislation fails to measure up to its purported goals of protecting conscience, risks harm to patients, and destabilizes ethical decision-making within medicine itself. I conclude with a few thoughts on principles people who genuinely care about conscience might commit to in order to improve the law's approach to morality in medicine.

1. CONFLICTS OF CONSCIENCE IN MEDICAL DECISION-MAKING

   Medicine presents moral questions that few people encounter in their day-to-day lives. (8) Many decisions involve multiple options with no single correct choice. (9) For example, the consideration of "quality of life" requires a judgment that may vary according to how each person defines a good, or sufficient, life. Advances in modern medicine also may challenge historical and religious concepts of life and death. Today, a patient in a persistent vegetative state may survive for decades. For the elderly, the dying process can be prolonged indefinitely, sometimes inflicting great pain. Extremely premature babies who once would not have lived can now be saved. These issues--especially those involving questions of life and death--may invoke conflicts of conscience for patients and providers alike.

   A brief definition of conscience is in order. Conscience cannot be equated to religion. It is significantly broader, informed by education, experience, and introspection. Through the process of conscience, a person identifies moral principles, assesses context, and decides whether to commit or omit a particular act. (10) Conscience is not mere application of rules. The person who says "my religion tells me 'do not work on Saturdays'; hence I do not work on Saturdays" is not expressing conscience. The unexamined, unthinking life does not represent conscience. Instead, conscience requires examination and judgment. Acts of conscience take place when that person is informed by specific circumstances. (11)

   Conscience has real importance because it is closely related to one's moral integrity or sense of self. While some humans are more conscientious than others, every one of us has a conscience. Although individuals will disagree over fundamental questions of morality, each experiences conscience in determining the morality of his or her own actions. To be clear, conscience is more meaningful than adherence to a pro-life or pro-choice political position. As Dan Brock argues, conscientious judgments "define who, at least morally speaking, the individual is, what she stands for, [and] what is the central moral core of her character." (12) This concern for moral integrity has prompted attempts to resolve conflicts of conscience in medicine.

   Given the centrality of conscience to the human experience, we should consider how conflicts of conscience take place. A conflict of conscience, by its nature, involves a dilemma that requires the individual to choose between conflicting moral demands. (13) It may be experienced retrospectively, generating guilt or regret, or prospectively, generating a sense that failure to resolve these conflicting demands will risk one's sense of self. (14) For instance, a patient's relative may be torn between a duty to help the patient by ensuring he receives treatment, and a duty to not cause suffering by minimizing treatment.

   These conflicts can emerge as a tug of war between doctors, patients, and institutions. (15) Patients and doctors may disagree over the appropriate decisions on ethical, moral, or religious bases. A nurse may oppose a physician's orders. When a hospital prohibits dispensing emergency contraception to sexual assault victims, a doctor may struggle to reconcile her duty to comply with institutional policies and her duty to do no harm to the patient. (16)

   When are we likely to see these conflicts? They can occur in many unexpected areas. Doctors, for instance, have resisted demands of managed care citing moral obligations to their patients. (17) Dialysis for very sick or elderly patients reportedly causes many medical providers to experience internal struggles between their mandates to sustain life, on the one hand, and to relieve suffering, on the other. (18) Patients' religious values can collide with the judgments of medical providers over basic life-saving treatment. In the textbook case, a Jehovah's Witness, whose faith prohibits blood transfusions, insists on refusing blood even if she will die as a result. (19)

   Most salient in the public imagination, however, are decisions about reproductive health and end-of-life care. Futility determinations are a classic example, relying on determinations about the nature of life and death. Take, for instance, the case of Sonya Causey. She was a young woman who was quadriplegic and in end-stage renal failure in a nursing home, when she suffered cardiorespiratory arrest and fell into a coma. Her family insisted on aggressive life-sustaining care. Her treating physician, by contrast, believed that continuing treatment was futile; with dialysis and a ventilator, Causey could live another two years, but would have a very small (1% to 5%) chance of ever regaining consciousness. The Louisiana court confronting these facts recognized that questions of "life-prolonging care [are] grounded in beliefs and values about which people disagree." (20) Where the physician could keep the patient alive, the care was not physiologically futile but might be futile "on philosophical, religious or practical grounds." (21) As the court said, at issue ultimately was "a conflict over values, i.e., whether extra days obtained through medical intervention are worth the burden and costs." (22)

2. THE THREE-SIDED RELATIONSHIP OF MEDICAL DECISION MAKING

   We have seen that medical decisions raise thorny moral questions. These questions are further complicated by the fact that at least three parties may be involved in the decision-making process. In public policy debates, there is a tendency to think that the medical field's moral dilemmas are exclusive to the medical providers themselves. But doctors and nurses are not alone in confronting these complex issues; nor are they the only actors with a strong claim to preserve their integrity. Moral questions also implicate patients and healthcare facilities.

   For a medical provider, the claim is to preserve one's own moral integrity. This claim resonates with the importance of sensitivity to...