The physician as a conscientious objector.

• Author: Bleich, J. David
• Position: Refusal to terminate life

1. ACCOMMODATION OF THE CONSCIENTIOUS OBJECTOR

   Rabbinic lore relates an anecdote, probably apocryphal, portraying a lively student who flits from person to person in the study hall. To each one he says, I have an answer. Ask me a question! I do not claim to have a resolution to the dilemma posed when a conflict arises between a patient's rights and a physician's conscience, certainly not a facile one. My real task is to convince those in a position to implement a solution that a problem exists and that it merits serious consideration. Patient autonomy certainly deserves both moral respect and legal protection, but to demand of a physician that she act in a manner she deems to be morally unpalatable not only compromises the physician's ethical integrity, but is also likely to have a corrosive effect upon the dedication and zeal with which she ministers to patients.

   Society has long recognized and been forced to come to grips with the conflict arising from a woman's right to terminate a pregnancy as announced by the United States Supreme Court in Roe v. Wade, (1) and the moral convictions of a health care practitioner that constrain her to refuse to participate in the extinguishing of nascent human life. A physician's belief that certain forms of assisted reproduction constitute a violation of natural law does not impact an infertile couple's right of procreation for the simple reason that a physician who espouses such views will choose another area of specialization. Yet, the issue of whether an employer who finds such forms of procreation to be morally offensive that must nevertheless include coverage of such forms of fertility treatment in health care insurance provided to employees represents an unresolved moral dilemma as evidenced by a recent debate in the New York legislature. (2) Finally, the courts in Tarasoff v. Regents of the University of California (3) and its progeny have long since recognized and addressed the issue of maintaining professional confidentiality in the face of imminent criminal activity.

   8. CONSCIENTIOUS OBJECTION VS. PATIENT AUTONOMY

   There remain two areas in which conflicts do exist, but are largely ignored. First, is the treatment of the terminally ill, in both the broad sense of the term and the more narrow sense, the determination of the time of death at which continued treatment is regarded as inappropriate. The second is in the field of neonatology with regard to the institution of measures designed to assure the survival of an unborn infant suffering from a serious congenital anomaly. Contemporary society has long conscientiously subscribed to the tongue-in-cheek adage formulated by Arthur Clough: "Thou shalt not kill; but needs't not strive officiously to keep alive." (4) However, there are individuals who sincerely believe that the preservation of life is a paramount value, and that the quality of life preserved is irrelevant to fulfillment of the moral imperative generated by that value. For these individuals, failure to provide aggressive treatment for even the most premature neonate, for instance the infant afflicted with spina bifida, (5) or a severe chromosomal defect, (6) is the moral equivalent of infanticide. Likewise, failure to intubate (7) a terminally comatose patient, or even to administer cardiopulmonary resuscitation, (8) when there is a realistic possibility of clinical success, constitutes passive euthanasia. These individuals would also consider employment of neurological criteria in pronouncing death nothing but a deceptive subterfuge designed to disguise an immoral act by means of semantic sleight of hand.

   There have been a number of instances where hospitals have declined to honor a request for discontinuance of a feeding tube and other life supporting technology. (9) However, such occurrences have been few and far between and have involved matters of institutional policy rather than an expression of the qualms of an individual physician or nurse. Solo practitioners are also confronted with this dilemma. A solo practitioner's isolation aggravates her dilemma because she must make a principled decision without the moral support of like-minded colleagues, and without the benefit of institutional legal talent or informational resources.

   The first difficulty in generating awareness of the problem apparently lies in the relatively small number of health care practitioners who find themselves morally conflicted. The problems of the few seldom become the concern of the many. A more serious hurdle lies in the unwillingness of many medical institutions, as well as society, to recognize the existence of a genuine moral dilemma.

   Law and morality occupy quite different arenas; nevertheless, law frequently gives expression to the moral values of society. Ostensibly, the decision handed down in Employment Division, Department of Human Resources of Oregon v. Smith was designed to establish the parameters of the Free Exercise Clause of the First Amendment. (10) Smith establishes the principle that only religious worship enjoys absolute constitutional protection. (11) According to Smith, religious conduct does not enjoy any particular constitutional protection so long as the religious practice is not singled out in a discriminating fashion. (12) The result of this principle is that, even in the absence of a compelling state interest, statutes of general applicability can be enforced against an individual even when conformity with the law compels compromise of religious scruples. (13) Prior to Smith, religious practice was accorded deference on constitutional grounds so long as there was no countervailing compelling state interest. (14) The volte face in constitutional law represented by Smith can only be explained by changing societal attitudes vis-a-vis religion in general and religious practice in particular.

   While continuing to pay at least lip service to the role of religion in society, society simply does not take religion and religious scruples as seriously as it did in days gone by. The prevailing notion seems to be that religious preferences are precisely that, namely, preferences, but not mandates. Thus, just as recreational, aesthetic, or gastronomical preferences must bow to laws of general applicability, it is assumed that religious preferences must bow to the demands of the dominant culture that are enshrined in statute.

   Such a socio-political stance not only fails to respect the role of religion in the life and value system of the religionist, but also fails to recognize the historical and pragmatic basis from which the principle of religious freedom developed. Indeed, although often overlooked, the Free Exercise Clause of the First Amendment (15) was rooted, at least in part, on practical considerations.

   The Framers of the Constitution of the United States made extensive use of the writings of John Locke, whose influence was most direct upon the First Amendment. (16) Locke recognized that religious intolerance was inconsistent with both public peace and good government, and deemed religious rivalry and intolerance to be among the most severe political problems of his day. (17) Civil strife and lawlessness, not to speak of war between nations, were regarded by Locke as the product of religious turmoil. (18) In an essay written in 1689, Locke stated:

   It is not the diversity of opinions, which cannot be avoided; but the refusal of toleration to those that are of different opinions, which might have been granted, that has produced all the bustles and wars, that have been in the Christian world, upon account of religion. (19) Elsewhere, decrying the futility of religious coercion, Locke wrote, "let divines preach duty as long as they will, 'twas never known that men lay down quietly under the oppression and submitted their backs to the blows of others, when they thought they had strength enough to defend themselves." (20)

   The way to avoid such strife is by assuring toleration and liberty of religious practice for all. Freedom of religious practice also enables a government to govern effectively. A populace that perceives its religious principles to be thwarted by the government will harbor deep resentment and disrespect for the ruling authority. Consequently, the government will be delegitimized in the eyes of those whose religious liberties are denied, thereby compromising respect for the government and its laws. Such considerations apply to matters of religious practice no less so than to matters of belief and worship.

   There has been at least one case where a physician has testified that he would feel morally compelled to disobey a court order that would result in hastening the death of a patient. (21) In Grace Plaza of Great Neck, Inc. v. Elbaum, Dr. Lester Corn, the medical director of Grace Plaza, testified that he would not remove artificial nutrition or hydration from a patient, even under court order. (22) Dr. Corn testified that not only would he refuse to disconnect the patient from a feeding tube, but also that he would not allow access for that purpose to a physician not connected with Grace Plaza. (23) Dr. Corn apparently adopted that stance, not on the basis of religious conviction, but because of his perception of the ethical commitment of a medical practitioner. (24) Dr. Corn "further testified that he would not disconnect a patient from a feeding tube because to do so would be condemning the patient `to death, which is in essence contrary to the dedication of medicine [to] the preservation of life and not the discontinuance of life.'" (25) A physician who internalizes such values because of an objective to fulfill the divine mandate, "nor shall you stand idly by the blood of your fellow," (26) rather than based on a subjective perception of the ethical commitment of a medical practitioner, can hardly be expected to be less tenacious.

   Civil disobedience, if tolerated, can rapidly degenerate into anarchy. Yet, even upon taking...