Skip to comments.Wesley J. Smith: Pulling the Plug on the Conscience Clause
Posted on 12/06/2009 10:20:47 AM PST by wagglebee
Over the past fifty years, the purposes and practices of medicine have changed radically. Where medical ethics was once life-affirming, todays treatments and medical procedures increasingly involve the legal taking of human life. The litany is familiar: More than one million pregnancies are extinguished each year in the United States, thousands late-term. Physician-assisted suicide is legal in Oregon, Washington, and, as this is written, Montana via a court ruling (currently on appeal to the state supreme court). One day, doctors may be authorized to kill patients with active euthanasia, as they do already in the Netherlands, Belgium, and Luxembourg.
The trend toward accepting the termination of some human lives as a normal part of medicine is accelerating. For example, ten or twenty years from now, the physicians tools may include embryonic stem cells or products obtained from cloned embryos and fetuses gestated for that purpose, making physicians who provide such treatments complicit in the life destruction required to obtain the modalities. Medical and bioethics journals energetically advocate a redefinition of death to include a diagnosis of persistent vegetative state so that these living patientsredefined as deadmay be used for organ harvesting and medical experimentation. More radical bioethicists and mental-health professionals even suggest that patients suffering from BIID (body-integrity identity disorder), a terrible compulsion to become an amputee, should be treated by having healthy limbs removed, just as transsexuals today receive surgical sexual reassignment.
The ongoing transformation in the methods and ethics of medicine raises profound moral questions for doctors, nurses, pharmacists, and others who believe in the traditional virtues of Hippocratic medicine that proscribe abortion and assisted suicide and compel physicians to do no harm. To date, this hasnt been much of a problem, as society generally accommodates medical conscientious objection. The assisted-suicide laws of Oregon and Washington, for example, permit doctors to refuse to participate in hastening patient deaths. Similarly, no doctor in the United States is forced to perform abortions. Indeed, when New York mayor Michael Bloomberg sought to increase accessibility to abortion by requiring that all residents in obstetrics and gynecology in New Yorks public hospitals receive training in pregnancy termination, the law specifically allowed doctors with religious or moral objections to opt out through a conscience clause.
This comity permits all who possess the requisite talent and intelligence to pursue medical careers without compromising their fundamental moral beliefs. But that may be about to change. Tolerance toward dissenters of what might be called the new medicine is quickly eroding. Courts, policymakers, media leaderseven the elites of organized medicineincreasingly assert that patient rights and respect for patients choices should trump the consciences of medical professionals. Indeed, the time may soon arrive when doctors, nurses, and pharmacists will be compelled to take, or be complicit in the taking of, human life, regardless of their strong religious or moral objections thereto.
A recent article published by bioethicist Jacob Appel provides a glimpse of the emerging rationale behind the coming coercion. As the Montana Supreme Court pondered whether to affirm a trial judges ruling creating a state constitutional right to assisted suicide, Appel opined that justices should not only validate the right to die but also, in effect, establish a physicians duty to kill, predicated on the medical monopoly possessed by licensed practitioners. Much as the government has been willing to impose duties on radio stations (e.g., indecency codes, equal-time rules) that would be impermissible if applied to newspapers, Appel wrote, Montana might reasonably consider requiring physicians, in return for the privilege of a medical license, to prescribe medication to the dying without regard to the patients intent. Should the court not thus guarantee access to assisted suicide, it would be merely creating a theoretical right to die that cannot be meaningfully exercised.
Indeed, forcing medical professionals to participate in the taking of human life is already advancing into the justifiable stage. In Washington, a pharmacy chain refused to carry an abortifacient contraceptive that violated the religious views of its owners. A trial judge ruled that the owners were protected in making this decision by the First Amendment. But in Stormans Inc. v. Salecky, the Ninth Circuit Court of Appeals reversed the decision, ruling that a state regulation that all legal prescriptions be filled was enforceable against the company because it was a law of general applicability and did not target religion.
In a decision that should chill the blood of everyone who believes in religious freedom, the court stated: That the new rules prohibit all improper reasons for refusal to dispense medication . . . suggests that the purpose of the new rules was not to eliminate religious objections to delivery of lawful medicines but to eliminate all objections that do not ensure patient health, safety, and access to medication. Thus, the rules do not target practices because of their religious motivation. And since pharmacists are not among the medical professionals allowed by Washingtons law to refuse participation in assisted suicide, Stormans would also seem to compel dispensing lethal prescriptions for legally qualified patients even though the drugs are expressly intended to kill.
It isnt just the courts. Many of the most notable professional medical organizations are also hostile to protecting medical conscience rights. In 2007, for example, the American College of Obstetricians and Gynecologists (ACOG) published an ethics-committee opinion denying its members the right of conscience against abortion:
Although respect for conscience is important, conscientious refusals should be limited if they constitute an imposition of religious and moral beliefs on patients. . . . Physicians and other healthcare providers have the duty to refer patients in a timely manner to other providers if they do not feel they can in conscience provide the standard reproductive services that patients request. . . . Providers with moral or religious objections should either practice in proximity to individuals who share their views or ensure that referral processes are in place. In an emergency in which referral is not possible or might negatively impact a patients physical or mental health, providers have an obligation to provide medically indicated requested care.
If this view is ever mandated legally, every obstetrician and gynecologist in America will be required either to perform abortions or to be complicit in them by finding a willing doctor for the patient. And dont think that cant happen. A law enacted last year in Victoria, Australia (the Abortion Law Reform Act of 2008) imposes that very legal duty on every doctor. The law states:
If a woman requests a registered health practitioner to advise on a proposed abortion, or to perform, direct, authorize, or supervise an abortion for that woman, and the practitioner has a conscientious objection to abortion, the practitioner must(a) inform the woman that the practitioner has a conscientious objection to abortion; and (b) refer the woman to another registered health practitioner in the same regulated health profession who the practitioner knows does not have a conscientious objection to abortion.
Recent California legislation for what could be called euthanasia by the back door attempted to incorporate the same approach. As originally written, AB 2747 would have granted terminally ill patientsdefined in the bill as persons having one year or less to livethe right to demand palliative sedation from their doctors. The bill was subversive on two fronts. First, it redefined a proper and ethical palliative technique, in which a patient who is near death, and whose suffering cannot otherwise be alleviated, is put into an artificial coma until natural death from the disease occurs. But as originally written, the bill redefined, as a method of killing, the use of sedative medications to relieve extreme suffering by making the patient unaware and unconscious, while artificial food and hydration are withheld, during the progression of the disease, leading to the death of the patient. In other words, the bill sought to legalize active euthanasia via sedation and dehydration.
Second, it would have granted patients with a year or less to live the right to be sedated and dehydrated on demand. And it wouldnt matter whether the physician didnt believe that the patients symptoms warranted sedation or whether he or she objected morally to killing the patient: Physicians asked by qualified patients to be terminally sedated would have had the duty to comply or refer. (The bill ultimately passed without these objectionable provisions and without the improper definition of palliative sedation.)
Heres another example of intolerance of medical conscience: In the waning days of the Bush Administration, the Department of Health and Human Services issued a rule preventing employment discrimination against medical professionals who refuse to perform a medical service because it violates their religious or moral beliefs. Based on the decibel level of the opposition, one would have thought that Roe v. Wade had been overturned. That meddlesome regulation encouraging healthcare workers to obstruct needed treatment considered offensive, Barbara Coombs Lee, the head of Compassion and Choices, railed on her blog, allows ideologues in health care to place their own dogmatic beliefs above all. Protecting the consciences of dissenting medical professions is dangerous, she wrote, because its like a big doggy treat for healthcare bulldogs who would love to sink their teeth into other peoples healthcare decisions.
It wasnt just overt true believers like Lee. Even before the final rule was published in the Federal Register, Hillary Clinton and Patty Murray introduced a bill to prevent the rule from going into effect. Immediately following its promulgation, Connecticutjoined by California, Illinois, Massachusetts, New Jersey, Oregon, and Rhode Island, and supported by the ACLUfiled suit to enjoin the regulation from being enforced. One of the Obama administrations first public acts was to file in the Federal Register a notice of its intent to rescind the Bush conscience regulation.
Newspaper editorial pages throughout the nation exploded, opening another front against the rule. The New York Times called it an awful regulation and a parting gift to the far right. The St. Louis Post-Dispatch went so far as to state: Doctors, nurses, and pharmacists choose professions that put patients rights first. If they foresee that priority becoming problematic for them, they should choose another profession. In other words, physicians and other medical professionals who want to adhere to the traditional Hippocratic ethic should be persona non grata in medicinean astonishing assertion.
Society is approaching a crucial crossroads. It seems clear that the drive to include death-inducing techniques as legal and legitimate methods of medical care will only accelerate in the coming years. If doctors and other medical professionals are forced to participate in these new approaches or get out of health care, it will mark the end of the principles contained in the Hippocratic Oath as viable ethical protections for both patients and medical professionals.
True, healthcare workers enjoy some state and federal legal conscience protections. But a cold wind is blowing, threatening to end the current comity. If Hippocratic medicine is to be salvaged, the rights of medical conscience need to be expanded and made explicit. With the understanding that there may be nuances in specific circumstances not discussed here, I suggest that the following general principles apply in crafting such protections:
It is a sad day when medical professionals and facilities have to be protected legally from coerced participation in life-terminating medical procedures. But there is no denying the direction in which the scientific and moral currents are flowing. With ethical views in society and medicine growing increasingly polyglot, with the sanctity of human life increasingly under a cloud in the medical context, and given the establishments marked hostility toward medical professionals who adhere to the traditional Hippocratic maxims, conscience clauses may be the only shelter protecting traditional morality in medicine.
Wesley J. Smith, award-winning author and Senior Fellow in Bioethics and Human Rights at the Discovery Institute, is a consultant for the International Task Force on Euthanasia and Assisted Suicide and for the Center for Bioethics and Culture. His blog, Secondhand Smoke, is available on, First Things Online
And this will result in many wonderful doctors and nurses leaving their chosen profession.
Let’s at least hope experiments on twins don’t become popular again.
Due to the declining ethics in the medical industry, I am concerned organ harvesting from patients who could be saved may become common in this country. For that reason I reluctantly chose not to check organ donor when I renewed my driver’s license. The time may come soon doctors find organs for the elites by matching them to average citizens on the operating table. Digitizing medical records and making them accessible to government in a central database will make this possible. If you were on the operating table in a Washington DC hospital due to a severe auto accident with a 50/50 chance of survival and your healthy liver was an exact match to an alcoholic senior Senator needing a transplant, what do you think would happen today?
I remember years ago when abortion opponents were poo-pooed for saying that accepting abortion would initiate a slide that would lead to this.
Write a letter to the editor to both secular and religios newspapers to inform people of this.
This is why I would support and not be surprised if every single Catholic healthcare facility closed its doors till they straighten this out...
Ultimately what this will result in is not being able to find a doctor that you can trust.
The ultimate goal of the democrats is to have the power to decide if a person lives or dies, then to decide in favor of death. They want to kill simply for the sake of killing.
If the Democrats are not out of power by 2012 then they WILL very quickly become the new Nazis. It’s already happening again in Europe.
I think it is necessary to take Congress back next year to really have a chance.
I predict that nobody will do anything and we will lose our country forever. 50 years down the road your grandchildren will live in a hell that no horror writer ever imagined.
I still have faith that American people still value the freedoms the Founding Fathers risked their lives for.
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