Battle of the conscience clause: When practitioners say no
■ When do medical professionals have the right to opt out of treating patients?
By Andis Robeznieks — Posted April 11, 2005
Pharmacist Neil Noesen refused to fill a prescription for contraceptives while working at a retail pharmacy in Menomonie, Wis., and then refused to transfer the prescription to another pharmacist. His actions have helped keep politicians, lobbyists and some medical societies very busy.
Repercussions from Noesen's actions have included a reprimand from an administrative law judge Feb. 28 and an order to take a six-hour course in pharmacy ethics. The case also has served as a rallying cry for supporters of new conscience-clause laws that allow health care professionals to refuse to participate in procedures they say violate their religious and moral principles.
Last year, 23 states considered legislation to expand conscience-clause laws pertaining to the refusal of individuals or entities in health care to refuse to provide services related to abortion or contraception. Few, however, passed. So far this year, four states have introduced laws that expand the list of services that physicians would be allowed to opt out of.
Conscience-clause laws came into vogue after the Supreme Court's 1973 Roe v. Wade decision struck down state laws against abortion. Since then, 47 states have passed conscience clauses that pertain mostly to health care professionals being allowed to opt out of performing abortions or sterilization procedures.
New proposals, however, expand this list to include the right to refuse to follow a patients' advance directives for end-of-life care, to prescribe or dispense contraceptives, to assist in a suicide, and to conduct embryonic stem cell research or use future treatments derived from that research.
Medical societies -- including the American Medical Association -- traditionally have supported conscience clauses. But the Wisconsin Medical Society and the Michigan State Medical Society spoke strongly against recent conscience-clause bills because the societies felt that they unduly interfered in the patient-physician relationship.
Movement of the states
Every state but Alabama, New Hampshire and Vermont has a conscience-clause law. Most were passed soon after Roe V. Wade in 1973, but Mississippi passed its first law just last year. Of the states with conscience-clause laws, only West Virginia doesn't include a provision on abortion.
According to the Alan Guttmacher Institute, 10 states exempt some or all health care professionals from providing contraception, while 16 cover sterilization, and Arkansas, Illinois, Mississippi and Washington exempt certain individual "providers" from all three categories.
Michael Goldrich, MD, chair of the AMA Council on Ethical and Judicial Affairs, said AMA policy recognizes that physicians have a right to opt out of performing a procedure that violates their religious and moral principles, but it also calls on physicians to respect patient choices.
"We recognize the rights of patients and the rights of physicians to have strong personal beliefs, but it's the responsibility of physicians as professionals to respect the rights and choices of patients as primary," Dr. Goldrich said. "Physicians should recognize all the biases they may have and try to suspend them to provide the best potential care for the patient."
The only AMA policy that speaks directly to conscience clauses deals with medical school situations. The Association's policy on abortion, however, states that "Neither physician, hospital, nor hospital personnel shall be required to perform any act violative of personally held moral principles."
The AMA policy on embryonic stem cell research notes that "every physician remains free to decide whether to participate in stem cell research or to use its products."
"That clause is important because, as much as we favor patients' choice and their beliefs, we respect the physicians' beliefs," Dr. Goldrich said. "We would never force them into a position where they'd have to do something that goes against their beliefs."
A physician who doesn't wish to comply with a patient's choice then "has the obligation to appropriately arrange for transfer of care," he said.
Mississippi State Medical Assn. director Bill Roberts said the nine doctors on the MSMA legislative committee studied conscience-clause legislation proposed in the state and didn't see it making any significant impact on anything. The bill passed in 2004.
"Physicians already are able to refuse to perform services they don't agree with," Roberts said. "When they looked at this bill, I think the physicians on our legislative committee concluded that it didn't change anything."
Roberts believes the law was consistent with the AMA Code of Ethics opinions on abortion and potential patients.
The latter AMAopinion, E-10.05, states that it is ethically permissible for doctors to decline a potential new patient when "a specific treatment sought by an individual is incompatible with the physician's personal, religious or moral beliefs."
"As strict as the abortion situation is in Mississippi, you can still get one here," Roberts said. "There isn't any procedure -- as long as it's legal -- that you can't get from someone."
Debate heats up
In Wisconsin and Michigan, however, the medical societies have spoken out against certain conscience-clause bills offered in their states.
In 2003, on the heels of the controversy over the pharmacist who would not fill or transfer a birth control prescription, Wisconsin considered a bill that would have allowed health care workers to ignore a patient's do-not-resuscitate order and advance directive to forgo the use of a feeding tube. In response, the Wisconsin Medical Society sent out a memo to its members explaining that it opposed the bill because it "creates bad policy and exposes ill patients who are most vulnerable to an inability to receive the care that the patient desires."
In a hand-delivered letter to the governor, then-WMS President Paul Wertsch, MD, stated his concerns about how the end-of-life care wishes of an incapacitated patient's family could be ignored and requests for transfer disregarded.
But physician opposition to the bill was not unanimous. John T. Dunlop, MD, a family physician in the Northern Illinois community of Zion and a fellow at the Bannockburn, Ill.-based Center for Bioethics and Human Dignity, wrote and testified in favor of Wisconsin's 2003 bill and defended its nonreferral provision.
In particular, Dr. Dunlop does not believe a patient's right to access to care trumps his right to practice according to his moral beliefs. "Is their inconvenience of driving to the next town more important than my conscience?" he asked. "I would say not."
If a patient asked him to do something he morally objected to, Dr. Dunlop said he would "facilitate transfer of care," which he said does not necessarily constitute a "referral."
Wisconsin's 2003 bill was passed by both chambers before being vetoed by Gov. Jim Doyle last year.
A new version of the bill was introduced March 15, and -- at press time -- WMS Legislative Counsel Mark Grapentine said the society was reviewing it but had not determined if the new bill addressed the previous concerns about patient abandonment.
Last year, Michigan's Conscientious Objector Policy Act passed the House by a 69-35 vote before getting mired in a Senate committee.
Howard Brody, MD, PhD, who chairs the Michigan State Medical Society's Committee on Bioethics, said there isn't any need for the current wave of conscious-clause bills because laws already on the books protect physicians from being forced to do procedures they are opposed to. "At the individual level, we were presented with no evidence that it's not working," he said.
If the Michigan bill had passed, however, he said it would have opened the door to a whole new set of abuses such as medical students refusing to attend lectures on the grounds that they objected to their content.
Attorney Robyn Shapiro, director of the Medical College of Wisconsin in Milwaukee's Center for the Study of Bioethics, said conscience-clause bills that would permit physicians to refuse but not refer have the potential to harm the doctor-patient relationship -- a relationship where information equals power.
The American Bar Assn. has adopted a recommendation Shapiro wrote opposing government actions and policies that interfere with a patient's ability to receive timely information needed for making health care decisions and for getting access to appropriate care.
Meanwhile, in California, Assemblyman Lloyd Levine introduced a bill that would make it a crime for pharmacists not to fill a prescription for contraceptives.
Shapiro said conscience-clause bills are expected to be at the center of future legislative fights.
Abortion-rights advocates such as NARAL Pro-Choice America and the Alan Guttmacher Institute have identified the refusal to provide medical services as a key issue Meanwhile, anti-abortion rights groups such as Pro-Life Wisconsin have identified conscience clauses as a top legislative priority.