Broader conscience clauses would expand physicians' right of refusal

A new push in state legislatures to pass very broad conscience laws is giving many physicians pause.

By Kevin B. O’Reilly — Posted March 6, 2006

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Legislators in at least nine states this year have proposed sweeping legislation granting physicians and other health professionals the right to refuse to provide any medical service on the grounds of conscience, without fear of firing, discipline or liability. The proposed legislation also would give hospitals and third-party payers the same conscience rights.

Many state medical societies long have supported the concept of conscience clause laws when they have been related to abortion and other controversial services. However, societies in several of the states where legislation is pending are either neutral or speaking out against the push to extend the principle more broadly.

The bills, which are based primarily on a model crafted by the conservative Chicago-based Americans United for Life, are one aspect of the larger debate over how best to balance health professionals' conscience rights and patients' access to care. That debate has heated up recently after some pharmacists refused to fill prescriptions for the emergency contraceptive pill, also known as Plan B or the morning-after pill, because they believe it is a form of abortion.

If bills pending in Alabama, Michigan, Missouri, Rhode Island, Tennessee, Vermont, Washington and West Virginia pass, the controversy might only deepen. A similar measure narrowly failed in South Dakota last month.

"The legislation that's on the books mostly protects physicians who don't want to perform abortions," said David Stevens, MD, executive director of the Christian Medical & Dental Assns., which supports the expanded laws that are being referred to as "health care rights of conscience acts." "Very little of it protects other types of health care workers with regard to the morning-after pill and other new technologies in the pipeline."

Dr. Stevens said the proposed legislation's broader approach was necessary, given the moral objections some have to human embryonic stem cell research, physician-assisted suicide and other emerging medical practices.

But Howard Brody, MD, an East Lansing, Mich., family physician who has chaired the Michigan State Medical Society's bioethics committee, is wary of the proposed measures. He said they fail to strike the proper balance between physicians' conscience rights and patients' access to care. MSMS opposes the bill in its state.

"The legislation, as we read it, has no balance," Dr. Brody said. "There's nothing in it but stating the right to object."

The proposal, for example, does not include any provisions for emergency circumstances and even would allow physicians and other health professionals to avoid discussing all the available treatment options or providing referrals on conscience grounds.

"At one extreme end, you say to the physician that if a patient wants something, you have to do it for them," Dr. Brody said. "Most of us would see that as an incredible violation. At the other extreme, you'd say not only do you not have to do it yourself, you don't have to even tell a patient about it or let them know about their options."

Edward R. Martin, director of the Americans United for Life's Center for Rights of Conscience, said he is aware that his group's sweeping approach is less popular. But "we give you the Rolls Royce, and you scale it back" if politically necessary, Martin tells anti-abortion groups and legislators around the country.

Some question emergency exception

The Rhode Island State Medical Society also opposes a bill pending in its state Legislature because, among other reasons, it doesn't provide for an emergency exception, said Kathleen Fitzgerald, MD, the group's president.

Health professionals' "right to refuse to provide a certain type of care is superseded when there's an immediate danger to a patient or they have to get someone to do it immediately for them," said Dr. Fitzgerald, a gynecologist.

Martin says that carving out exceptions for emergencies can be tricky, because they might create loopholes that could be used to force physicians and other health professionals to participate in medical services they find abhorrent.

In the case of Plan B, for example, while it can prevent a pregnancy when taken up to 72 hours after unprotected intercourse, it becomes less likely to work as the hours tick by. Many physicians say this is an emergency situation, but others disagree.

"I don't consider that an emergency," said Jane Orient, MD, executive director of the 4,000-member Assn. of American Physicians and Surgeons and a supporter of the broad conscience laws under consideration. "A mother's life is not going to end if she gets pregnant and she was careless enough to not take the proper precautions."

Some pregnancies could be life-threatening for a woman, depending on the circumstances, said Debra Stulberg, MD, a Chicago family physician who is studying the emergency treatment of ectopic pregnancies as a fellow at the University of Chicago's Pritzker School of Medicine. Dr. Stulberg added that the broader right-of-conscience laws could place physicians' values ahead of those of patients.

"When I sit down with patients to talk about their medical care, I see my job as a physician as offering a full range of medically appropriate options," Dr. Stulberg said.

"Then it's the patient's values that determine what course of action they want to take," she said. "Respecting the patient's values gets lost in these bills."

Issue is here to stay

Other than Rhode Island and Michigan, medical societies in other states considering the legislation either haven't taken a position (Missouri and Washington) or did not respond to inquiries by press time (Alabama, Tennessee, Vermont and West Virginia). South Dakota's House already voted down the measure proposed there, 35-34. The state society did not take a position.

The bill's sponsor, Rep. Don Van Etten, MD, a retired surgeon, said he would try to secure passage again next year. "My basic philosophy is that in order to get bills passed, you have to educate people that it's a good idea. And I guess I didn't do that."

The AMA has addressed conscience matters in House of Delegates policy and in ethical opinions. House policy on abortion states, "Neither physician, hospital, nor hospital personnel shall be required to perform any act violative of personally held moral principles."

Also, an AMA Council on Ethical and Judicial Affairs opinion states that a doctor may refuse to enter a physician-patient relationship when "a specific treatment sought by an individual is incompatible with the physician's personal, religious or moral beliefs."

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When conscience calls

Nearly identical conscience clause bills are pending in Alabama, Michigan, Missouri, Rhode Island, Tennessee, Vermont, Washington and West Virginia. Some basics:

What is conscience?

The religious, moral or ethical principles held by a health professional, or by an institution as laid out in bylaws, mission statement or ethical guides.

Who is covered?

  • Health care organizations such as physicians' offices, hospitals, clinics, medical centers and pharmacies.
  • Physicians and other health professionals such as physician assistants, nurses, pharmacists, and hospital staff.

What is covered?

Any medical care, treatment or procedure, including referral, counseling, therapy, testing, diagnosis or prognosis, research, instruction, prescribing or dispensing meds, and surgery.

Source: Americans United for Life model legislation

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Who can refuse, what can be refused

Under the federal 2004 Hyde-Weldon Conscience Protection Amendment, health care organizations and individual physicians receiving federal funds may refuse to provide abortion or sterilization on the grounds of conscience. The National Family Planning and Reproductive Health Assn. has filed a lawsuit in the U.S. District Court for the District of Columbia, challenging the law's constitutionality. Only three states -- Alabama, New Hampshire and Vermont -- have no conscience laws. Unlike the broad laws states are now considering, most states have conscience laws that grant physicians or health care organizations the right to refuse to provide specific services.

Here's how many states have right-of-conscience laws by the type of service that can be refused:

Any medical service
All health professionals and health care organizations 2 (Mississippi and Illinois*)
All health professionals, but only religious health care organizations 1 (Washington)
Physicians 46
All health care organizations 46
Only private health care organizations 15
Only religious health care organizations 1 (California)
Pharmacists 1 (South Dakota)
Assisted suicide
Pharmacists 1 (South Dakota)
Physicians 8
Only private health care organizations 6
Pharmacists 4
All health care organizations 3
Physicians 16
All health care organizations 11
Only private health care organizations 4

* Note: Illinois' law was amended last year by a gubernatorial executive order mandating that pharmacies fill all valid prescriptions "without undue delay."

Sources: Alan Guttmacher Institute; Americans United for Life

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Conscience clauses can pose dilemmas

Over the past year, some pharmacists have refused to fill prescriptions for the emergency contraceptive marketed as Plan B. These actions, allowed by conscience-clause exceptions, have stirred controversy over the fine line between meeting patients' needs and respecting health professionals' deeply held beliefs.

In October 2005, the Arizona Daily Star published the allegations of a 20-year-old woman who said that after being raped, she went to a local Fry's Food & Drug to get her Plan B prescription filled and was refused. She said she was told that the pharmacist on duty had moral objections to doing so. The pharmacy told the newspaper it offered to help the woman find another location that would fill the order, but the woman said no offer was made.

Meanwhile, an executive order that Illinois Gov. Rod Blagojevich issued in April 2005 indirectly led to the firing of four pharmacists in November 2005. The order, intended to create an exception to the state's right-of-conscience law passed in 1977, mandates that pharmacies that sell contraception make the emergency contraceptive pill available "without delay."

Walgreen Co. asked all of its pharmacists to sign a statement pledging to fill Plan B prescriptions. When four refused, they were fired. The pharmacists worked in Southern Illinois near St. Louis. The pharmacy chain offered to give them jobs in Missouri and help them with licensure. The fired pharmacists rejected the offer and instead filed a lawsuit arguing that Walgreen Co. violated the Illinois Health Care Right of Conscience Act, which bars discrimination and disciplining of any health professional for refusing to provide a medical service on conscience grounds.

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