Yesterday’s post to this blog addressed physicians’ conscience rights. The standard shape of arguments about preserving individual physicians’ conscience rights goes, broadly, like this: certain actions now sanctioned by society (e.g., abortion, assisted suicide) have been embraced by the medical profession as standard medical care which all physicians should be willing to perform, but this stance runs counter to the long tradition of medicine and to the proper ethical stances of some individual physicians. Therefore, objecting physicians should be free to decline to perform them, without fear of professional or legal reprisal. In this vein, the current U.S. Administration had promulgated a regulatory rule in May of this year attempting to ensure that, consistent with existing statute, such conscience rights are protected. This week, a federal judge struck down the rule in its entirety, arguing that a) the propose rule, which, like all regulations, would have had the force of law, went beyond the statute behind it by making unwarranted interpretations and expansions of the statute’s wording; b) the government’s process of promulgating the rule violated other laws governing such rule-making; c) that it was unconstitutional, violating not only the separation of powers but also the Fifth Amendment because the rule was too vague, and the First Amendment because it would have “required employers to conform their business practices to the religious practices of their employees.”
One might wonder whether at least some of the court’s reasoning—especially the separation of powers and Fifth Amendment arguments, and the concern (“a” above) about bureaucratic overreach—might not in fact apply to a wide range of government regulations. That notwithstanding, the Christian Medical and Dental Associations, which has been particularly vigilant to protect conscience rights when it comes to abortion and assisted suicide, vowed to fight on.
The Journal of the American Medical Association (JAMA) cites a different case, involving assisted suicide in Colorado. There, assisted suicide was made legal, with only limited restrictions, by a public referendum. Notably for the present case, while health care organizations such as hospitals may opt out, and decline to provide assisted suicide, they may not enforce a blanket prohibition against their physician-employees doing so on their own initiative. Such a prohibition could only be enforced on the organizations’ actual premises.
So apparently a physician who worked for a Catholic hospital wrote (on her own time, outside hospital premises, and of her own volition) a prescription for a lethal prescription for a cancer patient. The physician cited judgment of her own conscience. The hospital cited its moral reasoning, its own freedom of religion, and, it appears, a claim that the physician was, or should have been, considered to be acting as an agent of the hospital. The matter is the subject of a lawsuit.
The hospital fired the physician. It is said she found another job. But that of course is not the point, is it? If a physician, who has a covenantal relationship with the patient, finds in her moral judgment that, in a given case, assisting suicide is ethically permissible, why does the hospital system have a right to override that judgment—especially if it was exercised, as it is argued here, in accordance with existing civil law? One can certainly argue, as I would, that the physician has erred in her moral reasoning, and misapplied the physician-patient relationship.
But I wonder whether, as the saying goes, “what is sauce for the goose is sauce for the gander,” in this case. We might consider: the hospital could employ the physician based on an upfront, written agreement that the latter would act in accordance with certain moral stances of the former. Absent such an upfront agreement, it’s hard to agree with disciplining the physician as was done in this case. But even then, such insistence on upfront agreements seems to run counter to much of the spirit of much discussion about conscience rights, setting up a regime in which the relative power of available employers of physicians determines the constraints on medical practice. Even then, if medicine remains a learned profession at all, perhaps insistence on conscience rights should be understood to cut both ways.
Drs. Stephanie Harman and Abraham Verghese seem to lean in this direction in an accompanying editorial in JAMA—but by emphasizing physician autonomy. Their examples betray their preferred value judgments, but the overarching concern still seems relevant and valid.