The Chasm Between Caring and Curing

Lately, there have been a bevy of articles steeped in irony, addressing the health hazards of health care to one’s health and well-being. Two articles by Roni Caryn Rabin in the April 29th, 2013 edition of the Washington Post (“Hospitalized Patients Too Often Have No Single Physician in Charge of Their Care;” and “Hospitalized Patients Need an Advocate by their Side to Avoid Medical Errors”) highlighted such concerns. While it is easy to categorize such anecdotal journalistic complaints as, well, journalistic rhetoric, the picture painted deserves attention for what it reveals about how care is perceived by those on the receiving end and the impact it is having on the physician-patient relationship.
The picture? A sick and vulnerable patient; a fragmented,uncoordinated system; dozens of faces flitting in and out of the room; inconsistent information; conflicting management plans; lack of communication; and all of this compounded by failure of the patient to improve, or worse yet, to further deteriorate. No one is seemingly in control; no one seemingly “cares.” It is an apt illustration of the old cliché, “too many cooks spoil the broth.” Even the hospitalist quoted in the article confirmed (confessed?) that he only spends minutes in the (patient’s) room. His job, as he perceives it, is bridging the gap between the plethora of specialists and the patient. But by Rabin’s account, it is largely unsuccessful.
Rabin’s solution to this malady? A patient advocate; a friend or family member who remains at the bedside to ensure proper care and intercept errors, one who comes supplied with note pad, pens, and all relevant health, medical and insurance information, as well as antibacterial wipes to clean the surfaces of the entire room. Anyone with a vested interest in the profession cannot help but be saddened by the elements of truth that reside in this rendition. For what the article illustrates is not just loss of communication, command, and integrity, but loss of care—and with that loss of care, loss of trust, the interpersonal trust that is the foundation of the fiduciary physician-patient relationship.

An article in the April 11, 2013 edition of NEJM by Dr. Arthur Kleinman, provides the conceptual tools needed to diagnose the malady in Rabin’s anecdotes. In the article, Dr. Arthur Kleinman uses the personal experience of being a caregiver for his cognitively impaired wife to narrate the distinction between illness (the experience of the patient) and disease (as diagnosed, treated, and understood by the physician). Indeed, this is the unnamed chasm between provider and patient that has not been bridged in Rabin’s anecdotes, because it has been ignored by means of reductive objectification. The patient’s illness has been reduced to biological disease process that can be objectified and quantified. It is this personal context and experience of the disease process that has been forgotten in our technological pursuit of the objective cure.
Medical care as a moral encounter involves  a healing touch (both literal and figurative—we” touch” the lives of others by our care andconcern) and a healing presence . Indeed, much unquantifiable healing occurs in the personal encounter between physician and patient, in the moments of touching, valuing, and being present to the suffering patient. But it is healing that does not fit into the current commodified paradigm of medical “care,” with its “outcomes analysis” and calculations of productivity. There is no place in EHR diagnostic templates for such subjective factors as the personal experience of disease; for challenges of life with the disorder, or for the effect of those challenges on the disease itself.

It has been said that the “eyes are the window to the soul;” but there is little opportunity in the current system to gaze into the life and soul of the ill, for EHR is a jealous lover–the computer screen demanding all of one’s attention, and preventing the eye contact necessary for establishing personal relationship.
We are complex, integrated, bio-psycho-social beings who live in a tightly integrated world where an impact or change in one area has powerful effects in all others. To truly care we must return to a more holistic, less fragmented and reductionistic paradigm of medical care. The “medical home” focused as it is on data gathering for population health is not the answer. We must not let the care for the ill be swallowed up by the pursuit of the cure of the disease.

Eliminating the Ends of Medicine: Balancing Justice and Autonomy

This past week I gave a presentation on the limits of autonomy in health care which began with a review of biomedical ethical principles. In light of these continuing discussions, that review prompted even more pondering on the ends of medicine, a discussion that is of great value as we corporately attempt to process and define the place of healthcare in our society.  Why are these discussions necessary? Because the course that we are on is not sustainable. And despite one’s vision of healthcare, whether as a social good or a capitalist venture, it is neither just nor equitable.

As previously discussed, we have shifted from an understanding of medicine as a profession to healthcare as a commodity in a capitalist venture; and in those shifting sands, the goals have likewise shifted from healing and care for the sick and injured to accommodating the limitless desires and perceived “needs” of the consumers of healthcare created and fueled by new technological advances. In the interest of distributive justice I addressed the need to eliminate the (non-teleological) “ends” of medicine–those aspects of health care that have been added to our basic understanding of healing and restoration–and suggested that prevention be considered as one of those extremities whose usefulness has run its course, as evidence has increasingly suggested. The other “end” that needs to be addressed is that of enhancement or wellness–those areas of medicine that address not objective issues of life and health, but the subjective area of quality of life and well-being.

This issue is exemplified in a decision handed down last September by a judge in Massachusetts who ordered that a male inmate in an all-male prison serving a life sentence for murdering his wife be provided with sex-reassignment surgery at tax-payer expense. Such precedent-setting decisions, based on individual “need” have profound implications and ramifications for our society. Sex-reassignment surgery is obviously not necessary for this individual’s life (other than the fact that he was threatening to remove his unwanted parts himself) or for physical health, but simply for his/her emotional well-being. Setting aside the question of whether one who has been judged guilty of depriving another of life is entitled to “emotional well-being,” can we, as a society, afford such a precedent? And correspondingly, are we (corporately) willing to pay for many others who will likely claim the same “right”? In light of the millions who have no insurance or access to needed basic care, and who may lose their lives early as a result, such a determination is profoundly unjust.

Closer to home, sexual functioning has seemingly become our nation’s primary health care issue. No longer simply grateful for the lengthier life bestowed by medical knowledge and pharmaceuticals, we want youthful functioning as well, and are frustrated by the diminished sexual functioning that results from either the medical conditions or the pharmaceuticals themselves. In the past, it was accepted that sexual functioning diminished with age and declining health status; people moved into a new season of life,  into new ways of relating, that promoted depth and meaningfulness in their relationship. Now we have come to expect and demand unending sexual functioning. Or consider menstrual cycling: what was once a sign of womanhood is now an inconvenience to be eliminated whether by medical or surgical means. Both of these examples–and many more could be cited–force the question: in the light of justice, what are the limits of autonomy in healthcare?

When one examines the four principles of biomedical ethics–autonomy, beneficence, non-maleficence and justice–one finds an inherent system of checks and balances: autonomy is balanced by justice; beneficence is balanced by non-maleficence; and autonomy and beneficence serve as mutual checks. But our healthcare system has become an autonomy-driven capitalist venture (“autonomy-run-amok”); there is no “room in the inn” for justice in a capitalist venture that feeds on unbridled autonomy.  Justice and ends (other than the bottom line) are not essential components of capitalist ventures. Therefore, to speak of “ends” is meaningless.

To further complicate matters, many of us are clinging to the fragments of an antiquated understanding of medicine which centered on the individual relationship between physician and patient. But the introduction of third party payers and the government into the relationship have irreparably changed those dynamics, forcing us to stop down our aperture and  increase the depth and breadth of our focus. The relationship does not exist in a vacuum…

While many have decried a two-tiered system of healthcare as inherently inequitable, equality is not necessarily justice. Seeing that everyone has a basic level of care and allowing some to purchase additional healthcare goods or services is far more just than the wide chasm between “haves” and “have-nots” that currently exists in our society.

How then should our vast variety of costly health care resources be distributed? Equally? According to need? According to contribution or merit? According to free-market exchange? And which resources should be justly distributed?  Can we in good conscience provide services for politically correct perceived needs of individuals while others lack resources for basic care? That is the question of the “ends”–both teleological and non-teleological–that confronts our society, looming before us, demanding to be seriously addressed before the system implodes from the weight of our demands on its flimsy, unbalanced structure.




Eliminating a “New” End of Medicine

In my reading this week I encountered two articles that promoted the importance of a new aspect of medical care–a new end, so to speak. One article addressed the need for training providers in “life-style medicine” and the other endorsed the use of a conversational technique for motivating appropriate life-style choices and effecting behavioral changes in patients. In both cases, the training and techniques were applied to our national epidemics of smoking and obesity. Providers were encouraged to learn and utilize the techniques with their patients as a means of combating these two major public health threats, thereby improving the health of the nation (population!).

These techniques, however, are not only time-consuming but costly, requiring longer and repeated visits from a dwindling number of providers, encumbered by diminishing resources. One cannot help but wonder: Is this an efficient or cost-effective means of  achieving a healthy population? Will changing the behavior of the individual patient effectively change the comportment of a nation?  Can the already truncated professional education bear the burden of additional requirements? Is this an appropriate “end” for medicine?

These questions are not intended to diminish the importance of the personal clinical encounter in the lives of individual patients, nor to suggest that these issues should not be addressed with the individual during the clinical encounter . They merely suggest that these costly limited means are inappropriate to the extensive ends. In the face of epidemics of these proportions, we cannot hope to significantly change the course of the epidemic “one life at a time.” What is needed is mass education via media and schools that begin in early childhood and continue through the entire length of the educational process. Even buying media time for public health infomercials, while no doubt expensive, would be more cost-effective than individual counselling by a medical professional, and more efficient by virtue of the repetition.

But it must also be remembered that for many the solution to the epidemic is not simply an educational one, but an economic one as well.  Sadly, healthy foods are far more expensive than junk foods and are beyond the budget of far too many–especially those who are addicted to tobacco.

While clinicians should indeed use the opportunities that they have to encourage healthy lifestyle changes among those they encounter in clinical care, lifestyle medicine should not become a new end of medicine. It should be relegated to the arena of public health, the only field  in which the potential for effecting significant change in the health of the population exists.

Re-imagining Medical Care: Eliminating the Ends of Medicine

Once again I am travelling, with limited time for writing, much less reflection, and so will share a few free-flowing thoughts concerning the conversation begun by Drs. Holmlund and Gibes.

To begin with, in a previous blog I stated that if medicine is a social good (not a right), then we, as an affluent nation and profession, have a responsibility to see that all citizens were provided with a basic level of care (can we ethically withhold or deny needed care to  those who are seriously ill for lack of payment?). Some might argue that since food, clothing, shelter, education, and transportation are also social goods, then they too should be provided (indeed, both education and, to a limited extent, food–through WIC programs–are provided). This leads me to question my position, asking: why is medicine different–or is it? How does a physician differ from a realtor or a grocer? I believe the answer lies in the residual covenantal or fiduciary nature of the medical profession–in the fact that medicine has not always been the big business that it has now become. But in that light, how does one define “basic care”?

The provocative title of this piece does not refer to the teleological “ends” of medicine but to “ends” as extremities, those aspects of medical care referred to by Dr Gibes–prevention of disease and promotion of health–that have been added to the original Hippocratic ends of medicine–care for the sick and dying–by virtue of our affluence and technological advances-. If one were to envision the broad range of medical care as a continuum (a very loose analogy), with preventative care on one end, care o the the sick or dying in the middle, and, for lack of a better term, “wellness” care on the other end, eliminating the “ends” or “extremities” from what is now considered “health care” is one option (albeit a problematic one–to be addressed later) for solving the dilemma of what constitutes the basic core of medical care that we have a responsibility to insure that all receive.

But eliminate preventive care? Isn’t that basic medical care? For those of us nurtured on the milk of preventive care, being weaned from it will be extremely difficult. Preventative care is part of our identity as physicians, and as everyone knows, “an ounce of prevention is worth a pound of cure”–or is it? Recent reports repeatedly deny the cost-effectiveness of preventative care, finding little evidence for the efficacy of screening programs in decreasing long term morbidity and mortality. The delay and reduction in the frequency of pap smears, breast exams, and mammography–the cornerstone of gynecologic care–is but one example. Additionally, in August 2012 ACOG published its Committee Opinion on “The Well-Woman Visit” in which they listed the basic elements of a well-woman examination (while they never specifically defined “well-woman,”  presumably it is a woman over age 21 with no gynecologic complaints). The recommended elements of the physical exam included: vital signs, weight, calculation of BMI, abdominal palpation, and palpation of inguinal lymph nodes; all else was discretionary. No thyroid exam, breast exam; no pelvic or pap. Why they made the recommendations they did is beyond explanation. Thyroid disorders occur in 20% of women, yet palpation was not recommended. Given the prevalence of obesity in the population, abdominal palpation will have a very low yield in an asymptomatic woman; likewise inguinal lymph nodes are enlarged in most women who shave (which is the vast majority) and will only be significantly enlarged in the presence of Herpes or cervical cancer, neither of which is asymptomatic. And for this truncated exam a patient (or insurance company) will be billed $250 in our clinic, not to mention the $50 additional co-pay for the privilege of having a gynecologist perform an exam that could be done just as effectively by a physician’s assistant or family physician.One must certainly question the objective of such a truncated exam. Furthermore, can our society afford the “luxury” of that expense for so little of substance?

Perhaps preventative medicine, as we have known it, is a practice whose time has now ended. Much of the educational component of preventive care could be disseminated more efficiently and cost-effectively through health education in the schools or through media-wide public health announcements and/or apps. Immunizations for communicable diseases could be administered through schools and public health “clinics.”

What about contraception? Is that “preventative medicine”? First of all, given the fact that high-dose contraceptives are available over the counter without surveillance in the form of “emergency contraceptives” there is no reason that all oral contraceptives should not be available over the counter, as they have been in other countries for years. While they may not be as effective as “long-acting reversible contraception” in preventing pregnancy due to compliance issues, their long-term safety in terms of breast and bone health has been proven, unlike that of the LARC’s.

Medicine is changing drastically. What is being lost is that personal, ongoing relationship between physician and patient that has been the rewarding cornerstone of medicine, but perhaps that, too, is a remnant of the past to which we have been futilely clinging given our changing societal characteristics.  It seems that a significant question in today’s medical environment then becomes: is this fiduciary relationship properly understood to exist between physician and individual or is it now shifting to physician and society? It seems that while both still exist, and while the remnants of the covenantal or fiduciary aspects of the relationship still exist in our care of  those who are ill, the latter is becoming the predominant reality.

The other extremity that should be considered for elimination as an aspect of basic care is that of “wellness” care, that aspect of medicine that seeks to enhance or restore a patient’s subjective sense of well-being. But to do this topic justice will require a second blog. Beyond that, a remaining challenge will be to address the definition of “sickness” in that central category, distinguishing it from “condition,” a task that is daunting indeed.

Dr. Koop and the Politicization of the Profession

In addition to the many published eulogies for Dr Koop, there was an interesting commentary by Mark Bittman in the NY Times (Feb 20th) entitled “Our M.I.A. Surgeon General.”  The commentary drew comparisons between the current and recent surgeon generals and Dr Koop, whom he felt epitomized what a surgeon general, as “the nations’ doctor,” is to be. The purpose of his comparisons was to illustrate the “evisceration” of the position by political censoring.  Six years ago, three former surgeon generals, Dr. Koop included, testifying before a a congressional committee claimed that the scientific information they wanted to present was often vetted and subjected to political agendas; they were told “what to say and what not to say.” In other words, science was politicized.

While Bittman’s concern was focused on the control (or lack thereof) of a “controllable substance” (refined sugar), his overall perspective bears heeding because it raises even greater quandaries for the profession of medicine which is also becoming progressively politicized. EMR was mandated “from above” in the name of efficiency, without “evidence” that it would actually improve care, and has subsequently reduced that care to the determination of diagnostic and billing codes. Likewise, attempts at mandating  HPV vaccination were tied to money and politics, and while the push to mandate the vaccine has decelerated, it remains so strongly recommended (marketed as a “cancer preventative”–for which, by the way, there is no evidence)  that no informed consent is given because those administering the vaccination lack the information–they are merely doing as they are told.  Another interference from above (political or financial?–sometimes they are difficult to disentangle) is the move by CMS (Center for Medicaid/Medicare Services) to reduce hospital admissions by requiring that many major operations be treated as “outpatient.” As in many instances, CMS makes the declaration and other insurers follow suit, as physicians expend their professional energies, not in patient care but struggling in vain to redefine that care so that it will fall within  predetermined categories of the CMS.

While medical care is not a right, it is a responsibility (if it were truly a “right” could we require that citizens “pay” for it through insurance mandates?). As a technologically developed and wealthy nation (some would object to this categorization, including a Romanian worker here in the US with whom I had the pleasure of conversing on my recent travels), we have a responsibility to see that all citizens are provided with basic health care.  But as a profession, we dropped the ball long ago, and now  the government has picked it up and is running with it. Part of the problem is that neither we as a profession nor we as a nation have been willing or able to define the ends of medicine–what is basic health care?  At this point, it might be preferable for the government to continue carrying the ball, if that meant providing the means to such care, AND if they would be satisfied with mere provision of the means. But that will never happen–they will not provide the means without controlling the ends as well. And since medicine has lost sight of its own ends and is no longer able to define them,  the task of defining those ends will also fall to the ball-carrying government.

And so in the end, medicine and the waning profession will become progressively politicized. Just as the position of surgeon general has been eviscerated, leaving only a facade–one that speaks not for the health of the nation but for political and politicized agendas–so too the profession. It will no longer a be a profession that cares for patients, but a pretense for a big business that treats politicized conditions for politically defined ends.

Medicine Men of the Mind

This past week I made my yearly journey from Wisconsin to Arizona by automobile with my dog to visit my husband who winThis past week I made my yearly journey from Wisconsin to Arizona by automobile with my dog to visit my husband who winters there. In this yearly process, I have discovered the delight of audiobooks. This year, I explored the holdings of our local library in rural Wisconsin, but the only audiobook of substance that they had (the only non-Evanovich) was Ayn Rand’s Atlas Shrugged, an author of whom I had heard, but with whom I was not acquainted. It has been fearfully intriguing to ponder the ways in which her philosophical ideas have crept (or been smuggled) into our culture—not wholesale, but part and parcel.

While her political ideas are not too dissimilar from anti-socialist emails that are making the rounds these days (or so I’ve heard—emails about professors applying socialist paradigms to grades and failing the whole class because those students with ambition and ability ultimately refused to carry the weight of the non-ambitious in the class—“Atlas shrugging”), it is her ethical ideologies that are most disturbing. For Rand, the moral measure of man is his hedonistic happiness. Correspondingly, she also rejects any doctrine of altruism. Her ideal is a society ruled by Men of the Mind, where selfishness, or rational self-interest, is the primary virtue. Ironically, Rand’s appeal is to the ideal of rationalism and not the reality of fallen rationality in a fallen world. While Rand objects to hedonism, in reality she makes no distinction between rational and irrational happiness, and therefore hedonism is a reality in a society of fallen persons of differing rational capabilities.

Men of the Mind are persons who choose to think, and such thinking requires a state of fully focused awareness achieved by the volitional act of focusing one’s consciousness. One can choose to focus their mind to a fully active, purposefully directed awareness of reality—or one can become unfocussed and let oneself drift in a semiconscious daze, merely reacting to any chance stimulus of the immediate moment, and making random, irrational associations. Such an unfocused semi-conscious drift as Rand describes is alarmingly true of our culture today, as we have become fractionated and distracted by the barrage of stimulants that confront our senses, and, as a result, are losing our ability to “perceive.” There is no time for, or importance given to, the use of the mind for thoughtful reflection–just mindless reacting to external stimuli which we require to ever greater degrees.

In Atlas Shrugged Rand vividly depicts the “end” of a society ruled by the “Mystics” (persons who rule society on the basis of faith, altruism, or other non-rational ideologies which find their source and goal in God or society) as one ensconced in violence which is the means to the promotion of their ways. Yet she, fatefully does not portray what a society ruled by Men of the Mind would look like. She claims that objectivism and capitalism are the systems most beneficial to the poor but she does not portray what would happen to those who are unproductive or somehow rationally challenged in a society where there is no altruism. Does she not believe that they would then turn to violence to support themselves, taking from those who have what they need for their lives and happiness by force and justifying such actions as their only means of procuring their own survival and happiness? Would not the end be the same but with a different ruling class?

It seems that her rational perception has been blinded to the reality of evil inherent in mankind. And that blindness is easily coupled with her attitude toward the fact of original sin. Rand refers to the concept of “original sin” as an evil and a monstrous absurdity which she claims makes a mockery of nature, justice, reason, and morality.

Her perceiving is also blinded by failing to perceive the reality of our human interdependence as objectively evidenced in that fact of our birth and growth. In Atlas Shrugged there are no families, no marriages, no children. One can easily surmise the reason: marriages, families, and children require self-sacrifice, a cardinal vice in Rand’s philosophical world. Even romantic love is a matter of rational self-interest; hence, there is no room for agape love. But with no marriages and families, the society she envisions is an unstable collection of hedonistic individuals, subject to disintegration. And with no children that society has no future, unless, of course, they can continue to cull members from the wider world.

Medicine, too, has fallen prey to her ideologies, where Men of the Mind have taken over from Men of Compassion; where the data of our senses is replaced by data from machines; where there is no room for altruism; where personally defined “happiness” and self-fulfillment have become the goals and ends of “medical care”; where technology and innovation serve the desires of the wealthy, but not the basic needs of the poor; where Money, Productivity, and Efficiency have come to be the image and symbol of success—the gods of a profession that was. Medicine is no longer about caring, because caring belongs to subjectivity, and is unproductive and inefficient, to the Mystics of the Spirit or of Society (which Rand lumps together in one malevolent category). Such a system no longer serves the needs of the vulnerable and needy for whom it was intended. Is this indeed where we are headed?

The Profession that Was

Once upon a time in a land far away, there existed a profession called “medicine,” a profession governed by internally derived standards and values, a profession that relied on both scientific data and experiential knowledge and judgment, a profession that focused on providing excellence in the care of others…
Last week I received a call from “utilization review” concerning the “hospital status” of a woman on whom I had just performed a vaginal hysterectomy by means of morcellation due to its size. The call challenged my decision to admit her for post-operative recovery.
Over the past 25 years we have gradually reduced the length of stay for our post-surgical (hysterectomy) patients from 5-7 days to 1-2. But the current impetus–mandated by insurance reimbursements and led by the governmental agency of the CMS (Center for Medicare-Medicaid Services)—is to require that hysterectomies be performed as an “outpatient” procedure. This entails discharging the patient hours after removal of an intra-abdominal organ with significant collateral circulation. As a default practice, such a mandate is unreasonable and unacceptable. It fails to consider the many contingencies of the individual patient and procedure for which physician judgment is still required.
At the risk of being too graphic, when a vaginal hysterectomy is performed, a major organ is removed through a relatively small orifice, compromising visualization of the surgical field. Inadequately secured blood vessels can retract into the pelvic sidewalls, out of sight, creating a risk of significant post-operative intra-abdominal hemorrhage. Fortunately, such risks materialize infrequently, but the risk still exists and requires a reasonable period of post-operative monitoring and assessment for the safety of the patient. For such bleeding, if it occurs, is potentially disastrous, even more so if the patient is not in the facility.
Over the past decade these same agencies have also become obsessed with pain control for hospitalized patients, developing and utilizing “visual analogue scales” (smiley faces) in an attempt to quantify the subjective and unquantifiable, and insisting that post-surgical patients be “pain-free,” an unreasonable expectation to begin with. Yet now it is proposed that patients be sent home with anesthesia-induced and pain-induced nausea and vomiting that prohibits them from taking their prescribed oral analgesics which results in more pain, more nausea, and more vomiting—a vicious cycle. Moreover, the increased intra-abdominal pressure that occurs with valsalva increases the risk of post-operative hemorrhage. As concerned as the accrediting bodies have been about pain control for hospitalized patients, there is no concern about the adequacy of pain control for patients who are discharged–it seems that it is then no longer their responsibility. But while it may no longer be the “responsibility” of the regulating agency, the pain and care of these patients is still my responsibility and concern.
Over the past few years this has resulted in “insurance-company-mandated-hospital-anxiety-over-lack-of-payment” induced game-playing over hospital status, games characterized by dishonesty and semantics. But these new rules, regulations, and games place physicians in the untenable situation of being morally and legally responsible for patient care that is legislated by a nebulous outside authority, one that lacks knowledge of the particular patient and/or procedural contingencies. Furthermore, as professionals, our calling is to be advocates for our patients and their care. Yet if we advocate for patients by refusing to abide by unreasonable and unacceptable regulations, especially in rural America, the hospitals in which we provide that care are penalized through the withholding of reimbursement and imposition of fines that threaten them with insolvency. Such a situation violates and undermines the concept of professionalism, which by its very nature is governed by internally derived values and standards, not externally imposed regulations.
Medicine is not a game, especially not a zero-sum game. It is a profession defined by excellence in its practices. Or at least it was. How is it that these “authorities” have assumed the right to dictate patient care without assumption of the correlative responsibility for any adverse consequences? I fear that we, ourselves, by shifting our focus from care to compensation, have let the fox into the henhouse. That fox has destroyed the profession…and I fear it is here to stay.

Conscience or Convictions: part 2

In my last blog, (“Conscience or Conviction” January 11, 2013) I addressed an article by Lisa H. Harris, MD, PhD , published in the “Perspective” section of the September 2012 edition of the New England Journal of Medicine, entitled “Recognizing Conscience in Abortion Provision.” In that blog I argued that equating conscience with conviction was a categorical mistake that failed to acknowledge that convictions, unlike conscience, lack a consequent function and a transcendent referent. Consequently, being subject to no transcendent moral authority, convictions carry no sense of “moral ought.”
But there is an additional problem in Harris’ argument: she illegitimately equates prohibition with compulsion, a move that can be made in light of her insubstantial understanding of conscience. In her argument, Harris laments that abortion providers are offered only minimal legal protection for their “conscience-based abortion provision” (regardless of the fact that they have the force of law on their side). Furthermore, she implicitly declares the law to be discriminatory with regard to protection of conscience (although the term she judiciously uses is “asymmetry”), maintaining that the conscientious rights of abortion providers to provide care (that is proscribed by law) is neither addressed nor protected by law. Her example: in states where abortion is banned after a given gestational age, there is no allowance for providers who are conscience-bound to offer care beyond that limit.
First of all, a moral distinction exists between compulsion and prohibition which Harris obfuscates, a distinction located in the concepts of positive and negative law. Positive laws compel actions and impose penalties for failing to act accordingly. Negative laws, designed for the protection of individual rights, prohibit actions that violate or harm others thereby limiting one’s freedom for the protection of others and the good of the state.
Secondly, the right in question—the right to abortion—is a negative right (Yale Law Journal, 118: 2009, pg 1394) designed to keep the state out of the domain of the family. As a negative right it carries no obligation on the part of others except a duty not to infringe upon or deny that right. Only positive rights, so construed, impose obligations on others; a negative right neither entails nor warrants a positive law. And there is no positive law for the provision of abortion.

Harris’ argument equating the prohibition of a “conscientious action” with compelling an action in violation of one’s conscience is, in fact, unconscionable. Performing an abortion after a gestational age that exceeds the established legal limit violates the law and carries consequent penalties. Refusal to perform an abortion entails no such violations of the law.

Our laws routinely prohibit actions for the protection of others, even when those prohibitions violate individual convictions, moral or otherwise. Non-consensual sexual intercourse–rape–is prohibited and punishable by law (note the recent outcry over the discovery of the prevalence of rape in India). And sexual intercourse between an adult and a minor, even if “consensual” and even when the adult is convinced that it is in “the best interests of the minor,” is likewise prohibited by law. Compelling an action in violation of one’s conscience is analogous to compelling someone to engage in sexual activity against their wishes: both are flagrant violations of the boundaries of one’s person and personhood.

The injury to a person’s “moral integrity” resulting from a prohibition of an action is not equivalent to a violation of conscience–to the “injury” that results from compelling an objectionable, offensive, and abhorrent act. Compelling an action that violates a person’s conscience not only violates one’s moral selfhood but also one’s personal obligation to an authority greater than the state, in a way that violations of moral convictions do not. One may experience anger, “righteous indignation” or frustration if they are prohibited from acting on their convictions, but not the shame and guilt that accompany violations of conscience.

By disemboweling the concept of conscience, equating it with moral convictions, obscuring the ethical and legal distinction between prohibiting and compelling an action, and by claiming equal protection for moral convictions, Harris demonstrates disrespect for the law and, in fact, prescribes anarchy—where any violation of the law can be justified and protected on the basis of one’s “moral convictions.”

Conscience or convictions?–that is the question!

Conscience is a term bandied about quite frequently in contemporary ethical discussions, yet despite the frequency of its usage, it is an enigmatic term defying definition—or inviting post-modern reconstruction. Such is the case in an article which appeared in the “Perspective” section of the New England Journal of Medicine in September by Lisa H. Harris, M.D., Ph.D., a recognized name in the area of women’s reproductive rights. The article was entitled “Recognizing Conscience in Abortion Provision” (NEJM 367;11: 981-983). Harris’ position, which had a peculiarly defensive tone, was that neither conscience nor rights of conscience is the sole prerogative of those opposed to abortion, but that abortion providers are likewise driven in their work by moral convictions—hence, conscience—and ought to have their rights of conscience protected as well. While there are many aspects of her argument that could be challenged, there are two that demand attention: the definition of conscience and the distinction between forcing and prohibiting an action.
Harris’ first move is to argue that the actions of abortion providers are “conscientious,” and then to equate that with “conscience,” which she defines as “a special subset of an agent’s ethical or religious beliefs—one’s core moral beliefs.” She cites the provision of safe, compassionate abortion care before its legalization by those compelled to do so, care that was undertaken at great risk to the provider, and done for “reasons of conscience.” Those reasons include but are not limited to: women’s reproductive autonomy, women’s prerogative to make the best childbearing decisions, and the valuation of the health of the woman over the potential life of a fetus. Harris does acknowledge that abortion opponents label such motivations “political beliefs,” a label with which she disagrees but for which she offers no defense.
But what is conscience? And how does it differ from one’s convictions? Historically, the concept of conscience has been understood to be a faculty of moral reasoning and the seat of responsible personhood. In possessing both antecedent and consequent functions, conscience governs our responsible relationship to God and others through the application of timeless moral principles (not merely political convictions). It is that “sacred” place where one listens to God, reflects on her responsibility to God, self, and others, and determines to act. It is the seat of the moral “ought”—and is incomprehensible apart from a source of moral authority.
Conversely, moral convictions are strongly held beliefs or opinions, beliefs about which one is convinced or persuaded. While such convictions have antecedent functions which guide moral decision-making and behavior, they lack any consequent function; and absent is any necessary reference to authority other than the self. Lacking any transcendent moral authority, violation of one’s moral convictions, therefore, provokes no sense of guilt or shame, only anger. To equate conscience with moral convictions is hence a category mistake.
Conscience is inseparable from responsibility to both mankind and to God as transcendent authority. But for Harris, the concept of conscience has been deconstructed from a relational concept grounded in community and oriented to God to an individual prerogative to independently determine the good and to act accordingly. In so doing, conscience has been stripped of both its relational interconnectedness and its transcendent telos—of its entire substance; only an insubstantial, unrecognizable skeletal form remains.
This is, however, an ominous omen for rights of conscience in the political sphere. The fluidity of definition and meaning in the post-modern perspective, a perspective that predominates among intellectuals, academics and those in authority, means that the concept of conscience, and its attendant rights, can simply be defined away—or alternatively, defined so broadly as to negate its uniqueness. In broadening the scope of the concept while eliminating any source of transcendent authority, there remains nothing in the concept before which the State needs to bow its knees, no transcendent authority to which it must defer. It can pay its “respects” to individual opinion, while still enforcing its laws; for in the State’s reality, conscience is now nothing more than a personal moral conviction—and despite one’s personal convictions to the contrary, they are still subject to the law.
The second point must await a future post…