Taking Conscience Seriously or Seriously Taking Conscience? Obstetricians, Specialty Boards, and the Takings Clause
Fragoso, Michael A., Notre Dame Law Review
A young woman visits her local obstetrician. She tells him that she suspects, based on a home pregnancy test, that she is pregnant. Unwed and scared, she hesitated before seeing a doctor. The obstetrician examines her and tells her that she is, indeed, two months pregnant. The young woman says that she would like the pregnancy terminated and asks him if he will perform the procedure. The doctor, an observant Jew, informs her that had she visited sooner he might have been able to accommodate her request (as his particular religious beliefs do not attribute full human dignity to the embryo until it has gestated for forty days), but at this stage in the pregnancy he is unable to do so in good conscience, as that would involve the taking of human life. Furthermore, uncomfortable participating remotely in an abortion, the obstetrician does not refer the woman to a specific alternate obstetrician; he instead assures her that there are plenty of other nearby doctors who would be willing to perform the procedure and that she should ask around.
Some time goes by and the obstetrician receives a letter at his office giving him notice of a disciplinary hearing being held by the American Board of Obstetricians and Gynecologists (ABOG) in Dallas, Texas. The hearing involves allegations (made by the obstetrician who ultimately performed the abortion on the young woman) that he violated the ethical standards of the American College of Obstetricians and Gynecologists (ACOG). The letter says he did so by refusing to refer the patient "in a timely manner" to another provider while "deviating from standard medical practice." He travels to Dallas to face the charges and is informed that ACOG ethical standards mandate performance or referral in all "standard" aspects of "reproductive healthcare" including the termination of pregnancy. The obstetrician objects that he did nothing wrong and that he was simply following his moral and religious convictions, as he always has. The board informs him that such personal scruples are no excuse and that his ethical duties as an obstetric specialist had been clearly defined in 2007 by the College in Ethics Opinion No. 385 ("Ethics Opinion"). (1) The board revokes his Certificate (the primary obstetric credential), thus terminating his status as a board certified obstetric surgeon.
The doctor returns home. Without his Certificate he loses his hospital admitting privileges making it too risky for him to see obstetric patients and driving down the demand for his services. Third party payers are also preparing to terminate their contracts with him, citing clauses mandating board certification, while both existing and potential patients are wary of seeing a specialist who is not board certified. Having spent a career as an obstetric specialist he is uncomfortable becoming a general practitioner, not having cultivated those skills for decades. After college, medical school, four years of residency, and decades as a practitioner, his once lucrative and socially beneficial medical practice is reduced to the value of his examination tables and filing cabinets.
While the facts are hypothetical, this scenario is entirely possible. In recent years there has been a growing fault line within the medical community on the rights of medical professionals to refuse participation in activities to which they have moral or religious objections. Typically the line runs through so called "reproductive health," with religious medical practitioners refusing to participate in abortion, sterilization, or contraception on one side, and much of the medical and legal establishment on the other, demanding some level of cooperation in such procedures.
Since 2007 the obstetric specialty has been a particular focal point for conscience issues following the issuance of ACOG Ethics Opinion No. 385. In the Ethics Opinion, ACOG directed physicians who object to practices such as abortion on ethical grounds either to refer patients quickly to other physicians who would perform the procedure or, if that were not possible, to perform the procedure themselves. …