Not Only the Doctor's Dilemma: The Complexity of Conscience in Medicine
Sepper, Elizabeth, Faulkner Law Review
I am going to begin by telling you about Dr. Willie Parker who grew up here in Alabama and studied to become an obstetrician-gynecologist. Dr. Parker spent the first dozen years of his career without thinking much about abortion. But over the years, again and again he encountered women whose pregnancies endangered their lives, girls who had suffered rape or incest, and mothers who were too poor to raise another child. He came to wrestle with the morality of abortion--torn between his religious tradition's teaching against abortion and his moral commitment to compassion for his patients. He listened to Dr. Martin Luther King's sermon on the Good Samaritan. According to Dr. King, the Good Samaritan was "good" because he did not consider the effects on himself but instead asked "What will happen to this person if I don't stop to help him?" Dr. Parker was moved to examine his own conscience and to ask, "What happens to women who seek abortion if I don't serve them?" (1) From that time, he began to perform abortions, compelled by women's situations and his respect for their moral agency. Today, he is one of three abortion providers in Mississippi. His conscience demands it, despite the risks of harm to himself. (2)
Over the past several years, conscience has become a national catch phrase, invoked regularly in health policy discussions. Rarely, however, do we hear about medical providers like Dr. Parker. Legislators do not seem interested in his conscientious judgments and the conflicts that might develop if a hospital denies him admitting privileges for his conscientious acts or interferes in his treatment of patients.
Instead, the word "conscience" often stands in for refusal to deliver abortions or contraception or to remove or withhold life support. Reported refusals cut across a large range of care, including condoms as part of HIV counseling, circumcision, fertility treatments, and pain management, to name a few. (3) In the last year, employers and insurance companies asserted a right of "conscience" against contraceptive insurance coverage required by the Affordable Care Act. (4) A group of nurses filed suit against a New Jersey hospital where they work, stating their consciences would not allow them to care for patients who had had abortions? The U.S. Congress spent its time proposing legislation, entitled "Respect for Rights of Conscience Act," that would have permitted any person or entity to refuse to provide any care even if the refusal results in a person's death. (6)
In discussions of conscience, one hears commentators baldly assert that no one should be forced to violate his or her conscience. (7) Instead, it is claimed, doctors and nurses should be able to freely refuse to provide any medical help to which they object. Hospitals, clinics, and insurance companies similarly should be able to set moral or religious policies against providing (or paying for) controversial care.
Conscience, however, is not so one-sided. Nor is medical decision-making so straightforward. First, medical decisions-especially those involving questions of life and death--inspire divergent moral convictions. Second, as I will explain, medical decisions do not simply implicate conscience for the provider. They should be thought of instead as involving, at minimum, three parties: patients, providers, and institutions. This three-sided relationship complicates moral decision-making, with each party asserting potentially conflicting claims. Third, I will describe how lawmakers have responded to conflicts over medical decisions. Finally, I will argue that existing legislation fails to measure up to its purported goals of protecting conscience, risks harm to patients, and destabilizes ethical decision-making within medicine itself. I conclude with a few thoughts on principles people who genuinely care about conscience might commit to in order to improve the law's approach to morality in medicine.