January 25, 2018
11 min read
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HHS civil rights division under debate of ‘conflicting moral obligations’

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The Trump administration announced a new civil rights division within the Department of Health and Human Services that proposes to protect health care workers who refuse to render services that fall outside their religious or moral beliefs.

“Laws protecting religious freedom and conscience rights are just empty words on paper if they aren’t enforced,” Roger Severino, director of the Office for Civil Rights, said in a release announcing the establishment of the Conscience and Religious Freedom Division. “No one should be forced to choose between helping sick people and living by one’s deepest moral or religious convictions, and the new division will help guarantee that victims of unlawful discrimination find justice.”

The release states that the new division will “restore federal enforcement of [the] nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom.”

The American Medical Association told Healio.com that it did not wish to provide comment until the organization viewed the written proposal from HHS and had time to effectively evaluate the proposed contents. However, the AMA did highlight one of its codes on medical ethics regarding a physician’s exercise of conscience.

The code states, among other matters, that physicians are expected to uphold the ethical norms of their profession, including fidelity to patients and respect for patient self-determination. Further, although physicians are free to act according to their conscience, they are expected to provide care in emergencies, honor patients’ informed decisions to refuse life-sustaining treatment, and respect basic civil liberties.

Additionally, the AMA code of ethics states that a physician must uphold standards of informed consent and inform patients about all options for treatment, including options to which the physician morally objects.

The HIV Medicine Association said that the establishment of a ‘Conscience and Religious Freedom’ Division is deeply concerning and will roll back critical protections that ensured women, LGBTQ individuals and other minority and vulnerable populations could not be denied medical care. The American College of Obstetricians and Gynecologists also issued a joint statement with Physicians for Reproductive Health highlighting that no individual, employer, politician or entity should be legally permitted to deny a patient necessary medical care.

“We are troubled that the new office announced by HHS could embolden some providers and institutions to discriminate against patients based on the patient’s health care decisions,” Willie Parker, MD, board chair of Physicians for Reproductive Health and Hal C. Lawrence, III, MD, executive vice president and CEO of the American College of Obstetricians and Gynecologists, said in their statement. “Denying patient care because of a provider’s personal beliefs can and will have real-world, often life-and-death consequences. Every patient should be treated with the compassion, dignity and professionalism they deserve. Professional medical organizations have clear guidance on the issue of refusal, noting that refusals of care must not compromise patient health.”

David Stevens
David Stevens
Margaret Moon
Margaret R. Moon

 

Healio.com spoke with David Stevens, MD, MA, CEO of Christian Medical & Dental Associations, and Margaret R. Moon, MD, MPH, CMO of the Johns Hopkins Children’s Center and a core faculty member in the Johns Hopkins Berman Institute of Bioethics, about the new division to gain a sense of why it may or may not have been necessary and what it means for health care providers.

Healio: Why was the creation of this office necessary or not necessary?

Moon: The creation of this office seems more a political event than a practical event. It will be interesting to see how much business the office gets — and of what sort.

Stevens: A survey [the CMDA] commissioned of 2,800 faith-based physicians revealed that the violation of their right of conscience (ROC) was the issue they were most concerned about. That survey revealed 43% knew someone where their ROC had been violated; 40% reported they had been pressured to violate their conscience and 24% stated that they had lost a position, promotion or compensation because of their religious or moral beliefs. Over 90% of them thought the problem was getting worse. We see there is lots of confusion created by those trying to limit right of conscience of what exercising conscience practically means. Health care right of conscience is not refusing to treat because a practitioner doesn’t like or approve of the patient, their beliefs, attitudes or behavior. Our members compassionately care for those people all the time. I personally have taken care of mass murderers on death row in a maximum-security prison, terrorists in Mogadishu and Somalia, child sexual abusers, rapists and other [such] patients.

Right of conscience is exercised when a health care professional is being asked or required to participate in or facilitate in some way an action they believe violates their ethical, moral or religious beliefs — to do or refer for an abortion, physician-assisted suicide or the transition of a transgender person.

Not only does the survey demonstrate the worsening of the violation of the civil right of conscience but what is happening in our society and to faith-based physicians demonstrates it. The HHS regulation that was issued by the former administration required participation in transgender transitions. It stated if you did a procedure or prescribed a medication for any condition, you had to give that medication or do that procedure to transition a transgender patient. If you violated this rule you would experience the draconian penalty of the loss of all your Medicaid and Medicare reimbursement and the patient could sue you. CMDA and other organizations had to sue HHS and get an injunction to stop this. Vermont required physicians to refer for physician-assisted suicide. We had to sue the state to force a change in their interpretation of the rule this requirement was based on. [A committee opinion from ACOG] requires OBGYN doctors to refer for abortion, and if they can’t timely refer, to do the abortion. We have had qualified students rejected from medical school admission when the interviewer found out they were pro-life. We have seen medical school faculty demoted because they publicly stated ... that transition surgery was unlikely to relieve a transgender person’s mental distress or that giving hormone blockers to a transgender child was harmful.

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Healio: How do you envision physicians utilizing this new office?

Moon: Most states already have rules allowing physicians to opt out of specific types of care based on moral or religious objections. “Conscientious objection” policies are nothing new. I do not know of chronic issues with implementation of conscientious objection policies.

Stevens: The present prohibitions of discrimination in the Church Amendment, the Public Health Services Act, Medicare and Medicaid laws, The ACGME law and the Weldon Amendment have not been enforced and none of them have the right to sue an entity that discriminates. That is like speed limits without enforcement. How fast will people drive? The new division on ROC will give those that have had their ROC violated a channel to bring a complaint in writing or through their website.

Healio: How does morality factor into your medical practice? How do you align your morality with the Hippocratic Oath?

Moon: I don’t think the Hippocratic Oath is the best description of the moral duties of the physician. The modern versions dating from the 1960s and onward, seem more focused on a physician’s relationship with the profession of medicine than with the care of patients.

Current work in clinical bioethics is more likely to refer to the Principles of Biomedical Ethics - by Beauchamp and Childress. This is the approach to clinical ethics taught in most U.S. medical schools today.

The principles approached say that physicians accept four basic duties:

  • Duty to promote wellbeing: wellbeing as defined by the patient, with important limits;
  • Duty to avoid harm: given that “do no harm” makes little sense in a world of complex medicine, chemotherapy, invasive and risky surgery, the duty is to avoid harms as much as possible; to balance benefits and harms effectively. Again, definition of “harm” has to include and respect the patient’s perspective;
  • Duty to respect the autonomy of the patient: autonomy is tricky - it can’t be presumed. The duty then is to respect autonomy where it exists and when autonomy is not complete, to promote and protect developing autonomy, or work to restore diminished autonomy;
  • Duty to be just: the most basic notion of justice in health care involves treating equal patients equally. Other notions include justice as fair equality of opportunity, fair access to necessary care and justice as fair procedures for allocating resources - lots to discuss here.
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Clinical ethics is a framework or system for analyzing and balancing conflicting moral obligations. The principle-based approach is not the only framework, but one most commonly taught in medical schools today.

Incorporating personal morality can be challenging when personal moral choices encourage a physician to abrogate these four basic principles. Patients should be able to trust that a physician is going to offer them care that is in the patients’ best interest. When a physician has moral values that prevent him/her from providing care that promotes a patient’s wellbeing and protects a patient from avoidable harm, that physician can be seen to be violating the most basic principles of clinical ethics.

A second concern is that a physician who refuses to participate in an aspect of medically effective and legally available care puts an extra burden on colleagues and on the care delivery system.

The problem is at its worst when a clinician is practicing in a situation in which he or she has a sort of monopoly authority - being the only such provider in the area, the only provider that accepts a specific form of insurance, or some other arrangement that creates an implied monopoly.

Stevens: Before Hippocrates, patients didn’t trust their physicians. They had the power to not only heal but to kill and no one would be the wiser and many did if someone paid them to do it or offered other enticements. The foundation of the doctor-patient relationship is trust. The Hippocratic Oath not only protects the unborn and the infirm; it also protects patients from sexual abuse and invasions of privacy. The Hippocratic Oath has guided medicine for two and a half millennia and allowed Western Medicine to flourish.

CMDA and its members value the principles of Hippocratic medicine but have a higher and more comprehensive allegiance to Biblical principles that teach compassion, servant leadership, a responsibility before God in how you behave and an obligation to take care of the poor, the prisoner, the persecuted and others disadvantaged in this country and around the world. Those principles are why I served at a small bush hospital in Kenya for 11 years with my family on a subsistence salary and very difficult work conditions. I was one of three physicians for every 300,000 people in our catchment area. Our hospital only had 11 hours of electricity a day, averaged 200-plus patients in its 135 beds and had only six trained nurses. I had the opportunity to not only practice but start a large community health and development program that today has changed the health habits of 1.5 million people. An adherence to Biblical principles is why all three of my children have lived in inner city Memphis and served with a large health care ministry there to the poor and disadvantaged. My youngest daughter and her husband, a dentist now serve in North Africa in a predominately Muslim country. My other daughter, their four kids and her husband are headed to Iraq in March to provide better health care there.

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The survey I mentioned previously asked the question, ‘If you were forced to violate your conscience, what would you do?’ and 95% of responders said they would leave the practice of medicine instead of succumbing. There are those that would like to drive all Christians out of health care. What impact would that have? Catholic hospitals alone provide over 12% of the hospital beds in the country.

Healio: Should physicians be able to make decisions based on their religious or moral convictions and the specific types of procedures or types of patients they will or will not treat?

Stevens: This has nothing to do with what type of patient we would treat but what we are being forced to do with procedures or medications or being discriminated against merely for our beliefs. One of our student members wrote me a note this week. She is brilliant and upon graduation wants to be a neurosurgeon. One of her medical school advisors told her to not put on her residency application that she had been a leader in “Students for Life.” He warned her that would get her rejected from neurosurgeon residencies across the country. Many of those that march to the beat of “tolerance” are intolerant of those that believe in any absolutes.

Moon: Yes, but an ethically competent physician should take responsibility to avoid causing harm to patients by limiting care. If a physician wants to limit practice, he or she should not practice in a situation (geographic, economic, cultural, disease specific) that creates monopolistic control over available care. Patients should not be denied access to medically effective and legally available care without being informed of the imposed limits and of other options for care.

“Yes” is sort of obvious here because we all have religious, moral or other value-based convictions that influence not only our decisions, but our interpretation of information, our understanding of illness and our awareness of suffering. We can’t — and shouldn’t — pretend that we don’t have values. We should be aware of how those values (moral or otherwise) affect our choices and how those choices affect our patients. We should be honest with ourselves and our patients.

Healio: Are there any concerns with how the creation of this office might impact patient care? Specifically, in certain underserved populations both geographically and racially, as well as gender or sexual minorities?

Stevens: The creation of this office will insure we don’t push compassionate, competent and servant health care professionals out of health care. No one is stopping any patient from getting an abortion, a transition, contraception, sterilization or other services some patient desire. They are readily available and demanding every health care professional to provide every possible service to every patient is like asking Best Buy to carry every product that Walmart does. Ridiculous. What about the women who want an OBGYN to deliver their baby who isn’t doing an abortion in the next room. Don’t they have a right to pick a physician that shares their world view?

Moon: Consider, for example, a physician with strong moral objection to birth control, who establishes him or herself as the only licensed prescriber in a rural and poverty-stricken area. A subset of patients may then have no access to care that is routinely available outside of this rural area. It seems hard to justify the decision to set up practice this way.

Healio: How do you directly address your opponents’ concerns?

Moon: I don’t think opposition is the correct term. This an important area for careful and collaborative discussion with the best interests of patients as the focus.

Stevens: Just because a patient wants a health care professional to provide a medical procedure doesn’t make it right. Just because something is allowed in the law or by the courts doesn’t make it right. A good example of that was the Dred-Scott decision by the Supreme Court before the civil war where they decided African slaves were not fully “persons” so it was okay to enslave and sell them. What if the government at that time had required all farmers to have slaves for the “good of the economy” or the “good” of the slave. I would think for moral, ethical or religious reasons if you were a farmer then, you would have refused to do so. Just as today, I would refuse to participate in capital punishment if the government demanded it. I don’t have the right to violate the patient’s autonomy and neither does the patient have the right to violate mine. I will do no harm no matter what the patient demands. I’m not a “provider,” a vending machine without morals. I’m a “professional” who has a covenant relationship with my patients. I will willingly forfeit my comfort, my fee and even my safety for their good. All they forfeit if I don’t do their abortion or assist in their suicide is their convenience.

When women have asked me to do an abortion, I describe the procedure, try to discern their motivation for their decision and see if I can alleviate their concerns. I let them know my deep concern for them and their unborn child. I tell them I don’t provide that medical service and don’t advise it for my patients. The service is available in my community and I want them to know if they have an abortion, I would still love to be their doctor afterward.