The Place of Conscience in Healthcare Practice

1
The Place of Conscience in Healthcare Practice

• Jerome R. Wernow Ph.D., R.Ph.
• NW Center for Bioethics
• www.ncbioethics.org

2
Conscience Use
3
Objectives

• History behind socio-cultural difference that
  commonly lead to social and ethical tensions
• Understand the terminology used in the conscience
  clause discussion
• Conflict management with patients, employers,
  employees, or advocacy groups

4
Take Home Points

• Disclosure that is well thought out
• Disclosure that is legally informed
• Disclosure that is timely and concise
• Disclosure that is authentic
• Disclosure that avoids moralizing
• Disclosure that assures patient care

5
Well thought out Clarification

• Scope
• Terms

6
Scope of Conscientious Objection

• Abortion
• Euthanasia
• Assisted suicide
• Fetal and stem cell therapy
• Sterilization

Religious Refusals and Reproductive Rights-ACLU
Reproductive Freedom Project 2002, Weiss,
Catherine, Caitlin Borgmann, and Louise Melling
et al lthttp//www.aclu.org/FilesPDFs/ACF911.pdf
gt p. 21
7
Scope Limits in Presentation

• Plan B contraception
• Meaning large doses of estrogen and
  levonorgestrel or a progestin congener in one or
  two doses to prevent pregnancy
• Litmus test due to time-related urgency of
  medication administration

8
Mechanism of Action

• (1) primarily prevents or delays ovulation
• (2) Interferes with tubal transport of sperm,
• (3) interferes with fertilization
• (4) possibly prevents implantation of the
  fertilized egg

Kathleen Besinque Emergency Contraception, in
Drug Topics. February 20, 2006, p. 7
lthttp//images.digiscript.com.edgesuite.net
/a/21000/21949/21949-1743964.pdf?objv1gt Last
visited January 27, 2007.
9
Pluralism in Objection

• Roman Catholic teaching of the Church objects on
  basis of all four mechanisms
• Pro-life protestants usually object only the
  basis of the fourth mechanism

10
Clarification of Terms

• Conscience Clause ? Refusal Clause

11
Conscience Clause

• an innate moral character expressed in an
  objective moral confession that responds to a
  morally challenging circumstance

Charles E. Curran, ed., Conscience, in Readings
in Moral Theology Series no.14. (New YorkMahwah,
NJ Paulist Press, 2004) pp. 3-38.
12
A View Conscience
Conscious
Subconscious
Emergence
Pre-conscious
Corporeality
Spiritual Illumination
Psychofacticity
A Christianized Franklian View Frankl, Victor
The Unconscious God. (New York Washington
Square Books, 1985) p. 29.
13
Refusal Clause

• a law that allows entities and/or individuals to
  refuse to provide or cover certain health
  services based on religious or moral objections.

ACLU Reproductive Freedom Project 2002, p. 6.
14
Mythos and Logos

• Mythos describes worldly things by tracing them
  to exceptional, sometimes sacred events, that
  caused the world to be as it is now.
• Logos a kind of logical analysis that places
  things in the context of reason and explains them
  with the pure force of thought.

Palmer, Donald Looking at Philosophy The
Unbearable Heaviness of Philosophy Made Lighter.
(Mountain View, CA Mayfield Publishing) second
edition, 1994, p. 2.
15
Mythos and Logos

• There are other accounts, however, accounts that
  suggest that Western Logos-philosophy and science
  is just our version of mythos.

Palmer, Donald Looking at Philosophy The
Unbearable Heaviness of Philosophy Made Lighter.
(Mountain View, CA Mayfield Publishing) second
edition, 1994, p. 2.
16
Short History behind Socio-cultural Difference

• Mythos
• Hippocrates (460-347 BC)
• Scribonius Largus (47 AD)
• C. Galenus (129-201 AD)
• Church Fathers (330 AD)
• Quiescent Period
• American Medical Association in 1847

• Logos
• Plato (460-347 BC)
• Soranus (47 AD)
• Marquis de Sade 1740-1814 AD
• Post-Christian Epoch

Edmund D. Pellegrino The Metamorphosis of
Medical Ethics, The Journal of the American
Medical Association. v. 269/9 (March 3, 1993)
pp. 1158-1162.
17
Changes behind public acceptance of contraception
and abortifacients

• Drug effectiveness
• Worldview
• Epistemology
• Ethics
• Socio-political factors

18
Metamorphosis in Drug Effectiveness

• Development and release of Enovid
• (June 23, 1960 )

unfetteredfrom the beginning woman has been a
vassal to temporal demandsand frequently the
aberrationsof cyclic mechanisms of her
reproductive system. Now to a degree heretofore
unknown, she is permitted normalization,
enhancement or suspension of cyclic function and
procreative potentia S.W, Junod and L . Marks
"The first oral contraceptive pill. p. 128-129.
19
Metamorphosis in Worldview

• enlightenment philosophy and rationality
  leavened the bread of moral philosophy in the
  medical schools, studies in humanist psychology
  began to be substituted for Christian ethics

op cit Chester R. Burns, American Ethics
Some Historical Roots
20
Metamorphosis in Epistemology

• Judeo-Christian Hippocratic ethic dominant
  seventeen centuries dominant explaining how
  things exist sourced in the Biblical
  interpretations
• Modernitys early epistemological drift embraced
  mutual influence of Christian theology and
  scientific belief
• John Locke introduced split empirical knowledge
  from that of the world of faith
• Drift became a torrent from atheists David Hume
  to Richard Dawkins to Samuel Harris
• Evolutionary materialism became dominant
  explaining what exists through empirical
  observation of the material world

21
The Ethics of Power

• "Not the Church, not the StateWomen will decide
  our fate.

Pat Ruess and Jan Erickson, Access for All?
Reclaiming Women's Contraceptive Options one
Pharmacy at a Time, lthttp//www.now.org/issues/re
productive/ec_action_plan.htmlgt Last visited
January 20, 2007
22
Socio-cultural difference

• Those who construct the meanings of reality
  through stories about the material world alone --
  contrasted to those who construct meanings of
  reality through stories about the material world
  along with stories about realities that transcend
  that world.

23
Conflict Management

• Conflict is sourced in differing worldview
  commitments that give meaning to the perceived
  rights and actualization of the individuals.

24
Judeo-Christian Worldview

• Reality, meaning, and practice gains moral
  clarity primarily through narratives is derived
  from a supernatural source, their Bible.

25
Paula Koch an example

• Discovered morning after pill dispensed eighteen
  months before her initial confrontation
• Informed by passages like Psalm 139, Genesis
  127, and Exodus 203
• Based sanctity of life principle as found in
  Donum Vitae

26
Donum Vitae, 5

• God alone is the Lord of life from its beginning
  until its end no one can under any circumstance
  claim for himself the right directly to destroy
  an innocent human being

Pope John Paul II Donum Vita 5
http//www.nccbuscc.org/prolife/
tdocs/introduction.htm Last visited October 24,
2007.
27
Evolutionary Natural Materialism

• Reality, meaning, and practice gain moral clarity
  is primarily from narratives derived from human
  reason and experience.

28
Protagonists of Reproductive Access

• NARAL - positive right (reason)
• ACLU (Dershowitz) - majoritarian preference
  (human experience)

29
Positive Right

• If 'A' has a positive right against 'B', then
  'B' must assist 'A' to do 'x' if 'A' is not able
  to do 'x' without that assistance (wiki)

30
Majoritarian Preference

• right that derives from the majorities
  current experience of grievous injustice whose
  recurrence we seek to prevent.

Dershowitz, Alan Rights from Wrongs a Secular
Theory of the Origins of Rights. (New York, Basic
Books, 2004) pp. 82, 90
31
Disclosure that is legally informed

• National Conscience
• States of Conscience

32
Legal History and Federal Laws

• Generated from US Supreme Courts 1973 decision
  in Roe v. Wade

Jody Feder The History and Effect of Abortion
Conscience Clause Laws, in CRS Report for
Congress. CRS-2. lt http//www.law.umaryland.edu/
marshall/crsreports/crsdocuments
/RS2142801142005.pdf gt Last visited November 12,
2007
33
Church Amendment 1973

• Allowed health care professionals to opt out of
  procedures involving sterilization or abortion
  procedures to which they had moral or ethical
  objections in institutions which received federal
  funding.

34
Balanced Budget Act of 1997

• permitted managed care organizations to opt out
  of providing, reimbursing for, or
  providing coverage of, counseling or referral
  service if the organization objects to the
  service on moral or religious grounds.

42 U.S.C. Section 1396u-(b)(3)(B)(ii)(2000). See
also 42 C.F.R. Section 438.102(a)(2)(2002).
35
Abortion Non-Discrimination Act (ANDA) 2002

• Allows providers or any other kind of health
  care facility, organization or plan to opt out of
  performing, providing coverage of, or paying or
  making referrals for induced abortions, without
  exception to save the life or health of the
  mother or for cases of rape or incest.

American Bar Association Section on Individual
Rights and Responsibilities, Report to the House
of Delegates, at 7 (2004). www.abanet.org/leaders
hip/ 2004/annual/119.doc Last visited November
12, 2007
36
Hyde-Weldon Amendment

• (1) None of the funds made available in this Act
  the federal Health and Human Services
  appropriations bill for Fiscal Year 2005 may be
  made available to a Federal agency or program, or
  to a State or local government, if such agency,
  program, or government subjects any institutional
  or individual health care entity to
  discrimination on the basis that the health care
  entity does not provide, pay for, provide
  coverage of, or refer for abortions.

37
Title VII of the Civil Rights Act of 1964

• SEC. 2000e-2. Section 703 (a) It shall be an
  unlawful employment practice for an employer -
  (1) to fail or refuse to hire or to discharge any
  individual, or otherwise to discriminate against
  any individual with respect to his compensation,
  terms, conditions, or privileges of employment,
  because of such individual's race, color,
  religion, sex, or national origin or

38
AMA Position Statement

• (2) no physician of other professional personnel
  shall be required to perform an act violative of
  good medical judgment. Neither physician,
  hospital, nor hospital personnel shall be
  required to perform any act violative of
  personally held moral principles. In these
  circumstances, good medical practice requires
  only that the physician or other professional
  withdraw from the case, so long as the withdrawal
  is consistent with good medical practice.

H-5.995 Abortion, House of Delegates (2)
39
Oregon State Statute Unprofessional Conduct

• any conduct or practice which does or might
  constitute a danger to the health or safety of a
  patient 677.188 (4) a

40
Legal Conflicts Univocal

• Litigation is strictly against health care
  professionals who can be classified as practicing
  Christians

41
Why Look at Pharmacy?

• Principle of reproductive access held by
  litigants applies to practice of all health care
  professionals
• Defendants predicate their positions on commonly
  held principles
• Pharmacy case law applied to litigation against
  other health care professionals

42
Litigation Sample

• Karen Brauer v K-Mart
• Case of Paula Koch
• Neil Noesen v State of Wisconsin Pharmacy Board
• Ethan Vandersand v Wal-Mart
• Stormans v Washington State Board of Pharmacy

43
Noesen v State of Wisconsin Pharmacy Board

• Notified and fully disclosed to contractor
  K-Mart, of conscientious objection to
  participating in the work of contraception.
• Arranged alternative at site but not in writing
• Refused to refill and declined to transfer
• Perceived by patient and employees as belligerent

44
Immediate Material Cooperation

• Immediate material cooperation occurs when the
  cooperator participates in circumstances that are
  essential to the commission of an act, such that
  the act could not occur without this
  participation. Immediate material cooperation in
  intrinsically evil actions is morally illicit.

http//www.ascensionhealth.org/ethics/public/key_p
rinciples/cooperation.asp
45
Ruling against Noesen

• failed to inform his employer that he would not
  transfer a prescription for oral contraceptives
  based upon his conscientious objection
• by failed to provide the patient with information
  pertaining to her options for obtaining a refill
  of her prescriptions.

46
Judge Bairds Ruling

• the standard of care ordinarily exercised by a
  pharmacist requires that a pharmacist who
  exercises a conscientious objection to the
  dispensing of a prescription must ensure that
  there is an alternative mechanism for the patient
  to receive his or her medication including
  informing the patient of their sic options to
  obtain their prescription.

Findings of Fact no. 54 http//drl.wi.gov/dept/dec
isions/docs/0405070.htm . Last visited October
24, 2007.
47
Noesen v MSN

• Allegations he simply walked away from customers
  or left them on hold indefinitely
• Law enforcement forcibly removed Noesen from the
  store by duct taping him to a wheel chair after
  he refused to leave store
• Title VII of the Civil Rights Act of 1964

48
District Judge John C. Shabaz Ruling

• Wal-Mart gave Noesen the exact accommodation
  he sought that is, not to transfer, refer,
  renew, dispense, verify or touch prescriptions
  for birth control.
• not entitled to an additional accommodation
  under the law

Neil T. Noesen v. Medical Staffing Network, Inc.,
et al., United States District Court for the
Western District of Wisconsin (Cause No.
06-C-071-S), June 1, 2006.
49
Stormans v Washington State Board of Pharmacy

• Plaintiff Rhonda Mesler will be fired from her
  position as pharmacy manager because her employer
  cannot afford to hire another pharmacist to work
  with herto comply with 246-869-010.3
• Stormans Stores and the pharmacy manager were
  investigated by the Board for allegedly failing
  to maintain an adequate stock of Plan B

50
Stormans v Washington State Board of Pharmacy

• Equal Protection Violation
• Supremacy Clause Violation
• Free Exercise Violation
• Procedural Due Process Violation

51
Equal Protection Violation

• Selective enforcement by the Human Rights
  Commission Board of Pharmacy against single v
  multiple Rx employment

52
Supremacy Clause Violation

• Desire relief from government coercion that
  would deny them an unalienable right of
  conscience on matters of religious and moral
  conviction

53
Free Exercise Violation

• the Rules and Commission make them choose
  between their livelihoods as health care
  providers and their exercise of religion

54
Procedural Due Process Violation

• allegation is that the Human Rights Commission
  coerced the Board of Pharmacy to adopt the
  regulations which effectively eliminate the
  pharmacists right to conscience and their
  liberty and property interests and livelihoods,
  secured by the Due Process Clause of the United
  States Constitution

55
Preliminary injunction granted

• the overriding objective of the subject
  regulations was, to the decree possible, to
  eliminate moral and religious objections from the
  business of dispensing medication which created
  a Hobsons choice for the majority of
  pharmacists who object to Plan B dispense a drug
  that ends a life as defined by their religious
  teachings, or leave their present position in the
  State of Washington.

Stormans Incorporated, et al. v. Selecky, et al.
U. S. District Court for Western District of
Washington No. 07-cv-05374-RBL Order Granting
Preliminary Injunction, November 8, 2007, p. 16.
U. S. District Judge Ronald Leighton
56
Hobsons Choice

• "Where to elect there is but one, / 'Tis Hobson's
  choicetake that, or none." Ward 1688

57
Principle of Autonomy

• A womans reproductive self-determination through
  access to emergency contraceptives contradicted a
  health care providers self-determination to
  exercise religious conscience
• Not resolvable without violation of autonomy

58
Rights

• Current socio-cultural norm of womens rights and
  gender equality conflicts against rights of
  religious freedom
• Renders resolution by appeal to rights
  insuperable even though both parties recognize
  rights as a human construct

59
Antecedent meta-ethical commitments

• Conflict sourced in differing worldview
  commitments that give meaning to the perceived
  rights and actualization of the individuals

60
Conflict Management

• Conflict sourced in differing worldview
  commitments that give meaning to the perceived
  rights and actualization of the individuals

61
Protagonists

• Reality, meaning, and practice gains moral
  clarity primarily through narratives derived from
  a supernatural source, their Bible.

62
Antagonists

• Reality, meaning, and practice gain moral clarity
  primarily from narratives derived from human
  reason and experience.

63
Take Home Points

• Disclosure that is well thought out
• Disclosure that is legally informed
• Disclosure that is timely, concise, and
  documented
• Disclosure that is courteous
• Disclosure that avoids moralizing
• Disclosure that assures patient care