Much of the conversation about conscience in health care has focused on the ethics of physician refusal to perform procedures that they object to. However, this framework seems insufficient for thinking about contemporary abortion provision, where new legislation is routinely passed to restrict the ability of practitioners to provide care that they believe to be morally justified.
In the March-April issue of the Hastings Center Report, University of North Carolina at Chapel Hill anthropologist Mara Buchbinder and several colleagues report on interviews they conducted with North Carolina practitioners who work within the confines of the state’s 2011 Woman’s Right to Know (WRTK) Act, which requires providers to pair counseling with state-mandated content with a 24-hour waiting period between consultation and abortion provision. They found that many abortion providers, rather than refusing to abide by the parts of the law that they disagree with (which could result in the loss of their licenses, which would further limit access to abortion care), aim instead to “conscientiously comply.” They follow the law, but find ways to distance themselves from its objectionable requirements, instead deploying it in ways that build trust and rapport with their patients. Some do so by sharing their personal stances on the law, providing patients with an opening to share their own frustrations. Others contextualize parts of the required information, such as the risks of an early-term abortion, by emphasizing the fact that the risks of a full-term pregnancy are comparatively far greater. Several physicians the researchers interviewed make it a point to do the counseling themselves, and they found that an unexpected benefit of the law is the additional patient contact it occasions. Ultimately, Buchbinder and her colleagues “challenge the stark dichotomy between conscientious refusal and morally compromised care.”
I asked Buchbinder a few questions about the genesis of the project, the further implications of her research, and other applications of the conscience compliance framework.
Can you talk a little bit about how you and your collaborators came to the research that led to the piece in the Report? What interested you in the particular issues you raise and the case studies you used?
A big motivator for us in conducting this study was that, despite a robust literature on the impact of abortion legislation on patients, there had been relatively little research focusing on providers’ experiences practicing under new regulations. There are a few reasons for this, which we’ve written about elsewhere. One is that the Supreme Court’s 1992 decision in Planned Parenthood v. Casey has directed abortion rights advocates toward establishing an “undue burden” on women when mounting challenges to restrictive laws. There are also sociopolitical reasons having to do with the heavily stigmatized nature of abortion work; it’s much easier to invoke public sympathy for women seeking abortion than for abortion providers. So we felt that this was a missing piece of the conversation on the societal impact of abortion legislation.
How did your interview subjects respond to the kind of research that you were doing?
I was really impressed with how receptive, welcoming, and trusting they were. We were able to get providers from 8 out of 11 clinics in the state to speak with us about their work, which is rather remarkable considering that abortion providers are by necessity trained to be suspicious of outsiders who want to come spend time in their clinics. Participants were really happy to carve out some time to think and speak about these issues. Abortion work can be really isolating because of occupational stigma and threats to personal safety. Many providers commented on how nice it was for them to reflect on their experience.
Do you foresee lawmakers recognizing that physicians are deploying the WRTK act in the way that you’ve outlined—using the practice of conscientious compliance to help foster rapport with their patients, while making clear that parts of it are legally required but medically objectionable—and in turn amending their laws to somehow prevent it?
This is an important question, and one that several anonymous reviewers have raised in response to my journal articles based on this research. My first response is that I think that lawmakers in states where abortion is heavily regulated are more focused on creating access barriers via mandatory waiting periods, admitting-privileges requirements, and holding abortion clinics to ambulatory surgical center standards than they are on abortion counseling per se. In North Carolina, for example, we have seen the mandatory waiting period jump from 24 to 72 hours during the course of this research. Of course, it is possible that lawmakers could seek to tighten regulations to prevent the kind of conscientious compliance that we observed—for example, by requiring that providers read from a state-authored script verbatim. However, I think that providers will always innovate “workarounds” (as Nancy Berlinger has aptly put it in her recent book) for mitigating the moral distress produced by such restrictions. And some of those workarounds—like a provider prefacing what she is legally mandated to say with her own comments—are more likely to fall within the confines of constitutionally protected speech. To a certain extent, then, I think that patient-provider interactions are more impervious to legislative interference than other forms of abortion regulation.
Do you see a way of rolling back the kind of abortion legislation that produces moral distress in practitioners? Will there simply need to be more and more robust reframing of conscientious compliance–or perhaps outright refusal–in order to provide adequate care?
I think that’s tough to say. Certainly, the Supreme Court’s decision regarding Texas’s HB-2 (which requires abortion providers to have admitting privileges at nearby hospitals and requires clinics to meet the standards of ambulatory surgical centers) is likely to have an impact on abortion legislation nationwide. But such restrictions offer fewer opportunities to work within the confines of the law: if the Supreme Court sides with the state of Texas, many clinics in the state will be forced to shut down, rendering conscientious compliance moot.
In terms of what happens next for me personally, I’ve begun a new project looking at the social and ethical implications of physician aid-in-dying in the United States, in which I’m using Vermont’s Patient Choice and Control at the End of Life Act (Act 39) as a case study. One thing that I will be interested in exploring in the context of that project is whether end-of-life care and physician aid-in-dying raise possibilities for conscientious compliance despite moral objection. I mention this in part to highlight that there are multiple areas of bioethical inquiry that might benefit from a more robust and broader framing of the concept of conscience. So there is also the “what’s next” for bioethical theory, alongside practical concerns.
I’m glad that you mentioned where you’re going next—intuitively, conscientious compliance seems like a fruitful way to frame understanding of, and decisions within, a wide variety of settings. Could you expand a bit more upon how you see it working in your Vermont case study or any other arenas?
One area where I can imagine the concept of conscientious compliance being invoked with respect to Vermont’s Act 39 concerns a clause of the law that suggests that physicians might have an affirmative duty to inform terminally ill patients about their ability to pursue aid-in-dying under the law. (I say, “might,” because there is some ambiguity in the way the law is written, leaving this somewhat open to interpretation.) This has raised concerns for some physicians, who think that initiating the topic of assisted death (as opposed to waiting for a patient to initiate it) violates medical ethics and best clinical practices. I think that there are potentially valid ethical concerns here, but I also think that a conscientious compliance framework can help us to imagine ways of responding to such a mandate and informing patients about the law without compromising one’s commitment to conscientious, compassionate care.
Elizabeth Dietz is a project manager and research assistant at The Hastings Center.