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Posted on November 7, 2019 at 11:20 PM

Yesterday’s post to this blog
addressed physicians’ conscience rights. 
The standard shape of arguments about preserving individual physicians’
conscience rights goes, broadly, like this: 
certain actions now sanctioned by society (e.g., abortion, assisted
suicide) have been embraced by the medical profession as standard medical care
which all physicians should be willing to perform, but this stance runs counter
to the long tradition of medicine and to the proper ethical stances of some
individual physicians.  Therefore,
objecting physicians should be free to decline to perform them, without fear of
professional or legal reprisal.  In this
vein, the current U.S. Administration had promulgated a regulatory rule in May
of this year attempting to ensure that, consistent with existing statute, such conscience
rights are protected.  This week, a
federal judge struck
down the rule in its entirety,
arguing that a) the propose rule, which,
like all regulations, would have had the force of law, went beyond the statute
behind it by making unwarranted interpretations and expansions of the statute’s
wording; b) the government’s process of promulgating the rule violated other
laws governing such rule-making; c) that it was unconstitutional, violating not
only the separation of powers but also the Fifth Amendment because the rule was
too vague, and the First Amendment because it would have “required
employers to conform their business practices to the religious practices of their
employees.” 

One might wonder whether at least
some of the court’s reasoning—especially the separation of powers and Fifth
Amendment arguments, and the concern (“a” above) about bureaucratic
overreach—might not in fact apply to a wide range of government regulations.  That notwithstanding, the Christian Medical
and Dental Associations, which has been particularly vigilant to protect conscience
rights when it comes to abortion and assisted suicide, vowed
to fight on
.

The Journal of the American
Medical Association
(JAMA) cites
a different case
, involving assisted suicide in Colorado.  There, assisted suicide was made legal, with
only limited restrictions, by a public referendum.  Notably for the present case, while health
care organizations such as hospitals may opt out, and decline to provide
assisted suicide, they may not enforce a blanket prohibition against their
physician-employees doing so on their own initiative.  Such a prohibition could only be enforced on
the organizations’ actual premises. 

So apparently a physician who
worked for a Catholic hospital wrote (on her own time, outside hospital premises,
and of her own volition) a prescription for a lethal prescription for a cancer
patient.  The physician cited judgment of
her own conscience.  The hospital cited
its moral reasoning, its own freedom of religion, and, it appears, a claim that
the physician was, or should have been, considered to be acting as an agent of
the hospital.  The matter is the subject
of a lawsuit.

The hospital fired the physician.  It is said she found
another job
.  But that of course is
not the point, is it?  If a physician, who
has a covenantal relationship with the patient, finds in her moral judgment
that, in a given case, assisting suicide is ethically permissible, why does the
hospital system have a right to override that judgment—especially if it was
exercised, as it is argued here, in accordance with existing civil law?  One can certainly argue, as I would, that the
physician has erred in her moral reasoning, and misapplied the physician-patient
relationship. 

But I wonder whether, as the saying
goes, “what is sauce for the goose is sauce for the gander,” in this
case.  We might consider: the hospital
could employ the physician based on an upfront, written agreement that the
latter would act in accordance with certain moral stances of the former.  Absent such an upfront agreement, it’s hard
to agree with disciplining the physician as was done in this case.  But even then, such insistence on upfront
agreements seems to run counter to much of the spirit of much discussion about
conscience rights, setting up a regime in which the relative power of available
employers of physicians determines the constraints on medical practice.  Even then, if medicine remains a learned
profession at all, perhaps insistence on conscience rights should be understood
to cut both ways.

Drs. Stephanie Harman and Abraham
Verghese seem to lean in this direction in an
accompanying editorial
in JAMA—but by emphasizing physician autonomy.  Their examples betray their preferred value
judgments, but the overarching concern still seems relevant and valid.

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