Do Medical Providers Have The Right To Refuse? The California Supreme Court recently ruled against two doctors who allegedly refused to provide artificial insemination services to lesbians. President Bush has proposed stronger protections for heath care workers who cite religious beliefs as basis for refusing service.
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Do Medical Providers Have The Right To Refuse?

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NEAL CONAN, host:

This is Talk of the Nation. I'm Neal Conan in Washington. Two cases last month raise anew the conflict of religion and health care. In one, the California Supreme Court ruled against two doctors who refused to artificially inseminate a lesbian. The physicians refused because they said it would have been a violation of their religious beliefs. In the second, the Bush administration proposed stronger protections for health-care workers to opt out of abortions or refuse to take part if patients wish to be removed from life-sustaining machinery. Again, the issue is conscience. The conflict comes between the rights of the doctor, nurse or pharmacist and the rights of the patient. Later in the hour, a court order released almost all of the grand jury testimony in the case of Julius and Ethel Rosenberg, and a co-defendant confesses that he was a Soviet spy.

But first, we'd like to hear from patients and health-care professionals who've been in the middle of this. Do professional ethics require that doctors and nurses perform legal services, that pharmacists dispense legal prescriptions, or should they be able to refuse as a matter of conscience? Our phone number is 800-989-8255. Email us talk@npr.org. You can also join the conversation on our blog at npr.org/blogofthenation. And we're going to hear two views on this. Joining us from member station WHA in Madison, Wisconsin, is Alta Charo. She's professor of law and bioethics at the University of Wisconsin. Thanks very much for being with us today.

Professor ALTA CHARO (Law and Bioethics, University of Wisconsin): Thank you.

CONAN: And with is from member station WYPR in Baltimore, Maryland, is Crispin Sartwell, professor of philosophy at Dickinson College in Pennsylvania. And thank you very much for being with us.

Dr. CRISPIN SARTWELL (Professor of Philosophy, Dickinson College, Pennsylvania): Glad to be here, Neal.

CONAN: And Crispin Sartwell, let me start with you. You wrote a piece that was published in the Los Angeles Times earlier this month called "The Fundamental Right to Refuse," and you believe that the issue of conscience should be absolute.

Dr. SARTWELL: Yeah, basically I do. I think one way you measure how bad or dangerous an institution is, is the extent to which they practice coercion. And I think, you know, that to whatever extent we can respect individual conscience in all our institutions, you know, the better our institutions are. My stepfather was a conscientious objector in World War II. And even though I personally think, you know, that was a just cause that we were fighting, I think, you know, the fact that he was able to opt out was extremely important.

CONAN: Yet there were other people able to take his place in those circumstances and in health-care situations, sometimes that's not the case.

Dr. SARTWELL: Well, I mean, I guess I'd have to see the situation where services are just not available whatsoever. I think that, you know, in a case where you can't provide legal services, then rights of the patient come into play in a much more severe way. I think that if you have a set of religious or conscientious objectors to certain health-care practices, but you're able to provide the services, it seems obvious to me that you should allow them to opt out.

CONAN: A pharmacist, for example, of the only pharmacy in town in an isolated community - should that person be required to issue the morning after pill, if that's legal, or to dispense condoms and other birth-control devices, even if that's against their conscience?

Dr. SARTWELL: Well I think that - you know, for the most part, I'd say, no, they shouldn't be. I mean, one way I put this is, you know, the greatest ethical dilemma of our age is people doing what the institutions that they are embedded in demand for them to do, and then not being held responsible for their own actions by virtue of the fact that they were, you know, doing what their job description demanded.

CONAN: Just following orders.

Dr. SARTWELL: Yes, exactly, and I mean, you know, this really is the source of the most monstrous crimes of the last century. And so I think we ought to take very seriously people's conscientious - you know, I'm - personally, I'm not pro-life, I'm pro-choice. But, you know, these conscience causes - I mean, respecting people's conscience means nothing if you only respect it in cases where you agree with its results, you know. And I think that we ought to bend over backwards to allow people to opt out in this situations as their conscience demands.

CONAN: Alta Charo, let me bring you into the conversation, and I know that you disagree.

Prof. CHARO: Well I disagree with what's been going on in the United States, but I think what we've been discussing so far actually doesn't capture the real debate going on. Virtually every ethics code of physicians, pharmacists, nurses, physicians' assistants and others says that in a case of a requested service for something that the professional finds morally objectionable, that it is permissible to decline to offer the services provided that an appropriate referral is made so that the patient is not left abandoned. And to that extent, this compromise has been in place since the mid-1970s. The controversy in the United States today has been focused on those who do not, in fact, wish to provide an effective referral and therefore are, in fact, hoping to abandon the patient not only by not referring to another physician, often claiming the right to not even inform patients of their legal options.

I'd also note that we are not talking about people - professionals being told to do something against the wishes of the person who's being acted upon at the behest of a government; for example, in the allusion there to World War II and Nazi Germany, where doctors are being told to perform horrendous medical experiments on inmates. This is, in fact, a decision to refuse the requested service of a patient. So it's the assertion that one can simply abandon patients and leave them on their own in a system where they often do not have many options, their insurance does not cover going to a different doctor, different hospital, different pharmacy, and simply leave them without an effective way to exercise their own legal options.

CONAN: Yet you could understand the position of a doctor who says, if I refer you to another doctor who will perform an abortion, I'm participating in a murder.

Prof. CHARO: That's certainly true, but the dilemma here is that there are core functions of the medical profession that cannot be picked and chosen depending upon whether or not you like them. They are part of the practice of medicine. Now, reproductive services exist right at that border for many people between the core practice of medicine and those things they view as elective or lifestyle. So again, this would be a much easier debate if non-physicians, non-nurses, non-pharmacists were able to provide those services, and we had a truly open market. But state by state, in all 50 states, we specifically limit by law the dispensing of prescription drugs or the prescribing of a drug to these licensed professionals.

And thus, we create essentially a kind of collective monopoly on these services and make them into medical services, and at that point, it's almost like an issue of public accommodation. You are the sole purveyor of these services and there is, therefore, an obligation to make sure that there is access for the entire public.

CONAN: A full range of services are available. Let's see if we can get some callers in on this conversation. Our number is 800-989-8255, email us talk@npr.org. Our guest, Alta Charo, professor of law and bioethics at the University of Wisconsin; Crispin Sartwell, a professor of philosophy at Dickinson College in Pennsylvania. And let's start with Nissa(ph). Nissa is calling us from Cleveland, Ohio.

NISSA (Caller): Hi.

CONAN: Hi, there. Go ahead, please.

NISSA: I'm a high-risk obstetrical nurse at a major hospital here in Cleveland, and not a good bit of our patients but quite a few do come in for therapeutic abortions, which means an abortion that's been necessitated by the mother's health or that there's a baby anomaly that's not compatible with life. And as a nurse, my training is to take care of my patients holistically where they are. And my own personal views on their choices really are not supposed to come into play. I am not supposed to judge. I'm not supposed to give advice. I'm supposed to support them in care. And I personally am pro-life and - but that issue does not come into play when I care for my patients.

CONAN: And Nissa, as I'm sure you know, some people would argue that, in fact, their patient is also the unborn baby, and they have to look out for his or her rights, too.

NISSA: And I view all my pregnant patients. In that room there are two or three or four patients. Those babies are my patients as well, but I also recognize that this woman is my primary patient and that she's making a decision but it's for her life. And I need to support her in that decision and her health.

CONAN: So, you're saying this does not violate your conscience?

NISSA: Not at all. And if my patient chooses to continue a pregnancy of a baby that's not compatible with life, that almost rubs me the wrong way but as her nurse, I support and respect her decisions and give her the medical care that she needs.

CONAN: I wondered...

NISA: For the baby.

CONAN: Do you think - these are difficult grounds. Do you think you get enough training in this, or is this something you learn along the way?

NISSA: On my hospital, there is very thorough training. I'm a relatively new nurse, and we got very good training in the beginning on end-of-life issues in pregnancy and anomalies and decisions like this. And it's always hard. There is no easy decision that's made in this - on my floor.

CONAN: I could appreciate that. Nissa, thanks very much for your call, and good luck with your difficult job.

NISSA: Thank you very much.

CONAN: Appreciate it. I wondered, Crispin Sartwell, given what she said and what you heard also from Alta Charo if you had a response?

Dr. SARTWELL: Well, I mean, I guess I would encourage almost anyone to try to take as much responsibility for their own actions as they can. Acting, you know, in the capacity of a health-care provider or a soldier or a professor, let's say, doesn't relieve you of the responsibility for what you actually do. And if you regard what you are yourself doing as evil, you know, after you go home at night and, you know, and you regard it as part of your job description and that's something you're going to do, you know, all day, every day at your job, I'd say you're in a serious moral difficulty.

CONAN: Would that include the kinds of referrals that we were hearing about from Alta Charo?

Dr. SARTWELL: Well, yeah, I think that's an interesting problem. But I can see even that as a legitimate opt out. Now I would suggest, you know, that pro-choice groups and pro-choice physicians and so on need to organize to make sure the patients can get access to the information they need. You know, I'm a little leery about this idea that people are trapped, that they can only get a prescription from one pharmacy, that their insurance only covers one doctor and so on. You know, if that's - to the extent that that's the case, then we need to worry about that. But, you know, in other words, the people who should be providing these services and the information with regard to these services are people who don't have a fundamental religious or moral difficulty with those services themselves. And I think the separation of my function from my beliefs and my conscience is truly one of the moral difficulties of our age and should be solved the other way around than it's being right now.

CONAN: More in a moment about a patient's right to health care versus a provider's right to conscience, and more of your calls as well. 800-989-8255 if you'd like to join us, email us talk@npr.org. I'm Neal Conan. Stay with us. It's the Talk of the Nation from NPR News.

(Soundbite of music)

CONAN: This is Talk of the Nation. I'm Neal Conan in Washington. The cases include pharmacists who refuse to fill prescriptions for birth control, anesthesiologists who won't work in sterilization procedures, doctors who decline to offer fertility options to same-sex couples. Each time, the health care provider has objected on the basis of personal or religious beliefs. Our focus today is on the right of conscience versus a patient's right to care. We're getting two views on the debate. Alta Charo is a professor of law and bioethics at the University of Wisconsin. Crispin Sartwell, a professor of philosophy at Dickinson College in Pennsylvania. Alta Charo, I wanted to get back to you. This issue, for some people, is a very practical issue, one that focuses on their access to the kind of care they say they need.

Prof. CHARO: That's exactly right. For those Americans who are lucky enough to have health insurance, a very substantial percentage of them are enrolled in some kind of managed-care program, which really does quite significantly limit the range of options with regard to which physician, which hospital, which pharmacy they can go to and still get the coverage that they've paid for. So, we do not have a truly open market. I think if we were talking about this in the context of store owners, we would be having a very - store owners that are selling clothing, for example, would be having a very different conversation. In addition, patients do not stand in an equal relationship with the medical profession. It is an unequal relationship. This is not a contest of two people with equal moral claims or equal moral entitlements. The professional has actually taken a certain kind of oath of service. That's why, for example, if a physician is asked to treat a man who's just battered his wife and to set the broken hand, that the physician knows, once healed is likely to batter that wife again, the physician is expected to nonetheless set the bones. That is, we do not, as a rule, have the health professions make judgments either about the moral worthiness of their patients or the ends that their patients will put their healthy status toward.

It is a sacrifice on the part of health professionals to take that road. But in a sense, it's exactly what makes this conversation not one about patient's rights versus health professionals' consciences. It's not a battle between those two, it's an integration of them, and it's a request that the health professions see within their conscience a higher obligation to serve all the people of the public before they serve their own personal preferences.

CONAN: Crispin Sartwell?

Dr. SARTWELL: Well, nevertheless, I mean, a health-care professional is a human being with the basic ethical obligations of any human being and the basic ethical responsibilities of any human being. And you don't shove that off. I mean - now, I think one of the ironies with regard to the abortion debate, is that many of the arguments in favor of abortion rights are arguments about the individual conscientious action of a woman and her right to control her own body. Now, those, you know, I think those arguments, there's no reason, it seems to me, no principal reason why those arguments shouldn't extend to health-care providers and that if the moral and religious conscience of a woman considering an abortion is the ultimate arbiter of her choice, then the same should be said for the health-care providers.

That, you know, their conscientious take on abortion rights should be the ultimate arbiters of their action, of their participation in these practices. You know, some people regard abortion as a kind of holocaust. Now, I don't regard it that way. But I think that if you regard something as a holocaust, you have a moral obligation not to participate. And that a measure of the quality of the institutions in which you're embedded are their ability to allow you to make such judgments and respect you for making those judgments.

CONAN: Now let's - oh, I'm sorry. Did you want to come back at that, Alta Charo?

Prof. CHARO: If I may and very briefly because I know you have callers. This discussion is exactly why, since 1973, the compromise has been that professionals need not perform an abortion in particular abortions but nonetheless, needs to refer. And the reason for that is that the absence of the referral now constitutes an actual obstacle to the patient being able to obtain a service that is, despite the professional's opinion about its morality, nonetheless legal. If I choose to have an abortion or not, it does not impose my views on any other person. But here, we're talking about a health professional being able to actually impose his views on a patient by virtue of setting up obstacles, whether it's a non-referral, lack of information in the case of Wisconsin, a pharmacist who actually refused to return the prescription to the patient so she could try to find somebody else who would fill it. All of those actions, all of those refusals being based on this argument of complicity that goes beyond the mere entitlement to not perform the service oneself.

CONAN: Now, let's get to some of those callers. This is Eileen, Eileen with us from Grosse Pointe in Michigan.

AILEEN (Caller): Yes. I was seeing a doctor for a cough and it turned out, he said that I had asthma. I attempted to get on the Michigan Pesticide Notification Registry, which requires a doctor's certificate. So, I called the doctor's office and they said, fax it to us, which I did, and that evening, I received a phone call from the doctor's nurse - excuse me, I have asthma.

CONAN: That's OK.

AILEEN: He said that he would not - that the doctor would not sign it. I was no longer his patient. And that was the end of my care. I've not been to a doctor since. I have audited the...

CONAN: And the pesticide registration - that's so you'll be notified if they're going to be spraying on your street.

AILEEN: Exactly. And it's run by the state, Department of Agriculture.

CONAN: And what was the doctor's objection?

AILEEN: He gave none. And does not have to give none - any. I went to the Department of Community Health, they said it was not a health code violation and they referred to me as a he and a him. I had given them documents that was - could be bound, and they referred to me as a he and a him on the simple, one-page account of this dilemma and to this day, this was 2006, I still had nobody rectify it. I've spoken to numerous people. I've spoken to my insurance company. Nobody wants to deal with this. You can be abandoned for no reason, and they don't have to give a reason. I went into the Michigan Medical Society, they had a print-out on abandonment only for doctors. A notice, but you can't get on to it to see what they said.

CONAN: But presumably if you went back to that same doctor and were sitting in his office, you would be his patient. So then he would have to give you a reason or something.

AILEEN: No. I went to my local state rep, Gaffney, he could not get it. He could not get it. I went to...

CONAN: I have to say, Eileen, I fail to see the philosophical difficulties with the pesticide registration.

AILEEN: They don't want you on it, basically. They'll do everything to keep you off, that's why. You can't be healthy to be on it. You have to be ill. And the doctors don't want to have any - I don't know, liability to it? So, it's - I've gone to the Pesticide Notification Registry, they want nothing to do with you. I've gone to the Department of Community Health, they want nothing to do with you. I've gone to the Michigan Health System, they want nothing to do with you. So, you're left in literally limbo, and I've never had it resolved, and I don't have a lawyer. Nobody would fight it, anyway, because there's no money involved in it. So, here I am.

CONAN: Well, I have to say, I'm very sympathetic with your position but again, I fail to see this is a matter of conscience. It might be, as you suggest, a matter of liability of some sort but...

AILEEN: Well, he didn't sign it. Why didn't he sign it? Was it his conscience or he didn't want to do it or is he taking money from pesticide industry? I don't know.

CONAN: We don't know. So...

AILEEN: We don't know, but I don't have care. That's what I'm saying. I haven't seen a doctor since.

CONAN: Now we - well, good luck with that, Eileen. Thank you very much.

AILEEN: Thank you.

CONAN: Let's see if we can go now to - this is Joseph. Joseph with us from San Antonio.

JOSEPH (Caller): Hey. Thanks for taking my call, Neal. Yeah. One of my pet peeves, I guess, as a type 1 diabetic, is one group of pharmacy in - when you're out of the syringes and they say, you know, they can't sell you syringes because you don't have a prescription or else, you have to do some sort of haphazard, you know, prove-that-you're-a-diabetic type test...

CONAN: But in some states, don't you have to have a prescription to get a syringe?

JOSEPH: In the - you can order them over the Internet just fine.

CONAN: I'm saying in a pharmacy, don't you have to have a prescription?

JOSEPH: No. It depends on which pharmacy I go to. Some of the pharmacies are - have no problem with it and other pharmacies, they you know, they, run you through the rigmarole...

CONAN: Presumably this is not a matter of conscience so much as a question of legal liability. They're afraid that you're going to go out and sell these to drug users.

JOSEPH: Well, but if - like even if they did, even if they did sell them to drug users or give them to drug users, it's, you know, it's clean. It's providing drug users with clean needles where they don't spread AIDS. For me, I fail to see the moral thing that they try to provide and hassling diabetics just because some drug users might want to use clean needles.

CONAN: OK. Joseph, thanks very much. Here's an email we have from Kate in Portland, Oregon. I used to work for a public library. We had a person who did not want to handle or provide birth control or homosexual materials because of religious objections. She was basically told if she could not perform the functions of a public library - free access to information - then she should not be working at a public library. I would say that if the institution you work for offers you these services and you disagree with those services, then you should not be working at that institution. And Crispin Sartwell, that's an argument that's been made particularly about pharmacists.

Dr. SARTWELL: Yeah, and I think that probably if an institution that you're working for is engaged in, you know, a variety of practices that you regard as repugnant, you probably should not be part of that institution. I mean, I would encourage individuals to opt out or try to find another line of work in some of these cases, but I also encourage the institutions, to whatever extent they can, to respect the individual conscientious decisions of their employees. If there are, you know, reasonably simple alternatives or people that don't mind providing the services, then they ought to respect that. Now, you know, there could be cases where people are, you know, basically object to every service that they're charged to provide.

CONAN: Right.

Dr. SARTWELL: In which case, they shouldn't be there, and it would be understandable for someone to be fired in circumstances like that. Nevertheless, I'd encourage, you know, them not to participate if they find those practices repugnant and, as I say, a measure of the ethical quality of the institution itself is to what extent it can make accommodation to the individual consciences of the people within it.

CONAN: Let's go to Craig. And Craig is with us from Denver, Colorado.

CRAIG (Caller): Yeah. Thank you for taking my call.

CONAN: Go ahead please.

CRAIG: I'm an emergency room physician for 28 years, and I think it's a ludicrous idea that the conscience of individuals in the health-care professions should supercede their duty to take care of patients and do what is legally required. I may have some objection about people that do self-inflicted injury, whether be it be a methamphetamine user or a smoker or a drinker, but that doesn't mean I don't treat them because I don't agree with what they do. And just as much as the OBGYN physician mentioned that somebody who batters their wife, you don't have a choice in terms of treating them or not treating them, even though they may go back out and batter their wife. I feel that if you can't do the job, then you should find a new profession. This is not moral issue for people if you're in the health-care profession. Your job is to follow through and do what is legally mandated. This shouldn't be an option for people. This shouldn't even be discussable. If you cannot perform, well at least find another job.

Dr. SARTWELL: Well, look, what if the institution legally mandates stuff that we all know is repugnant, as many institutions have? I mean, you know, the argument that laws, for example, supercedes individual conscience has been an utter disaster for our species. And you know, and also I think a profoundly anti-democratic idea and this is the way you get, you know, a whole society mobilized into a moral disaster. So, you know, I mean, this is more like - what if they were requiring you to dispense heroin to heroin addicts or something like that, you know, well, I mean...

CRAIG: Eventually, that could come up in the context of people legalizing drugs and if that context did come up, then you would be obligated to do so. I mean, there are a lot of people that feel that the war on drugs is basically an abomination, that it doesn't work (unintelligible).

CONAN: Well, Craig -

Dr. SARTWELL: Exactly.

CONAN: Let's put it another way. If this was 150 years ago, and you were required by the Dred Scott decision to report to somebody you believed that was in your ER was a runaway slave.

Prof. CHARO: You know, if I may - if I will just make one comment here. I think it's extremely important that we separate the examples in which the health professional is being told by the government to do something against the wishes of a patient, which I think we have often seen abused. Nazi Germany, your slavery example, whatever, versus a situation which this particular emergency room physician is talking about in which a patient comes in asking for a service and the question is, can the physician stand in the way?

We've already made the compromise, a compromise beyond what this physician caller has suggested, of allowing physicians to simply refer to a colleague next to him, next door, a colleague who'll do it instead. That has been a compromise that we have lived with for 30 years. But now, suddenly, the question has become, can a physician not only refuse to provide the service, but actually actively try to stop the patient from being able to access the service? That really is a very different kind of refusal.

CONAN: Craig, thanks very much for the call. Appreciate it.

CRAIG: Thank you very much.

CONAN: We're talking about the conflict of conscience and health care. You're listening to Talk of The Nation from NPR News. And let's get Annie on the line. Annie with us from Salt Lake City in Utah.

ANNIE (Caller): Hi. I'm another ER doc with just a little bit of a different comment than the one that you just heard. I just want to kind of make a nice point for the colleagues I work with. I see us handle this issue very elegantly. I have physician colleagues who are willing, for example, to write for the morning after pill - to write a prescription for that. I've other physician colleagues who feel strongly that they shouldn't do it. Similarly, I have nursing colleagues who are willing to dispense that prescription or give the prescription to the patient, and I have other nursing colleagues who aren't. And we've collaborated really well together to take care of patients. We kind of know where people stand on the issue, and we work together so that we can both serve the patients we're trying to take care of and also kind of live by our own moral standards.

CONAN: So, if that a patient wants the morning after pill or needs it they are referred to somebody who will - is willing to do that.

ANNIE: Oh, sure. You know, I mean, that's a prescription I'm happy to write for, and if one of my colleagues sees a woman who's requesting that pill and he's uncomfortable writing the prescription for some reason, he will find me or vice versa.

CONAN: Do you encounter the situation that we've also been talking about, where some people decline to refer patients, feeling that that would be participating in a process that they're uncomfortable with?

ANNIE: I haven't and I think - and I've worked both in large metropolitan areas and also in small towns. And I think it speaks to the goodness of the kind of people who get drawn to this kind of work, that - usually, you know, in my - I guess in my experience across the board, they've tried to find a way to care for the patient. And I think people who have objections to certain things have felt like their conscience could be clear if they directed the patient to someone who could take care of them.

CONAN: Annie, thanks very much for the call. Appreciate it.

ANNIE: Thank you.

Prof. CHARO: Well, I think that's a pretty good, you know, scenario and I hope it's a typical scenario. And it speaks well for the atmosphere of the institution itself that's not operating by a set of rigid rules but in terms of collaboration and mutual respect. I think that's exactly the right kind of approach to this. And you know, I do see the problem with the referral issue, you know, that's - you know and actually erecting barriers to people obtaining legal services, that is a problem. Yeah, go ahead.

CONAN: And we'll give you the last tip in 20 seconds. Go ahead, please.

Prof. CHARO: Oh, I'm sorry. I didn't mean to - just but unfortunately, though, there are a number of cases like that and then there's a whole rash of state laws that have been written to specifically allow physicians, pharmacists, ambulance drivers and others to not only not perform, but to not refer, even give information. So, what we're seeing is state law that is reaching way beyond what most professionals are asking for, which is the chance to just refer, and is now setting up a situation where we really do have a conflict with the patient's needs and rights.

CONAN: Alta Charo with us from the University of Wisconsin and WHA in Madison, Wisconsin. We thank her for her time. And Crispin Sartwell, a professor of philosophy at Dickinson College in Pennsylvania, from WYPR in Baltimore. When we come back, the Rosenberg case.

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