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

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

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�

12. A View Conscience

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.�

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.�

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

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

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 )

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�

20. Metamorphosis in Epistemology Judeo-Christian Hippocratic ethic dominant seventeen centuries dominant explaining how things exist sourced in the Biblical interpretations Modernity�s 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 State�Women will decide our fate.�

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 1:27, and Exodus 20:3 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�

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.�

31. Disclosure that is legally informed National Conscience States of Conscience

32. Legal History and Federal Laws Generated from US Supreme Court�s 1973 decision in Roe v. Wade

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 �provid[ing], reimburs[ing] for, or provid[ing] coverage of, counseling or referral service if the organization objects to the service on moral or religious grounds.�

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.�

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.

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.

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 Baird�s 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.

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�

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 Storman�s 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 �Hobson�s 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.�

56. Hobson�s Choice "Where to elect there is but one, / 'Tis Hobson's choice�take that, or none." Ward 1688

57. Principle of Autonomy A woman�s 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 women�s 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