By Burke J. Balch, J.D.
Pro-life people are conditioned to think positively of “conscience” laws because we want to protect health care personnel from being forced to participate in abortion or to assist suicides. Indeed, laws that are narrowly drawn to cover such cases, or that have language adequately protecting against denial of lifesaving medical treatment based on age, disability, or other “quality of life” factors, are worthy of support.
Unfortunately, however, some states have enacted—and others are being pressed to enact—“broad” conscience laws that essentially immunize health care providers whenever they refuse to provide health care to a patient. These can be used, for example, to justify denial of lifesaving treatment to a child born with Down syndrome, on the ground that it violates the provider’s conscience to extend a life of “suffering.” These laws prevent patients and their families from seeking any legal redress when they are denied lifesaving medical care, antibiotics, or even assisted feeding when a health care provider deems a patient’s quality of life to be unacceptable.
The Illinois Health Care Right of Conscience Act provides that a “physician shall be under no duty to perform, assist, counsel, suggest, recommend, refer or participate in any way in any form of medical practice or health care service that is contrary to his or her conscience.” At the time, it was unthinkable that doctors would assert that their “conscience” allowed them to prevent their patients from continuing to live.
A more recently enacted example is the 2004 Mississippi Health Care Rights of Conscience Act, which states, “No health-care provider shall be civilly, criminally, or administratively liable for declining to participate in a health-care service that violates his or her conscience.”
Tragically, the practice of denying the “health care service” of lifesaving treatment against the wishes of a patient and the patient’s family is now well entrenched in American medicine. (See the Powell Center Report .
Increasingly pervasive are views like those of Leslie M. Whetstine and David W. Crippen, writing in the medical journal Cost and Quality. They assert, “The greatest injustice … is maintaining patients … with invasive treatment modalities [which] is unethical because it supports selfish individualism at the expense of society.” Indeed, they maintain that provider-imposed rationing is morally obligatory: “it is not ethically appropriate to divert money to maintain the irreversibly dying from the person who has a good chance of recovery.”
Writing in Clinical Cardiology, W. Daniel Doty states, “The treating physician’s ethical obligations … logically limit the patient’s autonomous choices.” An article in the Annals of Emergency Medicine by Marco and others declares, “The argument from professional integrity asserts that physicians should not be required to violate their own professional moral standards by providing treatments they believe to be futile or harmful.”
While one might think that when a treatment is called “futile” that means it will not work to keep a patient alive, that is not what many doctors mean by the term. A study published in the Journal of Law, Medicine, and Ethics based on physician interviews concluded, “Most often when futility arguments were invoked, they were used to support evaluative judgments based on quality of life considerations, only rarely to designate treatments that were medically inefficacious. Indeed, throughout the transcripts, physicians sought to frame value judgments as medical decisions. All but one physician seemed unaware of the double meaning they ascribed to the word.”
Indeed, Lawrence J. Schneiderman and Alexander Morgan Capron, writing in the Cambridge Quarterly of Healthcare Ethics, resent efforts to require doctors to preserve the lives of those with disabilities, complaining, “a judge who orders that a severely disabled child be kept alive rarely sees firsthand the long-term consequences of that decision, which remain a continuing vivid experience for the health professionals who must provide care for the child.”
If we care about the right to live of those most vulnerable to discriminatory denial of lifesaving medical treatment, especially people with disabilities and older people, we must vigorously demand that broad “conscience” legislation be amended so as to protect a patient’s right to receive equal access to treatment necessary to prevent their death.