No easy answer when it’s religion vs. health care
by Ken Burrrows
In his October 2017 Memorandum on Federal Law Protections for Religious Liberty, Attorney General Jeff Sessions stated that religious freedom must specifically include “the right to act or abstain from action in accordance with one’s religious beliefs.” [emphasis in original] His memo went on to suggest that religious freedom should be virtually free of restraint or compromise, a sort of super right above all other rights.
But other freedoms in America that are deeply cherished are subject to select limitations. Freedom of speech famously does not include permission to yell “Fire!” in a crowded theater or to traffic in child pornography. Freedom of assembly does not include the right to gather insurgents together to plan the violent overthrow of government. Even gun rights are subject to certain restrictions, as noted by the very Supreme Court ruling that otherwise broadened gun rights under the Second Amendment.
Should religious freedom be treated differently by making it completely immune from limits? Or are there circumstances that could and/or should allow for qualifying that immunity? To narrow this to a specific issue that can potentially affect every one of us, let’s ask: Should protecting religious freedom be given precedence over protecting our life or health?
The purpose of this article is not to give a definitive answer to the complex question being raised, but rather to confirm that the complexity is there, and to realize how an answer to the question is not easy, not a simple black-and-white matter. Why? Because it involves the rights and values of different parties holding different beliefs, all of whom have at least some claim to legitimacy.
Two sides to the issue
Religious freedom in the arena of health care most commonly involves the issues of abortion, contraception, sterilization, sexual identity and transgender services, and end-of-life care. Often overlooked is how many ways these issues can reach beyond just whether personal and/or religious preferences are honored or denied, and beyond the idea that marketplace options are sufficient to serve differing moral beliefs. Would that it were that simple.
Both public and private operatives continuously debate the policy and constitutional merits of “religious refusal” legislation that allows health care providers to deny treatment on the basis of religious or moral objections. On the one hand, individual practitioners clearly do have sincerely held moral beliefs—be they religious or secular—they should generally not be forced to violate. Many contend that institutions too, such as a religiously sponsored hospital, can claim a similar refusing “conscience” that ought not be violated.
But on the other hand, when religious refusal carries the day, real patients (statistically women more than men) are sometimes being denied essential health care, up to and including life-critical care. As more hospitals are merged with and/or managed by religious entities that impose their health care tenets as a matter of policy, more patients are being put in harm’s way. It is worth noting here that there are also occasions when individual non-refusing physicians, because of institutional refusals in place where they practice, can also be “harmed” by not being permitted to give their patients what they consider the best care, if it goes against the institution’s religious dictates.
Common examples to consider
Below are some of the more frequently encountered conflicts between religious beliefs and access to health care, and the real or potential harms they can cause:
- In the emergency rooms of many religiously affiliated hospitals, rape victims cannot access emergency contraception, and may not even be told about it. They are deprived of a drug that could protect them from becoming pregnant as a result of the rape.
- In many religiously affiliated hospitals, women who are scheduled to give birth by cesarean section are told that they cannot have their tubes tied at the time of delivery because the procedure violates the hospital’s religious principles. So they must incur at least some additional risk to their health and incur significant extra expenses by having a later surgery at another hospital.
- Some religiously affiliated HIV/AIDS prevention programs are prohibited by the religious beliefs of their sponsors from handing out condoms, even though they can be health-protective and even lifesaving.
- Some women seeking contraception find that their employers or insurers refuse, based on religious objections, to cover such drugs, even though the same plans cover other FDA-approved prescriptions. In other instances, women are turned away by pharmacists with religious objections, and the pharmacy may not even require its employees to offer a referral to another pharmacist.
- Obstetrics and gynecology residents in some religiously affiliated hospitals are denied clinical training in abortions, sterilization, and contraceptive services because these otherwise professionally accepted medical treatments go against the institutions’ religious tenets. This happens even though such residents then lack skills normally considered necessary to providing comprehensive ob/gyn care to their patients.
At first glance, these examples might not appear to present patient care needs serious enough to warrant sacrificing or compromising a value as sacred as religious/moral conscience. Recall the U.S. Supreme Court in Burwell vs. Hobby Lobby said essentially this with regard to the matter of religious objections to providing access to contraceptive care. Nonetheless, reasonable arguments could be made the other way, one of them being that a patient should not have to sacrifice her care needs to religious tenets she does not even subscribe to. Suffice it to say different rights can carry different moral weight.
If the question of who would “win” and who would “lose”—religious refusers vs. patients—in the above scenarios puts us in a quandary, how much greater a dilemma do we face in harder cases?
There is a fairly common consensus (not unanimity) that in an emergency, doctors and hospitals should put aside personal beliefs to do what’s best for the patient. But does this hold if the patient finds herself in a facility guided by religious directives?
Consider the case of Kathleen Hutchins from several years ago. At 14 weeks into her pregnancy, her water broke. Her ob/gyn delivered the bad news: Because there wasn’t enough amniotic fluid left and it was too early for the fetus to survive on its own, the pregnancy was essentially hopeless. This was confirmed by a second physician. Hutchins was told she would likely miscarry in a matter of weeks. Meanwhile, she risked serious infection, which could lead to infertility or death. She chose to get an abortion. Problem was, the hospital she would use had recently merged with a nearby Catholic medical center, which forbade abortions except in dire emergencies. Her ob/gyn was quoted thus: “They [the refusing hospital] said, ‘Why don’t you wait until she has an infection or she gets a fever? Just wait for her to get infected and bring her right in.’” In other words, wait until there’s a more definitive emergency. He replied: “Well, the whole purpose of this is not to get infected, to avoid the problem.” He contended the hospital’s religious doctrine prevented his patient from getting the best medical care. “Does this interfere with the doctor-patient relationship? Absolutely,” he said. “They wanted me to put her health in jeopardy.”
Is the Hutchins case a rare outlier? Not necessarily. The American Civil Liberties Union and Lambda Legal, an advocate for civil rights for the LGBTQ population and those who have HIV, track serious conflicts between religious refusals and patient access to health care. A few of their sample cases:
- In the spring of 1994, a 19-year-old woman in Nebraska was admitted to the emergency room of a religiously affiliated hospital with a blood clot in her lung. Tests revealed that she was approximately 10 weeks pregnant, and the clotting problem resulted from a rare and life-threatening condition exacerbated by the pregnancy. Four doctors at the hospital certified that she needed a lifesaving abortion. The hospital would not permit an abortion to take place on its premises. Ten days of dangerous delay followed, as the patient waited for transfer to a facility that would perform the abortion. By then it became apparent that moving her could increase the risk that she would throw a life-threatening blood clot. Her doctors felt it was in her best interest to be treated in the hospital. The hospital stood by its denial. (The patient was ultimately transferred by ambulance to her doctor’s office for the abortion.)
- In November of 1995, a woman arrived at a university hospital in New Jersey. She was 18 weeks pregnant and standing in a pool of blood. An ultrasound revealed that she suffered from a complete placenta previa, a condition that could become fatal to both her and her fetus. In the preceding 48 hours, she had suffered three episodes of heavy vaginal bleeding. Her doctors believed she faced a high risk of suffering another severe and possibly fatal bleeding episode. The attending physician called for an emergency cesarean section. The labor and delivery nurse on duty was asked to “scrub in” so she could aid in the procedure. She refused, citing her faith, which prevented her from “participating directly or indirectly in ending a life.” Because of staffing cutbacks, the hospital was forced to scramble to find another nurse to cover for the refuser, delaying the surgery for a dangerous 30 minutes, potentially jeopardizing the patient’s health and life.
(Footnote to this second story: The nurse in question had asserted an earlier religious refusal to assist with a different pregnant patient with a life-threatening ruptured membrane. Given her record of refusals, the hospital, in an attempt to accommodate her religious beliefs without risking its patients’ health and lives, eventually offered to transfer her to the newborn intensive care unit or help her identify other acceptable nursing positions in the hospital. She declined, and the hospital fired her. She sued the hospital, claiming that she was the victim of religious discrimination. The court ruled against her, holding that the hospital had made reasonable efforts to accommodate her religious beliefs while still fulfilling its duty to “provide treatment in time of emergency.”)
- A transgender man who was a Lambda client was refused a medically necessary hysterectomy despite his treating physician’s desire to perform the surgery. The hospital where the surgeon had admitting privileges was religiously affiliated and withholds permission for all gender transition-related care. Another client was refused a necessary operation for her gallbladder disease due to her HIV status. The medical center defended this refusal of care based on their status as a religiously affiliated institution. In yet another Lambda-cited a court case, a lab technician refused to do tests on specimens labeled with HIV because he believed, based on his religion, that “AIDS is God’s plague on man and performing the tests would go against God’s will.” In looking at such cases, Lambda sees religious dogma being elevated above medical standards and medical ethics. “In the health care field,” says Lambda, “where patients are especially vulnerable, religion-based harassment and refusals of medically necessary care have been a persistent, profoundly harmful problem.”
“Moral matching” as an answer?
So as promised in the opening of this article, when reviewing real-world cases, we see how complex the issue of religious refusals in the health care area can be. In the two pregnancy cases just referenced, the patients ultimately survived without religious refusers’ consciences being compromised. One could say everybody “won.” Still, should these patients (and the Lambda-cited patients) have been subjected to their increased risks at all? What if one or both of the pregnant women had died due to delayed care? Knowing such tragedies could happen, we necessarily engage the question of whether there are limits religious freedom might be subject to, all the while trying to preserve the sanctity of a moral conscience.
One person who has made a valiant attempt at searching for some kind of acceptable compromise on this issue is Holly Fernandez Lynch, a bioethicist and assistant professor of medical ethics at the University of Pennsylvania who has done contract work affiliated with the National Institutes of Health. She explored the subject in depth in her book Conflicts of Conscience in Health Care: An Institutional Compromise.
In this book, she proposed that medical licensing boards take steps to help establish and monitor a “moral matching” program between physicians and patients with the goal of avoiding religious refusal scenarios to the greatest extent possible. Very briefly, this would entail a requirement that physicians describe and make available upfront, in a readily accessible way, which medical interventions they would morally refuse to do. This would allow patients to select physicians whom they could be confident would provide care services that they, the patients, could foresee needing.
Under this approach, Lynch writes, physicians would not be pressed to violate conscience and patients would not be forced to bear the brunt of beliefs that differ from their own. “There will be room for physicians and patients to create relationships based on deeply held, shared moral values,” Lynch concluded. That at least is the theoretical framework.
Lynch acknowledges this would entail numerous sub-issues to be handled—such as assuring adequate numbers of non-refusing physicians, especially in certain specialties or geographic areas; reasonable and affordable accessibility to physicians by patients; the fact that both physicians’ and patients’ moral convictions might change over time; what requirements would govern adequate notification to patients of which services a physician will not provide; what happens when there is a “last doctor in town” scenario, and that doctor is refusing to give care that is otherwise generally expected to be provided just by virtue of his/her being licensed to practice.
The moral matching concept is not perfect or easy, Lynch concedes, but it could offer something better than an ongoing stalemate on the dilemma of how one individually—or we as a society—manage or lessen the tension between what religious conscience demands and what health care patients have a right to receive. “In a country that regards the broad protection both of personal moral beliefs and personal medical choices as central to our liberty,” she writes, “we cannot be content with simply sacrificing one freedom in favor of another.”
Power and autonomy considerations
Whatever the merits of her moral matching concept, in her book Lynch touched on a number of unique aspects of the physician-patient relationship, and physician autonomy, and how these come into play in the conflicts between protecting religious freedom and protecting health care for patients.
She points out that through the protocol of state-granted licenses to practice medicine, the profession has “a collective monopolistic power over the provision of most medical services.” Because of this gatekeeping role physicians exercise, patients cannot gain access to numerous services without the physician opening that gate. This leads many patient advocates to argue that physicians, in light of this unique status in society, have a professional obligation to subordinate their personal moral beliefs to patient requests. Some add that given the amount of funds government spends on resident training, physicians are indebted to society and in some degree subject to its collective will. These people say if physicians suspect they will have to refuse to heed that will, they should not pursue such a profession in the first place, or at least avoid specialty areas where religious refusal scenarios are likely to arise.
Lynch sees an imbalance in most legislated conscience clauses, which “offer hardly any balance at all, allowing physicians to refuse in too many situations without exception and without concern for the patient’s ability to access medical services.” She calls it impermissible for a physician to claim an absolute right to personal autonomy “when others are forced to rely on you for access to a public good.”
“Given the state-granted monopoly power of the medical profession,” Lynch says, “if enough physicians refuse to provide a given service, it will become effectively inaccessible to patients. In such circumstances, physicians would be exercising quasi-legislative powers without equivalent democratic legitimacy. [This] might result in an inappropriate imposition of their views on patients.”
In addition, Lynch notes that patients actually have very few legal rights they can demand from healthcare providers. Just because a health care service is not prohibited and is therefore legal does not automatically mean one has an absolute right to have it provided. A “negative right” may protect a patient from undue burdens in securing care that is legal (e.g., seeking an abortion) but does not bestow a “positive right” to be provided such care. “Patients have no clear constitutional right to any affirmative care,” says Lynch, and this is partly confirmed by the fact that no legislated conscience clause has ever been struck down.
The positive value of moral sensibility
Lynch allows there are kernels of validity in the preceding perspectives and viewpoints, but she does not support a wide-ranging, no-exceptions obligation some of these views would impose on physicians. That would not only violate physicians’ consciences, she says, but also effectively make them mere technicians (not unlike “medical vending machines”) complying with patient requests, which is not what a physician’s role is intended to be limited to.
Plus, she adds, good physicians bring a wide variety of life experience to their role, beyond medical training, and “patients would lose a great deal if we forced doctors to completely abandon their own morality in the clinical setting.” As she put it at one point: “Imagine the morally insensitive people we would attract to the profession if we decline to preserve any role for moral discretion in medicine.” She said moral reflection in most cases tends to advance justice and humanity. “Society benefits from having morally serious people in the profession who are unwilling to just follow orders.”
But, she notes with equal emphasis, “Just as the beliefs of objecting physicians should not be unnecessarily suppressed, objecting physicians should not be permitted to suppress the beliefs of others.” Plus, she insists, although moral reflection by physicians is something to be valued, one should remember the profession has a claim only to scientific medical expertise, “but no inherent claim to moral expertise.”
How broad should refusals be?
In Lynch’s view, a moral matching program would not give physicians carte blanche for religious refusals. It could hold them responsible for providing a minimum roster of services based on their licensing and on accepted standards of care. One of the challenges here would be identifying who gets to determine which refusal reasons are valid or not. “Not all grounds for physician refusal ought to be accepted,” Lynch says. “Conscience is not quite a ‘magic’ word.” Licensing boards might conceivably also ask for proof of sincerity of belief before allowing refusal, similar to what conscientious objectors have had to show draft boards to gain approved CO status. This would of course be an inexact science and present another challenge.
Lynch adds that “eccentric moral stances that are completely outside any reasonable understanding of a good physician’s role should not be protected.” She gave as an example a refusal to provide pain management because the physician believes the patient deserves to suffer for being of poor moral character. On the flip side, patient requests for care could be legitimately denied when far outside the norm. Physicians would not be required, for instance, to assist in conception efforts blatantly targeting eugenics enhancement, amputate healthy limbs, offer bloodless surgery, selectively implant embryos with defective genes, or perform female genital mutilation.
She said it should also be inappropriate to allow refusal of care to an entire group of patients that would equate to obvious discrimination, such as refusing to give otherwise morally neutral care to homosexuals, transgenders, certain racial/ethnic groups, etc. Some physicians might refuse to provide a particular service at all times based on moral opposition, and this might be a valid refusal, but oversight protocols should seek to be sure it’s not just an indirect way to discriminate against a group, becoming “backhanded objections to the patient [rather than] objections to the service.”
She offers this summary: “Physician refusals grounded in invidious discrimination without concern for particularized circumstances should be rejected…It is the repugnance, dislike, loathing, or contempt expressed by the refuser for the patient him or herself based on his or her physical characteristics or broad life choices that is singularly impermissible as a ground for conscientious refusal.”
Are the principles of conscientious objection to providing medical care equitably applied? Lynch cites evidence they are not. Most conscientious objection laws base their rationale specifically on “religious” refusal, effectively making religion the sole manifestation of one’s conscience regarding refusal to give care. This is nearly always accepted as valid. But Lynch writes: “There is no compelling reason to treat religious and secular moral objections to a particular medical service differently.” While historically and culturally, moral convictions presented as being based on “God’s law” are perfunctorily believed, “it simply does not seem fair to exempt only religious medical practitioners and not others with similar feelings and attitudes, especially considering that religious beliefs represent only a single species of human motivators. Other very powerful guides for appropriate behavior exist in the lives of both the religious and nonreligious alike.”
In an op-ed piece earlier this year, Lynch raised this equitability concern also with regard to the Department of Health and Human Services (HHS) creating a new Conscience and Religious Freedom Division in its Office of Civil Rights. The HHS announcement of this new division stated it is designed to “protect health care workers’ consciences” so that no one is “compelled to participate in procedures such as abortion, sterilization and assisted suicide when it would violate their religious beliefs or moral convictions.”
“If the goal is to provide expansive protection of conscience,” Lynch asked, “why are these emphatic new efforts so one-sided, focused solely on the plight of health care workers who refuse care on moral grounds…while ignoring those who seek to provide medically accepted services? [emphasis added] And more important, why is the nation’s public health agency ignoring patient needs?”
She cited the example of physicians like Willie Parker, an obstetrician/gynecologist who views providing abortion as a religious ministry. Parker and his colleagues face enormous obstacles to acting upon their own moral convictions, Lynch noted. Abortion providers are often denied admitting privileges, face difficulty getting training, and can be threatened with adverse employment actions. She does not see much being done to safeguard the consciences of providers like these.
Lynch went on to note that health care workers seeking to provide services to the transgender community, care that can be lifesaving, also sometimes face substantial roadblocks. This is “despite their belief in an ethical and professional obligation to act in their patients’ best interest. Being forced to refrain from care—like being forced to provide it—can conflict with a person’s sense of moral duty.” As one physician serving transgender patients put it to Lynch, “As a matter of conscience, I am called to do this work.”
So, Lynch said, HHS should recognize that conscientious providers, no less than conscientious refusers, can encounter legal and institutional barriers to acting on their convictions. She said the department should promote bidirectional protection in conscience clauses. To the degree that HHS emphasizes refusal over access, she says, it appears that “it intends to only shield a select few.”
Enforceable physician duties
Lynch says forcing a physician to provide morally objectionable services should be avoided if at all possible, with one exception being the requirement to provide lifesaving care in an emergency.
Another exception she points to is what’s called the last-doctor-in-town scenario, wherein there literally is only one doctor available or the dearth of non-refusing doctors effectively leaves only a “last one” to be able to furnish a sought medical service. A last doctor “should be expected to provide the requested service regardless of his personal moral objections,” Lynch writes. This is not the patient’s autonomy trumping the physician’s per se but instead is “the physician’s moral autonomy trumped by her autonomous choice to enter a profession that bears social benefits and social responsibilities.”
“The physician voluntarily accepted the role of a professional,” Lynch writes, “presumably with at least the implied understanding that the profession as a whole has obligations to make services available to patients vulnerable to its collective monopoly and that circumstances may arise in which the physician will stand as sole gatekeeper, thus bearing the profession’s normally collective responsibility.”
But as if to confirm again just how nuanced this whole issue can be, Lynch also says, “there is never an obligation to participate in genuine wrongdoing…no professional obligation could rightfully include a duty to engage in true moral transgressions, regardless of voluntary entry into a profession or the existence of a professional monopoly. However, it is essential to recognize that allowing individual physicians to personally determine which medical services fall under the heading of ‘wrongdoing’ would permit the physician’s conscience to become a law unto itself, imposing on patients views with which they may reasonably disagree.” She reiterates that “if there is any such thing as moral expertise, which is in itself debatable given that no one has special access to knowledge about what is right and wrong, individual physicians qua physicians have no special claim to it.”
What about “lower-level” physician duties—actions not involving literal delivery of care? Lynch says that, first of all, physicians should not be granted conscience clause protection unless they have fulfilled their obligation to promptly notify patients of the services that, on moral grounds, they will not provide. Physicians must also offer patients information regarding all their medical options, even if the physician is unwilling to perform some of those options. While the physician is free to advise patients as to what he/she feels is the right thing to do, “they must avoid religious coercion, proselytism, and moral arrogance, since these are abuses of the power entrusted to the physician’s vocation.”
Lynch notes that refusers could argue that simply by informing a patient of availability of services they morally oppose themselves, they become complicit in wrongdoing. It is a valid consideration, she says, but “this line of reasoning cannot overcome the serious harms to patients that can result from being kept in the dark.” (At the time she wrote her book, Mississippi had a legislated conscience clause that allowed a physician, without consequence, to withhold even relevant and medically accurate information a patient would need to make an informed decision about care and treatment, if the physician was morally opposed to giving out such information.)
As for providing outright referrals for a patient to another source of care when the physician refuses to provide the care directly, Lynch sees the complicity concern of the refuser as more compelling than what occurs with simply providing information. The latter can be seen as more neutral and removed, and if patients have the appropriate information, they should be able to seek other willing physicians on their own, thereby diminishing the refuser’s complicity. However, Lynch does note that the American Medical Association’s Council on Ethical and Judicial Affairs states that “a conscientious objection should, under most circumstances, be accompanied by a referral to another physician or health care facility.” The American College of Obstetricians and Gynecologists goes further, saying moral refusers have an obligation to refer patients in a timely manner to other providers.
But in turn, Lynch says, patients should show consideration for the autonomy of physicians and the physician’s morality and try to avoid making demands for services the physician cannot in good conscience provide. Patients should be encouraged to proactively research whatever physician refusal information is made available (though this does not lessen the physician’s obligation to affirmatively inform the patient of such), and Lynch says patients in many situations should accept the physician’s refusal. This acceptance is all the more incumbent on the patient if the asked for service can be reasonably obtained elsewhere.
Where does all this leave us on the original question at hand? Should religious freedom enjoy blanket immunity from challenge when it comes to refusing to provide medical care?
The one sure answer is that different people will answer the question differently. Another sure answer, I would hope, is that once we see all the ramifications that can ensue when decisions are made in religion-vs.-health care conflicts, we realize that absolutes on either side of the issue are not really workable without unduly harming one or another party. Compromise of some kind seems imperative. Lynch’s compromise concept of striving for upfront moral matching by physicians and patients, while not perfect, could be one form of “preventative medicine” to inoculate against a good share of conflict.
Lynch sees the physician-patient relationship as a moral equation with rights and obligations on both sides.
“Both sides are arguing in favor of freedom,” she says, “differing only in the priority they are willing to give various freedoms when they come into conflict. … It is indisputable that respect for physician conscience may at times be troublesome for patients, inefficient for the healthcare system, and when taken too far, detrimental to medical outcomes. Nonetheless, physicians’ moral beliefs and values deserve to be taken seriously.”
But, she adds, physicians themselves have a reciprocal responsibility to take their moral refusals seriously, “refusing only when there is truly no way to accommodate both their own understanding of what is right and the patient’s request for medical service. One’s conscience should not be used as an unconsidered shield…the possibility of compromise should be carefully evaluated in each instance.”