Conscience Clauses, Health Care Providers, and Parents

Home , Bioethics

f r o m b i r t h t o d e a t h a n d b e n c h t o c l i n i c THE HASTINGS CENTER Bi o e t h i c s Br i e f i n g Bo o k for Journalists, Policymakers, and Campaigns

Chapter 8 Conscience Clauses, Health Care Providers, and Parents

Nancy Berlinger, “Conscience Clauses, Health Care Providers, and Parents,” in From Birth to Death and Bench to Clinic: The Hastings Center Bioethics Briefing Book for Journalists, Policymakers, and Campaigns, ed. Mary Crowley (Garrison, NY: The Hastings Center, 2008), 35-40.

All rights reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted in any from or by any means (electronic, mechanical, photocopying, recording, or otherwise), without the prior written permission from the publisher, except for the inclusion of brief quotations in a review.

We have attempted to provide complete and accurate information regarding the individuals, organizations, and agencies described in this book. However, we assume no liability for errors, omissions, or damages arising from the use of this Briefing Book. conscience clauses, health care providers, and parents by Nancy Berlinger

Framing the Issue HIGHLIGHTS Conscientious objection is the refusal to perform a legal role or responsibility because of personal beliefs. In health care, con - n Conscientious objection in health care is 8 scientious objection can involve practitioners not providing cer - the refusal to perform a legal role or tain treatments to their patients and parents not consenting to responsibility because of moral or other

personal beliefs. s certain treatments for their children. Citing moral reasons, many t

n Most states have “conscience clauses” that n

doctors refuse to perform or in other ways participate in abor - e tions. Some pharmacists will not fill prescriptions for RU-486, the describe the right of physicians and other r health care providers to refuse to provide a “abortion pill,” or stock the emergency contraceptive lev - p services such as abortions. onorgestrel, known as Plan B. A growing number of parents are d seeking exemptions from state laws mandating childhood immu - n Most of these conscience clauses, as well n a

as similar federal statues and professional nizations because of religious or personal convictions. , guidelines, were enacted after the passage s r

Conscientious objection in health care always affects someone of Roe v. Wade in 1973 to permit physi - e d else’s health or access to care because the refusal interrupts the cians to opt out of performing or participat - i delivery of health services. Therefore, conscientious objection in ing in legalized abortions. v o health care always has a social dimension and cannot be framed n Most states also permit parents to refuse to r p solely as an issue of individual rights or beliefs. Parents’ decisions immunize their children because of reli - e not to vaccinate their children for a particular disease can gious beliefs; 20 states permit such a r a

increase the risk of that disease not only for their own children refusal based on personal beliefs. c

but also for others in their community. At what point does n Conscientious objection in health care can - h t refusal to consent to treatment constitute medical neglect? At not be framed solely as an issue of individ - l a what point does a clinician’s moral objection to providing a treat - ual rights or beliefs because it always e h ment interfere with a patient’s access to treatment, and violate affects someone else’s health or access to , professional ethical standards? Laws and professional guidelines care. s e on conscientious objection in health care must balance the n Health care providers with moral objections s to providing specific services have an obli - u respect for an individual’s beliefs against the well-being of the a l

general public. gation to minimize disruption in delivery of c

care and burdens on other providers. e c

n Allowing parents to opt out of vaccinating n e

Conscientious Objection by Health Care Providers their children is ethically troubling because i

it can leave entire communities vulnerable c Most states have “conscience clauses,” which describe a right s

to preventable diseases. n

of refusal for physicians, and in some cases for other providers o and for health care organizations such as religious hospitals. Most c of these state laws, as well as similar conscience clauses in feder - Nancy Berlinger, PhD, Deputy Director al statutes, professional codes of ethics, and institutional policies, T and Research Scholar, The Hastings C were enacted after the passage of Roe v. Wade in 1973 to permit A Center • [email protected], T physicians to opt out of performing or participating in legalized N 845-424-4040, x210 O abortions. Today, most medical students opt out of learning how C Kenneth Kipnis, PhD, Professor of

O Philosophy, University of Hawaii • kkipnis@

to perform abortions, as they are permitted to do under the T hawaii.edu 808-956-8954 American Medical Association’s code of ethics. A physician who S T Benjamin Levi, MD, PhD, Associate does not perform abortions—an anesthesiologist, for example— R E Professor of Humanities and Pediatrics, P

X Penn State University • [email protected], Nancy Berlinger, PhD, is the deputy director and a research scholar at The E 717-531-8778 Hastings Center.

CoNSCIeNCe CLAUSeS, HeALTH CAre ProvIderS, ANd PAreNTS 35 may still be called upon, and can refuse, to partici - pate in the procedure. E XEMPTION F ROM I MMUNIZATION Some conscience clauses explicitly cover abor - tion, contraception, sterilization, and the withhold - It’s getting easier for parents to obtain exemptions from immunizing their children because a trend in state legislation ing or withdrawing of life-sustaining treatments. is to add nonmedical exemption categories. Twenty states Some of these clauses cover local conditions: in now permit exemptions based on nonreligious personal Oregon, a conscience clause describes a physician’s beliefs. They are: right of refusal concerning physician-assisted sui - Arizona Nebraska cide, which is legal in that state. Others are general: they simply acknowledge a right of refusal on con - Arkansas New Mexico science grounds. Conscience clauses played a California North dakota prominent role in the FDA debate over expanded Colorado ohio access to Plan B, including over-the-counter access Idaho oklahoma for women 18 and older. (Because this medication Louisiana Utah is stocked behind the counter, pharmacists are involved in dispensing Plan B even if the patient is Maine vermont an adult. People age 17 or younger must have a Michigan Texas prescription to obtain Plan B from a pharmacy.) Minnesota Washington Some retail pharmacists claimed a right to both Missouri’ Wisconsin refuse to provide the emergency contraceptive and refuse to refer the consumer to another pharmacist on staff or to another pharmacy. These practices ical exemptions for children with health conditions challenged the profession’s own guidelines, which such as HIV infection or for cancer treatments that recommend a “step away” procedure that allows an impair their immune systems, making routine 2 individual pharmacist to refuse to provide a service immunizations risky. Forty-eight states also permit but does not permit this pharmacist to block access “nonmedical” exemptions based on religious belief. to this service. During this controversy, several Twenty of these states permit exemptions based on states adopted conscience clause statutes specifical - nonreligious personal convictions. ly protecting pharmacists, while others passed leg - States vary in the degree of evidence required to islation aimed at ensuring that individual providers secure a nonmedical exemption. In some states, did not hamper consumer access to a medically signing a form or checking off a box confirming appropriate drug. In a related type of professional that a parent is opting out on the basis of a reli - refusal with implications for health care, some gious conviction or personal belief—which may not judges have sought “blanket recusals” from hearing have to be specified—may be all that is required. In any case involving abortion petitions by minors. 1 other states, parents may be required to cite or defend specific religious doctrines that prohibit immunization. Many Web sites provide detailed Conscientious Objection by Parents guidance for parents seeking to use religious Some forms of conscientious objection involve a exemption statutes even if they are not members of conflict between civic responsibilities and personal a religious community with specific doctrines pro - beliefs. A citizen who refuses to comply with a mil - hibiting immunization. Recently, some state legisla - itary draft due to deeply-held beliefs concerning tures have been adding nonmedical exemption cat - nonviolence has the right to file for “conscientious egories and making it easier for parents to obtain objector” status. During periods of universal con - such exemptions. 3 States where it is easy to get a scription, conscientious objectors have typically nonmedical exemption tend to have the largest performed alternative service, as medics in war numbers of such exemptions. zones or on civilian projects. Complying with public health mandates is Nonmedical Exemptions from another civic responsibility. School immunization laws in every state require parents to have their Immunization children vaccinated against many serious, poten - Some parents may seek nonmedical exemptions tially fatal, or disabling communicable diseases as a to routine immunizations because of strongly held condition for starting school. All states permit med - religious convictions about faith healing. But par -

36 THe HASTINGS CeNTer BIoeTHICS BrIefING Book ents whose resistance to vaccination is not based on religious doctrine tend to have strong personal R EPRODUCTIVE M EDICINE : beliefs about the dangers of vaccines; in particular, A C ASE S TUDY the belief that certain childhood vaccines are linked to rising rates of autism. This claim has been the In an ethical opinion published in November 2007, the subject of several studies by the Institute of American College of obstetricians and Gynecologists Medicine, which concluded that there is no scientif - (ACoG) noted that health care providers working in repro - ically credible evidence to support it. But two ductive medicine may be more likely than other providers to recent cases involving children with mitocondrial encounter conflicts between medical practice and personal moral beliefs because some of the most controversial health disorders who became seriously ill following vacci - services fall within this field, including abortion, sterilization, nation--one child became autistic and the other and providing emergency contraception. The opinion said died--have reinforced fears about immunization. that the personal right of refusal is not absolute but is limited Some parents may not see the need for vac - by the professional duties incumbent on all health care 8 cines—they may prefer alternative medicine, they providers. In other words, the professional right of conscien - tious objection does not trump a patient’s right to make may not have firsthand knowledge of lethal child - s informed decisions or to receive access to safe and legal t hood illnesses (having been immunized themselves n

health care services because health care exists to serve the e as children), or they may not understand how vac - r needs of the patient first. for months, doctors opposed to cination protects a community. Resistance to a abortion complained about the opinion, and in March 2008 p immunization may also be associated with fear of

the department of Health and Human Services challenged d government intrusion into the lives of families and it, citing federal conscience clause statutes. ACoG then n a the rights of parents. agreed to reexamine its opinion. , s

The introduction of Gardasil, the human papillo - r e ma virus (HPV) vaccine, has added the issue of sex - immunity, but exemptions to vaccination dimin - d i ual morality to debates about the rights of parents. ished it sufficiently for disease outbreaks to occur v o

The vaccine protects against a sexually transmitted in these areas: r p

disease that causes cervical cancer. Many people question whether states should require adolescents n In Boulder, Colorado, endemic pertussis e (whooping cough) has been linked to vaccina - r to be vaccinated against a sexually transmitted dis - a c ease. However, even some socially conservative tion rates of just 50% among children at a

5 h

local private school. t

groups have acknowledged that, with respect to l this vaccine, the value of cancer prevention may n In Philadelphia in 1991, a measles epidemic, a e

outweigh other concerns. which resulted in more than 500 cases and h

seven fatalities, was traced to unvaccinated , s

children whose families were members of two e s 6 Threats to “Herd Immunity” faith-healing churches. u a l

Nationwide, the percentage of parents who n In San Diego in early 2008, a measles out - c

invoke a personal-belief exemption is small, but break among 12 children included nine whose e increasing. It rose from under 1% in 1991 to 2.5% parents had invoked California’s personal- c n 4 in 2004. In some areas, the rates of immunization e belief exemption to opt out of vaccination and i refusal are much higher—families with similar c

three who were not yet old enough to receive s beliefs and values may choose to live together, wor - this vaccination, which is given in two doses n o ship together, send their children to the same over several years. c schools, or be part of the same home-schooling net - The weakening of herd immunity by forgoing works. Parental refusal has been implicated in the vaccinations can also be hazardous to children who development of “hot spots,” locations with disease are “undervaccinated.” These children have missed outbreaks. or incomplete vaccinations due to lack of access to These outbreaks resulted from a weakening of health care or frequent family relocations. While “herd immunity,” which relies on maintaining a rel - undervaccination is a separate public health prob - atively high percentage of inoculated individuals to lem, laws that permit nonmedical exemptions are protect the minority who cannot be vaccinated due of special concern in states with communities to medical conditions or because they are too where undervaccination threatens herd immunity. young. Compulsory vaccination has ensured herd Because vaccines are not 100% effective, allowing

CoNSCIeNCe CLAUSeS, HeALTH CAre ProvIderS, ANd PAreNTS 37 disease outbreaks to occur within unvaccinated groups can also trigger disease among people who RESOURCES have been vaccinated. Web sites • www.ncsl.org – The National Conference of State Legal Considerations: Conscientious Legislatures. Includes helpful health information pages Objection and Medical Neglect such as “Pharmacist Conscience Clauses: Laws and Legislation,” “School vaccination exemptions,” and “HPv The Supreme Court’s landmark 1944 decision in vaccine.” Prince v. Commonwealth of Massachusetts states that Recent news the “right to practice religion freely does not • Gardiner Harris, “Measles Cases Grow in Number, and include the liberty to expose the community or the officials Blame Parents’ fear of Autism,” New York Times, child to communicable disease or the latter to ill August 22, 2008. health or death.” When cases arise involving reli - • rob Stein, “Pro-Life’ drugstores Market Beliefs: No gious-based conscientious objection, courts may Contraceptives for Chantilly Shop,” Washington Post , intervene to protect the health and welfare of the June 16, 2008. affected children, and, in cases where there is a risk of disease outbreak, to protect the health of the • Jennifer Steinhauer, “rising Public Health risk Seen as More Parents reject vaccines,” New York Times , March community in general. During the 1991 measles 21, 2008. epidemic in Philadelphia, public health officials were granted a court order to immunize six chil - • Jim ritter, “Medical Morality: doctors Are Letting Their Conscience dictate Your Treatment,” Chicago Sun-Times , dren whose families were members of one of the february 8, 2007. faith-healing congregations identified as the source of the outbreak. Further reading • Committee on ethics, American College of Gynecologists The legal concept of “medical neglect” refers to and obstetricians, “The Limits of Conscientious refusal in the failure of a parent or guardian to obtain ade - reproductive Medicine,” Committee opinion no. 385, quate medical care for a child despite having the November 2007. ability to do so. The American Academy of • Paul danielson, “Judicial recusal and a Minor’s right to Pediatrics (AAP) regards medical neglect as a form an Abortion,” Northwestern Journal of Law and Social of child abuse and neglect and is opposed to state Policy , Summer 2007. laws that include religious exemptions to child pro - • robert f. Card, “Conscientious objection and emergency tection statutes. What is unclear is how the concept Contraception,” and Christopher Myers and robert f. of medical neglect applies to immunization refusals Woods, “Conscientious objection? Yes, But Make Sure It’s that involve religious- and personal-belief exemp - Genuine,” American Journal of Bioethics , June 2007. tions. During a disease outbreak, characterizing • Nancy Berlinger, “Martin Luther at the Bedside,” Hastings parents who refuse to vaccinate their children as Center Report , March-April 2007. abusive or neglectful may work against efforts to prevent or control disease outbreaks involving • rebecca dresser, “Professionals, Conformity, and Conscience,” Hastings Center Report , November- these families. The interests of these families’ chil - december 2005. dren, and of other vulnerable children—including those with medical contraindications—may be bet - See online-only campaign appendix at www.thehastingscenter.org/briefingbook ter served through ongoing efforts to strengthen herd immunity through vaccination campaigns and public education programs. that parents are informed of the possible health Pediatricians may fear that they will be held consequences. liable should an unvaccinated child contract a dis - ease that could have been prevented through vacci - Conscientious Objection and nation. Of particular concern is that parents may argue that the pediatrician should have done a bet - Professional Ethics ter job of explaining the health risks of forgoing Health care providers with moral objections to vaccination. The AAP recommends that pediatri - specific health care services have an obligation to cians use a standard form, such as its “Refusal to alert their colleagues and supervisors to these Vaccinate” form, to document refusals and ensure objections, in the interests of minimizing disrup -

38 THe HASTINGS CeNTer BIoeTHICS BrIefING Book tion in the delivery of care and minimizing burdens ter to immunization refusals. Making them a matter on other providers. Because physicians and other of personal “belief” rather than reasoned decision health care providers recognize a duty not to aban - wrongly suggests that these refusals are somehow don patients, conscientious objection policies may different from other health care refusals. Regardless specify that a professional who has invoked the of the medical decisions at hand, it is the obligation right to refuse to provide a service must not inter - of health care providers to give patients and their fere with the patient’s ability to obtain it elsewhere. surrogates accurate information to ensure that their This specification recognizes that it is professionally decisions can be well-informed. inappropriate for health care providers who step away from services to then step between a patient and another health care provider, whether by refus - References ing to cooperate with the transfer of a patient’s care, 1. P. danielson, “Judicial recusal and a Minor’s right to an refusing to make a referral, or making a patient feel Abortion,” Northwestern Journal of Law and Social Policy 125, 8 uncomfortable or ashamed about seeking health no. 2 (2007): 125-145. care.

2. U.S. Centers for disease Control and Prevention. National s Immunization Program. Guide to Contraindications to Vaccination t Allowing parents to practice conscientious objec - n

(Atlanta, Ga.: U.S. Centers for disease Control and Prevention, e tion by opting out of vaccinating their children is r

September 2003), at: www.cdc.gov/nip/recs/ a troubling in several ways. The sincerity of these par - contraindications_guide.pdf p ents’ religious or personal beliefs may not be in dis - 3. d.A. Salmon et al, “Public Health and the Politics of School d pute. But why these refusals should not be treated n

vaccination requirements,” American Journal of Public Health 95 a as informed health care refusals, as the American (2005): 778-783. , Academy of Pediatrics recommends, is not clear. s r

The special vulnerability of children, their depend - 4. o.B. Saad et al. “Nonmedical exemptions to School e

Immunization requirements,” Journal of the American Medical d ence on their parents for health care decision-mak - i Association 296, no. 14 (2006): 1757-1763 v ing, and the grave public health consequences of o 5. A. Allen, “Bucking the Herd,”. Atlantic Monthly ( September r

making it relatively easy for parents to become free p

2002): 1-4 (page numbers refer to electronic text, at www.theat - riders while allowing them to undermine the herd e

lantic.com/doc/prem/200209/allen_a) r

immunity upon which the entire community a

6. M.d. Hinds, “Judge orders Measles Shots in Philadelphia,” c relies—these factors argue against giving moral shel -

The New York Times (March 6, 1991): A23. h t l a e h

, s e s u a l c

e c n e i c s n o c

CoNSCIeNCe CLAUSeS, HeALTH CAre ProvIderS, ANd PAreNTS 39