When Religious Belief Conflicts with Professional Obligation

How was it discrimination of Walden to say, "I'm not the right person to counsel you, so let me refer you to someone who is"?

Rule will strengthen right to refuse care
(By David G. Savage, The Baltimore Sun, November 30, 2008)

The Bush administration is planning to announce a broad new "right of conscience" rule permitting medical facilities, doctors, nurses, pharmacists and other health care workers to refuse to participate in any way in morally "objectionable procedures" such as abortion and possibly including birth control and artificial insemination.

For more than 30 years, federal law has dictated that doctors and nurses may refuse to perform abortions. The new rule would go further by making clear that health care workers may also refuse to provide information or advice about abortion to patients.

It also seeks to cover far more employees. For example, in addition to a surgeon and a nurse in an operating room, the rule would extend to "an employee whose task it is to clean the instruments," the draft rule said.

Health and Human Services Department officials said it will apply to "any entity" that receives federal funds. It estimated 584,000 entities could be covered, including 4,800 hospitals, 234,000 doctor's offices and 58,000 pharmacies.

Proponents of the rule, including the Christian Medical Association and the U.S. Conference of Catholic Bishops, say it is not limited to abortion. It will protect doctors who do not wish to prescribe birth control to unmarried girls or to provide artificial insemination, said Dr. David Stevens, the president of CMA.

"The real battle line is the morning-after pill," he said. "This prevents the embryo from implanting. This involves moral complicity. Doctors should not be required to dispense a medication they have a moral objection to."

Critics of the rule say it will sacrifice patients' health to the religious beliefs of providers.

The American Medical Association and the American Hospital Association urged HHS last month to drop the regulation. The Planned Parenthood Foundation and other backers of abortion rights condemned the rule as a last-gasp effort by the Bush administration and said the rule would allow politics and ideology to compromise health care.

Despite the controversy over the rule, HHS Secretary Michael O. Leavitt said he intends to issue it as a final regulation before the Obama administration takes over.

If the regulation is issued before Dec. 20, it will be final when the Obama administration takes office, HHS officials say. The new administration would then have to begin new rule-making procedures to overturn it.

Abortion rights advocates think it might be easier to get Democrats in Congress to reject the rule. Democratic Sens. Hillary Clinton of New York and Patty Murray of Washington have said they will move to reverse it. The HHS proposal has set off a sharp debate about medical ethics and the duties of health care workers.

Last year, the American College of Obstetrics and Gynecology said a "patient's well-being must be paramount" when a conflict arises over the moral beliefs of a medical professional.

"Although respect for conscience is important, conscientious refusals should be limited if they constitute an imposition of religious or moral beliefs on patients [or] negatively affect a patient's health," the organization's Committee on Ethics said. It also said physicians have a "duty to refer patients in a timely manner to other providers if they do not feel that they can in conscience provide the standard reproductive services that patients request."

Leavitt said the American College of Obstetrics and Gynecology threatened to brand as "unprofessional" those who do not share its attitudes toward abortion. In August, he criticized "the development of an environment in the health care field that is intolerant of individual conscience, certain religious beliefs, ethnic and cultural traditions and moral convictions."

In announcing its proposed rule, HHS said it was needed because of "an attitude that health care professionals should be required to provide or assist in the provision of medicine or procedures to which they object, or else risk being subjected to discrimination."

In a media briefing, Leavitt said the rule was focused on abortion, not contraception. But others said its broad language goes beyond abortion.

Judith Waxman, a lawyer for the National Women's Law Center, said Leavitt's office has extended the law far beyond what was understood before. "This goes way beyond abortion," she said. It could reach disputes over contraception, sperm donations and end-of-life care. "This kind of rule could wreak havoc in a hospital if any employee can declare they are not willing to do certain parts of their job," she said.

Guantanamo prosecutor who quit had 'grave misgivings' about fairness
Convinced that key evidence was being withheld from the defense, Lt. Col. Darrel J. Vandeveld went from being a 'true believer to someone who felt truly deceived' by the tribunals.
By Josh Meyer, Los Angeles Times Staff Writer
October 12, 2008
WASHINGTON -- Darrel J. Vandeveld was in despair. The hard-nosed lieutenant colonel in the Army Reserve, a self-described conformist praised by his superiors for his bravery in Iraq, had lost faith in the Guantanamo Bay war crimes tribunals in which he was a prosecutor.

His work was top secret, making it impossible to talk to family or friends. So the devout Catholic -- working away from home -- contacted a priest online.


Even if he had no doubt about the guilt of the accused, he wrote in an August e-mail, "I am beginning to have grave misgivings about what I am doing, and what we are doing as a country. . . .

"I no longer want to participate in the system, but I lack the courage to quit. I am married, with children, and not only will they suffer, I'll lose a lot of friends."

Two days later, he took the unusual step of reaching out for advice from his opposing counsel, a military defense lawyer.


"How do I get myself out of this office?" Vandeveld asked Major David J.R. Frakt of the Air Force Reserve, who represented the young Afghan Vandeveld was prosecuting for an attack on U.S. soldiers -- despite Vandeveld's doubts about whether Mohammed Jawad would get a fair trial. Vandeveld said he was seeking a "practical way of extricating myself from this mess."

Last month, Vandeveld did just that, resigning from the Jawad case, the military commissions overall and, ultimately, active military duty. In doing so, he has become even more of a central figure in the "mess" he considers Guantanamo to be.

Vandeveld is at least the fourth prosecutor to resign under protest. Questions about the fairness of the tribunals have been raised by the very people charged with conducting them, according to legal experts, human rights observers and current and former military officials.

Vandeveld's claims are particularly explosive.

In a declaration and subsequent testimony, he said the U.S. government was not providing defense lawyers with the evidence it had against their clients, including exculpatory information -- material considered helpful to the defense.

Saying that the accused enemy combatants were more likely to be wrongly convicted without that evidence, Vandeveld testified that he went from being a "true believer to someone who felt truly deceived" by the tribunals. The system in place at the U.S. military facility in Cuba, he wrote in his declaration, was so dysfunctional that it deprived "the accused of basic due process and subject[ed] the well-intentioned prosecutor to claims of ethical misconduct."

Army Col. Lawrence J. Morris, the chief prosecutor and Vandeveld's boss, said the Office of Military Commissions provides "every scrap of paper and information" to the defense. Morris said that Vandeveld was disgruntled because his commanding officers disagreed with some of his legal tactics and that he "never once" raised substantive concerns.

Morris said last week that he had no idea why Vandeveld had become so antagonistic toward the tribunal process, adding that the lieutenant colonel's outspokenness angered him because it was unfair and was a "broad blast at some very ethical and hardworking people whose performances are being smudged groundlessly."

Vandeveld, who was prosecuting seven tribunal cases -- nearly a third of pending cases -- has declined to be interviewed about the particulars of the Jawad case. But he did engage in a series of e-mails with The Times about his general concerns, before being "reminded" last week that he could not talk to the press until his release from active duty was final. In the future, he said, he plans to speak out.

"I don't know how else the creeping rot of the commissions and the politics that fostered and continued to surround them could be exposed to the curative powers of the sunlight," he said. "I care not for myself; our enemies deserve nothing less than what we would expect from them were the situations reversed. More than anything, I hope we can rediscover some of our American values."

Some tribunal defense lawyers are preparing to call Vandeveld as a witness, saying that his claims of systemic problems at Guantanamo, if true, could alter the outcome of every pending case there -- and force the turnover of long-sought information on coercive interrogation tactics and other controversial measures used against their clients in the war on terrorism.

For years, defense lawyers and human rights organizations have raised similar concerns in individual cases. "But we never had anyone on the inside who could validate those claims," said Michael J. Berrigan, the deputy chief defense counsel for the commissions.

Before the Sept. 11 terrorist attacks, Vandeveld led a relatively placid life outside Erie, Pa., with his wife and four children. He worked as a senior deputy state attorney general in charge of consumer protection in the region, and he served on his local school board in Millcreek Township.

Anyone who knows him, Vandeveld, 48, told The Times, "will probably tell you that I've been a conformist my entire life, and [that] to speak out against the injustice wrought upon our worst enemies entailed a weather shift in my worldview."

Mark Tanenbaum, an English teacher whose children are friends with Vandeveld's, remembers talking to him while sitting around campfires at high school gatherings. "We talked a lot about religion. I'm Jewish. We'd talk about faith, value-based philosophy. We were kindred spirits in this.

Proposed rule lets conscience guide health care
(By Jeff Brumley, The Jacksonville Times-Union, December 3, 2008)

Some say it would violate patients' rights and quality of care. Others say it would protect the moral integrity of health-care professionals.

Either way, the 11th-hour Bush administration "right of conscience" proposal is stirring up controversy.

The Los Angeles Times reported the White House is planning to announce the rule that would permit medical facilities, doctors, nurses, pharmacists and other health-care workers to refuse to participate in any procedure they find morally objectionable, including abortion and possibly even artificial insemination and birth control.

For more than 30 years, federal law has dictated that doctors and nurses may refuse to perform abortions. The new rule - covering providers that receive federal funds - would go further by making it clear that health-care workers may also refuse to provide information or advice to patients who might want an abortion, according to the Times.

Reaction to the proposal comes down to differences about who needs the most protection, patients or providers.

The key is finding a balance between the medical needs of patients and moral concerns of providers, said Alissa Swota, an assistant professor of philosophy at the University of North Florida and a medical ethicist at Wolfson Children's Hospital.

"But trying to find the middle ground, that's where the difficulty is," she said.

The proposal seems to give the "weight of authority" to the providers, which could be a real problem for some people turned away by a pharmacist or doctor.

"When you're talking about Jacksonville, Florida, with a Walgreens on every corner, that's not an undue burden," she said. "But if you're talking rural South Dakota, then it might be you have no other option."

Jacksonville pharmacist Anita Thompson said the rule would be a relief because it would protect pharmacists and other health-care professionals from growing efforts in other states to require them to provide any service a patient requests.

"I would like to see it be 'let your conscience be your guide,'" said Thompson, a board member with the Duval County Pharmacy Association and a part-time pharmacist with St. Vincent's Healthcare.

Staci Fox, chief executive of Planned Parenthood of Northeast Florida, said she objects to the proposal because it seeks to deny procedures and prescriptions that patients and their doctors deem appropriate.

It would even protect health care providers who refuse to provide information about the medicines or treatments to which they object, Fox said.

"This would prohibit women from getting comprehensive information and services because providers can make the decisions based on their moral beliefs," she said.

It is estimated 584,000 entities could be covered, including 4,800 hospitals, 234,000 doctor's offices and 58,000 pharmacies, the Times reported.

Proponents, including the Christian Medical Association and the U.S. Conference of Catholic Bishops, say it is not limited to abortion. It will protect doctors who do not wish to prescribe birth control or to provide artificial insemination, David Stevens, president of association, told the Times.

The American Medical Association and the American Hospital Association in October urged Health and Human Services to drop the regulation. The Planned Parenthood Foundation and other backers of abortion rights condemned the rule as a last-gasp effort by the Bush administration to please social conservatives, the Times reported.

Despite the controversy, Health and Human Services Secretary Michael Leavitt told the newspaper he intends to issue it as a final regulation before the Obama administration takes over to protect the moral conscience of persons in the health-care industry. Abortion-rights advocates are just as insistent in saying that the rights of a patient come first.

If the regulation is issued before Dec. 20, it would be final when the new administration takes office, HHS officials told the Times. Overturning it would require publishing a proposed new rule for public comment and then waiting months to accept comments before drafting a final rule.

Conscience Clauses
(PPC Tech Blog, December 14, 2008)

So still-President Bush is trying to expand `conscience clause' rules, which permit health care workers (doctors and nurses) to refuse to participate `in any procedure they find morally objectionable'. The expansions would cover, not just carrying out procedures, but even providing information or advice about, eg, to whom to turn to have the procedure done. The expansion may or may not include pharmacists (you may remember some noise about pharmacists appealing to conscience clause reasoning in refusing to distribute birth control); since I'm going to be talking about this reasoning in general, I see no harm in including them as `health care workers'. Since the two sides of the dispute here should be obvious, I'll skip all that, and go right to the philosophy.

I assume, first, that there is something compelling about the claims made by conscience clause reasoning: if I really do see abortion as the intentional murder of an innocent human being, it's quite ghastly to force me to be materially involved, in pretty much any way, in carrying out an abortion. But I also assume, second, that we have some prima facie obligations to aid others in carrying out their projects, even (in some cases) when we think those projects are morally reprehensible. Such is the price we pay for living in a pluralistic liberal society. The question is: how do we balance these two compelling claims? (Let's just bracket the question of whether or not we're talking about the right of freedom of conscience itself. I find thinking in terms of `rights' to be too absolute for most purposes anyways; how could you possibly balance two conflicting yet equally absolute rights claims?)

Now, I think it's vital to distinguish between conscience clauses that allow individuals to refuse to participate in morally objectionable procedures and conscience clauses that allow institutions the same privilege of refusal. A patient confronting a recalcitrant and unhelpful (in the patient's eyes) physician, nurse, or pharmacist need, in principle, only find another, more helpful physician, nurse, or pharmacist (as appropriate) to achieve her aims while respecting the conscience of the first health care worker. And, except in a very small number of very rural communities or emergency cases (eg, late at night), this shouldn't be that hard to do.

Where this in-principle change of physicians gets fouled is when we move to the institutional level. It's not at all uncommon for all the hospitals in a town or small city to be owned and operated by religious organisations that are opposed to abortion and birth control. And when workers do have health insurance (though it's extraordinarily unlikely to cover either birth control or elective abortion), that insurance is usually tied to one particular local hospital. For the patient, it's no longer a matter of just walking down the hall; in the case of abortion, significant costs may be introduced by the institutional context, including the need to arrange time off work and pay for travel and lodging (not to mention the costs of the procedure itself).

In short, while there's a relatively large power differential between the patient and her physician, it pales in comparison to the power differential between the patient and the bureaucratic institutional context within which she must move. This suggests that the proper place to balance all these competing factors (the two compelling claims I identified above, plus the power differentials I've identified over the last two paragraphs) is at the institutional level. Finally, I assume a certain preference for individuals, namely, that respecting the moral views of whole institutions is less important, in general, than respecting the moral views and projects of individuals. This is especially so when there is a significant power differential between the individual and the institution.

Putting all of these considerations together, the following seems to be a reasonable preliminary compromise: A health care institution (pharmacies, hospitals, clinics, etc.) should be required to at least provide patients with information about where and how to obtain procedures and technologies that the institution itself considers morally objectionable. Individual health care workers need not be required to provide this information, so long as patients still have ready access to it. Larger institutions and oligopolistic institutions (eg, the two chains of pharmacies that have stores in a region, or a large regional system of hospitals) should also be required to actually make the procedures and technologies available, in a reasonable amount of time and for a reasonable fee.

But I also assume, second, that we have some prima facie obligations to aid others in carrying out their projects, even (in some cases) when we think those projects are morally reprehensible.