His horse must be exhausted! In the last weeks of his presidency, Bush has been taking endless Parthian shots at labor, consumer, and environmental protections. Yesterday, the Los Angeles Times ran a story that Bush plans to expand the recently adopted “provider conscience” rule to cover a wide range of legal medical procedures and every potential objector from doctors and nurses to janitors and cafeteria workers. This is Bush’s most dramatic shot, and how completely predictable that it aims at the heart of women’s health.
It is a freshly laid mound of B.S. to argue that provider conscience rules protect heretofore neglected rights of doctors not to provide services with which they have moral disagreement. The AMA’s Principles of Medical Ethics has long provided that
A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care.
A physician, however, needs to be upfront with a patient, from the outset, about what procedures the physician will not perform. The physician who will not perform a specific procedure must always refer his or her patient to a physician who will provide such services.
What makes “right of conscience” rules so dangerous is that they conveniently ignore the “ethical duty of referral” and make the provider’s duty not one to ensure access to medical care but one of moral judgment.
Even Pope John Paul II (!!!) recognized the capacity for abuse back in 1991:
Provider-conscience rules are most obviously meant to limit access to legal abortion. Bush’s expansions will cover other areas of women’s health: birth control, artificial insemination, surgical sterilization … just about anything having to do with ovaries is at risk. The expansion of protection to EVERYONE in the chain of care: from janitors to receptionists to file clerks to nurses and, finally, to doctors turns women’s health into a Kafka-esque display of prosecution and condemnation, where one woman is rendered 100% helpless against the judgment of dozens.
As easily as the Bush Administration was able to install the rule in HHS, we can only hope the department, under the Obama Administration, can just as easily undo it. Back in September, when HHS was receiving public feedback on the rule (a lot of good that did), I wrote to both of my senators with my concerns. Yesterday, I received a canned response from Hillary Clinton. Needless to say, she is absolutely opposed to the rule, saying
The Administration’s proposed rules would allow health care providers to classify many common forms of contraception as “abortions”, and therefore they can refuse to provide contraception to women who need it, even when states have laws on the books to ensure access to contraception.
At first I didn’t want to write this post because I feared it would drag me into another intractable debate about abortion, which usually amounts to several men waxing philosophic and no one hearing what anyone else is saying. But this rule is such an insult to our collective intelligence, and it puts pro-lifers in a pickle, requiring acceptance of the draconian belief that any contraception is abortion. Reasonable pro-lifers should be opposed to this unnecessary and ludicrous rule and should support any effort to strike it from the HHS mandate.
Provider-conscience rules are most obviously meant to limit access to legal abortion. Bush’s expansions will cover other areas of women’s health: birth control, artificial insemination, surgical sterilization … just about anything having to do with ovaries is at risk. The expansion of protection to EVERYONE in the chain of care: from janitors to receptionists to file clerks to nurses and, finally, to doctors turns women’s health into a Kafka-esque display of prosecution and condemnation, where one woman is rendered 100% helpless against the judgment of dozens.
Wouldn’t all of this be easy enough to solve with some kind of signing statement at the time of hire for an employee and a similar statement for patients to agree to? Then each practice can decide what their collective stance is on certain procedures, and their employees will have a choice at the time of their hiring. Patients will have a choice when they come to the practice. Insurance companies can choose to not to cover a particular practice as well.
This provides choice for everyone.
Posted by Mike (PC) | December 3, 2008, 1:02 pmPC
Choice for everyone except the patient who would then have to jump through who knows how many hoops to find a provider that does not have anyone on staff that won’t raise a stink about the procedure they have A RIGHT to. Your solution also involves evolving a whole new layer of paperwork that clogs an already paper heavy burocracy. The entire intent of the rule is to make it too complicated and difficult to gain leagal access to contovertial procedures with outlawing them. Its sneaky and will be detrimental to the medical profession as a whole.
Posted by Jello | December 3, 2008, 2:06 pmIt’s pretty simple. The practice’s administrators agree on what services they will and won’t provide. ALL employees are required to sign an agreement waving the option to object or they are shown the door. New hires would be faced with the same choice.
Once that is established, it’s a simple matter to provide a fact sheet to prospective patients regarding what the practice will and won’t do. Then the patient has the choice to move on to another doctor if they object.
If you’re going to let some paperwork and a few more phone calls stand in the way of a compromise…what does that say about the flexibility of the liberal position? Likewise, practices who have moral objections to certain practices and will not offer them should be up-front with prospective patients so they can make informed choices about who their doctors are.
In the business world these kinds of arrangements are common. We say, “That service is out-of-scope,” meaning we do not offer it to our customers. The customer then has the opportunity to take their business elsewhere.
Posted by Mike (PC) | December 3, 2008, 3:18 pmThe intent of the rule change is not to help offices define the services they provide they already have that ability. This rule change allows anyone with an objection to the procedure the patient is requesting too essentially slam the door in their face. If a patient is requesting a procedure and the doctor has a moral object they can already refuse under current rules but they must provide pertinent information about where the patient can receive the procedure, something the new rule leaves out. The doctor is in a far better position to provide this information then the patient is to find it on their own, especially in rural communities where medical resources are limited. This rule allows moral busybodies to frustrate the patient seeking the procedure by throwing them out in the cold. Something which is not only bad medical practice but bad business practice as well.
Posted by Jello | December 3, 2008, 4:20 pmThat’s a tough area. On one hand, I don’t like the idea of patients receiving NO info, but on the other hand I can see where a doctor would still feel complicit.
Posted by Mike (PC) | December 3, 2008, 4:26 pmLove the picture.
Some will recall that I’ve previously expressed the view that there is a place for provider-conscience laws. I was unaware of the AMA’s ‘Principles of Medical Ethics’, which gives doctors all that I was wanting them to have (provided there’s some kind of legal force to the AMA’s thing). I agree that Bush’s latest is clearly ill-advised.
Mike, one issue with the setup you propose is that one can’t assume that someone’s signature on a piece of paper means that they’ve knowingly agreed to anything. People don’t read mandatory paperwork. Unless “no abortions” is written in big red letters on the door, patients aren’t going to be better-informed. One could argue that doctors can discharge their moral responsibility to inform by obtaining unthinking signatures, but the fact remains that the patients aren’t informed, and that’s a bad thing.
Another issue is that patients aren’t qualified to determine this sort of thing for themselves. If I go to a doctor and find out that I have some condition, I’m very dependent on that doctor to tell me what my options are. Lots of women might not know the pros and cons of various procedures, and thus wouldn’t really understand what they were waiving a right to when signing these consent forms. If a doctor can refuse to give a fair evaluation of a mainstream procedure (or, worse, if a doctor can neglect to even make the patient aware of the procedure), the patient will never know any better.
I believe the line here should be drawn at letting doctors refuse to personally perform services that they find repugnant (of course, this right could be waived upon employment at a large hospital or similar). A doctor still has an obligation to offer a patient unbiased medical advice based on the patient’s goals and values.
In many ways, I think doctors ought to be in the same situation that lawyers are in. A lawyer can decline to work for a client that he’s convinced is a murderer, but, if he does choose to work for the person in any capacity, he has an obligation to offer unbiased legal advice. He can’t tell the guy that his only option is to plead guilty if he knows full well that there’s a good chance that the guy would be found innocent. And, of course, a lawyer at a big firm may be bound to work for any client that his firm gives him, as part of the terms of his employment.
Posted by Gotchaye | December 3, 2008, 6:02 pmGotchaye helps point out what this is really about – ethics, not morals.
Doctors and lawyers have certain moral rights governing the services they provide. But they also have ethical obligations, and I think the lawyer example explains that. The point is that ethics is something theoretically neutral that we can agree on, whereas morals are personal and subjective. You can keep your morals as long as you don’t run afoul of everyone’s ethics.
Posted by Kris | December 3, 2008, 6:50 pmthis is a great discussion.
i’ve been trying to figure out how the pro-life activists are going to put this in play. i suspect there might be localized efforts to infiltrate abortion clinics as lower-level, clerical employees, which brings p.c.’s proposed statement into play …
a potential employee can sign some sort of informed consent, but i cannot see any “contract” negating the possibility of a change of position … an employee can sign a form saying they are on board and then two months later claim a change of heart: he or she is now opposed to what happens at the clinic.
well, what then? if the person was doing his or her job proficiently, are there grounds to fire? no. the rule prohibits it. the clinic would have to make accommodations for the person, which amounts to the person draining payroll and doing nothing productive in return … getting paid to do nothing because doing anything in the clinic would be a conflict with the employee’s allegedly new-found conscience.
do this enough times in a small town clinic, and the clinic is effectively paralyzed.
if i was a pro-life activist, this is what i would do, but since i am completely and totally pro-choice, i can only rage against the machine until –hopefully — late january.
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seriously, the most insidious facet of the rule is the dismissal of referral as an ethical standard. it sets very dangerous precedent by challenging the authority of the AMA and making ethics fair game for volley among bureaucracies.
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and gotchaye … re: the picture … thanks! i have to say i am kinda proud of it. : )
Posted by didionsmommy | December 4, 2008, 8:21 amJust a side issue: If the patients are dependent on medical advice for their decision to abort, are we only discussing health-of-the- mother / health-of-the-baby abortions here….or is this also applicable to the majority of abortions that are performed for ‘social reasons’ ?
Posted by Mike (PC) | December 4, 2008, 9:05 amReminds me of that Onion headline: “Christian Scientist Pharmacist Refuses to Sell Any Medication”.
Posted by Gulik | December 6, 2008, 4:44 am