Abstract

Conscience Claims in Healthcare

One way that healthcare providers have responded to professional requirements to participate in medical services that they find morally objectionable is by asserting appeals to conscience.⁶ Broadly speaking, conscience is an individual’s moral judgment about what is right and wrong and a commitment to act according to core moral values. While some view conscience as informed by religious or secular ethical traditions,⁷ Wicclair argues that what gives conscience its force is its origination in personal beliefs that do not necessarily align with the values of one’s community.⁸ In contrast, Childress defines conscience as an active process of moral discernment, as opposed to the application of fixed principles or beliefs.⁹ Many scholars and practitioners view conscience as crucial to the ethical practice of medicine, suggesting that it undergirds multiple aspects of routine clinical care, even in the absence of moral conflict. Sulmasy, for example, maintains that moral life without conscience is simply unimaginable.¹⁰

Popular and scholarly debates about the role of conscience in healthcare emerged during the 1970s with the appearance of “conscience clauses,”¹¹ but have been reinvigorated with the recent proliferation of abortion and contraception regulations.¹² In bioethics, much of the discussion has centered on ethical justifications for conscientious refusal—that is, abstaining from participating in certain treatments and procedures because doing so is incompatible with one’s core moral values. Arguments that support providers’ rights of conscientious refusal often center on respect for moral integrity.¹³ According to Wicclair, preserving the moral integrity of healthcare providers is important because medicine is a moral enterprise in which physicians should be at liberty to rely on moral values to guide clinical action. Furthermore, the loss of moral integrity can result in guilt or shame, and may ultimately lead to a decline in moral character—obviously an undesirable outcome for healthcare providers and deeply problematic if part and parcel of responsible medical care.¹⁴

Much of the debate on conscience has considered two stark alternatives: the rights of providers to refuse to perform procedures to which they morally object, and the interests of the patients who might be harmed by such refusals. Supporting the primacy of patient welfare, professional organizations have generally argued for “balancing” interests of providers and patients and placing limits on rights to refuse.¹⁵ However, while some have argued that pharmacists who refuse to fill emergency contraception prescriptions should refer patients to a pharmacy where they can receive the service,¹⁶ others have suggested that even the act of referral is morally problematic and would compromise integrity.¹⁷ Still others have criticized this approach as an unethical compromise because of its potential to cause harm to women—for example, by delaying the use of a time-limited treatment—and its neglect of patients’ values.¹⁸

Some have suggested that the dominant debate around conscientious refusal has neglected certain areas of moral concern. The first stems from the narrow focus on refusal to provide medically indicated (if morally complex) care. Largely missing from debates that pit the individual rights of providers against those of patients are conscience-based claims for offering care. Harris has critiqued prevailing approaches to conscience in arguing that providers may also be driven by moral concerns in their desire to provide certain forms of care, such as abortion.¹⁹ From this perspective, and as we will further elaborate, abortion laws or other restrictive policies may in fact constrain the ability of providers to align their clinical practice with conscience; yet few policies protect proscribed actions undertaken by providers that are motivated by a conscientious commitment to care.²⁰ In addition, while refusal itself is typically conceptualized as refusal of medically indicated care, we suggest refusal may occur and can be productively considered in other contexts —e.g. care in the context of institutional or legal mandates, which also raise issues of conscience. These settings challenge the dichotomy between conscientious refusal, on the one hand, and provision of care with a compromised conscience, on the other hand, pointing to a third possibility: conscientious compliance in the setting of mandated but objectionable actions.

The idea that conscience may be animated in the active provision of care is connected to a second critique of dominant approaches to conscience. While conscience is typically articulated at the individual level, particularly vis-à-vis concerns about the potential loss of moral integrity, we follow Charo in noting that the emphasis on individual rights and autonomy has diminished the role of relationships and mutual responsibilities.²¹ Drawing on our empirical findings, we build on the feminist relational perspective on conscience developed by Carolyn McLeod²² to offer a broader framing of conscience claims in healthcare. In addition to traditional bioethics approaches that emphasize a need to maintain providers’ moral integrity,²³ our approach incorporates a relational perspective, in which individuals are understood as enmeshed in a web of relationships, and conscience claims in medical care are motivated by a concern for maintaining such relationships, including protecting and caring for patients.

Background and Methods

Our framework is based on data from our investigation of the experiences of abortion providers in North Carolina following the implementation of the 2011 Woman’s Right to Know Act (House Bill 854). HB 854 requires that women receive counseling with specific information prescribed by the state at least 24 hours to obtaining an abortion. State-mandated content includes: 1) the name of the physician who will perform the abortion; 2) the medical risks of an abortion and carrying a pregnancy to term; 3) the gestational age of the “unborn child” at the time of abortion; 4) if applicable, the provider’s lack of medical liability insurance for malpractice; 5) the location of the nearest hospital and provider’s admitting privileges; 6) that medical assistance benefits for prenatal care, childbirth, and neonatal care, and public assistance programs “may or may not” be available; 7) that the “father” is liable for child support even he offered to pay for abortion; and 8) that the woman has alternatives to abortion.²⁴ Unlike similar laws in other states, HB 854 does not require providers to state incorrect medical information, such as a scientifically unsubstantiated link between abortion and breast cancer, infertility, and suicide, or the ability of a fetus to feel pain.²⁵ It does require that the woman be offered printed educational materials and that she provide a written certification that these requirements were met.

In 2013, we conducted a qualitative, interview-based study to explore the perspectives and experiences of North Carolina abortion providers practicing under HB 854. Our sample included 17 physicians, 10 nurses and physician assistants, and 4 clinic administrators from 11 out of 16 abortion clinics in North Carolina. Our study design has been described in detail elsewhere.²⁶

To develop our framework, we read interview transcripts with particular attention to the moral issues raised by providers in this context. As issues that evoked considerations of conscience emerged, we considered them alongside bioethics discussions about how healthcare providers navigate moral conflict, and noticed a gap between the ways participants talked about their ethical challenges and the ways that these challenges are framed in the conscience literature. To broaden our perspective on conscience and better capture our participants’ experiences, we incorporated feminist perspectives into our literature review.²⁷ We complemented this analysis with a close reading of relevant themes in the medical ethics and philosophical literatures aimed at critically assessing and expanding understandings of the role of conscience in medical care.

Providers’ Ethical Objections to the NC Woman’s Right to Know Act

Providers in our study often articulated the negative effects of the WRTK Act in organizational terms, noting that it generated additional duties and bureaucratic challenges that they had to address within an already hectic clinical practice. Yet most who felt deeply affected by the law also discussed its impact on patients and on the patient-provider relationship. Providers objected to the state-mandated counseling on the grounds that it: 1) held potential to cause women emotional harm; 2) appeared to question women’s judgment and decision-making capacities; 3) undermined providers’ efforts to provide individualized, patient-centered care; and 4) interfered with their ability to develop rapport with patients.

Many providers emphasized that the process of seeking an abortion is already emotionally draining. Some viewed the state-mandated counseling procedure as specifically designed to make women feel guilty, shamed, or judged. This potential to cause unnecessary emotional harm to women in a position of particular vulnerability was a central ethical objection to WRTK. Providers were especially concerned about the risk of emotional harm in cases of rape or fetal anomaly, for which some of the state-mandated content (e.g. the father’s financial liability) seemed particularly inappropriate to mention.

Many providers were also critical of what they perceived as a legislative intent to interfere with women’s abortion decisions. From the perspective of many providers, the language of the state-mandated counseling was biased to dissuade women from obtaining an abortion, which ran counter to their ideals of supportive, non-judgmental care. As one nurse put it, “I feel like there’s a reason for laws governing all medical care…but there is a point when the law interferes with patient autonomy and can really deeply emotionally impact a patient.”

A similar objection concerned the ways in which the WRTK counseling process undermined efforts to provide tailored, patient-centered care. Some providers argued that using a standardized counseling script that neglected the patient’s circumstances directly contradicted their training to provide individualized counseling and informed consent. A physician explained: “A script that doesn’t take into consideration individual circumstances misses the point. The whole idea [of abortion counseling] is to be woman-centered.”

Finally, many providers suggested that the state-mandated counseling interfered with their capacity to build rapport with patients and gain their trust. In abortion care, where providers often meet patients for the first time when they come in for the procedure, the ability to foster rapport quickly holds particular moral salience. Providers perceived WRTK as generating an additional barrier to developing the patient-provider relationship in a context where providers could ill afford the extra time needed to develop intimacy and trust, especially once upended by harmful, state-mandated language.

Providers’ ethical objections to the law were deeply shaped by the context of abortion care. Notably, while many providers upheld a general belief in a woman’s right to choose, they did not express their objections to WRTK principally vis-à-vis personal values, but rather through the immediate needs of their patients and their ability to respond to them. Given that conscience claims have typically been couched as objections to core moral principles or morally contested practices as a whole, the objections expressed by providers in our study moved us to rethink traditional bioethical frameworks for conceptualizing conscience claims.

The relational approach to conscience that we develop here is informed by the ethics of care literature, which puts ethical primacy on caring for a person rather than caring for particular moral ends.²⁸ Current bioethics debates on conscience have largely privileged what Gilligan has called the justice perspective in moral development.²⁹ The justice perspective organizes self and other—the basic elements of moral judgment—around the principle of equality, in which people are conceived as detached, independent individuals with equal rights but separate interests that must be balanced in moral reasoning. Our findings evoke what Gilligan calls the care perspective, which organizes the relationship between self and other in terms of attachment rather than equality. In this view, the interests of self and other are not necessarily pitted against each other, but instead may be enmeshed.

From Moral Integrity to Conscientious Care

Through examining abortion providers’ perspectives on the NC WRTK Act, we identified two overarching categories for ethical action among healthcare providers faced with moral conflicts raised by legal or institutional policy mandates: 1) conscientious compliance with the legal or policy mandate, or 2) conscientious refusal to comply with the legal or policy mandate. (See Table 1.) The latter term recognizes that providers may choose to violate laws or institutional policies, and that moral considerations may compel them to do so. In contrast, the designation conscientious compliance highlights that providers have strategies for minimizing moral distress while working within legal or policy constraints. Conscientious compliance, as we are defining it here, goes beyond simply following the ‘letter of the law’ to include strategic efforts to mitigate the threats that compliance with a law or policy poses to one’s conscience.

We further subdivided conscientious compliance into additional ethical categories. First, providers may employ conscientious compliance by acting within constraints, through either procedural or relational strategies. Procedural strategies are undertaken to distance oneself from the law or policy in question, while relational strategies are undertaken to affiliate with the patient in the face of policy obstacles. Procedural strategies thus highlight one’s orientation toward the law or policy in question, whereas relational strategies foreground one’s orientation toward the patient in context of an objectionable procedure. Second, providers may work to modify constraints by working within legal boundaries to adapt objectionable procedures. Together, these possibilities comprise four distinct ethical strategies for healthcare providers faced with morally objectionable law or policy mandates: 1) procedural strategies, 2) relational strategies, 3) modification strategies, and 4) non-compliance.

Reframing Refusal

The bioethics dialogue on conscience has tended to focus on the moral contours of refusal, seeking to define when providers may reasonably refuse and when there are limits to refusal. The presumption underlying such discussions is that if a healthcare provider does not refuse, she will violate her moral integrity. The conceptual framework we propose here articulates an ethical middle ground that challenges this stark dichotomy, illustrating instead how providers may align their care with conscience despite legal and ethical challenges. By exploring the conscientious provision of care, our framework accommodates a broader understanding of conscience claims in healthcare. Seen from this perspective, conscience is not only something that operates negatively—that is, to keep one from doing something—but is also a positive, productive force in ethical medical practice.

In a recent article in this journal, Davis and Kodish argued that physicians should challenge laws that undermine their capacity to provide good medical care, and that they may be morally justified in breaking the law on some occasions.³² In thinking about how medical providers ought to respond to laws that are unjust, there has been some attention devoted to the concepts of evasive noncompliance³³ or conscientious evasion³⁴—that is, covert action undertaken, for moral reasons, in violation of a law. Conscientious evasion may make sense under certain circumstances: for example, healthcare providers may be justified in declining to report women for drug use during pregnancy when legally required to do so.³⁵ In the abortion domain, however, noncompliance appears to account for a small proportion of provider responses to ostensibly unjust laws. While it is possible that abortion providers adopt strategies of evasive noncompliance more frequently than reported in our study, we believe that this is unlikely, given that the heightened level of regulatory scrutiny that these providers routinely face encourages strict compliance with laws.

Our conceptual framework provides alternatives to evasive non-compliance by describing several additional strategies adopted by abortion providers in their clinical practice to act conscientiously within legal constraints. Procedural strategies undertaken by providers in our study to distance themselves from the law give empirical weight to Davis and Kodish’s speculations about “undignified scenes of exaggerated winks and nods or perhaps of the physician reading the required ‘information’ while shaking her head in a violent negative.”³⁶ Likewise, the relational strategies we identified are particularly fitting for abortion care, which has a long history of providing supportive, non-judgmental counseling designed to make women feel welcome and safe.³⁷

Our framework reflects more than a middle ground between conscientious refusal and morally compromised action, however. To the extent that it encompasses, but also stretches beyond, a purely individualist orientation to conscience, our framework also offers a new perspective on debates about conscience that have turned on notions of moral integrity. By illustrating how relational concerns may compel abortion providers to participate in laws or policies that they might otherwise deem to be morally objectionable, we complicate prevailing ways of thinking about the relationship between conscience and the provision of medical treatment. In doing so, we delineate how a relational understanding of conscience may reframe the dominant moral questions about the limits of refusal, inviting new questions about conscience and the ethics of care.

Abortion is the most frequent target of attempts to legislate patient-provider interactions, but our framework has potential relevance to other medical arenas as well. For example, our framework may offer guidance to pediatricians facing prohibitions on asking parents about the possession of firearms in the home.³⁸ In addition to evasive noncompliance with such laws, providers might follow the procedural strategy of giving gun safety information to all families without asking about the presence guns in the home. Such information could be prefaced with an explanation of the legal prohibition on asking about guns. Our framework may also be relevant to debates about physician aid-in-dying. We can imagine that relational strategies, in particular, could be useful to willing providers for whom such aid is legally sanctioned but institutionally proscribed, as well as to providers who do not want to participate in assisted deaths, but do not want to abandon patients, either.³⁹

We recognize that the cultural politics of abortion in the United States create unique ethical and legal challenges for providers working in this domain. Yet insofar as abortion providers may serve as what anthropologist Rayna Rapp has called “moral pioneers,”⁴⁰ charting an ethical pathway forward when faced with new clinical terrain, the ethical strategies they employ in their everyday work may have practical relevance beyond their particular field. As such, we have much to gain from listening to their voices and the moral wisdom they have to share.

Acknowledgments

Contributor Information

Mara Buchbinder, Department of Social Medicine, Center for Bioethics, University of North Carolina at Chapel Hill, 333 S. Columbia St., 341A MacNider Hall CB 7240, Chapel Hill, NC 27599, moc.liamg@rednibhcub.aram.

Dragana Lassiter, Department of Anthropology, University of North Carolina at Chapel Hill, 301 Alumni Building, CB 3115, Chapel Hill, NC 27510.

Rebecca Mercier, Department of Obstetrics and Gynecology, Jefferson Medical College, 833 Chestnut Street, 1st Floor Philadelphia, PA 19107.

Amy Bryant, Department of Obstetrics and Gynecology, University of North Carolina at Chapel Hill, 4002 Old Clinic Building, CB 7570, Chapel Hill, NC 27514.

Anne Drapkin Lyerly, Department of Social Medicine, Center for Bioethics, University of North Carolina at Chapel Hill, 333 S. Columbia St., 333 MacNider Hall CB 7240, Chapel Hill, NC 27599.

References