The Speculator

Displacing professional standards by an undisclosed conscience can only result in tyranny – and other undesirable unintended consequences of a new Federal rule are also inevitable!

Beginning January 19, you can go to a hospital that says it provides family guidance services yet be denied legitimate healthcare information without your knowledge or consent simply because of the conscientious beliefs of the clinician serving you that day.  For example, “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 healthcare workers also may refuse to provide information or advice to patients who might want an abortion.” (Los Angeles Times, 12/2/08)  

The BIG difference between the old and the new scenarios, as we will see below, is that when using a hospital that objects to certain services such as abortion, you used to know what to expect; but under this new rule you no longer know what to expect since what information you receive will depend on each clinician’s personal conscience. It really does NOT matter what the published literature of the hospital says anymore.  The conscience of the individual clinician prevails in every case.

Since this is a federal rule, it trumps local laws:

Many states currently have laws requiring that rape victims treated in hospital emergency rooms be offered the option of taking emergency contraceptive pills to prevent pregnancy. But she [president of Planned Parenthood] said that because providers who don’t believe in emergency contraception could now simply opt not to tell women about that option, “under this rule, we believe that in fact now women who are the victim of sexual assault either would not be guaranteed either information or health care access to emergency contraception.”(NPR, 1/3/09)

This rule has severe penalties:

The far-reaching regulation cuts off federal funding for any state or local government, hospital, health plan, clinic or other entity that does not accommodate doctors, nurses, pharmacists and other employees who refuse to participate in care they find ethically, morally or religiously objectionable. It was sought by conservative groups, abortion opponents and others to safeguard workers from being fired, disciplined or penalized in other way. (Washington Post, 12/19/08)

This rule extends to a wide network of healthcare workers:

The Bush administration announced its “conscience protection” rule for the healthcare industry Thursday, giving doctors, hospitals, and even receptionists and volunteers in medical experiments the right to refuse to participate in medical care they find morally objectionable.  (Los Angeles Times, 12/19/08)

The final rule, however, affects a far broader array of services, protecting [pharmacy] workers who do not wish to dispense birth control pills, Plan B emergency contraceptives and other forms of contraception they consider equivalent to abortion, or to inform patients where they might obtain such care….  While primarily aimed at doctors and nurses, it offers protection to anyone with a “reasonable” connection to objectionable care — including ultrasound technicians, nurses aides, secretaries and even janitors who might have to clean equipment used in procedures they deem objectionable. (Washington Post, 12/19/08)

No More Basis for Trust

When you go to a healthcare organization such as a Catholic hospital that clearly states its ethical position, you know what to expect, and you know you will be served professionally within the bioethical beliefs of that organization.  So, for example, they will not offer you abortion services, though they are required to offer alternative options.

Rules already are in place to protect any person, doctor or pharmacist from going against their conscience by providing abortion or contraception information or services to patients or clients. But current practice requires people to inform people that other options are available elsewhere. (Pittsburgh Post-Gazette, 1/3/09)

As we have noted above, however, this new rule does not allow you to know you are not being denied certain services, which means you will not know what to expect.  “The provider can deny information and services to their clients without their knowing it is being denied.”  (PittsburghPost-Gazette, 1/3/09)

You will be under the total control of each clinician’s conscience regardless of their ethnic or religious background, or even any misguided confusion of a partially developed or guilty conscience they may be experiencing at the moment.  Some warn that “As written, the rule also would protect health care providers opposed to vaccinations or other medical procedures.”  (Pittsburgh Post-Gazette, 1/3/09)  It will take a long time to sort out because no one will know when it is being employed because clinicians who take advantage of it are not legally accountable for their actions.  This rule does not require anything from them; rather, it permits them NOT to do what other laws, professional codes, and ethical codes DO require them to do.  It is truly antinomian.  

When I think how many healthcare organizations are turning over ever more of their clinical functions to nurses and much less educated providers; when I think how narrowly educated these specialized medical technicians are; and then when I think how the mass media has made almost all of us highly vulnerable to every wave of pop culture thinking and current fads, I wonder what kind of conscience we are turning our future medical care over to?  Whatever the current movies are promoting?  What kind of social strategizing does the Bush administration have in mind?  Certainly not the good of the unborn – that is plain to see, since there have been no commensurate increases in social services to support the increased birth rate this rule is intended to accomplish.

This rule seems bound to create moral chaos. There is no basis for trusting one’s clinician since they legally do not have to tell you anything that offends their conscience. They are not compelled to give you as much respect as God gave Adam and Eve. They may even deny you your own right to refuse treatment by denying you the right to even know about it. If there ever was a place where the “house of cards” imagery applied, this is it. You can’t just say conscience takes priority in one clinical area but not in another. If it applies to bioethical issues, why should the underlying principle not also apply to alternative medicine, mental heath, and controversial medical treatments? It makes no sense to view this rule as limited in scope: the legal basis for justifying this one area must surely apply to other areas as well.  But my bet is that the whole thing will collapse because it makes no practical sense. 

Unintended Consequences?

No one can fully predict the legal implications of this rule if it stays in place since it supersedes other related laws and seems to sanction a kind of libertarianism in medical ethics as far as denying medical treatment is concerned.  As noted above, some are concerned about medical procedures not mentioned in the rule being included as matters of conscience for some clinicians. There are all kinds of matters of conscience that this rule will undoubdedly bring to light.  This rule is not simply a regulation – if it continues it will create a new ethical  paradigm – the belief that personal ethics trump responsibility to clients in the professional relationship.

From all reports, the creators of this law seem to presume a traditionally Christian-based bioethical stance as either the legal heritage of the USA and/or the proper direction which the USA should take.  It appears that they have their own minds made up since they have not adapted the rule based on widespread public input. (Huffington Post, 12/19/08)  They seem unconcerned about the need for people of various viewpoints to live together amicably in a multicultural society, and in a society that does not reflect their common moral viewpoint.

And curiously and in contradiction to the Christian tradition which they seem to represent, this rule appears to be another example of the Bush administration’s nietzschean approach to create social change. In more genteel new age terms, this tactic could also be characterized as an attempt to create their own reality.  This from a president who said Jesus was the most influential political thinker in his life!  Jesus, the one who said “the truth will set you free” (John 8:32).  Yet President Bush wants to be known as a president who promoted a culture based on hiding the truth?