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Conscientious Refusals by Hospitals and Emergency Contraception

  • MARK R. WICCLAIR
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Hospitals sometimes refuse to provide goods and services or honor patients’ decisions to forgo life-sustaining treatment for reasons that appear to resemble appeals to conscience. For example, based on the Ethical and Religious Directives for Catholic Health Care Services (ERD), Catholic hospitals have refused to forgo medically provided nutrition and hydration (MPNH), and Catholic hospitals have refused to provide emergency contraception (EC) and perform abortions or sterilization procedures. I consider whether it is justified to refuse to offer EC to victims of sexual assault who present at the emergency department (ED). A preliminary question, however, is whether a hospital’s refusal to provide services can be conceptualized as conscience based.

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1. This paper draws on some material that will be published in Conscientious Objection in Health Care: An Ethical Analysis. Cambridge, UK: Cambridge University Press; 2011.

2. United States Conference of Catholic Bishops. Ethical and Religious Directives for Catholic Health Care Services, 5th ed. November 2009; available at http://www.usccb.org/meetings/2009Fall/docs/ERDs_5th_ed_091118_FINAL.pdf (last accessed 9 Jul 2010). The previous (fourth) edition of the ERD went into effect in June 2001.

3. In Conscientious Objection in Health Care: An Ethical Analysis, I also consider refusals by hospitals to honor decisions to forgo MPNH and to provide medical interventions in emergency situations that will terminate or risk terminating a pregnancy.

4. Annas, GJ. Transferring the ethical hot potato. Hastings Center Report 1987;17(1):20–1 at 21.

5. Wildes, KW. Institutional identity, integrity, and conscience. Kennedy Institute of Ethics Journal 1997;7(4):413–9 at 416.

6. Mission statements, according to William Stempsey, “are the primary means by which institutions express their identity and serve as standards to measure the integrity with which an institution lives out its identity.” Stempsey, WE. Institutional Identity and Roman Catholic Hospitals. Christian Bioethics 2001;7(1):3–14 at 14. Although it would be implausible to attribute this function to all mission statements, it might be credible to limit the claim to the mission statements of hospitals, such as those that adhere to the ERD, that involve a commitment to goals, values, and principles that comprise the institution’s identity.

7. For an account of mission statements associated with a hospital’s “Catholic identity,” see O’Rourke, K. Catholic hospitals and Catholic identity. Christian Bioethics 2001;7(1):15–28. Although other religions can provide the basis for conceptions of institutional identity and integrity, this analysis is limited to Catholic hospitals. Because of their strong commitment to maintaining their Catholic identity, they have been a major source of institutional appeals to conscience. Moreover, a significant percent of community hospitals in the United States are Catholic (12.4%); Catholic hospitals account for more than 20% of admissions in 22 states; and there are Catholic hospitals in all but 6 states. Catholic Health Association. Newsroom; available at http://www.chausa.org/Pages/Newsroom/Fast_Facts/ (last accessed 9 Jul 2010).

8. Ana Smith Iltis provides an analysis of institutional integrity according to which it “can be understood as the coherence between what an institution claims to value (its stated moral character), what an institution does (its manifest moral character), and an institution’s fundamental moral commitments (its deep moral character).” Smith Iltis, A. Institutional integrity in Roman Catholic health care institutions. Christian Bioethics 2001;7(1):95–103, at p. 98. According to Smith Iltis, “when there is a lack of coherence between an institution’s manifest moral character and its identity, then the institution has failed to maintain its integrity” (p. 101).

9. For the purpose of this discussion, I am only considering aspects of a Catholic hospital’s identity that affect the kinds of interventions that it does and does not offer. Accordingly, I am not considering theological commitments or “transcendent goals.” Some commentators claim that the commitment to spiritual goals is fundamental. William Stempsey expresses a view along these lines:

Any hospital might refuse to allow abortion and physician-assisted suicide, but Catholic hospitals refuse these things because they are fundamentally inconsistent with Christian values. Directive 1 of the ERD (1995) states: ‘A Catholic institutional health care service is a community that provides health care to those in need of it. This service must be animated by the Gospel of Jesus Christ and guided by the moral tradition of the Church.’ This is unambiguous. Catholic health care is not the same as secular health care. To hold that Catholic hospitals have lost their identity because their surgical procedures do not look different from those in secular hospitals is a conclusion based upon a false dichotomy. The question is. Is the care animated by Gospel values?

See note 6, Stempsey 2001:11. H. Tristram Engelhardt, Jr., laments the increasing secularization of Catholic hospitals, which is characterized by a failure to give priority to their spiritual mission. See Engelhardt Jr HT. The deChristianization of Christian health care institutions, or, How the pursuit of social justice and excellence can obscure the pursuit of holiness. Christian Bioethics 2001;7(1):151–61.

10. See note 2, United States Council of Catholic Bishops 2009. A review of 25 Catholic hospital mission statements reportedly revealed a consistent commitment to social justice. See Shannon, TA. Living the vision: Health care, social justice and institutional identity. Christian Bioethics 2001;7(1):49–65.

11. In August 2009, the Joint Commission, which provides accreditation for hospitals in the United States, adopted a revised mission statement. According to that statement, its mission is “[t]o continuously improve health care for the public, in collaboration with other stakeholders, by evaluating health care organizations and inspiring them to excel in providing safe and effective care of the highest quality and value”; available at: http://www.jointcommission.org/NR/rdonlyres/2F04C126-906D-4155-B16F-1F1A6570C387/0/jconlineAug1209.pdf (last accessed 9 Jul 2010). This mission statement identifies general patient-centered goals for hospitals and nursing homes that seek Joint Commission accreditation. Accordingly, Joint Commission accreditation requirements provide a prudential reason for hospitals and nursing homes to protect patients from harm, promote their health, and respect their autonomy.

12. Nunn, A, Miller, K, Alpert, H, Ellertson, C. Contraceptive emergency: Catholic hospitals overwhelmingly refuse to provide EC. Conscience 2003;24:38–41; Harrison, T. Availability of emergency contraception: A survey of hospital emergency department staff. Annals of Emergency Medicine 2005;46(2):105–10; Polis, C, Schaffer, K, Harrison, T. Accessibility of emergency contraception in California’s Catholic hospitals. Women’s Health Issues 2005;15:174–78.

13. One exception is a study of Massachusetts Catholic hospitals, which reported that respondents in only three of nine hospitals stated that EC was not available for sexual assault victims. Temin, E, Coles, T, Feldman, JA, Mehta, SD. Availability of emergency contraception in Massachusetts emergency departments. Academic Emergency Medicine 2005;12(10):987–93. The California study reported that in 66% of the 44 Catholic hospitals, EC is not provided under any circumstances. See note 12, Polis et al. 2005. However, data for the study predates a California law requiring provision of EC to rape victims. Accordingly, the situation may have changed in California and other states that have subsequently adopted similar legislation. On the other hand, some Catholic EDs reportedly violated existing state EC requirements, so there appears to be a gap between legal requirements and actual practice. See note 12, Nunn et al. 2003. It is noteworthy that all of the studies reported that a significant percent of non-Catholic hospitals do not provide EC for rape victims.

14. Smugar, SS, Spina, BJ, Merz, JF. Informed consent for emergency contraception: Variability in hospital care of rape victims. American Journal of Public Health 2000;90(9):1372–6.

15. The study also found significant differences in the practices of Catholic hospitals in relation to providing prescriptions for and dispensing EC. Such variation is not surprising if, as some commentators have claimed, the ERD (specifically Directive 36) does not provide unambiguous guidance in relation to EC for victims of sexual assault. Directive 36 states:

Compassionate and understanding care should be given to a person who is the victim of sexual assault. Health care providers should cooperate with law enforcement officials and offer the person psychological and spiritual support as well as accurate medical information. A female who has been raped should be able to defend herself against a potential conception from the sexual assault. If, after appropriate testing, there is no evidence that conception has occurred already, she may be treated with medications that would prevent ovulation, sperm capacitation, or fertilization. It is not permissible, however, to initiate or to recommend treatments that have as their purpose or direct effect the removal, destruction, or interference with the implantation of a fertilized ovum.

Directive 36 includes the following footnote:

It is recommended that a sexually assaulted woman be advised of the ethical restrictions that prevent Catholic hospitals from using abortifacient procedures; cf. Pennsylvania Catholic Conference, “Guidelines for Catholic Hospitals Treating Victims of Sexual Assault,” Origins 22 (1993):810.

16. ACOG Practice Bulletin Emergency Oral Contraception. International Journal of Gynecology & Obstetrics 2002;78:191–8. According to a recent study, “ulipristal acetate prevents pregnancies when used as emergency contraception up to 120 hours after intercourse, making it the first hormonal method of emergency contraception with solid evidence of efficacy for late intake.” Fine, P, Mathé, H, Ginde, S, Cullins, V, Morfesis, J, Gainer, E. Ulipristal acetate taken 48-120 hours after intercourse for emergency contraception. Obstetrics & Gynecology 2010;115(2):257-63 at 263. It has been approved for sale in the European Union under the product name “ellaOne.” As of June 2010, under the product name “ella,” it was approved by a U.S. FDA advisory panel, but not yet by the FDA. Harris, G. Panel recommends approval of after-sex pill. The New York Times 2010 Jun 18:14,20. If the FDA approves ella, it will be available by prescription only.

17. Foster, DG, Harper, CC, Bley, JJ, Mikanda, JJ, Induni, M, Saviano, EC, et al. . Knowledge of emergency contraception among women aged 18 to 44 in California. American Journal of Obstetrics and Gynecology 2004;191:150–6.

18. Abbott, J. Emergency contraception: What should our patients expect? Annals of Emergency Medicine 2005;46(2):111–3.

19. Merchant, RC, Casadei, K, Gee, EM, Bock, BC, Becker, BM, Clark, MA. Patients’ emergency contraception comprehension, usage, and view of the emergency department role for emergency contraception. The Journal of Emergency Medicine 2007;33(4):367–75. One question asked: “If a woman has had vaginal sexual intercourse with a man (without using birth control), can she take birth control pills AFTERWARDS to prevent pregnancy?” The second question asked respondents whether they agree or disagree with the following statement: “A woman can take birth control pills shortly AFTER having vaginal intercourse with a man to prevent pregnancy.” Because the questions referred to “birth control pills” rather than “emergency contraception,” “the morning-after pill,” or simply “medication,” they may have failed to accurately test respondents’ understanding of the “concept of EC.” The study also asked respondents whether they agree or disagree with the following statement: “Taking birth control pills AFTER having sexual intercourse with a man causes an abortion.” Only 9.8% expressed their agreement. However, before concluding that over 90% of the respondents had an accurate understanding of the mechanism of EC, one has to consider the possibility that their responses might have been significantly different if the statement had referred to “emergency contraception” or “the morning-after pill” rather than “birth control pills.”

20. See note 16.

21. Bishai, D. Measuring the quality of medical care for women who experience sexual assault with data from the National Hospital Ambulatory Medical Care Survey. Annals of Emergency Medicine 2002;39(6):631–8. See also note 14, Smugar et al. 2000.

22. Available online at http://www.acep.org/practres.aspx?id=29562 (last accessed 9 Jul 2010).

23. Access to Emergency Contraception, House of Delegates. Health Policy 75.985. House of Delegates Health Policy statements can be accessed online by means of “PolicyFinder”, which can be downloaded at the AMA website http://www.ama-assn.org/ama/no-index/about-ama/11760.shtml (last accessed 9 Jul 2010).

24. See note 12, Nunn et al. 2003.

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