Healthcare ethics committee (HEC) members frequently are called upon to provide guidance pertaining to conscientious objection. This guidance can include case consultation, policy creation, and education. For HEC members to effectively perform these functions, they will need to understand when an objection to providing a medical service is a conscientious objection, reasons for accommodating conscientious objectors, the need for ethical constraints on accommodation, and the basics of institutional management of conscientious objection. These issues are addressed in this chapter.

The subject of this book is conscientious objection in health care. Although conscientious objection historically has been associated with military service, it has become a significant phenomenon in health care. Some physicians, nurses, and pharmacists have refused to provide or assist in providing goods and services for reasons of conscience. Many of these conscience-based refusals are related to the perennial and sometimes controversial issues of sex/reproduction and death. Examples in the former category include abortion, sterilization, contraception, and assisted reproduction. Examples in the latter category include palliative sedation (the practice of sedating terminally ill patients to unconsciousness until death) and forgoing medically provided nutrition and hydration. Novel technologies, procedures, and therapeutic measures also have occasioned conscience-based refusals by health care professionals, and can be expected to do so in the future. Recent examples include conscience-based objections to participation in embryonic stem cell research, genetic testing and counseling, and donation after cardiac death (retrieving organs after life support has been withdrawn from patients who do not satisfy the neurological or whole brain criterion of death).

In this book, I offer an ethical analysis of conscientious objection in three representative health care professions: medicine, nursing, and pharmacy. There are several reasons for considering these three professions together. First, from the perspective of conscientious objection, the three professions are interdependent. On the one hand, physician conscience-based objections can affect the practice of pharmacists and nurses.

The focus of previous chapters has been on conscience-based refusals by individual physicians, nurses, and pharmacists. This chapter will consider conscientious objection in relation to pharmacies and health care institutions. Even if it is acknowledged that it is appropriate to accommodate individual pharmacists with conscience-based objections to dispensing a medication when the constraints and requirements proposed in Chapter 3 are satisfied, it remains to consider whether pharmacies may justifiably refuse to stock and dispense a medication for reasons of conscience. Similarly, even if it is acknowledged that it is appropriate to accommodate conscience-based objections of individual physicians, nurses, and pharmacists who practice in health care institutions (e.g. hospitals and nursing homes) when those constraints and requirements are satisfied, it remains to consider whether institutions may justifiably refuse to provide a service for reasons of conscience.

PHARMACIES

Dispensing obligations of pharmacy licensees

Pharmacies are licensed by states, are granted a monopoly to dispense medications that require prescriptions, and are subject to regulation. State boards of pharmacy confer licenses to operate pharmacies with the justified expectation that they will promote specified ends – typically, the public health, safety, and welfare. These are the ends identified in a Model State Pharmacy Act. The Model Act's “Legislative Declaration” (Section 102) includes the following statement: “The Practice of Pharmacy in the State of__is declared a professional practice affecting the public health, safety, and welfare and is subject to regulation and control in the public interest.”

WHAT IS CONSCIENTIOUS OBJECTION?

The subject of this book is conscientious objection in health care and the principal aim is to provide an ethical analysis of conscience-based refusals by physicians, nurses, and pharmacists. Before considering ethical issues, however, it is essential to understand what conscientious objection is, which calls for conceptual analysis.

A person engages in an act of conscientious objection when she refuses to perform an action, provide a service, and so forth, on the grounds that doing so is against her conscience. In the context of health care, physicians, nurses, and pharmacists engage in acts of conscientious objection when they: (1) refuse to provide legal and professionally accepted goods or services that fall within the scope of their professional competence, and (2) justify their refusal by claiming that it is an act of conscience or is conscience-based. But what is “conscience?”

Conscience

There are several conceptions of conscience. Some are religious and others are secular. According to some conceptions, conscience has an epistemological function. Such conceptions typically identify conscience as a faculty that discerns moral truths, distinguishes between right and wrong, and/or makes ethical judgments. This, for example, is Joseph Butler's conception of conscience:

Conscience-based refusals to provide legal and professionally accepted health care goods and services appear to present a conflict between health care professionals and patients. On the one hand, patients seek goods and services to meet their health care needs and interests. On the other hand, health care professionals want to maintain their moral integrity, and doing so can prompt them to refuse to provide a good or service that will satisfy a patient's health needs and/or interests. Generally, an appropriate strategy for resolving such conflicts is to attempt to find a “reasonable compromise.”

Addressing conscientious objection in pharmacy, Julie Cantor and Ken Baum endorse the search for a compromise: “most people can agree that we must find a workable and respectful balance between the needs of patients and the morals of pharmacists” (Cantor and Baum 2004: 2010). This approach is also recommended by the American Pharmacists Association (APhA). Its “Pharmacist Conscience Clause” states: “APhA recognizes the individual pharmacist's right to exercise conscientious refusal and supports the establishment of systems to ensure patient's [sic] access to legally prescribed therapy without compromising the pharmacist's right of conscientious refusal” (Winckler and Gans 2006: 12).

Legal rules and regulations that protect the exercise of conscience are referred to as “conscience clauses.” The first US federal health care conscience clause, the Church Amendment (42 U.S.C. § 300a-7(a–b)), was enacted in 1973. It protects conscience-based refusals related to abortion and sterilization. Subsequently, numerous federal and state laws and regulations have been enacted that protect the exercise of conscience by health care professionals. At the federal level, sections were added to the Church Amendment, significantly expanding its scope. One additional section (42 U.S.C. § 300a-7(c)) prohibits discrimination against a practitioner for refusing to perform or assist in the performance of “any lawful health service or research activity on the grounds that his performance or assistance in the performance of such service or activity would be contrary to his religious beliefs or moral convictions …” Another added section (42 U.S.C. § 300a-7(d)) states:

Additional federal legislation includes the Coats Amendment (42 U.S.C. § 238n) and the Weldon Amendment (121 Stat. 1844, 2209).

Just as practitioners can object to providing services that are against their conscience, students and residents can have conscience-based objections to participating in educational activities. Among medical, nursing, and pharmacy students, the former have been in the forefront of efforts to secure exemptions from activities that violate their ethical or religious beliefs. Accordingly, their experience can serve as a model for students of nursing and pharmacy.

In 1996, the Medical Student Section of the American Medical Association (AMA) introduced a resolution calling on the AMA to adopt a policy in support of exemptions for students with ethical or religious objections. In that resolution, students identified abortion, sterilization, and procedures performed on animals as examples of activities that might prompt requests for conscience-based exemptions. In response to the student initiative, the Council on Medical Education (CME) recommended the adoption of seven “principles to guide exemption of medical students from activities based on conscience.” The House of Delegates adopted these principles in their entirety (AMA Policy H-295.896, “Conscience Clause: Final Report”).

Among residency programs, it is likely that obstetrics and gynecology programs generally have the most experience related to conscience-based exemptions. Although some family medicine residency programs provide abortion training, historically obstetrics and gynecology residency programs have been the primary providers of graduate medical training pertaining to performing abortions. Since abortion has been a primary target of conscience-based refusals in health care, it is to be expected that some obstetrics and gynecology residents have ethical or religious objections to abortion training.

A compromise approach to conscience-based refusals by health care professionals seeks to strike a reasonable balance between the integrity interests of health care professionals and the health care needs and interests of patients. In Chapter 2, I considered and rejected two extreme alternatives to a compromise approach: the incompatibility thesis and conscience absolutism. On the one hand, I argued that none of the common accounts of the professional obligations of physicians, nurses, and pharmacists unequivocally supports the incompatibility thesis – the claim that conscientious objection is incompatible with those obligations. On the other hand, with the possible exception of accounts of professional obligations based on general ethical theories, I argued that conscience absolutism – the view that there are no ethical constraints on the exercise of conscience – is incompatible with the accounts of professional obligations considered in Chapter 2. With the possible exception of accounts based on general ethical theories, all favor a compromise approach.

In this chapter, I explain and defend a compromise approach, according to which the justifiability of conscience-based refusals is context-dependent. I will argue that core professional obligations to patients justify ethical constraints on the exercise of conscience. I will also explain and defend ethical constraints in relation to employers and supervisors, colleagues, and members of other health care professions.

The focus of this chapter is on ethical limitations on conscience-based refusals (i.e. those based on a practitioner's core moral beliefs).