Gay Twist on Medical Conscience Issue
This is a new angle on the right of patients to demand treatment and when doctors can say no. This time it involves a religious objection to providing artificial insemination for a lesbian.
The doctor believed it was immoral to help a homosexual get pregnant and refused to participate, but referred her to someone else for the services. The new doctor was not covered by health insurance. The woman in question sued the original doctor and the California Supreme Court ruled unanimously that anti discrimination laws trump religious objections. From the story:
The ruling, based on a state law prohibiting businesses from discriminating against customers because of their sexual orientation, comes three months after the court struck down California's ban on same-sex marriage. "This isn't just a win for me personally and for other lesbian women," said the plaintiff, Guadalupe Benitez. "Anyone could be the next target if doctors are allowed to pick and choose their patients based on religious views about other groups of people."So this seems to be the state of the situation in law and as I perceive the mainstream view within bioethics:
The ruling is the first in the nation to address doctors' religious objections to treating gay or lesbian patients and should make health care more accessible, said Benitez's lawyer, Jennifer Pizer, of the Lambda Legal Defense and Education Fund.
Lawyers for the clinic and two of its doctors said they were considering an appeal to the U.S. Supreme Court. One supporter of the physicians called the ruling a strike against religious freedom. "This court is allowing two lesbians to force these individuals to choose between being doctors in the state of California or being able to practice their faith," said attorney Brad Dacus of the conservative Pacific Justice Institute, which filed arguments backing the doctors...The law "furthers California's compelling interest in ensuring full and equal access to medical treatment irrespective of sexual orientation," said Justice Joyce Kennard.
- Doctors refusing to sustain lives based on quality of life determinations, still to be determined in the courts, explicitly legal in Texas and perhaps in other states, generally although not unanimously, supported in bioethics.
- Doctors and pharmacists refusing to supply contraception services based on conscience, under concerted attack throughout the nation in legislatures and courts, bioethicists almost all against permitting conscience to control in this circumstance.
- Doctor refusing elective fertility treatment based on religious views, outlawed in California, a ruling I suspect will be recieved happily within mainstream bioethics.
None of this is consistent if the actual issue is the consciences of doctors and other medical professionals. But that isn't what is really going on. Rather, these and other bioethical issues, at least partially, serve as a canvas for broader cultural struggles that are roiling society.
Looked at it that way, and the consistency becomes clear. The ethics of medicine and health care come about as close as we get to expressing the general core values of a society. The current societal trend is to subsume actual or deemed to be religiously-based views to secular values and tolerance of individual choices in the public sphere--a trend moving swiftly into the ethics of medicine. But individual or professional values actually or perceived to be based primarily on secular or "rational" analyses, such as in medical futility, are more likely to be honored in the courts and among public intellectuals, and individual conscience of patients or professionals required to take a back seat.
How these play out as we go along will thus tell us a lot about where we are as a society and where we are going.
Labels: Conscience in Medicine. Medical Futility. Bioethics.
posted by Wesley J. Smith @ 9:30 AM
13 Comments
13 Comments:
Back in 2004 a lot of people warned about the consequences of the 2004 ruling the Catholic Charities must provide contraceptive coverage. It looks like this is a first fruits of the consequences of that decision. “Kennard cited the court's 2004 ruling requiring Catholic Charities to abide by a state law that compels company-sponsored health plans for employees to offer contraception for women.”
The case of the fertility clinic is not at all analogous to situations regarding medical futility. The physician at the fertility clinic refused to provide treatment to the patient on the basis of a factor that was medically irrelevant, viz. the patient's sexual orientation. In futility decisions, on the other hand, the physicians withhold or withdraw treatment on grounds that, medically, are entirely relevant. The purpose of medical treatment is to provide the patient with some benefit that the patient will be able to appreciate. If a particular treatment will, in their professional judgment, provide no such benefit, then the physicians are under no obligation to provide it, and they may be under some obligation not to provide it (if, for example, providing it would deprive someone else who could benefit from it).
That having been said, the issue of conscience clauses is a vexed one. If we are going to make provision for conscientious objection, then it would seem to be illogical to carve out areas where such protection would not be provided. Thus, for example, it would appear illogical to provide protection for physicians who refuse to provide futile LSMT on conscientious grounds, but to provide no such protection for physicians who, on conscientious grounds, refuse to perform abortions.
And yet, how far would we be willing to take this? Would we be willing to excuse an ER physician who refused to assist a gay man because he conscientiously believed, on Biblical grounds, that such persons ought to be put to death?
Not an issue that lends itself to simple answers, in my view.
From the story: "...Chief Justice Kennard said doctors who have religious objections to a particular procedure or treatment can refuse to perform it for any patient, but can't selectively reject gays and lesbians. She said they also have the option of referring a patient to someone else at the clinic who will perform the procedure, an option that wasn't available in this case."
Two observations here...1. The judge's explanation of this ruling leaves the paradoxical impression that doctors ARE allowed to invoke a religious belief as grounds for refusing to provide medical treatments PROVIDED that the religious belief in question doesn't specifically apply to homosexuals. In effect, your theology can inform your professional conduct, just not parts that "selectively" speak about inappropriate sexual relations, be it same-sex couples or unmarried couples which to these docs were equally impermissable. And...
2. ...also considering that IVF is anelective procedure and San Francisco is a big city, I find it hard to believe that both the doctor and this same-sex couple couldn't locate any other IVF providers within a reasonable area who accepted their insurance. And certainly the judge didn't actually mean that another provider at that same clinic would be required to perform the procedure. Shared values in a small medical practice commonplace. For a non-emergent & elective procedure like IVF, such a restriction is not justifiable. What was the actual harm in this case?
I suspect that this ruling would be overturned if it makes it to SCOTUS, considering the high court's current conservative majority.
A personal though perhaps unnecessary disclaimer: I am a moderate-to-liberal Democrat who supports gay rights including same-sex marriage. That said, it would be hypocritical to not also similarly support a health care provider's right to abstain from certain practices due to THEIR beliefs.
*One important exception to this... cases where the treatment in question is either needed on an emergent basis and/or is otherwise reasonably unavailable to the patient in question due to geographical isolation. Hard to believe that this was actually the case in this situation. Planning to read the court's ruling to dredge out some sorely missing details...
Makarios said...
"The case of the fertility clinic is not at all analogous to situations regarding medical futility. The physician at the fertility clinic refused to provide treatment to the patient on the basis of a factor that was medically irrelevant, viz. the patient's sexual orientation. In futility decisions, on the other hand, the physicians withhold or withdraw treatment on grounds that, medically, are entirely relevant."
Well said. Wesley will probably argue that most futility decisions also involve non-medical values. Perhaps, but in appropriate cases, evidence-based standards are the primary mover and any appeal to values like quality of life may be are usually argued from a 'best interests' standard -- a value that is more communal than autobiographical-idiosyncratic.
I share some of Wesley's concern regarding medical futility and the potential for inconsistency, nontransparancy & abuse. However, I still maintain that it is the responsibility of the 'anti-futility' side to provide an alternate medical standard that can be meaningfully applied in it's stead.
M: It isn't an easy issue. The "benefit the patient can appeciiate" is a rewriting of the purpose of medicine. Besides, one need not be unconscious to be a victim of medical futility. Indeed, I can easily conceive of futility imposers suggesting that a conscious suffering patient would be in more need of their decision making to overcome the guilt, religious believes, bad thinking, whatever of patient desires or family views.
Moreover, futility is rationing at its early stages and health care rationing unquestionably deprives patients of treatment whose benefits they can appreciate.
I still think that the way one comes down on these issues depends on larger cultural issues.
As to the case of the denied lesbian, I think in elective cases such as this, where the services are readily available otherwise, we are going to have to be tolerant of each others' intolerance. Otherwise the fear of religious conservatives that their faith and ability to practice it is in the cross hairs. I think the question is well put, are we going to get to a place where Christians, Muslims and others have to eschew the medical professions altogether?
Another point on this: I think the problem has come from the expansion of medicine into areas that are culturally contentious, and indeed, as a potent tool that pushes cultural boundaries.
For example, if the woman had presented with an ovarian cyst, I can't imagine anyone other than the most rank bigot refusing treatment.
If we are truly going to live in such a polyglot society, isn't greater nuance needed than the ham fisted court ruling?
As a lawyer, I can refuse any client I want for any reason. Once I have the client, he or she deserves my all. But until that time, I have the right to choose, to borrow a term.
Why shouldn't it be the same for physicians--at least with regards to elective treatments?
Okakura wrote:
In effect, your theology can inform your professional conduct, just not parts that "selectively" speak about inappropriate sexual relations, be it same-sex couples or unmarried couples which to these docs were equally impermissable.
I am not a lawyer, but my impression of the gist of the ruling is that it is permissible for a physician, on religious or (presumably) other conscientious grounds, to refuse to perform a particular procedure, such as abortion or IVF. If, however, the physician generally provides such procedures, but selectively refuses them based on medically irrelevant characteristics of the patient, then there is the possibility of being caught by anti-discrimination statutes. IOW, it is OK for a physician to have a policy of not performing IVF. What is not OK is to say, "I'll do IVF, but not for lesbians (or infidels, or unmarried women, or some other medically irrelevant class of people)."
I don't know what the law is in California, and I'm not sure that it is entirely analogous, but I wonder if it would be legally permissible for a landlord, on religious grounds, to refuse to rent an apartment to a couple solely on the grounds that they were of the same sex.
Makarius. It is not. There can be no discrimination in that area based on sexual orientation, even if the landlord objects on religious grounds. If they have objections, they can't rent out their property.
That certainly makes sense from a commercial sense. But if someone wants to rent a room in their own home, I think a different approach would be appropriate.
Not sure why we can't create nuanced policies except, getting back to the point of the post, these bioethical issues are stand ins for broader societal conflicts.
Makarius - I think I understand what you are saying. If for reasons of conscience, a doctor consistently refuses to perform a particular procedure, then fine. But when that procedure is only selectively refused based on who is requesting it, then it constitutes discrimination, regardless of the religious justification.
Clear enough, but in the case of IVF I think the issue becomes a bit more complicated because the potential outcome of IVF is the creation of a child - in essence, another patient. Thus, the religious-based refusal to provide IVF services to same-sex or unmarried couples can also be justified on protective grounds; the child would suffer the consequences.
I'm not saying this argument is personally or legally compelling; merely that it is not irrational for a fertility specialist to consider all parties affected by his medical assistance. Religious prohibitions against homosexuality and other unacceptable sexual relationships have been around for centuries. That those passages (or actions based on them) may now be considered offensive or discriminatory by non-adherents does not mean that they were (or are) intended that way.
The pertinent legal question is not whether a discriminatory belief are legal (of course they are) but rather, did the actions (or inaction) based on this belief truly result in undue prejudice against this particular lesbian couple. The courts to date say "yes. I'm still not sure I agree.
Okakura,
A very thoughtful post on your part. From your first paragraph, I believe that we're on the same page regarding interpretation of the court's decision.
Regarding the theory that refusal to provide IVF might be justified on the grounds of protecting the child--if we were talking about a situation where the woman who would be carrying the child is a drug user or an alcoholic, or is known to be physically abusive, this is an argument that would be worth listening to. The risks involved would be foreseeable and evidence-based. However, with all due respect to a physician's religious beliefs, I question whether it could clearly be said that a child born into, and raised by, an unmarried or same-sex couple would, ipso facto, foreseeably, or even presumptively, suffer harm and damage--or enough so that refusal to perform the procedure would be justified. Again, with all due respect to anyone's religious belief, it is just that--belief--and belief isn't evidence.
With regard to whether the couple in this particular case suffered undue prejudice--that would, I suppose, be a question of fact, and I haven't studied all of the evidence. From what I have read in the media, they experienced genuine difficulty in finding an alternative provider who would be covered by their insurance; but the media do occasionally get things wrong.
If I'm not mistaken, the doctors in this case refused to do IVF because they found out she wasn't married (who knows what they'd do today, if she was married).
Society really shouldn't allow anyone to intentionally join unmarried gametes. Even the most liberal doctor should not be allowed to facilitate donor conception. It's not about religion at all, it's about the best interest of children and society, and thus everyone. But as there is apparently no law against donor conception, then this decision makes sense. But there should eventually be a law saying that only a married couple can intentionally conceive. Did you know that the word "gamete" comes from the greek word "gamos" which means "marriage"?
Unintentional unmarried conception needn't be punished, but intentional unmarried conception should have big penalties, enough to stop people from doing it.
And hey, what if a brother and sister came into a clinic and wanted to conceive together - would that be a "religious" objection if the clinic refused, or a legal one? Surely a clinic would be right to refuse to help them, and surely it ought to be a law that no clinic should be allowed to help them. It isn't just birth defects - adopted unrelated brother and sister couples should also be prohibited, just like they are prohibited form marrying.
But there should eventually be a law saying that only a married couple can intentionally conceive.
John, are you suggesting that we issue parenting licenses? Because that's what your comment would lead to. You suggest your law in the setting of in vitro fertilization, but what's to prevent it from being extended to good ol' fashioned natural conception (e.g. sex!)? Does this mean that hospitals should have to do a background check on the parents of every baby in order to make sure they're legally married? Who would the hospitals report unmarried couples to? Very Orwellian.
I also don't agree that "facilitating donor conception" is against the best interests of children and society. You may not agree with it, but others don't share that view. There are plenty of lousy family environments with two married parents, and plenty of good ones with single parents. You can't generalize.
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