Which Legal Approaches Help Limit Harms to Patients From Clinicians’ Conscience-Based Refusals?

R. Kogan, K. Kraschel, & C. Haupt
AMA J Ethics. 2020;22(3):E209-216.
doi: 10.1001/amajethics.2020.209.

Abstract

This article canvasses laws protecting clinicians’ conscience and focuses on dilemmas that occur when a clinician refuses to perform a procedure consistent with the standard of care. In particular, the article focuses on patients’ experience with a conscientiously objecting clinician at a secular institution, where patients are least likely to expect conscience-based care restrictions. After reviewing existing laws that protect clinicians’ conscience, the article discusses limited legal remedies available to patients.

Potential Sites of Conflict

Clinicians who object to providing care on the basis of “conscience” have never been more robustly protected than today by state legislatures and federal law. Although US law as well as professional ethics allows clinicians to deviate from professional norms and standards when their religious or moral beliefs conflict with a requested service,1 the scope of legal remedies for patients harmed by these objections has shrunk as federal and state law has effectively insulated objecting clinicians from liability. This article outlines laws protecting clinician conscience and identifies questions that arise when a clinician refuses to perform a procedure consistent with the medical profession’s standard of care. We focus on patients seeking care at secular institutions where patients are least likely to have notice that care they receive could be restricted based upon an individual clinician’s refusal. As a result, patients may unknowingly receive substandard care from objecting physicians and even be harmed by their refusals. However, the legal remedies available to patients adversely affected by refusals are limited. We first discuss federal and state law governing refusals based on clinician conscience and then examine the remedies available to patients who suffer harm as a result of a physician’s refusal.

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What's Behind A Rise In Conscience Complaints For Health Care Workers?

Selena Simmons-Duffin
NPR
Originally posted May 9, 2019

When health care workers feel they have been forced to do something they disagree with on moral or religious grounds, they can file complaints with the Department of Health and Human Services' Office for Civil Rights. Some high-profile cases have involved nurses who objected to providing abortion services.

For a decade, the agency got an average of one of these complaints of conscience violations each year. The complaints can include doctors, nurses or other health care workers who feel a hospital or clinic that receives federal funds has discriminated against them because of their moral position. Groups of health care providers also can file complaints.

Last year, the number of complaints jumped to 343.

That increase was cited by the Office of Civil Rights as one reason for issuing a new rule designed to protect conscience rights, unveiled publicly last week. HHS estimates that implementing and enforcing the rule will cost taxpayers $312 million in its first year.

But why did the number of complaints increase?

HHS declined to offer any specifics on the 343 complaints, such as where they were from or what might be behind the sudden increase over past years.

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