2026 Moral Leadership in Medicine: "The Conscience of Care: Navigating Health in the Culture Wars"
Watch on YouTubeVideo summary
The video features Professor Dove Fox, a distinguished legal scholar at the University of San Diego, who delivers a lecture on his book, *The Conscience of Care: Navigating Health in the Culture Wars*. Fox argues that the current legal framework regarding medical conscience is fundamentally unjust because it creates a radical asymmetry between clinicians who refuse to provide care and those who wish to do so. While conscientious refusal is heavily protected by law—shielding doctors from lawsuits, license revocation, or criminal charges—the provision of prohibited but legal care offers no such protection. Fox illustrates this disparity with poignant examples, such as Dr. Alan Brad, who faced severe legal threats for performing abortions after *Roe v. Wade* was overturned, and Dr. Barbara Morris, who lost her job at a Catholic hospital for assisting a terminally ill patient in dying. These cases highlight how the law currently punishes providers for honoring patients' wishes while excusing those who deny them care based on moral objections.
Fox deconstructs five common justifications for this imbalance, including arguments that refusal avoids complicity in killing, that religious beliefs deserve special protection, or that accommodating refusers is less costly. He systematically dismantles these claims, noting that conscience clauses protect secular and non-lethal refusals equally, that corporations lack the moral agency to have a conscience, and that the hidden costs of refusal—such as patient travel burdens, staff shortages, and health care deserts—are significant. Furthermore, he challenges the distinction between "doing" harm and "allowing" it, asserting that in medicine, clinicians have positive duties to treat patients regardless of their personal moral preferences. Consequently, the existing system fails to balance individual integrity with the fundamental right of patients to access standard medical care.
To address these injustices, Fox proposes a balanced approach that protects both refusers and providers without compromising patient safety or legal order. He suggests implementing a "partial conscience defense" for those who break the law to provide prohibited care; under this model, clinicians would still face liability but could receive substantially reduced penalties if they meet specific ethical conditions. These conditions include providing advance notice of objections so patients can seek alternatives elsewhere, ensuring continuity of care by transferring existing patients rather than abandoning them, and strictly prohibiting discrimination based on race or sex. Additionally, Fox advocates for structural reforms such as requiring hospitals to disclose their conscience policies upfront, creating designated spaces within institutions where standard care can be provided by independent contractors, and expanding the scope of practice for nurses and physician assistants to ensure access is not hindered by individual objections.
Ultimately, Fox calls for a collective effort involving clinicians, lawyers, lawmakers, and judges to restore equity to medical ethics in an era of intense cultural polarization. He emphasizes that while the current legal landscape is deeply flawed, it is possible to navigate these challenges through transparency, professional solidarity, and strategic use of existing legal tools like antitrust laws and emergency treatment statutes. By fostering a culture where both moral convictions and patient needs are respected, the medical community can move away from a system that selectively burdens providers and instead embrace a vision of conscience that upholds social pluralism while ensuring that no patient is denied life-saving treatment due to the personal beliefs of a clinician or institution.
Read the full video transcript
I'm Rebecca Brindell. I'm the director
of the center for bioeththics at Harvard
Medical School. And I am delighted to
introduce my colleague Susanna Bouche
who is the executive director of the
Petri Flom Center at Harvard Law School.
And I've been told this week I you can
learn something new every day. I learned
uh this week that the most Harvard thing
you could possibly ever do would be to
introduce the person who's going to
introduce our speaker.
My job is done for the day. Susanna.
>> Thank you, Becca. Um, my name is Susanna
Barouch. I'm the executive director of
the Petri Flom Center for Health Law,
Policy, Biotechnology, and Bioeththics
at Harvard Law School. Uh, we are a
multi-issue, multiddisciplinary research
center, and our current work spans many
legal and ethical issues from
psychedelics to medical AI to aging and
the law to embryo law and ethics. Um, I
hope everyone will visit our website,
sign up for our newsletter, read our
blog, Bill of Health, and follow us on
social media. Um, thank you to my friend
Becca Brendelle for her vision for
today, for her to her team and for the
team behind the scenes um, from Petri
Flom as well. Um, we are also thankful
to the Oswald Deian Cayman Fund for at
Harvard University for support of this
event. Now my real job is that I have
the privilege of introducing professor
Dove Fox. He is the Herzog research
professor of law at the University of
San Diego where he directs the center
for health law policy and bioeththics
and has been named university professor
which is the university's highest
academic honor bestowed on faculty in
any field.
Dev's accomplishments are hard to
summarize, but he has produced three
research documentaries, published four
scholarly books, and over 80 articles in
leading journals of law, medicine, and
public health. His research has appeared
in many um more uh public uh minded um
venues like The Atlantic, the New York
Times, and the Wall Street Journal. And
his audio series called Donor 9623 was
named Audible's podcast of the year. and
nominated for a Pulitzer Prize in
investigative journalism.
Dove will deliver um his speech, his
lecture today based on his book, The
Conscience of Care: Navigating Health
and the Culture Wars, which could not be
more timely or relevant. In it, he
meticulously describes the asymmetry um
between a clinician's conscientious
refusal to provide care, which gets
legal protection, while conscientious
provision of prohibited care does not.
Um, Professor Fox urges us all to reckon
with our deepest values as we all of us
in this room and on the Zoom uh consider
the relationship between medicine and
law um and how the idea of conscience
might play a more equitable role. So
with that, it's my pleasure to welcome
Professor Dove Fox.
I got in this big beautiful uh Boston
super moon lighting up the sky. Uh today
I feel like I am right over it. Uh thank
you to the dazzling organizers,
distinguished panelists and
commentators. Uh all of you here this
morning and everyone watching on Zoom.
Uh I ask you to uh indulge me trying to
think through talk about some of these
medical conflicts that divide us today.
I want to consider the lost promise of a
contentious ideal
conscience. It goes back to the first
code of medical ethics that the American
Medical Association published in 1847.
The AMA said that the mission to care
for patients draws its moral force from
a physician's conscience.
It's a concept that resonates especially
deeply today, I think, when clinicians
have never faced so many restrictions on
whom they treat or how.
In September 2021, a Texas law called
SV8 banned abortion at about six weeks.
Days later, Dr. Alan Brad confessed to
having violated that law. His op- ed in
the Washington Post explained that he
had been a young OBGYn resident in San
Antonio in June 1972,
6 months before Roie Wade would go on to
legalize abortion nationwide.
In that short time, he witnessed three
teenagers die from self-induced
abortions that the state for had
forbidden them from getting safely.
one, he recalled, arrived to the ER
already septic, her vaginal cavity
packed with rags.
These memories haunted Braid. He warned
that preventable deaths would return,
and they have since the Supreme Court
overturned Row in June 2022, exactly 50
years later.
A dozen states quickly joined Texas to
criminalize abortion at zero weeks and
impose harsh sentences for providing one
up to life in prison.
Braid was adamant that this time he
couldn't just stand idally by.
He knew that he would face the barrage
of lawsuits that followed for violating
the state's ban. He didn't care for
Brave.
This wasn't just about meeting his
professional obligations.
It was a matter of conscience.
Dr. Barbara Morris appealed to her
conscience, too. She specialized in
elder care for over 40 years in
Colorado, one of the dozen states that
allows physicians to assist patients
seeking to hasten their own death at the
end of an agonizing terminal illness. In
2019, Morris was fired for trying to
help a patient die sooner after
incurable stage 4 cancer had reduced a
man's body to a skeleton shrouded in
painful leings.
Morris worked at a Catholic institution
that forbade assisted suicide as
contrary to its mission to preserve the
sanctity of life.
But Catholic hospitals nationwide
strictly prohibit a range of legal
practices like this. Not just aid and
dying, but abortion, sterilization,
emergency contraception, IVF, and IUDs.
Decades of market consolidation among
religious health care systems have now
left Catholic institutions in control of
more than one quarter of all acute care
beds in the United States.
Morris's hospital was the only facility
for miles equipped to provide paliative
care.
So losing her job meant giving up her
practice.
Morris told me she had no choice but to
disobey the ban.
Being forced to abandon her suffering
patient inflicted a wound to her soul.
It violated her conscience.
Conscience is an individual's deeply
held moral beliefs. This definition has
three parts. First, conscience is for
clinicians with a human faculties to
think and feel.
Second, these individual beliefs must
concern matters of right and wrong.
These moral convictions arise all the
time in medical practice with its
intimate probing and profound decisions
about impairment and identity, life and
death.
Finally, these aren't just take or leave
preferences.
The beliefs of conscience mean having
the courage of your deeply held
convictions. And that requires a
willingness to stand by them even when
that requires a sacrifice of yourself.
So why value clinician conscience in the
first place? There are two reasons. The
first is for the individual conscience
holder herself.
Protecting conscience preserves the
moral integrity that spares a doctor or
nurse or physician's assistant from
burnout or trauma if forced to practice
medicine at odds with her convictions.
Second, respecting conscience promotes
the social pluralism that enables the
dynamic profession of medicine to
embrace its moral diversity and to adapt
to moral change from within.
Appeals to conscience might seem too
easy to fake, too susceptible to bias or
misinformation.
But our legal system routinely
adjudicates such subjective states of
mind like intention or a knowing
disregard of risks.
See, objective evidence can corroborate
whether a clinician's appeal to
conscience really does concern right and
wrong. For example, if an OB/GYN says
that he opposes abortion on moral
grounds as murder, but turns away only
Medicaid patients, well, that's about
money, not morals.
Even for genuine appeals to conscience,
there are two kinds that don't deserve
our respect.
First, our objections grounded in
invidious attitudes like refusing to
prescribe the prep medication that
prevents HIV because a clinician
believes that facilitating gay sex is a
sin.
Second, are clear factual mistakes like
refusing the morning after pill on the
grounds that it ends a pregnancy when
really it prevents one from starting.
Conscience claims that are rooted in
bigotry or demonstrable far falsehoods
aren't worth protecting.
But most claims of conscience are not so
nasty or illinformed.
Conscience clauses shield clinicians who
invoke the sanctity of life, the dignity
of marriage or the unity of sex and
gender at birth from the penalties that
they would otherwise face for refusing
care that their profession or their
state or their employer requires.
Refusers don't lose their jobs. They
don't lose their licenses and they can't
be held liable for malpractice or
convicted of negligent homicide.
Conscience clauses in this country
shield even non-clinians who object to a
practice from a distance, refusing, for
example, to check patients in at the
hospital or to file their claims for
health insurance.
And yet there's no protection for their
practitioners
directly involved in performing a
medically indicated procedure.
These nurses, physician assistants,
anesthesiologists,
doctors like Brad and Morris, call them
conscientious providers.
They get no legal relief to treat
patients in clinically beneficial ways
that honor their wishes, not override
them.
Providers get fired and sued at will,
even prosecuted under the threat of
decades behind bars.
Lopsided conscience laws selectively
burden providers.
They harm patients, too.
Amber Thurman
was a Georgia woman who died when
clinicians denied her an emergency
abortion for over 20 hours while she was
seven. Her doctors feared punishment in
a state that makes abortion a
firstdegree felony to provide and offers
no leniency for conscientious providers.
Brent Sloan was a 40-year-old father
from Kentucky who relied on high doses
of opioids to manage his excruciating
chronic pain from a car crash that
required multiple surgeries and skin
grafts.
Opioid crackdowns drove Sloan's doctors
to slash his dose and decline his plea
for an early refill.
Unable to bear the pain, Sloan texted
his wife. script denied, "I'm done. Love
you." and took his own life.
Kathleen Brownfield was raved in LA and
rushed to a Catholic hospital. There,
her doctors wouldn't even tell her that
emergency contraception was an option to
avoid pregnancy.
By the time they released her 3 days
later, Plan B no longer worked.
California's conscience clause immunized
her doctors and the hospital itself from
malpractice or breach of informed
consent.
Can a hospital like this one in LA
itself appeal to conscience?
Our laws say yes.
Common sense tells us no. Institutions
lack the free will and practical
judgment required to hold moral beliefs
of their own.
People have a conscience. Corporations
don't.
That said, hospitals and health care
systems can have other interests in
religious expression and freedom to
associate, say, with only providers or
just refusers.
These expressive and associational
interests weigh in the balance against
employee claims of conscience.
Importantly though the strength of these
institutional interests ba are vary
based on its size and internal cohesion.
Legal scholar Elizabeth Seper has shown
that stronger interests lie with a
closeknit, very small hospital whose
staff and patients consciously self
self-identify around a faith-based
mission, for example, natural fl family
planning methods.
Whereas these institutional interests
are weaker for the sprawling
conglomerate that employs and treats
thousands of people, many of whom may
not even be aware that of its religious
affiliation, let alone how that limits
the care that the institution makes
available.
Now, it's no accident that conscience
protection spread from direct
participation to remote and from inst
individuals to institutions.
A bit of history. Conscience was
popularized in American public life amid
rising discontent in the Vietnam War.
Small and insular minorities like
Quakers and Menanites appealed to
conscience as a shield from
discrimination by draft laws that were
indifferent to their pacifist beliefs.
After row, however, conscience morphed
into a sword against complicity that
powerful groups could wield to refuse
even negligible involvement in care they
opposed.
Conscientious objections are in fact
governed very differently in medicine
than they are in the military
where objectors are exempted from battle
only if the country can feel the
fighting force without them. And
conscience object objectors still have
to pitch in to make up for opting out.
Back in the Civil War, objectors had to
pay $300 to recruit replacements. In
Vietnam, they had to serve as combat
medics or civil volunteers for at least
as long as they had had would have had
to serve in battle.
In medicine, by contrast, refusers get a
free pass
even if they're denying care would leave
patients unable to meet their basic
medical needs.
refusing doctors get conscience without
any real conditions or consequences.
The US is a global outlier in protecting
conscientious refusal. So absolutely
some countries like Bulgaria, Ethiopia,
Finland and Sweden, they just offer no
protections at all for anyone. If
indicated care is legal, then clinicians
must provide it. Others, Turkey,
Venezuela, South Korea, and the Czech
Republic, let refusers off the hook only
if that's consistent with maintaining
broader access to standard treatment.
In the US alone, can clinicians refuse
to provide routine legal care, no
questions asked.
Reproductive medicine is ground zero for
conscience conflicts. And it's not just
abortion. Some clinicians oppose IVF
because it involves creating human life
that might end up being destroyed.
Other doctors won't prescribe IUDs out
of concern that they promote non-marital
sex.
Some pharmacists refuse to dispense plan
B because they think it works after an
embryo has already implanted, not
before.
I've also spoken with clinicians who
have conscientiously provided all of
these practices and procedures, too.
Their convictions compelled them to
violate restrictions on patient care.
Death and dying pose wrenching
conscience dilemmas as well.
Some states forbid physicians,
honoring the advanced directives of a
pregnant woman who ends up in a
persistent vegetative state, thereby
keeping her on life support against her
will to continue growing the nasonent
life inside of her.
Other states have indicted ICU doctors
for murder on 25 counts of murder, no
less, when they risked hastening death
by administering highdose painkillers or
sedatives to keep their patients
comfortable after they'd agreed to
withdraw life sustaining care.
We dying and newborn youth in Asia raise
similar conflicts of conscience about
how doctors respond the suffering of
their vulnerable patients.
Clinicians have also claimed conscience
to treat patients for a range of chronic
conditions. Should doctors transplant
paid for organs when that's the only way
to save a life? Should they provide
dialysis to undocumented immigrants with
kidney disease by miscoding their
medical status as an emergency so they
qualify for the Medicare funding they
need to get that routine care?
Conscience affords total protection to
refusers across all these contexts,
but providers meanwhile get none.
What gives?
Let's consider the five strongest way to
try justifying this radical asymmetry.
First argument,
refusal alone avoids complicity, the
gravest evil of all, that is killing a
human being, for example, an abortion or
assisted suicide. That's what makes
refusal more important to protect.
except conscience clauses don't rank the
strength of different moral beliefs.
They're all protected the same for
refusers anyway. The complicity argument
doesn't explain why we also protect the
refusal of practices that don't involve
any killing at all. Things like
contraception and gender affirming care.
Nor does it explain why we failed to
protect doctors who conscientiously
provide that dialysis or transplant that
would save a patient's life.
This concern about complicity and
killing is too overinclusive and too
underinclusive to justify our lopsided
law of medical conscience.
Second justification
is that refusals merit special
protection because they are rooted in
religion
while provision claims are not.
But again, refusal clauses protect
secular and religious beliefs equally so
long as they're moral in character about
right and wrong. And besides, secular
claims can be just as sincere and
verifiable as religious ones. Also, many
religious traditions compel us to
minister to the sick and the vulnerable.
Plus, some refusal claims are secular
themselves. For example, when they
appeal to species typical human
functioning or the natural giftedness of
human life.
The religion argument can't make sense
of the conscience asymmetry either.
Argument three,
forcing clinicians
who refuse care to provide that which
they object to
is worse than making providers decline
to treat patients in the ways their
conscience demands.
This distinction between doing and
allowing looms large in American life
and law.
You can't push someone off a bridge, but
you're allowed to let them drown.
But this moral difference between doing
and allowing matters less in the context
of medicine
where profound disparities of in of
information and power between providers
and patients demands more of clinicians
than just negative duties to refrain
from performing ill-advised surgeries or
from prescribing dangerous medications.
Clinicians by virtue of that special
relationship with patients
also have positive duties to them to
undertake preventive screenings
and carry out a host of treatments in
order to comply with medical standards
of care.
This line between doing and allowing,
whatever moral work it does do, isn't
nearly enough to justify the extreme
legal asymmetry between refusing care
and providing it.
Argument four,
IT COSTS less to accommodate refusers.
They don't ask third parties like
hospitals and states to pay for the
expensive facilities and equipment
required to make room to provide the
care that they'd rather not wouldn't
otherwise.
A couple things.
Many prescriptions
are cheap. Birth control, puberty
blockers, medical marijuana. What does
that cost an institution? a prescription
pad, an entry of the electronic health
records.
Also inexpensive is a tubal lation
operation that follows an already
scheduled C-section. These things don't
cost a great deal for conscientious
providers to offer, not to the
institution, not to the state. Also,
some procedures, many, while pricey,
may nevertheless cost less than the
necessary alternative. For undocumented
immigrants with chronic renal
insufficiency,
standard dialysis is less expensive than
the emergency form of dialysis that
Medicare will foot the bill for when
their kidneys inevitably fails.
And a conscientiously provided abortion
costs less than the labor and delivery
imposed by its conscientious refusal.
Finally, and most importantly,
accommodating refusals
imposes serious externalities, too.
They're not cost-free.
They pose externalities on, for example,
patients who must travel or wait or go
without care, on co-workers who have to
cover for the refusers,
on institutions that lose staff, and on
regions that experience health care
deserts when refusals are widespread.
So this cost differential argument that
doesn't explain either why we should
protect refusers so much and providers
so little.
The fifth justification is the
strongest.
It says that accommodating refusers is
consistent with a background interest in
making care available
since non-objectors can step in to still
provide it. By contrast, when a state or
hospital restricts treatment, when
that's the background policy at stake,
allowing anyone to provide it can't help
but defeat the whole point of that ban.
But practical realities complicate this
argument, too.
Where refusals are concentrated,
widespread exemptions can leave care
unavailable or unduly burdensome for
people to access when a hospital or
state wants them to be able to access it
if they want to.
And under a regime that restricts
treatment, we'll see how institutional
workarounds and partial defenses can
make a measure of space for the
provision of care without riding
roughshot over the state or hospitals
prohibition of it.
The law's radical asymmetry is unjust
and indefensible.
So why not abolish conscience objections
altogether?
It's not just that they're woven so
deeply into the fabric of American law
and medicine that we well we just can't
uproot them now.
Extinguishing object exemptions
wholesale would also deprive medicine of
its moral dynamism. We should protect
conscience
for handson refusers too.
We should balance these protections out.
Accommodate refusers less than
absolutely and providers more than not
at all.
Their claims also operate against two
levels of authority. First, employment
policies. Second, government laws. At
the hospital level, a clinician's
bonafide appeal to conscience should be
accommodated to refuse care or provide
it so long as there are reasonable
alternatives to make room for its
exercise.
So limitless exemptions can't leave, for
example, medically standard care
unavailable or just too burdensome for
people to access. nor can it force small
religious practices to close their doors
altogether.
To offset burdens on patient access,
large sectarian hospitals should take
steps to preserve access more generally.
For example, by setting aside a room in
the hospital for either conscientious
employees or independent outside
contractors to provide care using
outside supplies and equipment.
And close-knit clinics should be free to
fire conscientious providers
to qualify for employment protections in
the first place.
Objectors must be upfront
about their medically indicated options
available to patients.
They don't get a break if they don't
tell patients what their options are
ahead of time. And subject to free
speech protection, she must also tell
patients and her employer too which
services she will provide and which she
won't. Note, this isn't on a public
database available for everyone, but in
private protected conversations with an
employer and with patients.
Now, I'm under no illusion that any of
this is free or that it wouldn't cost a
great deal of money. Disclosures,
distancing measures, expensive. Who
should pay to accommodate clinician
conscience?
I think for these profound goods of
individual integrity and social
pluralism, I would spread these costs
widely among us, among states, large
hospital systems.
Another option, however,
is objector fees to offset the impact on
vulnerable patients and small employers.
To exercise conscience, an individual
objector would have to pay a modest
price. Like in the military, whether in
the form of financial contributions to
accommodation offsets or volunteer
services toward the same goal, subject,
of course, to limits that the Supreme
Court cases like Hobby Lobby have set on
government burdens of religious
exercise.
Let's turn from hospital policies to
state laws.
On one side are mandates to secure
informed consent and avoid malpractice
or patient abandonment that refusers
seek to override.
Then there are the civil and criminal
bans on providing legal otherwise legal
or standard care. That is that makes
this care unlawful and for conscience
providers would face civil or criminally
criminal penalties to provide it
against this deeply divided background
legal regime. How can we value clinician
conscience without imperiling legal
order?
Here I propose a partial defense to
legal violations
of medical conscience.
Clinicians who break the law on
conscience grounds would still be
subject to liability or conviction. That
wouldn't be expuned or wiped away, but
the defense would operate to
substantially reduce their fines or
prison time to a small fraction of the
penalty or punishment they would
otherwise face for breaking the law.
Besides these prices and consequences
that lawbreaking conscience holders
would still have to pay, the conscience
defense would also come with conditions.
Conditions that derive from the core
pillars of bioeththics, autonomy,
beneficence, non-maleficence, and
justice.
Let's start with the distinct conditions
for refusers to qualify for the defense.
There are three. First, they must
disclose their objection in advance to
give people at least a chance to seek
care elsewhere before an emergency
arises.
Second, refusers to get the defense
couldn't just drop an existing patient
who lacks continued care without seeing
to their ability to see someone else for
the care that the refuser had previously
been providing.
Finally, clinicians can't turn patients
away for reasons like race or sex.
Meeting these three conditions about
notice, abandonment, and discrimination
would res reduce the penalty
substantially for refusing care in ways
that violate duties and harm patients.
But this would be a whole lot less than
the protections available to refusers
today.
Three different protections would
qualify conscientious providers for
protections that are non-existent at
this time.
First, treatment must not coers,
exploit, or deceive competent patients
or their surrogates. The defense
wouldn't be open to provide genital
cutting to pressure young girls into
getting that care by family members or
community or physicians clinicians
themselves. They couldn't claim
conscience to provide that.
Second is compliance with professional
standards of care. The defense wouldn't
be available to provide conversion
therapy, for example, or ivormectin to
treat COVID because reliable medical
evidence shows that they are more likely
to hurt patients than to help them.
Finally, providers can't hoard scarce
resources for their own patients at the
expense of others who would gain more
from costly dialysis or a paid for organ
that's in short supply. There has to be
a reasonably fair allocation of these
scarce resources in order to qualify for
the conscience defense to breaking the
law for conscientious providers.
Now, this conscience defense for
refusers and providers too,
notwithstanding those conditions and the
consequences for invoking it would still
raise three challenges for American
democracy. First is the risk of eroding
respect for the rule of law by making
exemptions to the law available any time
that a refuser or provider pledges
allegiance to a higher moral ideal.
That's a serious concern.
But we take the edge off it with the
narrowing conditions and offsetting
consequences just like we do in the
military con uh uh context where we the
law requires people to serve but we
provide limited narrow exemptions to
that law without thinking that we have
no law at all. That's what I would
propose with our conscience defense in
medical practice. Besides the rule of
law, we might ask, "Will the defense be
deployed in arbitrary or discriminatory
ways before row, there were medical
exemptions to provide an abortion that
states banned, but those exemptions
tended to be used on the basis of
patient race, class, and connections.
There was a break, but it was given to
people with greater means and not less.
Would that happen here?
No, I don't think because the conscience
defense would be available only not just
to groups that a hospital favors or ones
that or to favored practices by the
state.
It mitigates this risk the defense does
by requiring claimants to allocates
allocate scarce resources fairly, not in
arbitrary ways or based on race or class
alone.
The final concern is about the
separation of powers.
Can courts really slash an offender's
sentence for providing the very care
that her legislature has strictly
prohibited?
Yes, the conscious defense falls
squarely within the judicial authority
to reduce punishments for things like
duress, provocation, and diminished
responsibility. In all these cases,
judges have exercised their common law
authorities to establish either total
defenses like self-defense or excuses
like insanity, duress, like other
defense like necessity or here by not
excusing or justifying altogether there
is no punishment but rather merely to
reduce the punishments
for the convictions required under the
law. So there's plenty of legal
precedent under established doctrine in
criminal law and elsewhere for
establishing a defense for medical
conscience that would accept the
penalties or punishments for violating
the law but reduce substantially
the consequences for violating them.
Where does all this leave us? Let's
start with patience. Educate yourself
about how conscience rules apply to your
state and your health care institution.
For example, Illinois is the only state
that mandates disclosures of care
options. The only one. And just Georgia
requires refusing pharmacists to refer
patients elsewhere. Just in Georgia. New
Hampshire is a lone state with no
conscience policies on the books
whatsoever. Not for refusers, not for
providers. And Vermont alone flips the
prevailing asymmetry on its head by
prevent by protecting just providers and
not refusers.
Institutional policies vary even more.
Ask your hospital if it restricts
standard services and ask your treating
physician if she objects to any on moral
grounds.
Complicity concerns may prevent
objectors from making direct referrals
like those pharmacists are required to
in Georgia. In that case, contact
specialty organizations for help
connecting you with willing providers or
matching refusers to your values and
needs. The government in turn should
subsidize professional groups to
undertake this enormous work like the
American College of Optitians and
Gynecologists that would be responsible
for assuming this intermediary role, a
new one for them of matching patients
with providers
for clinicians. Understand your
conscience related rights and duties.
Negotiate for relevant contract terms
with your employer. Disclose moral
objections to your patients and employer
upfront.
Recognize that collective action is more
likely to achieve structural change than
individual exercises of conscience
alone.
You know, the threat of punishing
sanctions may be too much to expect
of individual clinicians standing alone.
So, take part in ethics committees and
professional groups to stand
shouldertosh shoulder with objectors and
colleagues to express support for the
other objector's commitments. Stand
behind them. say that you will follow in
their shoes or you got their back
at a minimum by covering their lawyers
fees if not joining together with them
in collective action, collective
objection
in order to fight what you regard as
rules and policies so unjust, so
egregious that they can't be abided.
They cannot be tolerated.
Lawyers should challenge over broad
complicity based comp uh refusals based
on existing legal tools like MTA, the
Emergency Medical Treatment and Active
Labor Act and employment safeguards that
protect people for engaging in lawful
activity elsewhere on their own time.
Lawyers should also use antirust
statutes to challenge proposed mergers
and acquisitions that would reduce a
community's access to standard care.
These existing legal tools are limited
but must be used to the extent possible
to do this work. Finally,
lawyers should urge judges to recognize
a partial conscience defense to reduce
the penalties and punishments for
medical disobedience.
Lawmakers for their part should
condition hospital mergers on the direct
provision of standard treatments or
adequate alternatives to access them.
Enact disclosure mandates on hospitals
and individuals. Fund accommodation
offsets to defay third-party costs and
codify protections for conscientious
providers too. may start with judges and
the law and then lawmakers can weigh in
to codify those by statute.
Lawmakers should also shore up those
distancing measures to mitigate
institutional complicity in providing
care that a hospital opposes.
Fund hospital set aides where restricted
procedures can be performed using
outside personnel and supplies.
subsidize specialty organizations to
help patients find willing providers or
matching refusers. To make space for
conscientious refusers, for example,
preserve protections for individuals
directly involved in performing a
procedure that they morally oppose.
Provided that the wider impact isn't
undue on patients in need of receiving
that care within the institution or that
region.
States should also expand scope of
practices scope of practice rules within
reason. Let nurses, physician
assistants, and midwives perform certain
practices that are traditionally
reserved to MDs alone.
Allow teleaalth to do work where
in-person appointments aren't necessary.
Health care institutions especially
should promote transparency given the
outsized impact that these larger
providers have on the practice policies
on patient access. Disclose
conscience policies on their websites on
intake forms in waiting rooms in real
time conversations. Today they're a
secret. patients don't know until they
face an emergency
and ask for care that they're denied.
Make those rules explicit in employment
contracts as well so they're not
surprised for employees who work there
as well.
eliminate DAG rules that explicitly bar
clinicians from dis from discussing
medical medically standard options with
patients and require them to disclose
conscientious objections to patients
too. Not just to protect those patients
from surprise denials that cause them
the greatest harm, but also to reduce an
institution's own legal exposure for
failing to inform patients about their
medical options.
There's no easy fix or perfect
compromise here, but we've protected
conscience in principled ways before.
The church amendment of 1973
was passed shortly after Row versus
Wade.
It said that clinicians couldn't be
forced to perform an abortion or a
sterilization that they opposed on moral
grounds,
but they couldn't refuse or they could
refuse to take part only if their
participation would be handson,
not at a great distance from that
procedure.
The law also barred employers from
firing conscientious providers for
supplying or advocating for these
practices elsewhere on their own time.
Moonlighting, for example. That wasn't a
lot, but it was something. The law
provided protections for conscientious
refusers and providers, too. And the law
didn't just squeak through Congress. All
but one vote. It was unanimous in the
House and Senate sweeping bipartisan
reform ranging from pro lifer James
Buckley to committed feminist Bella
Absa.
Now today's America is far more
polarized.
But I hope that even now we can recover
this more inclusive vision of medical
conscience by equipping ourselves to
navigate the controversies of our time
and the ones that lie ahead.
Thanks so much. I look forward to your
thoughts.