In the aftermath of Roe v. Wade came statutes allowing health-care providers to refuse to provide procedures, such as abortion or sterilization, to which they objected on moral or religious grounds. Today such “conscience clauses” exist in forty-five states, and potentially affect not merely abortion and other aspects of reproductive medicine, but end-of-life care, stem-cell-related technologies, and a host of other issues. Gradually the exemptions have expanded beyond physicians to include other individuals and entities involved in health care: nurses and counselors, insurers and hospitals. Should health-care workers be allowed to refuse to provide treatments they deem morally objectionable? When does professional obligation override the sense of moral responsibility? Such questions are playing out every day in hospitals and clinics across the country.
And now in drug stores. During the past year, several jurisdictions have passed laws extending the exemptions to pharmacists. The controversy has zeroed in on emergency contraception (EC), or the so-called morning-after pill. The FDA approved various drugs in 1998 and 1999 as emergency “contraceptives,” but not everyone finds that description accurate. In many cases, EC functions like other birth-control drugs: it prevents ovulation or fertilization. But it can also act as an abortifacient, preventing implantation of an already fertilized ovum. This is the source of certain pharmacists’ objections. Some have refused to fill prescriptions and referred patients elsewhere. Some have abstained from the latter.
How should we balance consumers’ right to medical services with the moral concerns of pharmacists, physicians, and other providers? In 1998, the American Pharmacists Association (APhA) released a statement recognizing “the individual pharmacist’s right to exercise conscientious refusal.” At the same time, it advocated the “establishment of systems to ensure [the] patient’s access to legally prescribed therapy.” All pharmacies, the APhA argued, should be staffed to ensure that a pharmacist without moral qualms will be available. Absent that, dissenting pharmacists should be required to refer patients to a pharmacy that would provide the services they seek.
Seeking a middle ground that honors the rights of both patients and providers is certainly laudable. But assuming that every health-care facility can include both dissenters and assenters ignores the reality that some institutions-especially religious ones-may define themselves according to shared values, and refuse certain services as a matter of collective conscience. For some individual providers, moreover, even referral is morally problematic. A Catholic physician may believe referring a patient to an abortion provider entails moral complicity. Some Catholic pharmacists may have similar reservations concerning abortifacient EC. Should they be compelled to override their objections and participate in something they consider wrong?
Among the sharper arguments put forth against conscience clauses are those contained in a June 16, 2005, essay in the New England Journal of Medicine by Alta Charo, a bioethicist who teaches at the University of Wisconsin Law and Medical Schools. According to Charo, medical and pharmaceutical licenses grant¬ing a monopoly to such professions make them “a kind of public utility, obligated to provide service to all who seek it.” While Charo acknowledges that “accepting a collective obligation does not mean that all members of the profession are forced to violate their own consciences,” she echoes the APhA in recommending required referral, “so that every patient can act according to his or her own conscience just as readily as the professional can.” At the core of her argument is an appeal to the trumping power of professionalism-a profession’s “collective duty,” she writes, to provide “nondiscriminatory access to all professional services.”
Charo is correct to note the challenges for consumers in markets where few health-care alternatives are available. But the remedies she offers are overdrawn in two ways. First, in assuming that “professional” obligation takes priority over claims of individual conscience, she appeals to a monolithic standard for all practitioners. Yet in a pluralistic system, one expects to find a variety of institutional arrangements reflective of the values of both providers and patients. Second, Charo assumes that legalizing any controversial practice requires all providers (either directly or by referral) to deliver those services as a matter of “professional” duty. This is an anemic vision of professionalism, one that vitiates the broader role the health professional plays as a partner in the service he offers and reduces him to the status of a mere functionary, dispensing what patients seek.
The controversy over EC illuminates the daunting ethical ambiguities created by conscience clauses. If a pharmacist may refuse to fill an EC prescription or to refer it to someone else, is he also allowed not to hand the prescription back? There’s a fine line between honoring a pharmacist’s or physician’s conscience and coercively excluding patients from legal goods and services. A health-care system in a pluralistic society has to find a way to walk that line, even if neither side in the debate is likely to be satisfied. Pluralism depends on the fierce safeguarding of individual conscience; and those who champion a monolithic, largely secular standard of “professionalism” should strive to accommodate the values of health-care providers. The collision of morals and medicine raises difficult questions, but any answer that stifles conscience is surely no answer at all.