[MUSIC] Welcome back. For today's session, we're going to talk about providers rights not to treat patients that are driven by their own religious or ethical or conscientious objections. This is an interesting, hotly debated area of medical practice even today, and I'll hit on some of the key themes that involve this very difficult question of when providers can opt-out based on their own moral beliefs. I should underscore we're going to be talking mostly about providers that a patient who's an adult and of sound mind almost always has a right to refuse or opt-out of medical care, even if driven by religious, moral, ethical, or really no reason at all. Principles of bodily autonomy give us the right to say no to medical care for really almost any reason so long as we're competent and adult. So let's talk a bit more about providers. In most states there is a debate and statutory and legal cases going on about when a physician or other health care provider can opt-out of an ordinary legal duty to treat a patient because they have a religious or ethical objection to the type of procedure involved. And this is what a conscientious objection is as a legal matter, it involves a person who has some ordinary legal duty to treat or fulfill, but then refuses to fulfill the duty because of a moral, religious, or ethical belief. This question that comes up in most states and under federal law involves a really tough question of legal and ethical balancing. Because in the abstract, it involves values that we hold deeply as a society, and that we want to be sure to maintain on both sides, which leads to a difficult compromise. On the one hand, we are a country of religious diversity and religious pluralism, and we believe that people ought to be doctors, and nurses, and pharmacists irrespective of their religious background. So we want Muslims and Orthodox Jews and fundamentalist Christians as well as people from other religious backgrounds or no religious background to be able to enter the medical professions and be, provided they're otherwise qualified, and kind of flourish in that profession no matter which religious starting point they come from. On the flip side, we want patients to be able to get necessary care that is not really dependent on the personal views of the given treating provider. So with respect to certain procedures about which certain individuals, including health care providers, have strong religious or ethical beliefs and feelings, this does create a clash of absolutes. What happens when somebody goes and seeks care for a certain kind of procedure, sometimes for instance an abortion or a prescription of Plan B, from somebody who's in that profession who has real religious qualms about that? How does the state government mediate that tension? And states do different things, as we'll see. This is an area that still is primarily governed by state laws involving the practice of medicine, or the practice of nursing, or the practice of pharmacy. And most states have some version of conscious clauses that try to strike the balance, although in different ways. Some states lean toward strong protection of provider religious belief. Other states lean more heavily toward the patient, and kind of require the provider as a condition of licensure to give the service no matter what they might think. So we're in the midst of a national debate, and the legal differences between the states reflect that debate. I'm not going to talk so much in this session about a key federal statute, the Religious Freedom Restoration Act, or institutions like hospitals or corporations providing health insurance. We'll talk more about that in the context of this prominent Hobby Lobby case a few sessions from now. So this is mostly about individual providers, not so much about hospitals. As an example of the prevalence of conscience clause objections in the healthcare context, I could even turn to a different context, which is the rights of parents in almost half of the states to opt-out of the basic rules about vaccination based on religious objection. So about 18 states currently extend to parents a right to opt-out for religious reasons from mandatory vaccination laws from their children. This is an example of this balancing between healthcare imperatives and religious kind of autonomy imperatives. It is controversial, as we've seen in recent years. When opt outs to vaccinations get too high, you do see public health consequences. And other states, I should say, are much less capacious with the exceptions they provide. So this is a policy debate there as well. With respect to providers, individual doctors, nurses, and pharmacists, we might want to provide this carve out for conscience to preserve the individual dignity and the access to a broad range of religious backgrounds to the medical profession. On the flip side, of course, is the patient's right to obtain speedy and efficient access to all forms of legitimate and necessary medical care. So this is a controversy that's not going away, and states have taken somewhat different approaches to manage it. Historically, it may not surprise that there was been a flurry of debates about conscious clauses and religious opt-outs for medical care since the Roe versus Wade case in 1973, which legalized the basic abortion right. Since then, both the medical and legal profession have proceeded under the assumption that it's going to allow physicians and medical students and nurses and pharmacists to express personal opposition to the abortion procedure and yet still be full members of the profession. So most states do provide exceptions for physicians from performing abortions if they have religious qualms. Even the AMA, in its code of ethics, allows medical students to opt-out of learning how to perform abortions in medical school. So this is a kind of long-standing compromise, and some states explicitly write this into their statutes. So some states enumerate the services that physicians can refuse to perform, abortion, sterilization, withdrawal of life-sustaining treatment, or even physician-assisted suicide in those few states where it's legal. Other states have statutes that are written more vaguely. Other states operationalize this balancing through case-by-case adjudication. But in every case, it's a kind of balance between the rights of the patient and the kind of belief rights of the provider. In general, reflecting this balance, many of these conscientious objection statues require the objecting physician, although allowing him or her a right to opt-out of treatment, required the physician to do their best to arrange for another provider who doesn't have a similar objection to give the treatment, to make a referral, or at least to cooperate with other providers in attempting to get proper treatment for the patient. Every statute forbids the objecting physician from doing anything to interfere with the patient in getting other care. So the right is really personal to the objecting health care provider. He or she can't do any more advocacy or any more efforts to prevent the patient from getting this necessary treatment. In almost all of these conscientious objection clauses, also reflecting the balancing test, there's a kind of public health imperative that if severe enough will always trump the conscientious objection of individual providers. So for instance, in the context of opt-outs for vaccines, in the case of a disease outbreak, in the case of an epidemic or pandemic, every state has clauses that would require absolute uniformity in vaccinations. The religious exception is allowed only so long as it doesn't undermine broader public health imperatives. And indeed, that is a current debate about vaccines. There are certainly claims that the proportion of parents opting their kids out in certain states, in certain neighborhoods, has gotten so high that it is causing a public health problem. And from a legal point of view, any state or jurisdiction could flip that rule back toward uniform vaccinations, provided they had a compelling public health rationale. The refusal to do so is just driven by policy considerations. So to sum up, this is a very difficult philosophical and legal question because it does involve competing considerations that we think are valid. The religious beliefs and moral compass of health care professionals sometimes in contra-distinction to public health imperatives are the individual rights to access that patients have. So we might want to accommodate physician or provider conscience because we want to uphold their kind of religious dignity. If we don't allow those kind of exceptions, it might deter people, otherwise good physicians, from going into medicine at all. Most health care providers are not involved in these debates. And when they object, it may help shift the public debate or bring them into the debate in ways that shape medical care and shape history. It's important to emphasize that not all conscientious objections come down on what we might consider in current politics to be the right leaning or the right-wing side. So yes, you have people objecting to abortions or to fertility treatments. You also have physicians and nurses and other providers objecting to participating, for instance, in lethal injection in the death penalty context. And that's raised important questions about the fundamental morality of the death penalty and the way the medical profession participates in procedures like that. In prior eras, conscientious objections were raised by providers about issues like eugenics and forced sterilization. So this conscience issue can inhere across the political spectrum wherever you're situated. It's important to consider when do we want health care professionals to be able to say that violates my conscience and my ethics as a provider? In favor of allowing fewer such exemptions, though, we are moving toward a conception of something closer toward universal access. We think that patients' right to access fundamental care ought not depend on the way the health care provider believes, and there is a kind of inconsistency and uncertainty that really falls on patients, particularly in areas where they may have trouble getting another doctor or another pharmacist or another nurse when we allow widespread conscience clause objections. As we move forward, I can't tell you what the right answer is. I can tell you that there's a lot of ferment in the different states about this. And this may be an area where the trends of consolidation in medicine, of bigger institutions, bigger practice groups, bigger hospital chains actually helps ameliorate the tension. Because in a sense, what many state laws are starting to come down to is a compromise where individual providers can opt-out, but the institution is responsible for finding somebody else to give the care. So that's actually going to be easier to do, and a more workable compromise in a world of healthcare consolidation than in a world of solo practitioners, or small pharmacies, or small practice groups. So I think the way that this might be resolved, we may not have to resolve the fundamental clash of values if we have individuals with conscience claims working within large organizations. It'll become more of a staffing issue and a triage issue to just make sure there's somebody else who can give the patient the care he or she needs. Thank you.
