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The Place of Conscience in Healthcare Practice

The Place of Conscience in Healthcare Practice. Jerome R. Wernow Ph.D., R.Ph. NW Center for Bioethics www.ncbioethics.org. Conscience Use. Objectives. History behind socio-cultural difference that commonly lead to social and ethical tensions

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The Place of Conscience in Healthcare Practice

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  1. The Place of Conscience in Healthcare Practice Jerome R. Wernow Ph.D., R.Ph. NW Center for Bioethics www.ncbioethics.org

  2. Conscience Use

  3. Objectives • History behind socio-cultural difference that commonly lead to social and ethical tensions • Understand the terminology used in the conscience clause discussion • Conflict management with patients, employers, employees, or advocacy groups

  4. Take Home Points • Disclosure that is well thought out • Disclosure that is legally informed • Disclosure that is timely and concise • Disclosure that is authentic • Disclosure that avoids moralizing • Disclosure that assures patient care

  5. Well thought out: Clarification • Scope • Terms

  6. Scope of Conscientious Objection • Abortion • Euthanasia • Assisted suicide • Fetal and stem cell therapy • Sterilization Religious Refusals and Reproductive Rights-ACLU Reproductive Freedom Project 2002, Weiss, Catherine, Caitlin Borgmann, and Louise Melling et al: <http://www.aclu.org/FilesPDFs/ACF911.pdf> p. 21

  7. Scope Limits in Presentation • “Plan B contraception” • Meaning: large doses of estrogen and levonorgestrel or a progestin congener in one or two doses to prevent pregnancy • Litmus test due to time-related urgency of medication administration

  8. Mechanism of Action (1) primarily prevents or delays ovulation (2) Interferes with tubal transport of sperm, (3) interferes with fertilization (4) possibly prevents implantation of the fertilized egg Kathleen Besinque: “Emergency Contraception,” in Drug Topics. February 20, 2006, p. 7 <http://images.digiscript.com.edgesuite.net /a/21000/21949/21949-1743964.pdf?obj=v1> Last visited: January 27, 2007.

  9. Pluralism in Objection • Roman Catholic teaching of the Church objects on basis of all four mechanisms • Pro-life protestants usually object only the basis of the fourth mechanism

  10. Clarification of Terms ‘Conscience Clause’ ≠ ‘Refusal Clause’

  11. Conscience Clause “an innate moral character expressed in an objective moral confession that responds to a morally challenging circumstance” Charles E. Curran, ed., Conscience, in Readings in Moral Theology Series no.14. (New York∙Mahwah, NJ: Paulist Press, 2004) pp. 3-38.

  12. A View Conscience Conscious Subconscious Emergence Pre-conscious Corporeality Spiritual Illumination Psychofacticity A Christianized Franklian View: Frankl, Victor: The Unconscious God. (New York: Washington Square Books, 1985) p. 29.

  13. Refusal Clause “a law that allows entities and/or individuals to refuse to provide or cover certain health services based on religious or moral objections.” ACLU Reproductive Freedom Project 2002, p. 6.

  14. Mythos and Logos • Mythos describes “worldly things by tracing them to exceptional, sometimes sacred events, that caused the world to be as it is now.” • Logos “a kind of logical analysis that places things in the context of reason and explains them with the pure force of thought.” Palmer, Donald: Looking at Philosophy: The Unbearable Heaviness of Philosophy Made Lighter. (Mountain View, CA: Mayfield Publishing) second edition, 1994, p. 2.

  15. Mythos and Logos “There are other accounts, however, accounts that suggest that Western Logos-philosophy and science is just our version of mythos.” Palmer, Donald: Looking at Philosophy: The Unbearable Heaviness of Philosophy Made Lighter. (Mountain View, CA: Mayfield Publishing) second edition, 1994, p. 2.

  16. Mythos Hippocrates (460-347 BC) Scribonius Largus (47 AD) C. Galenus (129-201 AD) Church Fathers (330 AD) Quiescent Period* American Medical Association in 1847 Logos Plato (460-347 BC) Soranus (47 AD) Marquis de Sade 1740-1814 AD Post-Christian Epoch Short History behind Socio-cultural Difference *Edmund D. Pellegrino: “The Metamorphosis of Medical Ethics,” The Journal of the American Medical Association. v. 269/9 (March 3, 1993) pp. 1158-1162.

  17. Changes behind public acceptance of contraception and abortifacients • Drug effectiveness • Worldview • Epistemology • Ethics • Socio-political factors

  18. Metamorphosis in Drug Effectiveness • Development and release of Enovid (June 23, 1960 ) “unfettered…from the beginning woman has been a vassal to temporal demands–and frequently the aberrations–of cyclic mechanisms of her reproductive system. Now to a degree heretofore unknown, she is permitted normalization, enhancement or suspension of cyclic function and procreative potentia” S.W, Junod and L . Marks: "The first oral contraceptive pill.” p. 128-129.

  19. Metamorphosis in Worldview ‘enlightenment philosophy and rationality leavened the bread of moral philosophy in the medical schools, studies in humanist psychology began to be substituted for Christian ethics’ op cit : Chester R. Burns, “American Ethics: Some Historical Roots”

  20. Metamorphosis in Epistemology • Judeo-Christian Hippocratic ethic dominant seventeen centuries dominant explaining how things exist sourced in the Biblical interpretations • Modernity’s early epistemological drift embraced mutual influence of Christian theology and scientific belief • John Locke introduced split empirical knowledge from that of the world of faith • Drift became a torrent from atheists David Hume to Richard Dawkins to Samuel Harris • Evolutionary materialism became dominant explaining what exists through empirical observation of the material world

  21. The Ethics of Power "Not the Church, not the State—Women will decide our fate.” Pat Ruess and Jan Erickson, “Access for All? Reclaiming Women's Contraceptive Options one Pharmacy at a Time,” <http://www.now.org/issues/reproductive/ec_action_plan.html> Last visited January 20, 2007

  22. Socio-cultural difference Those who construct the meanings of reality through stories about the material world alone -- contrasted to those who construct meanings of reality through stories about the material world along with stories about realities that transcend that world.

  23. Conflict Management Conflict is sourced in differing worldview commitments that give meaning to the perceived rights and actualization of the individuals.

  24. Judeo-Christian Worldview Reality, meaning, and practice gains moral clarity primarily through narratives is derived from a supernatural source, their Bible.

  25. Paula Koch: an example • Discovered morning after pill dispensed eighteen months before her initial confrontation • Informed by passages like Psalm 139, Genesis 1:27, and Exodus 20:3 • Based sanctity of life principle as found in Donum Vitae

  26. Donum Vitae, 5 “God alone is the Lord of life from its beginning until its end: no one can under any circumstance claim for himself the right directly to destroy an innocent human being” Pope John Paul II: Donum Vita 5 http://www.nccbuscc.org/prolife/ tdocs/introduction.htm Last visited October 24, 2007.

  27. Evolutionary Natural Materialism Reality, meaning, and practice gain moral clarity is primarily from narratives derived from human reason and experience.

  28. Protagonists of Reproductive Access • NARAL - positive right (reason) • ACLU (Dershowitz) - majoritarian preference (human experience)

  29. Positive Right “If 'A' has a positive right against 'B', then 'B' must assist 'A' to do 'x' if 'A' is not able to do 'x' without that assistance” (wiki)

  30. Majoritarian Preference “right” that derives from the ‘majorities’ current experience of “grievous injustice whose recurrence we seek to prevent.” Dershowitz, Alan: Rights from Wrongs: a Secular Theory of the Origins of Rights. (New York, Basic Books, 2004) pp. 82, 90

  31. Disclosure that is legally informed • National Conscience • States of Conscience

  32. Legal History and Federal Laws Generated from US Supreme Court’s 1973 decision in Roe v. Wade Jody Feder: “The History and Effect of Abortion Conscience Clause Laws,” in CRS Report for Congress. CRS-2. < http://www.law.umaryland.edu/ marshall/crsreports/crsdocuments /RS2142801142005.pdf > Last visited: November 12, 2007

  33. Church Amendment 1973 Allowed health care professionals to opt out of procedures involving sterilization or abortion procedures to which they had moral or ethical objections in institutions which received federal funding.

  34. Balanced Budget Act of 1997 “permitted managed care organizations to opt out of “provid[ing], reimburs[ing] for, or provid[ing] coverage of, counseling or referral service if the organization objects to the service on moral or religious grounds.” 42 U.S.C. Section 1396u-(b)(3)(B)(ii)(2000). See also 42 C.F.R. Section 438.102(a)(2)(2002).

  35. Abortion Non-Discrimination Act (ANDA) 2002 Allows providers “or any other kind of health care facility, organization or plan to opt out of performing, providing coverage of, or paying or making referrals for induced abortions, without exception to save the life or health of the mother or for cases of rape or incest.” American Bar Association Section on Individual Rights and Responsibilities, Report to the House of Delegates, at 7 (2004). www.abanet.org/leadership/ 2004/annual/119.doc Last visited: November 12, 2007

  36. Hyde-Weldon Amendment (1) None of the funds made available in this Act [the federal Health and Human Services appropriations bill for Fiscal Year 2005] may be made available to a Federal agency or program, or to a State or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.

  37. Title VII of the Civil Rights Act of 1964 SEC. 2000e-2. [Section 703] (a) It shall be an unlawful employment practice for an employer - (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

  38. AMA Position Statement (2) no physician of other professional personnel shall be required to perform an act violative of good medical judgment. Neither physician, hospital, nor hospital personnel shall be required to perform any act violative of personally held moral principles. In these circumstances, good medical practice requires only that the physician or other professional withdraw from the case, so long as the withdrawal is consistent with good medical practice. H-5.995 Abortion, House of Delegates (2)

  39. Oregon State Statute: Unprofessional Conduct “any conduct or practice which does or might constitute a danger to the health or safety of a patient” 677.188 (4) a

  40. Legal Conflicts Univocal Litigation is strictly against health care professionals who can be classified as practicing Christians

  41. Why Look at Pharmacy? • Principle of reproductive access held by litigants applies to practice of all health care professionals • Defendants predicate their positions on commonly held principles • Pharmacy case law applied to litigation against other health care professionals

  42. Litigation Sample • Karen Brauer v K-Mart • Case of Paula Koch • Neil Noesen v State of Wisconsin Pharmacy Board • Ethan Vandersand v Wal-Mart • Stormans v Washington State Board of Pharmacy

  43. Noesen v State of Wisconsin Pharmacy Board • Notified and fully disclosed to contractor K-Mart’, of conscientious objection “to participating in the work of contraception.” • Arranged alternative at site but not in writing • Refused to refill and declined to transfer • Perceived by patient and employees as belligerent

  44. Immediate Material Cooperation Immediate material cooperation occurs when the cooperator participates in circumstances that are essential to the commission of an act, such that the act could not occur without this participation. Immediate material cooperation in intrinsically evil actions is morally illicit. http://www.ascensionhealth.org/ethics/public/key_principles/cooperation.asp

  45. Ruling against Noesen • failed to inform his employer that he would not transfer a prescription for oral contraceptives based upon his conscientious objection • by failed to provide the patient with information pertaining to her options for obtaining a refill of her prescriptions.

  46. Judge Baird’s Ruling “the standard of care ordinarily exercised by a pharmacist requires that a pharmacist who exercises a conscientious objection to the dispensing of a prescription must ensure that there is an alternative mechanism for the patient to receive his or her medication including informing the patient of their [sic] options to obtain their prescription. Findings of Fact no. 54 http://drl.wi.gov/dept/decisions/docs/0405070.htm . Last visited October 24, 2007.

  47. Noesen v MSN • Allegations he simply walked away from customers or left them on hold indefinitely • Law enforcement forcibly removed Noesen from the store by duct taping him to a wheel chair after he refused to leave store • Title VII of the Civil Rights Act of 1964

  48. District Judge John C. Shabaz Ruling • “Wal-Mart gave [Noesen] the exact accommodation he sought”; that is, not “to transfer, refer, renew, dispense, verify or touch prescriptions for birth control.” • “not entitled to an additional accommodation under the law” Neil T. Noesen v. Medical Staffing Network, Inc., et al., United States District Court for the Western District of Wisconsin (Cause No. 06-C-071-S), June 1, 2006.

  49. Stormans v Washington State Board of Pharmacy • Plaintiff Rhonda Mesler will be fired from her position as pharmacy manager because her employer cannot afford to hire another pharmacist to work with herto comply with 246-869-010.3 • Storman’s Stores and the pharmacy manager were investigated by the Board for allegedly failing to maintain an adequate stock of “Plan B”

  50. Stormans v Washington State Board of Pharmacy • Equal Protection Violation • Supremacy Clause Violation • Free Exercise Violation • Procedural Due Process Violation

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