Your Morality, My Mortality: Conscientious Objection and the Standard of Care

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Introduction

Laws that purport to absolve healthcare institutions and professionals from any responsibility for injury or other harm to patients arising out of either the refusal to provide a medically necessary or indicated intervention or the insistence on providing one over the express refusal of a patient or the patient's duly designated proxy, based on religious or moral objections, have proliferated in recent decades--a phenomenon aptly described as "conscience creep."¹The underlying premise of such laws (or at least the end result) is that the exercise of conscience in this context should be without any adverse consequence to the objector. Syndicated columnist Ellen Goodman initially raised concerns about the validity and acceptability of this premise as a matter of ethics, law, and public policy,²and Alta Charo advanced it further in her widely cited article.³Although the literature (both supportive and critical) on conscientious refusal to provide legal and medically appropriate measures continues to expand, with the notable exception of law journals, rarely does it directly confront the serious moral and legal implications of the exercise of "conscience without consequence," particularly in situations in which the exercise of individual or institutional conscience threatens or directly results in patient morbidity or mortality or imposes a significant hardship, such as a prolonged death or the delay and burden engendered by the need to seek care from a provider who will respect the patient's values and priorities and meet her immediate needs.

This article confronts several interrelated ethical and legal concerns. First, with the significant expansion of religiously affiliated healthcare institutions, in particular, Catholic hospitals that adhere to the United States Conference of Catholic Bishops Ethical and Religious Directives for Health Care Services (hereinafter ERD), an exponentially increasing number of physicians and nurses (many of whom are not Catholic) find that their ability to practice medicine that is consistent with prevailing standards may be constrained in ways that compromise patient care. A second and related matter is that, by institutional fiat, the ERD is claimed to constitute the...