Against the backdrop of current debates about health care and conscience protection, a federal judge for the District of New Jersey has issued a temporary restraining order against the University of Medicine and Dentistry of New Jersey (UMDNJ) that prohibits them from forcing twelve nurses to assist in abortions against their conscientious objections. While much has been written on medical providers’ conscience rights as a moral imperative and as a means of maintaining diversity within the profession, the potential relationship between conscience and the supply of medical providers—in particular, obstetric specialists and nurses—should make the issue salient to anybody interested in health care reform, especially those seeking to expand access and reduce costs.
The contours of physicians’ conscience rights and their correlative obligations have been contested for decades. Indeed, the last half century has seen profound changes in both the practice of medicine and the state of law that necessarily implicate the position of the physician vis-à-vis the patient and the procedures that the physician may be asked to provide. As Azgad Gold notes, increasingly “the medical field became more ‘subjective’ than ‘objective,’ as reflected by the shift to measuring outcomes of treatments by ‘quality of life’ parameters rather than the traditional objective ‘morbidity’ and ‘mortality’ parameters.” This, coupled with the liberalization of abortion following Roe v. Wade, has increased internal and external pressures on the medical field to see abortion as simply another valid medical choice to which the patient is subjectively entitled, regardless of the ethical—or medical—views of her attending physician.
Nevertheless mainstream medical ethics maintains that physicians have the right to refuse service to patients. It is a professional prerogative that covers everything from a disagreement over the soundness of a requested procedure to wanting to avoid notorious bill dodgers. Furthermore, on a traditional understanding, “hospital employees have the right to refuse to participate in performing an abortion, and a hospital cannot dismiss the employee for insubordination. An employee can abstain from assisting in an abortion procedure as a matter of conscience or religious conviction.”
On the other side of this debate, there is a sense that the principle of “patient autonomy” should be paramount, and what is conscientious objection to one person is burdensome refusal to another. Under this view,
The widely accepted ethical principle that patients are autonomous individuals with the right to make the final decisions concerning their medical care, along with the corresponding principle that appears in all medical professionals’ codes of ethics that the ‘patient’s interest comes first’ leads to the following general rule: patient care decisions should be based on patient autonomy, as mediated by the clinician’s conclusion that the requested therapy (1) is not medically contraindicated (since it is both medically effective and not considered unethical within the profession’s generally accepted concept of ethical practice) and (2) is not illegal.
Prior to November 2007, the American College of Obstetricians and Gynecologists (ACOG) had not taken a definitive stance on the issue of conscientious objection. The organization had established ethical guidelines for the permissibility of abortion, but these included an acknowledgement of “physician autonomy” in the right of obstetricians not to perform abortions.
By 2007, ACOG massaged its view, issuing Ethics Committee Opinion #385, “The Limits of Conscientious Refusal in Reproductive Medicine.” While conceding that conscience is a question of “moral integrity,” the Ethics Opinion ultimately concludes “there are clearly limits to the degree to which appeals to conscience may justifiably guide decision making.” This gives precedence, ultimately, to the principle of “patient autonomy.” In the end, obstetric physicians who have a conscientious objection to performing an abortion or sterilization, or to providing contraception, must (1) provide notice to patients of this fact, (2) refer patients to other providers for such procedures if they are unwilling to provide them, and (3) perform the procedures themselves regardless of conscientious objection if referral is not feasible.
The likely result of such rules is clear to pro-abortion scholars: fewer pro-life doctors. As Professor Julie Cantor argued in the New England Journal of Medicine, “As the gate-keepers to medicine, physicians and other health care providers have an obligation to choose specialties that are not moral minefields for them. Qualms about abortion, sterilization, and birth control? Do not practice women’s health.” Likewise, Oxford ethicist Julian Savulescu opined in the British Journal of Medicine, “If people are not prepared to offer legally permitted, efficient, and beneficial care to a patient because it conflicts with their values, they should not be doctors.” When conscience rights are not a priority in medicine, purposeful exclusion of dissenting voices is the desired norm.
The danger of these associational norms comes from the enforceable ethics rules of the American Board of Obstetricians and Gynecologists, which still references ABOG’s ethics guidelines in its Bulletin for Maintenance of Certification (the rules by which obstetricians keep their board certification). Thus the threat exists that pro-life obstetricians could be decertified by their specialty board for any number of conscientious decisions: failing to notify patients that they don’t perform abortions, not referring for abortions, or even not performing them in certain cases.
While there are various legislative protections for such physicians through laws like the Church Amendments and the Weldon Amendment, they are attached to appropriated funds and it is unclear that any such protections will apply to the unique revenue streams of the Patient Protection and Affordable Care Act (so-called “Obamacare”). Likewise, while the previous legislative enactments were enhanced by conscience protection regulations under President Bush, President Obama revoked the lion’s share of those regulatory protections (in many ways specifically designed to prevent an ABOG decertification on conscience grounds).
While nurses are protected under traditional medical ethics, as well as the legislative conscience protections and the (mostly defunct) Bush regulations, they too have faced increasing pressure to assist with abortions. Unlike obstetricians who mostly worry about peer retaliation through their Board—and, through decertification, a loss of hospital admitting privileges—nurses typically face more direct consequences in exercising their conscience rights, such as disciplinary action by superiors or even termination.
As the UMDNJ case shows, a dozen day-surgery nurses were told to prepare to assist with abortions or be terminated. Likewise, a previous case in New York’s Mt. Sinai Hospital involved a labor and delivery nurse who faced discipline after refusing to assist in a late-term abortion on (well-known) grounds of conscientious objection. These are recent cases from high-profile hospitals in which the message is clear: nursing is (or ought to be) a pro-abortion field.
What effects do pro-life obstetric decertification and nurse termination have on the supply of such medical professionals? The enforcement of obstetric ethics norms that would require the performance of—or referral for—abortions would effectively exclude from the practice of obstetric medicine a substantial percentage of the population that either (a) identifies as pro-life or (b) would prefer non-complicity in abortion on medical grounds. The same would hold for hospital nursing should more institutions follow the lead of hospitals like UMDNJ. While the precise percentage of such objectors is unknown, the effects of such anti-conscience norms are not: by erecting a new barrier to entry into the practice of obstetric medicine—a pro-abortion norm—ABOG decertification for conscientious objection would reduce the supply of obstetric physicians; depending on the nature of the rule, an “assist or leave” rule would reduce the supply of nurses, potentially beyond simply labor and delivery (as in the UMDNJ case). A reduced supply, coupled with a static or increased demand, will result in a shortage of obstetricians and nurses.
There is already a growing physician shortage, affecting some communities more severely than others. The shortage will increase without any of the supply reductions that are likely to occur as a result of decertifying practicing obstetricians who refuse to perform abortions and deterring future obstetricians who will choose a different career or specialty rather than violate their consciences. While physician shortages have been most acute in the field of primary care, they are predicted to grow in both primary care and specialties, and have already been felt in obstetrics. Though the causes of these current and probable shortages are manifold, crowding out pro-life individuals from obstetric practice would surely exacerbate this problem.
Likewise we are in the midst of a nursing shortage. As the American Association of Colleges of Nursing notes, “The United States is projected to have a nursing shortage that is expected to intensify as baby boomers age and the need for health care grows.” The Bureau of Labor Statistics estimates that there will be over 600,000 more nursing jobs available in 2012 than there were in 2002. The need for nurses is so great that nursing is one of the few fields in which employers seeking to hire foreign labor do not need to file a labor certification with the Department of Labor; in effect, the government just assumes that medical employers need the nurses. And yet in the face of these persistent supply problems, UMDNJ says that a dozen nurses (and any number of others with similar beliefs) are not fit to practice nursing simply because they oppose abortion.
Such potential reductions in the supply of obstetricians (and further reductions of the supply of nurses) should be of particular concern to those interested in health care reform. It is particularly inconsistent with the underlying policies of President Obama’s health care reform measures. As the Office of Management and Budget noted, “The Administration will explore all serious ideas that, in a fiscally responsible manner, achieve the common goals of constraining [health care] costs, expanding access, and improving quality.” A reduction in the supply of obstetricians and nurses will, by definition, restrict access and increase costs as the supply diminishes. Likewise, even if an obstetrician decides to recertify in another specialty or practice generally, such a restructuring further disrupts the supply of physicians by imposing both transition costs as the obstetrician retrains and opportunity costs given the obstetrician’s potential to continue practicing in his or her chosen specialty.
These preventable supply-reduction outcomes are not consistent with goals (shared by liberals and conservatives alike) of constraining costs, increasing access, and improving quality in health care. If those shared goals truly are important, then conscience protection is a relatively simple policy to maintain the supply of needed health care workers: first do no harm.
This piece was adapted from his Note, Taking Conscience Seriously or Seriously Taking Conscience?: Obstetricians, Specialty Boards, and the Takings Clause, 86 Notre Dame L. Rev. 1687 (2011).