In response to my post on the Wisconsin governor's promised veto of the new state "conscience clause" (see "An amoral vision of physicians," below), a Mirror of Justice reader emailed me to point out that the statute seems not simply to excuse physicians from actively participating in certain procedures, but also from providing information on certain procedures. The reader writes:
Should we allow doctors to refuse to provide information based on their moral beliefs? This might seem appropriate to us in the abortion context, but what happens when we get a doctor whose morals, unbeknownst to his patients, differ vastly from theirs on matters far less controversial than abortion? Under the law, (based on the description contained in the article) the doctor could refuse to provide information. Obviously, the appropriateness of this situation depends on the specifics, that is, whether the doctor has any duty to refer his patient to another doctor, whether the patient knew up front that the doctor refused to provide information on certain topics, whether the doctor's morals were disclosed at the outset, etc. My point is simply that in at least some circumstances, we're getting into dangerous territory when we allow doctors to refuse to provide medical information (or diagnoses) based on their moral beliefs. Thus, while I generally agree with your comments, I might take exception to that specific aspect of the law.
His email prompted me to track down a copy of the bill (AB 67 -- I'm not sure if this is the most recent version), and indeed it appears that my blanket endorsement of the statute may have been premature. One relevant section of the bill provides that "a hospital or employee of a hospital is immune from liability for any damage caused by a refusal to participate in [a range of activities, including abortion, sterilization, embryo research, fetal tissue transplants, withholding of nutrition/hydration, and euthanasia] if the refusal is based on religious or moral precepts." Significantly, "participate in" is defined very broadly: "to perform, assist in, recommend, counsel in favor of, make referrals for, prescribe, dispense, or administer drugs for, or otherwise promote, encourage, or aid."
The italicized language potentially excuses physicians even from providing information to a patient relating to a certain procedure and its applicability to the patient's circumstances. At a minimum, the statute does not appear to set forth (or preserve) any obligation to inform, as opposed to promote. If a woman's life is threatened by the continuation of her pregnancy, it should at least (in my view) be brought to her attention that abortion is an alternative, even if, for the physician, it is not an alternative in which he or she could participate in good conscience. Other parts of the statute state that a physician's moral or religious objection must be made in writing, which presumably gives the patient notice that the physician, as a general proposition, will not perform the procedure in question. But it is unlikely that a blanket notice will tell the patient much about abortion's potential relevance to the circumstances of her particular case.
Perhaps I'm misreading the statute. (If so, I'd welcome some enlightenment from a reader or co-blogger.) As I've indicated several times on this weblog, I am an unflagging supporter of allowing professionals to integrate their own moral and religious values with their provision of public goods. But I still believe that consumers must be empowered to make the ultimate decision about their own health care (or legal services, education, etc.) -- they just shouldn't be empowered to force a particular professional to facilitate it, especially when it embodies a morally objectionable vision of the good. But if Wisconsin means to allow physicians to avoid even making information about morally contested (but medically prudent) procedures available to the patient, the statute gives me pause. It's one thing to reinject a robust concept of moral agency into the physician's role; it's quite another to give the physician a statutory trump over the patient's own moral agency.
Rob
Thursday, April 22, 2004
If the parental "rights" underlying Rick's school choice argument (see below) emanate from a moral understanding of the human person in relation to society, rather than from a non-negotiable entitlement recognized within our legal system, I have no problem with such "rights talk." I do believe that a morality-driven conception of educational choice, in terms similar to those expressed by Rick, is a welcome and persuasive entry into the public debate over school vouchers. An argument framed in terms of moral rights, though, is far different than a request that courts recognize school choice as a legal right, whether conceived of as an aspect of religious liberty or otherwise.
I don't think we're left with a stark choice between parents as rights-holders (in a positive liberty sense) and an oppressive state monopoly, with no middle ground. Instead, I see parents operating within a meaningful sphere in which they are legally empowered to block state intervention into their children's education. Outside that sphere, they are politically empowered to win the hearts and minds of the surrounding community, probably through advocacy steeped in moral considerations, to secure a claim on public educational resources that is consistent with the common good. Certainly I'd rather have parents making choices for their own children than some faceless collective making choices for all children, but I do think that parents' power to choose must be understood against the background needs of the community, and I'm not sure that a legal right (as positive liberty) allows that sort of choice.
To the extent that Rick shares this conception of moral versus legal rights, at least in the school choice context, we are in complete agreement.
Rob
The state legislatures in Wisconsin and Michigan have recently passed bills providing that physicans have the freedom not to perform procedures to which they morally object, such as abortions, sterilizations, or procedures involving human embryos. In Wisconsin, the governor this week promised to veto the so-called "conscience clause." Governor Jim Doyle offered the bizarre justification that "[y]ou're moving into very dangerous precedent where doctors make moral decisions on what medical care they'll provide." I'm hoping he was misquoted, for I think it's a much more dangerous precedent to have the governor of Wisconsin explicitly calling for doctors to disconnect their own moral convictions from the medical services they provide. (History is filled with supporting examples, Nazi Germany being the most obvious.)
Governor Doyle's comment reflects, in my view, our legal system's tendency to elevate individual autonomy to absurd heights. Doctors, like lawyers, are seen not as independent moral agents, but simply as tools by which individual consumers can gain unfettered access to public goods like medicine and law. There is no room for judgment, on the provider's part, as to whether certain services are truly "good" -- if the consumer wants it, the provider is legally mandated to make it happen. The same individualism underlies the California Supreme Court's requirement that Catholic employers include contraceptives in their health care plans. (see earlier posts)
This trend is especially problematic for those of us who take subsidiarity seriously. If we want social problems to be addressed locally, those local agents must be empowered to act in ways that are consistent with their own fundamental convictions. If local agents are stripped of their power whenever their vision of public service defies the individualist presumptions of the governing legal regime, then the collective norm has trumped -- which is exactly the scenario that subsidiarity is designed to guard against.
Rob
