MedConference 2012 

Conscience and Clinical Care

Dr. Sulmasy: 

I’m going to talk about conscience in general and about the principle of cooperation. Then you will hear from Dr. Lane about the current application of that in the current administration’s policies.  Conscience gets really misunderstood, and part of my task is to help you think more clearly about what it is we actually talk about when we talk about conscience. Many of us are still in some ways, are suffering from a disservice that was done to us in grammar school, or we never get beyond the grammar school conception of conscience. I don’t know if it translates to other cultures, but American nuns used to talk to us about the good angel on one shoulder and the bad angel on the other, and that was the way we were taught to think about conscience, or as little voices that tell us what we ought to do. We somehow have this idea that it’s a sort of direct intuition of what is right and wrong, that it just comes to everybody automatically and privately or that now, in the era of neuroscience and neuro-ethics, that there will be a brain center that we will find, or that will light up on a PET scan and that will tell us the difference between right and wrong.  Dismiss all of that. That may be lurking somewhere in your heads but that’s not what conscience is. What it really is, in some ways, is a commitment on our part. And there are two basic hinges, if you will, to the commitment that conscience is. The first is to have and to hold fundamental moral principles. That if you are to be a moral person to begin with, you have to commit yourself to having fundamental moral commitments. Then, secondly, once you have those, you commit yourself to acting in accordance with them. And that’s what in essence, conscience is. It is sort of the commitment to have moral principles and then to judge your actions and determine whether they are in conformity with those moral principles or not. And that is the active conscience. You have the fundamental moral principles and what you are thinking about doing, or maybe what you did yesterday, as you begin to really reflect on it, you either find them discordant with those principles or you do not. That is the act of conscience; when it mediates between your actions that you did in the past, or that you are contemplating, and the fundamental moral commitments that you have. And we want people of conscience in our world, independent of any philosophical or religious point of view, we want people who have fundamental  commitments to be moral persons and to act in accordance to their deepest moral commitments. We want them in our government, we want them in business, and we want them in law enforcement. We want them in the military we want them in our families, and we want people of conscience in health care if we are to be a sound moral society.  The importance of conscience in health care cannot be overestimated. My mentor Edmond Pellegrino, talks about the best story of conscience coming out of Plato’s Republic, in the myth of Gyges. Gyges had a ring that he could turn in a certain way to make himself invisible and when you are invisible and when no one is looking you can do lots of things. Gyges used the fact of being invisible to seduce the king’s wife. What Pellegrino says is that we want people in medicine that can be trusted with the ring of Gyges. We want people that can be trusted to do the right thing when no one is looking. It can’t be something

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that is legislated by anybody. No one is looking when you look at the pager, or decide in the middle of the night that “whoops, I didn’t hear that.” We heard about our scientists, Renzo Canetta and Mark Basik, who make decisions sometimes on whether an outlier belongs in a data set or whether they dismiss it, and no one is typically looking when those kinds of decisions are made. When we fill out Medicaid billing forms, often no one is looking. We want people with the courage that conscience sometimes holds when it becomes public as well. I am reminded of a man named Sali Benetar, who was the chair of medicine at the Cape town hospital, and all during apartheid refused to segregate the wards of his hospital. We want people who can be trusted to act the right way even under situations of distress when people are looking.  We have a duty to form our conscience appropriately. We want to know what the moral rules are that follow from our moral principles. We want to act on correct information. Science and other data can help us with that, but still it has always been a principle for centuries and centuries that an erring conscience binds. This means that if you’ve done your best to try and figure out what the right thing is to do, even if you’re wrong you’re committed to doing that. Hopefully someone will show you that your conscience is incorrectly formed, but you are bound to your conscience, that we hold it to be that deep, this fundamental commitment to be a moral person.  I want to suggest too, that once you get past the idea of little angels on your shoulders, that conscience also applies to institutions. Corporations for instance, are considered persons by the law and corporations make fundamental moral commitments and they agree to abide by them. Particularly health care corporations and institutions have things like mission statements. They have fundamental commitments: What is the purpose of this organization? What are its basic fundamental commitments and then they make judgments and they make them about whether or not those particular actions they are going to undertake are in conformity with their fundamental moral commitments. So an institutional conscience works just the way it does for you, it may be done collectively, but ultimately the CEO has to say, “I am going to do this”, which violates the principles of this institution, for example a Catholic institution committed to not preforming abortions, they have to decide whether they are going to do it or not, because they have fundamental moral commitments. We make those kinds of commitments as institutions and that is an act of conscience just as much as it is for an individual. And we need, in our society, to have conscientious institutions as much as we need to have conscientious individuals.  A pluralistic society is one that doesn’t consider tolerance to be the belief that there is no right or wrong answer in ethics. In fact it is the commitment to the belief that there are right and wrong answers to questions about ethics that make us moral persons in the first place and make it reasonable to even have an argument. If we weren’t committed to the fact that there was a right or wrong answer to the question we wouldn’t even bother to challenge each other in our moral beliefs, it would be pointless. So, a tolerant society isn’t one that says that there is no difference between right and wrong, rather it is one that respects that there is a right or wrong answer and that it is worth arguing about and that we may not be certain, necessarily, in all cases and therefore have to leave some leeway to each other through what I call epistemic moral humility. True tolerance in some ways is mutual respect for conscience, that we may differ sometimes in our fundamental moral beliefs and how to act on them and  ________________________________________

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if we are committed to being a tolerant society we need to respect those differences beliefs about very fundamental questions.  Lastly, just to set things up, I would like to talk about the principle of cooperation. One big issue of conscience for us is to what extent are we participating in someone else’s act which we may judge to be morally wrong. I want to suggest that prudence is the guiding virtue when it comes to making these kinds of judgments. And we make them with these kinds of considerations. Cooperation means that if somebody says that, “I didn’t rob the bank, I just drove the getaway car”, that they are complicit, they are involved in that act and they have to make a decision about whether, if they are asked to drive the getaway car, that this is a bad thing for them to do. And so, what are the kinds of considerations you have? Their “immediacy”, which is a technical word about how necessary the cooperation is to the act, for example, could the guy rob the bank if there wasn’t somebody driving the getaway car. “Proximity”, or how close you are in space and time to the act. For example is there somebody putting a gun to your head and making you do it? Is it a free act? Is it something that you are bound to do if you do it once, and to do it more often? Is there potential for scandal if you don’t cooperate in this? Will somebody really think that you don’t think it’s wrong, and therefore be led to do it themselves? Is there a particular role that you have like being a physician or nurse that makes it critical that you keep a distance from the wrongdoing of others? And if you are going to cooperate with others do you have a good enough reason to do it? Is there a strong enough reason to cooperate with another person’s actions that you judge to be morally wrong? Those are the kinds of considerations that we use, generally in making judgments about cooperation.  So with that as a fore ground, I am going to let Dr. Lane talk to you about one very particular situation in particular, politically, about conscience and health care.  Dr. Lane:  Thank you especially to Elvira Parravicini and the rest of the people involved with putting this conference together. This invitation came about following last spring’s debate surrounding the HHS mandate. A good friend of mine Dr. Andrea Mariani had called me one day after news of the mandate broke and he said he had a good friend who was a reporter for Tempi Magazine in Italy and she would like to interview somebody in the Catholic Medical Association regarding the mandate. So I said “fine” and I asked “Will this will be in English?” and Andrea said “oh yes” and I said “oh good, because I speak no Italian.” So anyway I went through the interview over the phone and then it was published and obviously it was all in Italian! I called Andrea and said “Andrea did I say anything that’s going to get me fired?!” because I could not read it! He looked at it briefly and said “I don’t have time to translate, but I think you’re safe.”  In any case we stand at a threshold, there is a crisis going on in Medicine and in Western Civilization. The old idea that we could all agree upon the fact that we are made in the image and likeness of God that the Church teaches and the message of the Gospel that the Church has to proclaim to the world has largely been rejected. Since the time of the enlightenment, our intellectual world in which the West subsists has basically isolated God in many respects to such an extent that one New York Times

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journalist, Ross Douthat, recently commented that we are all practical atheists. I mean, we exist in an atheistic world. That’s where we practice medicine. It is in the air that we breathe despite the fact that we still give credence to the faith that we’ve been brought up in. So, the image and likeness of God is no longer the acceptable foundation for our profession in many respects. So now we (in Medicine and Science) stand on the threshold of actually creating (new) life, creating who we are as opposed to it being given to us as a gift. Where is that leading us? It is creating all kinds of conflicts for people of faith particularly in the profession of medicine. There’s a whole list of things that fly in the face of what the Church teaches about who the human person is and who we are and whether or not we’re going to have freedom to practice in that environment in the future. And so, if we replace the Imago Dei, or the image and likeness of God what do we replaces it with? Really, what replaces it is a trans-human anthropology. We will create for ourselves who we are and nothing is given—it is all determined by us. This is really the crux of the crisis that we find ourselves in. Now, when the Church has spoken in the past, its language traditionally has been one, if we take the example of St. Thomas Aquinas, where pre- modern truths are presented in a deductive, objective and principled fashion that often has no traction in our world. I think John Paul II understood this and he said that the language that we use needs to be translated into one that is inductive, subjective, and experiential and that is also at the heart of the way in which Giussani has spoken to the world. So, how do we in medicine then incorporate this new language? I think a great example would be the language of the Theology of the Body that John Paul II has written about. How do we take that into medicine and into the culture to try and transform it? There are lots of opportunities to do this in clinical practice, the whole idea of Professionalism in Academics and the new discipline of Spirituality in Medicine , a growing field of study within Academic Medicine, to mention but a few. There are lots of opportunities for people of faith to express this but we can only express it if we are given the freedom to exercise our own conscience. As Dr. Sulmasy said, we can’t legislate our conscience but we can at least legislate the freedom to exercise conscience and give room to those who want to practice in the manner they see best fits the dictates of their faith. Now this crisis has been ongoing ever since Roe versus Wade with its attendant abortion mandate. The federal government in some respects has tried to create some room for conscience through a series of laws and amendments; the Church Amendments and the Weldon Amendments specifically prevent discrimination against individuals and institutions that may not want to participate in activities that they would deem immoral. The states have also, about 46 of them, have legislated varying degrees of freedom of conscience for practitioners. The variations in those laws were all across the board and until 2008 there had been no attempt at national standardization. In 2008, then HHS Secretary Mike Leavitt put forth a set of national regulations that provided Rights of Conscience protection to health care professionals across all 50 states. He wanted to ensure that the funds coming out of HHS would not support coercive or discriminative policies. They also prohibited those receiving funds from coercing individuals in the health care field into participating in actions that they find religiously or morally objectionable. This was comprehensive regulation that covered all healthcare workers. It was broad in scope and both individuals and institutions were covered under these regulations. It was not limited to physicians; it was extended to all healthcare providers. It not only forbids coercion, it “prohibits any requirement to provide referrals, to undergo any training to provide referrals thereof or to make abortion and sterilization in practice a training criteria for professional accreditation.” That was all coming down at the same time as the American college of Obstetrics and Gynecology was trying to

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mandate performance of these same practices as a requirement for program accreditation. The Leavitt HHS regulations were not limited to doctors. They were extended to all healthcare professionals—even volunteers within the hospital. The scope of the act was not just restricted to abortion and sterilization as other legislation and amendments had been. So, conscientious objection is not limited to the performance, but also extends to acts subordinate to the controversial act, such as referral and training. The ground for objecting is “any sincere religious or moral reservation not restricted to an objection of a religious sect.” So you didn’t have to claim to be a member of a particular faith to say that this particular activity is against my moral tradition. As expected, there was a lot of pushback from the secular professionals within Law, Medicine and Academia who were alarmed by this new level of conscience protection. Very early in the current administration’s watch they suspended and then rescinded the Leavitt regulations that came out of the previous HHS administration. That began in March 2010. They took some time to study the issue believing it “important to have an opportunity to review the regulations to ensure its consistency with current administration policy and re-evaluate the necessity of regulations implementing the Church amendments and the Weldon amendments, which were preexisting.” So, the new HHS administration under Secretary Sebelius took a few months to review those and then in February of 2011 they released their own regulations. They explicitly rescinded and revised everything that had been written in 2008. They suppressed sections, which had detailed the nature, scope, and application and legitimate holders of the conscious right to refuse to participate, and they abolished earlier requirements for recipients of HHS funds to certify in writing that they had informed employees of their conscious rights and had attempted to protect those rights.  The 2008 Leavitt regulations were judged to “unacceptably limit patient’s rights and access to health care and conflict with the federal and state law.“ They based much of their decision on the doctrine of Informed Consent. They basically said, you are not doing your job as a health care provider if you are not offering your patients all the available legal services. This was the argument. While reviewing the recent history of conscience regulations, comparing the 2008 regulations with those of 2011, Fr. John Conley at Georgetown, made the following comments:  “The right of conscience refusal to participate in certain types of referral or counseling is endangered in such an interpretation, (the 2011 regulations) provide no protection for healthcare workers who refuse to participate in objectionable procedures or provide objectionable substances such as the morning after pill. The previous protection of conscience in the areas of education and ancillary health care acts has disappeared in the new set of regulations. It’s telling rescission of the entire body of conscious protection stipulated by the 2008 rule literally reduces questions of conscience to a blank page. Conscience is now only an enigma the state neither comprehends nor cherishes.” So you can decide for yourselves whether or not you would agree with this assessment. I certainly would personally. So let’s look at where we are at. I mean what was the basis for the push back from the 2008 regulations and why were they rescinded? What is going on in the academic worlds of Law and Medicine for one? Its worthwhile reviewing three recent publications to gain some insight into this new view of Conscience Rights; Julie Cantor’s editorial that was published in the New England Journal in April 2009, the ACOG (American College of Obstetrics and Gynecology) rules coming out of their ethic committees (2007) and an address to the American Constitutional Society for Law and Policy given by R. A. Charo, a

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law professor at the University of Wisconsin (2007). So in Conscientious objection gone awry (N.E.J.M. Apr. 9, 2009) we see this quote from Cantor: “conscience is a burden that belongs to the individual professional, patients should not have to shoulder it. Patients rely on health care professionals for their expertise, they should be able to expect those professionals to be neutral arbiters of medical care, federal laws may make room for the rights of conscience but health care providers should cast off the cloak of conscience when patients’ needs demand it.” Coming out of ACOG, their ethics committee made the following statement: “all physicians must provide referrals for everything”. And this gets at what Dr. Sulmasy was talking about, the principle of cooperation, are we cooperating by referring? “In some cases physicians must provide services. In an emergency in which a referral is not possible or might negatively impact a patient’s physical or mental health, providers have the obligation to provide medically indicated and requested care regardless of the provider’s personal moral objections.” So what we see here active within academia is an attitude where radical personal autonomy trumps the provider’s own moral perspective. That idea is certainly in its ascendency. How would this new standard accommodate those providers who would attempt to exercise their (unrecognized) right of conscience? Charo makes the following statement “…societies could articulate their own ethical standards and in this way lay the ground work both for individual health care providers to see their way clear to serving patients even in ways that violate their own preferences and beliefs, as well as with the courts in determining the customary and standard practice in medical malpractice cases based on refusal of service or medical abandonment.” So our CMA executive director who is a bioethicist had made the following statement in an open piece to the National Catholic Register: “It will take little time or effort from this administration to mandate that every health care professional must offer or refer all government mandated health services.” At least within the regulations, that’s a possibility. “If such a mandate is pushed through that could spell the end of catholic physicians, some will give up their faith, the rest will give up the practice of medicine.” You may consider that an over-statement but we’ll see, depending on how a lot of this will play out.  To clear up a little confusion regarding the Affordable Care Act and the mandates within it; there was a personal mandate requiring every person in the country, once this goes into effect in 2014, to carry health care insurance or face a fine. That went to the Supreme Court, the Roberts Court looked at that and decided that yes indeed that mandate could be viewed as a tax and our legislative branch of government has the authority to tax its citizens. So it (the court) passed on that personal mandate. It left open the question as to whether or not the HHS mandate that we’ve been talking about actually violates the constitution as far as religious liberty is concerned. That issue is currently playing out in the courts as we speak. The HHS mandate was promulgated by the HHS secretary Kathleen Sebelius in January of 2012. It requires employers to offer insurance plans that provide contraception, sterilization, and abortion-inducing drugs as “preventive health care.” This mandate will go into effect next year as well. Every employer that does not comply will incur heavy fines, $1000 a day for every employee. For example, this regulation will cost the University of Notre Dame, $10 million a year. The exemption only applies to religious employers who employ primarily members of their own faith, and serves primarily members of its own faith. So if you’re a catholic hospital that treats everyone, you do not qualify as a  _

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religious institution under this definition. Some have argued that Jesus Christ himself would not have qualified for the religious exemption, or the Good Samaritan for that matter. Organizations such as Catholic hospitals, universities and homeless shelters will not qualify and whether an organization is exempt will be decided by a government official, not the church or a religious entity. There’s a four-part exemption that will be applied and it’s all been reviewed and most catholic institutions do not qualify as religious institutions. Because of the uproar that came out of this, on February 10th, shortly after the January regulations were announced, President Obama gave a speech in which he proposed the Accommodation. He said that the insurance company, not the catholic entity, will be required to provide the service. So you the employer don’t have to provide the preventive services but your insurance carrier will. Now we get back to the idea of cooperation, does that really solve the problem or not? Despite the speech, not a word of the regulation was changed. So we basically have a promise made from a podium and nothing more. The regulation stands as originally promulgated. The Catholic Bishops obviously responded that the Accommodation was not adequate to relieve the Church from cooperating in the provision of immoral services. As early as last week during vice presidential debates, vice President Biden made the following statement: “with regard to the assault to the Catholic Church, let me make it absolutely clear, no religious institution, Catholic or otherwise, including Catholic Social Services, Georgetown Hospital, Mercy hospital, any hospital, none has to either refer contraception, none has to pay for contraception, none has to be a vehicle to get contraception, in any insurance policy they provide, that is a fact.” That statement was made before hundreds of millions on television. The next day the USCCB made the following statement, which was probably read by a few hundred people: “The HHS mandate contains a narrow four part exemption for certain religious employers. That exemption was made final in February and does not extend to Catholic Social Services, Georgetown Hospital, Mercy hospital, any hospital, or any other religious charity that offers its service to all regardless of the faith of those served.” So that’s where we stand, right now there are 35 pending law suits, against the HHS administration trying to remove these regulations. There has been right now 13 states attorney generals who have filed amicus briefs with some of these law suits in support of those who are suing HHS. The Catholic Medical Association has put forth one of those court briefs as well. Obviously this is not getting a lot of airplay. Most of the main-stream media would like to play this down. it’s gotten very little press. This issue is unprecedented; never before in the history of the Republic has the Catholic Church sued the federal government to this extent, over what is considered a breach of the first amendment. One of these cases has actually made it to circuit court in St. Louis. A for- profit non-religious company sued because it said the regulation violated the owner’s ability to operate the company in accordance with his religious convictions and practices. He is a Catholic, and not complying would subject his company to ruinous fines. The Court ruled in September 2012 that the company did not qualify for the very narrow exemption, (which we would expect), and the mandate does not constitute a substantial burden on the religious freedom of the owner. The judge stated,“this court rejects the proposition that requiring indirect support of a practice from which the plaintiff himself abstains according to his religious principles, constitutes a substantial burden on the plaintiff’s religious exercise.” So how is the direct provision of what he would consider morally illicit services in his employer-provided insurance coverage considered indirect support? And if so, what about a self-insured

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entity, as many dioceses in the nation are self-insured? Where does that put them in the area of cooperation?  We as a Church in general and as Catholic Health Care providers in particular are certainly under assault. It’ll be interesting to see how the rest of these court cases play out and whether these regulations can be reversed, and what I’d like to do is just end with a quote from Archbishop Chaput, who is the local ordinary 90 minutes south in the Archdiocese of Philadelphia. He gave a speech in Napa California not too long ago and addressed this particular issue in this light:  “We have a duty to treat all persons with charity and justice, we have a duty to seek common ground were possible, but that’s never an excuse for compromising with grave evil, it’s never an excuse for being naïve, and it’s never an excuse for standing idly by while our liberty to preach and serve God in the public square is whittled away. We need to work vigorously in law and politics to form our culture in a Christian understanding in human dignity and the purpose of human freedom. American of Catholic memory is not the America of the present moment for the emerging future. Sooner or later a nation based on a degraded notion of liberty, on license rather than real freedom, in other words a nation of abortion, disordered sexuality, consumer greed and indifference to the immigrants and the poor, will not be worthy of its founding ideals, and on that day it will have no claim in virtuous hearts. If we want a culture of religious freedom, we need to begin it here, today, now. We live it by giving ourselves wholeheartedly to God in the gospel of Jesus Christ by loving God with passion and joy, confidence and courage, and by holding nothing back. God will take care of the rest. Scripture says, unless the Lord builds the house, those who build it labor in vain, in the end God is the builder, we are living stones. The firmer our faith, the deeper our love, the purer our zeal for God’s will, then the stronger the house of freedom will be that rises in our lives, and in the life of our nation.”