When Is An Emergency Not an Emergency?

By Nadia N. Sawicki

In 2010, Illinois issued an administrative rule requiring that pharmacies dispense all lawfully prescribed drugs, including emergency contraception, or face sanctions.  Last week, an Illinois appellate court in Morr-Fitz v. Quinn held that Illinois’ Conscience Act prohibits enforcement of the rule as applied to the plaintiffs, pharmacy owners with ethical convictions against distribution of emergency contraception.

The case was decided on state law grounds, and involved a rather thorough textual analysis of the Illinois Conscience Act and the administrative rule regarding pharmacies’ obligations to dispense.  The most interesting part of the court’s analysis, in my opinion, was its discussion of whether the need for emergency contraception qualifies as an emergency.

By its terms, the Illinois Conscience Act does not relieve medical providers from their legal obligations to provide “emergency medical care.”  The state defendants in this case argued that “because ‘every hour counts’ in the effectiveness of Plan B contraceptives, the provision of emergency contraceptives falls within this exception.”  The court, however, concluded that emergency medical care necessarily involves “an element of urgency and the need for immediate action,” and that a woman’s need for emergency contraception does not fall within this definition.  According to the court, unlike a ruptured appendix or surgical shock, “unprotected sex does not place a woman in imminent danger requiring an urgent response.”

What do you think?

New Book on Conscientious Objection in Health Care

Related to the conversations we’ve been having lately on conscience, I wanted to point you to a relatively new book on the topic by Mark WicclairConscientious Objection in Health Care: An Ethical Analysis, Cambridge University Press, 2011.

From Amazon: “Historically associated with military service, conscientious objection has become a significant phenomenon in health care. Mark Wicclair offers a comprehensive ethical analysis of conscientious objection in three representative health care professions: medicine, nursing and pharmacy. He critically examines two extreme positions: the ‘incompatibility thesis’, that it is contrary to the professional obligations of practitioners to refuse provision of any service within the scope of their professional competence; and ‘conscience absolutism’, that they should be exempted from performing any action contrary to their conscience. He argues for a compromise approach that accommodates conscience-based refusals within the limits of specified ethical constraints. He also explores conscientious objection by students in each of the three professions, discusses conscience protection legislation and conscience-based refusals by pharmacies and hospitals, and analyzes several cases. His book is a valuable resource for scholars, professionals, trainees, students, and anyone interested in this increasingly important aspect of health care.”

Larry McCullough writes a glowing review over at Notre Dame Philosophical Reviews.

Mark’s book is broader than mine (Conflicts of Conscience in Health Care: An Institutional Compromise) in that he addresses conscientious objection as it arises in a variety of health care professions, as well as institutional objections, whereas I focus exclusively on objection by individual physicians.  However, Mark focuses on the ethics and ethical limits of conscientious objection, and does not consider means to enforce those limits or ensure patient access.  Such practical details are a major focus of my book.  So check them both out!

[H/T Glenn Cohen, via John Goldberg]

Refusals and Reasons: Is the Best Interests Principle the Best Standard?

By Erin Talati

In my last post, I puzzled over the boundaries of the state’s right to step in to protect the interests of children over the religious wishes of their parents, prompted by the question of whether it would be appropriate to prophylactically transfuse the child of a Jehovah’s Witness in order to minimize the risk of future harm.   As I continue to think about this question, I remain convinced that the boundaries are exceedingly fuzzy and do not necessarily seem to distinguish circumstances in a way that favors action “in the best interests of the child.” Rather, in looking at another situation in which the interests of the child may come into conflict with the religious or other interests of the parent, on the whole, it seems that the decision to intervene rests more on the legal basis for intervention rather than overall promotion of the best interests principle.

Take, for example, the general approach to vaccine refusals by parents.  The rights of parents to refuse vaccines for their children, generally, can be grounded in medical, philosophical, or religious objections.  Medical exemptions, based on medical contraindications to vaccination, remain the most robust mechanism of parental refusal. All states permit exemption from mandatory vaccination on the basis of medical exemptions.  Exemption for medical contraindication is consistent with the best interests principle as vaccination in these cases arguably is not in the best interests of the child.  Fewer states permit vaccine refusal on the basis of moral or philosophical objections. In almost all states, excepting Mississippi and West Virginia, parents can refuse vaccines for religious reasons, with states requiring varying levels of support for refusals grounded in religious objection.  It seems reasonable that, from the standpoint of protection of individual liberties, states would preference religious beliefs of parents in allowing refusals. Still, when either a religious or philosophical objection are not concurrently accompanied by a medical contraindication to vaccination, neither justification for refusal promotes action in the best interests of the child.

Read More

More on Conscience and Civil Disobedience

Over at The Hastings Center’s Bioethics Forum blog, there’s an interesting post from Rosana Triviño addressing the difference between conscientious refusal and civil disobedience, in relation to Spain’s new law limiting care for undocumented immigrants.  This links nicely to some conversation we’ve been having here at Bill of Health as to whether conscientious refusals and actions ought to be thought of similarly and granted similar protections.

One thing I’m puzzling over is the relevance (or not) of institutional support for the conscientious behavior in question.  So in Spain, several medical organizations have encouraged physicians to avoid withdrawing care from undocumented immigrants, and of course in the US and elsewhere, there are many groups that encourage physicians not to perform abortions and other controversial services.  Does institutional involvement make something look more like civil disobedience?  I think the answer is “kind of.”

Ultimately, something is clearly civil disobedience when refusers or actors – 1 or 100 or 1000 – violate the law on the books for conscientious reasons.  But where numbers or institutions can matter is when refusers refuse on grounds of conscience to do something that is legal but not required.  Their refusals are not violating the law, individually or collectively, and there is no technical disobedience.  But when there are enough refusals to do what the law allows, the law may as well say something different.  And particularly when those refusals are coordinated in some way to prevent access to what the law allows, things start to look a lot more like civil disobedience.  So conscientious violation of law seems to be sufficient but not necessary for civil disobedience, which on a broad view could also include efforts to sabotage or impede a law through collective inaction.

What do you think?

Conscientious Actions and Refusals

Great new Perspectives piece by Lisa Harris out in NEJM on the need to recognize that conscience can compel action, not only refusals to provide certain types of care (including abortion).  Elizabeth Sepper makes a similar argument in her forthcoming article in the Virginia Law Review.

First,  let me just say that I couldn’t agree more – it is essential to recognize both sides of the coin.  As I’ve argued elsewhere, both ought to be respected and protected, to a point, but the issues raised by conscientious refusal versus conscientious action are distinct in some important ways.  The primary problem with refusals is that they can burden patients by creating barriers to care, if not managed appropriately.  On the other hand, conscientious action would make care available to patients – and what could be wrong with that?

Read More