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Thursday, November 8, 2007

Session 2: The Healing Professions/Medicine

John Hardt
Loyola University of Chicago

CHAIRMAN PELLEGRINO:  Good Thank you very much.  Those of you who are here, thank you.  I think we'll move ahead.  The next session is a continuation of the discussion of the healing professions/medicine.  We're going to be addressed by Professor John Hardt, Loyola University of Chicago.

Dr. Hardt, the floor is yours.

PROF. HARDT:  Thank you, Dr. Pellegrino.  Dr. Pellegrino reminded me at the break of the Council's custom of not doing extensive introductions and rehearsing lists of publications and honors, and that's a custom for which I'm tremendously grateful.  Given a review of my CV, it admits of no other kind of introduction than a brief one.  So it would be difficult to tell you what a privilege it is to have this invitation to be here today and I am truly grateful, and I hope that my comments can be of some help to you as a deliberate body.

I've read with interest the Council's transcripts from previous meetings during which you've discussed what has been described as the "Crisis in the Ethics and Profession of Medicine." Many of your previous distinguished guests have attended to the negative affect of market forces on the medical profession and the need for a morally enriched system of medical education to counteract that influence and bolster society's and the practitioners' perception of the profession.

My comments today steer a course at some distance from those concerns, although I am coming to think that these two topics — that is, market influences in healthcare and my topic today, conscience and its relation to the moral foundations of medicine — may very well be related in the end.

This morning, I hope to build upon Dr.  Pellegrino's closing comments from your meeting of September 6 in which he recognized something of an identity crisis in medicine today.  He suggested that we ought to attend to the current confusion concerning the profession's understanding of its own relationship to society, a confusion that Dr.  Pellegrino suggested might be resolved, at least in part, by what he called a "reprofessionalization," a kind of reestablishment of the moral foundations of medicine that would undergird the traits that characterize "professionalism" — as he described them: competence, fidelity, and trust — with a normative moral vision of the profession itself.

I think that the recent debates concerning conscience in the clinical encounter are an important expression of this confusion about medicine's relationship to society noted by Dr. Pellegrino.  I say this because I wonder if the question of conscience's role is, at its core, a question about how medicine, individually embodied in the physician, relates to society, individually embodied in the patient.

The two articles I supplied to the Council offer you some perspective on the issue of conscience in the clinical encounter and the recent attention it's been receiving, and I'm happy to return to those as you see fit in question and answer.

But my comments today are aimed at arriving at a simple conclusion that I think can be stated in two parts.  First, much of the current and contentious debate over the role of physician conscience in the clinical encounter rests upon an under-attended-to but longstanding dialogue about the nature of the physician-patient relationship and, more broadly I think, what constitutes the appropriate ends of medicine.  To the extent that we fail to see this, I worry that our debates about conscience in the clinical encounter will generate more heat than light, leaving us as a society more polarized and angry with one another than reasoned and willing to civilly engage each other as we search for some common ground.

Second, if we as a society — or the profession itself, as some have proposed — simply ban conscience from the clinical encounter or even prohibit persons of serious religious and moral commitments from becoming physicians, I am worried that we will cut short a much needed conversation about the ends of medicine and the future course of medicine as a social trust and a professional practice as these issues, I think, lie beneath our concerns about conscience.

To help anchor this very theoretical claim, I'd like to consider the following case:  Mr. John Burke is a 54-year-old widow[er] of three years, the father of three daughters, a professor of marketing, and a patient of Dr. Robert McMahon now for the past four years.  He comes to the office today for his annual physical.  His exam confirms what Dr. McMahon suspected upon Mr. Burke's presentation; namely, that Mr. Burke is a healthy man. 

"Everything looks good, Jack," concludes Dr. McMahon, with a pat on the back as Mr. Burke rights himself on the exam table.  "You've even lost four pounds since I saw you last. You're doing great."  Reaching for his pad to write a prescription for a persistent allergy, he adds with characteristic warmth, "I wish more of my patients were like you."

Mr. Burke smiles, slides his arm into the sleeve of his shirt and begins buttoning, reluctant to interrupt the physician's pen on pad with his question.  "Glad to hear it, Doc.  I — there is — uh — there's one more thing I want to talk to you about."

Dr. McMahon leans against the exam room counter, rests his hands in his pockets and faces Jack, offering his full attention.  "Of course, Jack.  What's on your mind?"  "I've begun dating again."  "That's superb news, Jack!  I'm thrilled for you.  While we haven't discussed it much, I can imagine how difficult Angela's death has been on you and the girls.  I'm so pleased to hear that there's an opportunity for some personal happiness in your life. You deserve it."

"Thanks, Doc.  She's a wonderful woman.  We've been seeing each other for four months now and things are going well.  But I'm having some problems with impotence — you know, ED, erectile dysfunction."

"Oh, okay.  Sure.  Fill me in a little bit."

Less than a minute into Mr. Burke's recounting of his experiences in the past month, Dr. McMahon mercifully relieves him of his narrative, saying, "Jack, this certainly sounds like what you think it is, and it's not at all uncommon.  Know that there is nothing more serious going on here.  You're healthy and have nothing to worry about.  And as you probably already know, there are some options for medications out there that treat ED very successfully."

"Well, great.  I mean, good then.  I'm happy to hear that it's nothing serious.  This isn't the easiest thing to talk about."  "Please don't be embarrassed, Jack.  I appreciate your trust and candor."          "So which one of these medications would you recommend," asks Mr. Burke. 

A pause precedes Dr. McMahon's answer as he takes a seat on his stool.  "Jack, this is awkward for me, but I can't prescribe any of these medications for you."  "What do you mean?  Am I not a good candidate for these drugs?"  "No, you certainly are.  You're just the kind of person these pharmaceutical companies would want to reach," replies Dr. McMahon. 

"The problem is that I'm not the right doctor for you on this.  What I mean is that, as a point of principle, I don't prescribe these drugs for men outside of a marriage.  I don't mean to put you in an uncomfortable position here, Jack.  And again, I really appreciate your willingness to talk to me about this.  It's just something that I feel committed to in my pract—"  "Are you serious Doc?  I mean, are you able to refuse this?  But you're my doctor!"

This case scenario above recounting a physician's claim to conscience in the clinical encounter is, in the minds of many, cause for alarm. When presenting this case to healthcare professionals, the responses I hear are predictable and often visceral.  Many respondents share a common sense that this physician has in one way or another failed to fulfill the obligations of his professional role.  I've heard the following and repeatedly:  this physician has imposed his personal values on a patient, embarrassed a patient, damaged the physician-patient relationship, betrayed the patient's trust, violated the patient's autonomy, and degraded the practice of medicine by failing to meet the public's expectation of what happens in a doctor's office.

However, when the dynamic of the case slightly changes, opinions invariably follow.  So, let's say, for example, that Mr. Burke is not a widow but a married man who reports the same problem with ED.  In response to Dr. McMahon, saying, "Oh, I'm so sorry to hear that.  It must be putting a strain on your marriage," Mr. Burke replies, "Oh no, Doc.  Angela and I have not been intimate with each other in over a year.  I'm having this problem with the woman I'm having an affair with.  She's much younger than me, and it's really embarrassing."  In this instance, many in the audience become uneasy prescribing the medication.  I would suggest that this change is worth paying attention to.  And I think that its significance can be revealed by thinking about the questions this case poses to our understanding of the physician-patient relationship and the ends of medicine.

The claim that Dr. McMahon has in some way violated the physician-patient relationship is telling insofar as it reveals an opinion about what that relationship should be; namely, one in which the physician is a competent, technical expert whose role is circumscribed to "providing factual, relevant information and implementing the patient's selected intervention."  I've borrowed this language directly from the Emanuel's benchmark article, "Four Models of the Physician-Patient Relationship," in which they describe the "Informative Model" of that relationship.  It's also been described as the "consumer" or "provider" model of the physician-patient relationship, one that stresses patient autonomy and the physician's role as a technician who restores or improves a particular capacity, system or function at the patient's request.

But were we to wholly adopt such a model of the physician-patient relationship, we'd be left in something of a bind when considering this same case with its subsequent alteration.  Here, a model of the physician as technical expert, one whom assumes a stance of absolute moral neutrality, prevents the physician from a consideration of the moral seriousness of the act he's being asked to contribute to; namely, the patient's infidelity in his marriage. And, for many, this is untenable because it forces one into living a morally fragmented life.

So, in part at least, the debate about conscience raises questions about the moral life in general and the relationship between one's sense of self as a person and the various roles one embodies over the course of a day and a lifetime.  I will only briefly suggest here that it seems as though a coherent understanding of the moral life requires that one carry fundamental moral commitments across role-specific boundaries, and the work of Alasdair MacIntyre and others have argued this eloquently.

While one's moral commitments may be shaped and even constrained by the role one embodies — and this is particularly important for consideration of the clinical encounter — I don't think that they can be wholly abandoned if we are to consider ourselves as good people rather than good role performers.  I should remain fundamentally the same person, the same moral agent in the roles I embody as professor, father, husband, friend, and school-board member.

But here, we encounter another issue that informs a consideration both of the physician-patient relationship and the moral foundations of medicine. The idea that our actions actually shape our moral character thus influencing who we become — an insight whose roots go at least as far back as the ancient Greeks — is increasingly distant from our contemporary sense of ethics as it pertains to medicine, one predominantly shaped by a prioritization of personal autonomy over relationships and virtue. 

There seems to be a growing chasm between our moral autonomy, our moral acts, and their effects on others and ourselves.  Thus, the very idea of moral cooperation, the notion that participating or contributing to an action of another that one deems immoral is of serious moral concern, gains little traction in the contemporary debate.

This, too, then poses a challenge to physician conscience in the clinical encounter.  In fact, when a physician refuses a particular intervention based on conscience, it is often looked upon as an act of selfishness or even aggression toward the patient. Some have suggested that physician conscience is nothing more than a weapon wielded in our culture wars, one that runs counter to the conception of the physician-patient relationship that preferences patient autonomy as the determinant both of the good to be obtained in the clinical encounter and the sole source of moral authority in the physician-patient relationship. While physicians could misuse the clinical encounter in this way, they do not necessarily do so when considering their consciences.

It seems to me that the formative force of human actions upon their agents is of particular importance to medicine insofar as the skill-set and body of knowledge physicians acquire allows them to engage, influence, restore, and enhance human capacities that are frequently laden with moral significance.  This is obviously true in areas of reproduction, embodiment, and sexuality — and painfully true when physician expertise touches upon the deepest of human experiences:  finitude, illness, loss, and death.

While cultural mores may have shifted away from the reverence that has at times adhered to these arenas of human experience, for some they have not. And, when we consider the case of Mr. Burke, the fact that much of the audience shifts its opinion when it becomes a question of participating in the patient's marital infidelity indicates to me that there remains something to the sense that our bodies do convey moral meaning and that we as persons are shaped by our actions. It is no accident, then, that conscience is a live issue for medicine, a practical art that bears upon the human body.

How we come to a shared conception of the physician-patient relationship is an arduous and not necessarily clear path, but I am certain that this is a critical component in understanding the debate about conscience and the future of the profession.  If the profession of medicine prohibits physicians from thinking of themselves as moral agents, inherent difficulties will present themselves to us as we try to chart a course for morally reinvigorating the profession.  While conscience poses many difficult problems to us, prohibiting its presence in the clinic is not a preferable answer in my opinion.

There is much more to say about conscience, but let me just offer a quick three observations before briefly moving on to the ends of medicine.  Many arguments against conscience dismiss it as a uniquely private and religious claim and, therefore, undeserving of a place in the professional encounter between physician and patient.  While I don't find arguments that dismiss religious positions outright particularly convincing, it is worth noting that insofar as conscience is the faculty of mind that determines the goodness of an action, whether secular or religious in origin, all acts that are finally determined by a moral judgment are acts of conscience.  It is only those acts of conscience that run counter to contemporary mores or a widely accepted way of proceeding that get our attention.

But in the realm of medicine, we ought not to confuse the notion of an authentic, professional duty with what has become a customary way of proceeding, the latter of which one may actually have a duty to diverge from if that customary way of proceeding is judged to be immoral.  And, here, we face a challenge that touches upon the ends of medicine.  Medicine has customarily come to be perceived as offering services and interventions that some suggest simply are not within the purview of medicine.  It is on these kinds of cases that conscience usually arises.

Second, conflicts of conscience are part and parcel of living in a morally plural world.  We cannot voice support for moral pluralism while not expecting that people will actually hold to firm moral commitments that will, from time to time, conflict with another's firm moral commitments.  Thus, I think the way forward is not to try to eliminate such conflicts — the objective of banning conscience from the clinical encounter — but rather to carefully consider how best to accommodate and resolve these conflicts.  It's important to remember that patients can have positions of conscience too, and when they conflict with that of the physician, we should seek to identify a way forward that does not compromise the moral agency of either physician or patient. 

The "professional" physician in my estimation will be one who can simultaneously consider the divergent values appearing in the clinical encounter, carefully consider the variety of goods at stake and the ways in which the context of the physician-patient relationship form them, and, then, prudentially determines in dialogue with the patient a way of proceeding that promotes and protects the agency of physician and patient.

Third, some have suggested that conscience will become a bastion for bigotry, idiosyncrasy and personal bias, offering something of a personal asylum to accommodate a dereliction of duty on the part of the physician.  While I do understand this concern, I would not anticipate this outcome.  The ends of medicine are largely shaped by the physician-patient encounter — the experience of illness of the patient, the promise to help made by the physician, and the skill set that the physician bears in aiming toward the health of the patient.

So the profession of medicine does not readily tolerate the physician who refuses to care for someone based on gender or race, for example.  That constitutes a failure of duty in a way qualitatively different from the kinds of cases where conscience arises.

Second, conscience remains accountable to reason.  Positions of conscience are open to public and professional scrutiny and need to fit within a comprehensible moral framework.  When a conscientious objection in healthcare receive public attention, it is on those cases that exist at the margins of medicine.  Now there exists a long-running debate as to whether the ends-of-medicine are socially constructed and shaped by cultural expectation or internal to the practice of medicine shaped by the experience of illness itself.

Drs. Pellegrino and Kass have been two of the leading contributors to that debate.  There is little point in my rehearsing their arguments when they could do so more clearly.  But let me just suggest that if, indeed, the ends of medicine are purely socially constructed — and I don't think they are — but if they were, then our conception of the physician-patient relationship may very well meet and do little more than meet the minimal requirements established by the conception of the physician as technician who offers a service to the consumer.

The debate about conscience in the clinical encounter offers evidence that there is indeed disagreement about what the profession of medicine requires of the physician.  I want to suggest that the recognition of physician conscience in the clinical encounter is necessary in order to recognize the physician as a moral agent engaged in a practice that is morally significant, not only because of the merciful and altruistic underpinnings of caring for the sick, but because the body itself conveys moral meaning. 

Those who argue that conscience does not belong in the clinical encounter ultimately do so based on an argument from patient autonomy.  The abuses of paternalism that led to the dominance of autonomy are well documented, as is the swinging of the pendulum toward patient autonomy as its corrective.  It is also well-documented that, in large part, the principle of autonomy recognized and protected the patient's prerogative to refuse overly-aggressive medical treatments.  Now patient autonomy has increasingly come to include demands for services, services that pose a difficult challenge to the profession of medicine insofar as their provision requires either the technical expertise of the physician or the power of the prescription pad.

Thus, there is something of an internal conflict within medicine as it is the gatekeeper of resources and skills, some of which its practitioners may not be comfortable using toward a body of goods that reach beyond medicine's response to illness and disease.  And, on this point, there is a burgeoning body of literature that examines the relationship between biotechnology and medicine, asking the question as to whether medicine should go beyond the treatment of disease and toward the satisfaction of various human desires that fall within reach of biotechnology. 

Theologian Gerald McKenny has observed, for example, that medicine has become "a primary discourse on the good."  Given that, one can ask whether we are narrowing our conception of the good life to one wholly shaped by a particular vision of biological flourishing at the cost of other human goods.

Some, indeed, have suggested that the prevention of conflicts of conscience in the clinical encounter — and a recovery of the moral foundations of medicine — would require a shared conception of medicine that fit within a broader understanding of human health and flourishing.  This amounts to the establishment of something of a robust moral anthropology.  Here, one would at least have a common construct for ranking the various goods and obligations that medicine would serve and fulfill. But even here one can imagine disagreement and uncertainty as to how to rank various goods and interventions even within a shared system.

In any case, given the morally plural culture in which we reside, such a shared vision remains somewhat illusive, which brings us back to the clinical encounter where divergent visions will meet — and for which we ought to carefully consider how to proceed.

Given that, I want to close with just a few observations about how conscience might appropriately enter the clinical encounter.  Conscience requires one to employ their moral agency wisely and in a manner that fits the context of the interactions in which it arises.  Conscience is not blind to context. Rather, it is informed by it.  As I mentioned earlier, the fundamental moral commitments of conscience that one brings from role to role are certainly shaped and constrained by the particular role one embodies. 

So, for medicine, I think we have to particularly attend to the power differential between physician and patient. It is critically important to preserve the patient's dignity, to avoid embarrassing the patient, to try to fully understand the patient's good from the patient's perspective, and to consider the other goods at stake when one considers drawing upon conscience as a decisive force in the clinical encounter.

These protections for one's patient, it seems to me, are part and parcel of being a physician and congregate under the promise to "do no harm."  In many of these cases, a physician's conscience will dictate that the physician ought to meet the request of the patient before her, despite the fact that, all things being equal, the physician may wish the patient would choose otherwise.  But this, too, is a decision of conscience.  Thus, conscience is not always an answer in the negative.  But once again, it is the refusal that garners public attention.

Being context-contingent, conscience is sensitive to the various goods at stake in the clinical encounter.  So, for example, Dr. McMahon who is reluctant to prescribe Viagra to Mr. Burke ought also to consider the good of this particular relationship, the possibility that his refusal to prescribe this medication could permanently fracture that relationship and perhaps negatively influence Mr. Burke's future health, the possibility that refusal to subscribe Viagra in this circumstance may contribute, by word of mouth, to other patient's fears and concerns about visiting a doctor at all.

The consideration of these contextual factors also indicates that the physician should consider both the moral gravity of the action he or she would be participating in when making such a determination — all acts are not morally equal.  Proponents of conscience need to weigh against the false notion that one can obtain a kind of perfect, moral purity that simply does not exist in this life. 

While each of us, physicians included, has an obligation to follow our respective consciences, we have also an obligation to not hide from the reality and various contingencies of our lives.  There are other practical issues to discuss around questions of conscience.  If the Council so chooses, I'm happy to do so.  The problem posed by geographical scarcity, a possible duty to inform or refer patients for procedures and interventions, and the idea of preserving the social good of making legal medications available are all issues that remain on the table. 

But I'm going to stop here, having tried to suggest why it is that conscience is both a symptom of the identity question posed by Dr. Pellegrino and, possibly, part of the solution as society and the profession of medicine continue to deliberate the right way forward.

I welcome your comments, correction, and questions, and thank you again for the opportunity. 

CHAIRMAN PELLEGRINO:  Thank you very much, Prof. Hardt.  We've asked Professor Carl Schneider to open the discussion.  Carl?

PROF. SCHNEIDER:  Maybe I can begin with something that I think relates in some ways to this and relates as well to what Prof. Frank talked about.  It's part of my continuing program to suggest that there is no such thing as a new bioethical problem.

Prof. Frank talked about the problem of there being a morally successful professional.  In 1886, Justice Holmes spoke to the graduating class at Harvard about why it was a good thing to be a lawyer and concluded this way.  "And now, perhaps I ought to have done.  But I know that some spirit of fire will feel that his main question has not been answered.  He will ask, what is all this to my soul?  What have you said to show that I can reach my own spiritual possibilities through such a door as this?  How can the laborious study of the dry and technical system, the greedy watch for clients and practice of shopkeepers' arts, the mannerless conflicts over often sordid interests, make out a life?  Gentlemen, I admit at once that these questions are not futile, that they have often seemed to me unanswerable.  And yet I believe that there is an answer.  They are the same questions that meet you in any form of practical life.  If a man has the soul of Sancho Panza, the world to him will be Sancho Panza's world; but if he has the soul of an idealist, he will make — I do not say find — his world ideal.  Of course, the law is not the place for the artist or the poet.  The law is the calling of thinkers.  But to those who believe with me that not the least godlike of man's activities is the large survey of causes, that to know is not less than to feel, I say — and I say no longer with any doubt — that a man may live greatly in the law as well as elsewhere; that there as well as elsewhere his thought may find its unity in an infinite perspective; that there as well as elsewhere he may wreak himself upon life, may drink the bitter cup of heroism, may wear his heart out after the unattainable."

That leads me to the way I want to try to begin the discussion of this exceptionally interesting, lucid, thoughtful, and stimulating paper.  All I want to do is talk a little bit about a parallel kind of problem in my own profession of the law.

We've been thinking about this problem for a really long time because, much more than doctors, lawyers identify themselves with clients and make the clients' interests their own.  One of the most famous articles on the ethical role of the lawyer is an article that describes the lawyer as a friend, a friend who almost completely identifies himself with his client and the client's interests.  And the practical sociology and psychology of law make that kind of identification almost inevitable.

Now, the trouble with that, of course, is that when you begin to take somebody's interest as your own, you are going to be involving yourself in enterprises that you don't always like very much.  And, of course, if you were something like a criminal lawyer, you will be involving yourself in activities that nobody will like and you will know perfectly well that sometimes you will be working to get someone who should be in jail out of jail, that you will be freeing somebody to go out and do more horrible things.

The problem, of course, is that even if you say, "Well, I'm not going to be a criminal lawyer.  I'm going to be another kind of lawyer," you wrap yourself and your client together and then find that your client is doing something that you cannot approve of.  The trouble is that you are then so morally implicated in the relationship with your client, the client has become so reliant on you, that it's very difficult to know what the right thing to do is.

Suppose, for example, that you are a lawyer representing someone in a divorce and you have been helping this person almost as a counselor in a very full sense.  The person then announces a desire to have custody of the children, and you have excellent reason to believe that the client would be a very poor custodian of the children; in fact, perhaps even a dangerous custodian of the children.  What do you do?  If you're a lawyer representing people who want to form a company, what do you do when you begin to suspect that they are engaged in unethical, fraudulent, criminal activity?  Do you go to the police and say, "Here's my client with whom I have become so involved.  He looks like a pretty guilty person to me.  Pack him off to jail for me"?

So the easy answer is, you're never obliged to represent anybody.  But even that easy answer turns out not to be very easy on inspection because there is a professional and generally social belief that people are entitled to representation, that people will benefit from representation.

Maybe the answer is that once you become the counselor that you are entitled to give counsel of a moral kind, and, in fact, the code of ethics specifically says, if you think your client is doing something unethical or immoral or illegal or fattening, you should say so.  And the question, of course, then becomes, what do you do when your client says, "Well, that's your opinion"?

That's a good place to stop, so let me stop.

CHAIRMAN PELLEGRINO:  Thank you very much, Carl.  Prof. Hardt?

PROF. HARDT:  So it's a very difficult and good question, so let me just take a stab and it, and I don't know that this is necessarily right.

It seems to me that one of the differences between law and medicine is that the legal system depends upon attorneys passionately and aggressively aligning themselves with their clients' interests.  Medicine, it seems to me, require physicians to passionately and aggressively align themselves with the restoration of health, which is a shared goal with the patient but isn't necessarily the same as the patient's interests.  Now frequently, it will be.  And there will also be some negotiation going around about what constitutes the goal of this particular encounter.  So the physician may be saying, "No.  You know, let's treat this pneumonia caused by the vent," and the patient might be saying, "Enough is enough.  I've been dealing with this condition for a decade.  I'm an old woman now.  The goal of health is not worth the burden it's imposing on me to continuing to persist this way."  So there would be negotiation around that common goal of health, but I don't think that there's that same allegiance to the patient's interest that a physician has in the physician-patient relationship.

And I'll stop there, unless I didn't at all address your question.


DR. CARSON:  Thank you for that very thoughtful discussion.  I thought it was spectacular, and I can't imagine how any reasonable person could believe that you can extract conscience from a physician-patient relationship even though some might proclaim to have done so.

At the risk of throwing out an analogy — and I say a "risk" because usually when you throw out an analogy everybody starts trying to figure out ways to break it down instead of figuring out what you're saying. 

But, you know, suppose you were a gun dealer and a man who lives in the wilderness comes to you and he wants a gun and he wants it because there are wild bears and they attack people.  Well, you're probably going to want to advise him on the best type of weapon to protect himself and his family in that situation.  However, if he wants it because there are criminals in the area, even though you may be quite willing to sell him a gun, you might have some other advice for him in terms of how to deal with that as opposed to shooting the criminal.  If he wants it because there are certain types of people, perhaps from across the border, that he just doesn't like and he wants to kill them, then you really are going to have think seriously about whether you're going to sell him any type of gun.  And I think that would probably be a universal feeling about people.

Well, I think physicians are very much in the same situation.  There are some situations where everyone would unanimously agree that you simply can't go along with that program and others in which you can.  But, you know, I think that the real key here is, one has to say, what is a real physician?  What is a healthcare provider?  You are there primarily to make sure you do not compromise that patient's health and that you enhance it.  But you must also make sure that you don't compromise your integrity because then your effectiveness as a caregiver is going to be significantly impaired by your guilt.

PROF. HARDT:  Nicely said.

CHAIRMAN PELLEGRINO:  That's to the point.  Thank you.  Anyone else?  Dr. Dresser?

PROF. DRESSER:  Thank you.  I thought that was a very balanced presentation.  I wonder if you think that the vulnerability of the patient creates any kind of a presumption in this area.  And then, second, what about perhaps an educational organizational approach that would address these issues more ahead of time?

So, for example, in the '80s, we had some physicians saying, "Oh, I'm not going to operate on patients with HIV because I don't want to take the risk of being infected.  That would be unethical because I have responsibilities to my family."  And medical residents starting complaining that they were taking care of too many HIV patients and they weren't getting the kind of education they should.  So some schools started putting in the catalog to med students, "Part of what you do will be caring for patients with HIV."

I wonder if more could be done in that area.  For example, I mean, if you're thinking about going into critical-care medicine or geriatrics and you're someone who thinks one should never forego life-sustaining treatment, is that a realistic belief to have, a permissible belief to have, to go into those areas or should you go into a different area?  So I wonder if you've thought about those kinds of systemic, I suppose, ways to, not eliminate conflicts, but reduce the conflicts?

PROF. HARDT:  Thank you.  That's also a very good question and a difficult one. 

I suppose that I have a couple of concerns.  One would be, I don't want us to find ourselves in a position where, for example, if you're going to be an OB/GYN you have to agree to participate in abortion or you have to agree to refer all of your patients for preimplantation genetic diagnosis or prenatal testing to make sure that they don't give birth to a child with Down's Syndrome.  And that is the concern, that what we'll do is say, "Well, if you're this type of physician, then you shouldn't practice in Arena X." 

Now your case about geriatrics, let's say, and aggressive life-sustaining measures is an interesting one because that becomes a moral question, and I do ethics consultation in our hospital, and that's one that we come up against quite frequently where you'll find either a family member or a physician who thinks that participation in this particular act of removing the vent, for example, would be immoral, would be directly causing the death of the patient.  Those are authentic and serious moral considerations, but I think that's of a different kind than saying, if you're opposed to Procedure X, then you shouldn't be this kind of doctor.

Now that said, you can't be a surgeon, if you're opposed to scalpels.  So that goes to us kind of identifying the internal nature of the ends of medicine.  There are some things that you simply can't be opposed to if you're going to be a physician.  But what I would want to suggest is that in these arenas of conscience, we are pushing at those margins, at those interventions, those drugs, etcetera, that don't easily fit within a particular end.  A followup?

PROF. DRESSER:  Just a brief followup.  I wonder what you think about duty to inform of options versus offer the procedure or whatever.  Is there a difference there?

PROF. HARDT:  Sure.  I'd be happy to comment on that.  Let me say one thing before that because originally I thought your question was going to be, do physicians have the obligation to warn patients before they enter the clinic that, "By the way, I'm this kind of doc.  I don't prescribe or do A, B, C, and D"?  I'd be in favor of that especially because of the power differential that you mentioned.  I think it would be better to let patients opt out of that encounter and conversation to prevent embarrassment if they want to before they find themselves in it.  So it would have been better if Dr. McMahon had posted in his waiting room, had handed out with the insurance form a form saying, "This is the kind of practice I hold to."  That's one issue.

Regarding your followup here about referring versus informing of options  — and this is somewhat off-the-cuff.  I haven't completely thought through all of these issues — I think one could make an argument that a physician has an obligation to inform a patient of all options that are socially considered part of medicine today even though some of those options the physician, one, might not consider part of the ends of medicine, and, two, might be strongly morally opposed to.  But I think that you really compromise a patient's moral agency if you don't give them the options that are out there whether you judge them to be morally good or morally bad.

The second comment I would make is that, on referring, here one gets deeper into this issue of moral cooperation, and I'm reluctant to say that a physician has an obligation to refer, particularly for services that the physician might consider gravely immoral.  Abortion comes to mind.  If you are of the opinion that this is a human life that's instilled with the full moral value of personhood, then your writing that referral brings you fairly close to that act.  Certainly many people would say that.  So I'm much more reluctant there.

But laying out the options for a patient?  I think there's room for that.


DR. GEORGE:  Well, thank you, Dr. Hardt, for that great presentation.  You have a real teacher's gift.  I envy your students at the University of Chicago.  They're very fortunate.

PROF. HARDT:  Thank you.  I'm at Loyola University.

DR. GEORGE:  Loyola.  Well, then, I envy them.  I have two questions.  Let me ask the first one and then invite you to respond, and then if I could ask the second one, I would appreciate it.

My first one is whether the conflict or difference of opinion in the profession is really between those who hold the conception of the physician or healthcare provider as a technician and those who have a different and broader view that would make more room for conscience?  Is that really the division?  And you can tell by my asking the question I suspect it isn't.  Or is it simply a difference of opinion on the substantive moral questions? 

Here's my guess.  My guess is that there are a relatively small number of people in the professions who hold the technician view.  They may think they do.  They actually don't.  And when you press them — and you've already taken one step with Dr. McMahon in radicalizing the problem when you shift to infidelity.  We could easily wipe out anybody, virtually eliminate from the room anybody who would be unsympathetic to Dr. McMahon simply by further radicalizing the hypothetical case.

So I'm wondering, is the real difference just the substantive moral differences on questions like sexuality and abortion and life and death and so forth?  And then, if that's the case, then it becomes a struggle within the profession as to whose moral vision is going to prevail in the practice of medicine and the health professions more broadly.  And, of course, medicine itself can't answer that question internally and so it begins to look like a political question.  Is what I suspect true?

PROF. HARDT:  I think that it is.  Thank you for the kind words, and I think that your comment is right on point.  So there is another issue underlying this idea of the physician as a competent technician, and what I suspect is that when you read arguments or hear arguments that argue against conscience in the clinical encounter and may suggest that the physician's obligation may be shaped by what's legal and what the patient wants, which is essentially a description of the physician as a competent technician, that really isn't necessarily what they mean.

The issue is that that group is very comfortable from a position of conscience with the way ethics is proceeding and with the way medicine is proceeding.  The ethic that's informing medicine fits their moral vision of the world, so they don't have any hang-ups about the way we're going forward.  So it's easy for them to say, "No.  Let's just make it what's legal and what the patient wants and make it our guide."  But I do think that each of us has our hypothetical case where we would say, "Well, wait.  I don't know that I wanted to go in that direction."  So while some folks may not have a problem with the way we're practicing now, I imagine there are those cases and those instances where they would have that problem.

To the second part of your question, so does this just become a battle of moral visions within the world of medicine and are we going to get that critical mass of Physician A versus Physician B to tilt our vision of medicine in one way or another?

Here, I think I would defer to folks like Dr. Pellegrino and Dr. Kass who have suggested that, no, there are actually ends of medicine that are revealed to us independent of one's political leanings and that adhere around the notion of illness and health that we understand fairly commonly, and that's not to say that there wouldn't be room for debate within that, but that the experience of illness itself and the response of medicine gives us a set of fairly defined ends that constitute the practice of medicine and that remain somewhat independent of any particular vision or system.

DR. GEORGE:  Thank you.  My second question has to do with entry into the medical profession in particular, though for all I know it might be applicable if it's an issue at all to other parts of the healthcare profession and I frankly hope it's not an issue and that you can assure me that it's not an issue.  I raise it in the following context.

Recently, Dr. Pellegrino, Dr. Hurlbut, and I were among some speakers at a conference at a small Catholic university in Ohio called the Franciscan University of Steubenville, and it was on healthcare ethics.  And at one of the panels, I was startled by the focus of the audience in asking questions, and these were mostly Catholic, but not exclusively Catholic, doctors and nurses and other healthcare professionals and their focus on what they perceived or asserted as being barriers to entry into medicine against those who have traditional religious beliefs or moral convictions or both. 

Evidently — and I'm myself from a legal background, not a medical one — but evidently medical school, unlike law school, sometimes involves interviews for admission, and various members of the audience, one after another, began talking about interviews that they had experienced or that they knew about in which the prospective students were being asked questions which seemed to be trying to smoke out their religious and moral convictions in a way that they've thought must mask an intention to ensure that people who think perhaps the way that Dr. McMahon thinks, you know, won't be allowed in the profession because they won't be able to fulfill what those in power currently think doctors ought to be doing.

So this is the first I've ever heard of this particular problem, if it's a problem at all, and I'm wondering if, from your perspective, there is a problem and, if there's not a problem, what would be causing this particular group of people to think there is?

PROF. HARDT:  So I can speak to this with really no authority at all.  You know, I teach at a Catholic medical school.  I can tell you that I have a colleague who sits on the admissions committee.  We welcome students of all divergent backgrounds, religious and nonreligious alike.  But we're certainly welcoming of people with religious commitments as we think it contributes a great deal to the catholicity of our institution, which is something we care about.

Could there be the formation of kind of a subtle moral litmus test to the profession of medicine?  I suppose that's possible.  I've never heard of it myself.  Now I'm fairly new to medical education, so people senior to me may have more stories of this.

And as to what would account for these people's experiences, I mean, I would give them the benefit of the doubt that what they say is true, although without seeing that interaction, it would be very difficult to judge what was being detected.  I wish I could give you a better answer than that, but I don't think I can.

CHAIRMAN PELLEGRINO:  Further comment?  Bill — Dr. Hurlbut?

DR. HURLBUT:  I'm not exactly sure what my question is, but it's something about what Robby was saying and also about what you're saying about conscience and the way medicine today is kind of a referendum on the good.

When we did our report, "Beyond Therapy," we found it fairly hard to make a clear distinction between enhancement and therapy, although we recognize that the vast majority of medicine is clearly therapy, but increasingly there's this edge.

But it seemed when we surveyed these various edges and their potential extensions that it had something to do with this wider, larger comprehension of what you call the good or what's life's purpose.  And it's caused me to think quite a bit about the historical relationship transculturally of the priest and the healer and how medicine has somewhat to its benefit and somewhat to its detriment moved into a separate quadrant, and yet it seems there will increasingly be divisions about this.

I mean, obviously a great deal of it flows from the fact, if you will, of our pluralism, the convergence and encounter of peoples from all over the world with a lot of cultural traditions that differ and significantly on, not just matters of spirituality, but their actual medical practice rooted in matters of spirituality.  But I guess what I'm trying to get at here is the question of whether there is such a thing as a sort of spiritually-neutral medicine. 

I was thinking, by the way, as you were speaking, the first mistake that — was it Dr. McMahon?  Was that the name of —


DR. HURLBUT:  Dr. McMahon, the first mistake he made, I think, was to interrupt his patient a minute into the description.  He could have at least listened and let that man play out the justifications that would have followed, if my experience with patients is right.

And what I mean by that is there is still a prevailing ethos in our culture even though we're diverse.  For most people, they're very conscious of what other people think, not just what they think themselves.  So that what may have followed is he would have started to explain to the doctor why he was in this intimate relationship.  He might have said something like, "Well, I'm violating my own ideals of not being in a relationship before marriage, but I'm so lonely," or "I'm confused."  Slowly, other goods may have come out into the equation.  Now whether that would have changed the doctor's opinion or not — but that's a vague question.  I think you know where I'm going on that.

Speaking to the relationship between — I thought one of the best things you said, by the way, was the imperfection, even it would run against the ideal.  Now we in medicine deal all the time with patients who are behaving imperfectly.  I mean, the whole realm of sexuality is full of that.  I mean, we wouldn't turn people away because they came in with either bad practices or diseases that resulted from those.      And obviously it's very true of a whole range of human behaviors, not the least of which is the evident overeating in this civilization and so forth.

And it strikes me that there's a connection between what the first speaker said and what you're saying that relates down to that vulnerability issue, that medicine encounters a lot, the inability of the patient even to do himself, him- or herself, what he knows is right.

I'll just add one little element to that.  It does strike me that this is a place at which the physician has a special opportunity to both be compassionate and still uphold moral principle.  And, well, it's a vague question, but talk into it.

PROF. HARDT:  Okay.  Thanks very much for the opportunity.  So morality and compassion should not be polar opposites.  I think those two things can go together.  And I do wonder sometimes if allowing conscience in the clinical encounter is not allowing humanity in the clinical encounter.  But there is something to be said for a physician being able to reveal herself as the person she is, the things she worries about, the things she cares about.

I don't want to turn the clinical encounter into a personal counseling session with your pastor though.  So I do think there are boundaries there.  I don't want physicians proselytizing.  I don't want physicians guilting.  And I think that all of those things are contrary to the ends of medicine.  They fall into that admonition to do no harm.

But what I rely on then is a really prudential physician.  I need a physician who is wise and careful and discerning.  And how do we get those future physicians into medical school?  I don't have a good answer for that.  But as the speaker before said, a lot of this is about developing people with character.  That's one of the things I took from Prof. Frank's comments.

Let me just try to touch on a couple of the themes, and if I forget something, please tell me.  You said, "I don't know that there is a religiously- or spiritually-neutral medicine out there," and you talked about the relation of the physician and the priest.  I would agree with you on that insofar as I tried to indicate in my comments.  Medicine touches on profoundly deep human issues, as deep as they come.  You who are physicians touch upon them.  So I want you to come to that with a wisdom and appreciation of how rich and deep those goods are that you're involved in. 

But it's also the case — and someone correct my medical history if I get this wrong — that part of what Hippocrates was about was setting himself aside from the priests and the witchcraft that was going on and say, "No.  We are something different here," and kind of narrowing the parameters and narrowing the approach and the duties and obligations to set oneself off from that so that we don't overly blur that boundary between priest and physician.  So as is the case in most things, this is an issue of balancing, I suppose.

Tell me what else you mentioned there that I missed.

DR. HURLBUT:  Well, you've certainly hit on some very central things.  Let me make a comment on what you said.  I mentioned my earlier medical training.  I'll do it a little more here.  I noticed within two weeks of my starting medical school — they did arrange early clinical encounters for us and so forth and sometimes just privately interviewing patients — and I noticed very quickly that patients were actually going through something that I imagined was like confession for them, that I was actually being asked by the patient implicitly to be more than a physician would traditionally be.  And it struck me right away that this was part of the result of the secularization of society, that there was not this other ancillary social, not service, but you know what I mean, social provision for patient's personal spiritual needs and that physicians were asked to take up the slack in that.  So, well — I don't know.

PROF. HARDT:  So I'll comment on that if you don't mind.  That makes good sense to me, that the clinical encounter now becomes this intimate realm because this is one person in your life that maybe in the past there were more than that who you had almost an obligation to be forthright and honest with, disclosing of yourself and your failures and shortcomings and that they were going to engage you on matters of incredible significance in your life.

One of my concerns is when I do an ethics consult on a case and I talk to the physician and I'm trying to get a sense of patient history, what his family said, what's at stake here, and they will very much concentrate on the medical and say, "We'll get a chaplain for that stuff," so that there is this sense that, you know, the human stuff, "We leave that to nurses.  We leave that to chaplains.  Let me talk about the medical, because that's what matters."

And to the extent that physicians have narrowed their vision that way, I think that, if they have, that's a tremendous shortcoming in professional development, and that's not to say I don't want nurses and chaplains.  I do, and they do a superb job.  But the idea that the physician doesn't have to worry himself or herself with those things strikes me as innately wrong and misguided.

So that points to the fact that, yes, a physician is a competent technical expert of the human body, granted, but the physician is more than that.  So it is something of an expanding definition I think we need of what it is to be a doctor today.

CHAIRMAN PELLEGRINO:  I would like to say a word, if I might.  As you all know, I am limiting my comments with the Council, but I'd like to respond to Robby's question, just some fact issues.  I was not at the session that Robby attended, so I didn't hear those questions, but I've heard them [from others] many times, and I'd like to simply... without further discussion ... [answer] them.

The question is asked.  I've been on the faculty of [several] medical schools in different parts of the country, and I've been on the admissions committee fo ... those schools at some time or another. I can assure you the question is asked.

The second issue was, does it have an effect on admission?  That's very difficult to discern.  Those of you who have sat on those committees realize that there is a committee discussion.  The members of the committee are all human beings with their biases, prejudices, values, etcetera, and it's hard to know how the information about religious disposition affects the final decision or how one evaluates the [student] or how it shapes the dimensions of the evaluation process. But the question is definitely asked.  Students have come back and said to me, "I had to answer the following questions," and I know from personal experience it's [the question Dr. George poses is] asked.

... And by the way, this is not limited to Catholics.  One of the premier situations I remember involved an Orthodox Jew, a very, very Orthodox Jewish applicant who was asked whether he would come to class on Saturday, and by his persuasion he felt he could not.  There was a very strong movement not to admit that young man.  He was admitted.  Some of us argued very strenuously for his presence.  We also asked about Protestants who hold a very, very strong evangelical point of view and, of course, about Catholics.        

It has been proposed in the literature that Catholics perhaps should not be entering... maternal-child health because they cannot or will not provide the full range of reproductive services.

So we're dealing with a reality.  I've committed myself in print on this, so I thought I should not remain silent...

It is also being proposed [by some] that part of the licensure procedure should be a commitment to doing everything that's legal... The physician either should provide it or should not get a license, [it has been] proposed, also that if a physician does not provide what is legal that the licensure body should be the judging group and the patient could complain to the licensing body to have licensure removed.  Again, this is not paranoia, but just a statement of fact. 

And I think that the fundamental question here, the ethical and moral question is, are there any limitations to autonomy and what are they?  I think there are...

With respect to Bill, I think there is no such thing as a morally neutral person.  A physician being a person regardless of his MD or her MD degree is going to [hold to] values as well. I don't think it's realistic at all to ask for moral neutrality.  It's simply a statement of fact without necessarily arguing a point at this time.  Any others?

DR. HURLBUT:  If nobody else wants to ask questions, I will continue because we have obviously a very thoughtful guest.

CHAIRMAN PELLEGRINO:  Excuse me.  I'm sorry?

DR. HURLBUT:  If nobody else is going to ask questions, I'll continue because we have a very thoughtful guest.  So if we have other questions, I'll defer to them.

CHAIRMAN PELLEGRINO:  Yes, Alfonso.  Prof.  Gómez-Lobo?

PROF. GÓMEZ-LOBO:   Yes.  My question is, since I'm not in the health professions at all, is a broader information question.  From what Ed just said, I find it even more pressing, and it's this. 

I read one of the papers you sent us, the one in The New England Journal of Medicine.  And what I got from that paper was a sense — but maybe I didn't read it carefully enough — a sense of a tendency to say, conscience should be limited.  There is a social commitment to medicine that should not tolerate these sort of niceties which are identified mostly as issuing from religious conscience.  I didn't see your argument there, the argument that conscience is really a rational judgment on any action, I mean, before any person can deliver such — well, needs to deliver such judgments. 

So I want to get a sense of where we're heading towards because I found it very troublesome if I understood what Rebecca said that there might be, say, areas in medicine where certain people should not go in because of their convictions.  I would find that extremely troublesome.  So, again, this is very general.  But I would like to have a sense of where we're going in this direction. 

I do know, for instances, that in Switzerland they have become very strict in requiring people who are going to be licensed, I think, in nursing to perform certain rotations in procedures that they oppose as a matter of conscience.  Now that would mean abandoning what appears in this article as the notion of conscience without consequence which is what the author put there as a distinction between Mahatma Gandhi, Martin Luther King, civil disobedience, etcetera, and this new form of civil disobedience.  So I would be very grateful for some comments on that.

PROF. HARDT:  Sure.  I'm happy to, and I'm happy to defer to Dr. Pellegrino if he wants to pick up on it. 

What could I say here?  So I'm worried about where we're potentially heading also.  I don't like the idea that we could find ourselves making the absence of these commitments a requirement for licensure in a particular area.  I think that would be a grave mistake and a way of mishandling what people find uncomfortable, which is moral conflict.

I mean, that's really what we're talking about when we're talking about conscience.  It's two people, hopefully of good will, strongly disagreeing about something that both consider to be of some importance.   And because that makes us so uncomfortable, some are suggesting that the goal is to prohibit it by simply not allowing it to ever occur, and I think that that's a mistake.

That's not to say that the state and the federal government doesn't have some obligation to protect some social goods at stake here.  So I think one could argue there is a social good to making legal medications available to citizens — a perfectly fine position in my mind to hold. 

But does that fall upon physicians to fulfill that obligation?  So does that mean that if I'm a physician with a particular commitment that would prohibit me from doing [certain] procedure [or certain] acts?  Does that mean that I have to be constrained in where I practice or how I practice, or does it fall upon the government to make sure that there are other physicians, other pharmacists, in that region that would accommodate that particular request so that we can protect this social good of making legal drugs, legal interventions, available?

My question would be, who are we going to put the gate-keeping responsibility on?  And I don't like the idea of it falling on the physician for two reasons.  One is that I don't think that the issues where conscience arises are at the core of medicine as a practice, so I don't think that a physician, when he or she decides to go to medical school is signing on for all of the things that society might be expecting them to be signing on for.  I just think that that's wrong.

Second, conscience in general.  We can't begin to work from the notion that one has an obligation to do that which he or she knows is wrong.  I mean, that is ultimately what conscience is about.  I mean, we have to protect that because the moral life in general depends upon that idea, that one can't be expected to do that which she knows to be wrong.

Now Professor Charles' comment about conscience without consequence in the article that you're referencing, I think it's a valuable one.  I don't know that this conscience won't come with some consequence.

I think that the market will play this out, that a physician who chooses, let's say, not to prescribe birth-control, not to prescribe medication for ED, not to refer for abortion services, you know, not to ever give drugs to patients exhibiting drug-addictive behavior — pick the list — if they hold to those positions and they advertise that they hold to those positions, which I think might not be a bad idea to prevent patients from experiencing embarrassment, fear, whatever might happen in that encounter, then the market might make it difficult for them to remain in practice.  It may not.  But I'm not inclined to think that if physicians hold to positions of conscience that that conscience doesn't come with some consequence.  It may very well for their practice.


DR. McHUGH:  I also appreciate the opportunity to discuss these matters with you in your thoughtful way and your approach to them.  And I'm not sure, like Bill, that I've got a question yet evolving here except in the position of doctors and their role that you put into your hypothetical and particularly because it deals with sexuality, and I want to comment on it in two ways.

One way is I want to tell you the history, of course, about the views about Viagra in relationship to human sexuality because it's not as straightforward as you might think nowadays.  When it first appeared, there were many people who felt that health insurance should not give people this.  In fact, we were at the Johns Hopkins and the president of the University wanted to know why I thought that health insurance might pay for a few of these things.  I think I was surprised. 

And so your hypothetical that you laid out for us — and I'm going to do just what Robby said I shouldn't do, push the hypothetical in both directions — the one hypothetical is to say should the health insurance never pay for this because it's got something to do with sexuality to the story that you described, number one, to the story which you described that said some of the audience said, well, okay.  And then, of course, you push it so that if the man said, "I want the Viagra so I can perform in a pornographic film.  Give it to me.  I need this extra energy."  Well, almost everybody would say, "I'm out."  Okay?

PROF. HARDT:  Right.

DR. McHUGH:  And then so when you see that kind of thing, at least when a doctor sees that or a person particularly interested in human behavioral science, you begin to think, you know, there's something awfully problematic about sexuality, not simply in the moral sense but in the science sense as an aspect of a drive.  Sexuality is a normal drive.  It's a built-in.  Some people talk about it as an instinctive drive.  Much of the discussion turns about it.

But, you know, it's a different drive than the hunger, the thirst, or the sleep drive because in those other ones, if you look at them, the scripts are built in.  You know, you come — you come with them.  You eat, you sleep, you drink.  And, well, you become more subtle in your drinking and eating later on, but for the most part it's still scrambling for the grub.

Sex isn't that way at all.  Human sexuality comes in relationship to the emergence of, yes, drive, but as well as a sort of sense for the first time, because it's a paired process in most ways, a responsibility for the person on the other side, and the sense of what social scripts mean for us, and we're still struggling, aren't we, from the various places we come from to find out what we mean by the place of sexuality in the flourishing of our life?

And that puts the doctor in a very tough spot because — and Bill touched upon it a bit earlier — that when you realize that, you're very unwilling to jump in too quick.  You do worry about this idea that bigotry will start taking over.  And then, you know, you pause and think about things. 

And it does bring you up to the idea that fundamentally you would like to be able to be — you should, if you were reflexes were such — that you always were on the moral top.  But in this case, in the case you've described and the other kinds of things, we need to perfect a better understanding of the sociology of the script of sexuality in our science.  And as we begin to form our positions on this, I think we will find them open to understanding how we benefit our patients, because that's, after all, what we're supposed to do, benefit them, as we see more and more of the outcome's proper relations including these places of the pharmacological thing. 

So I'm not sure I have a question for you so much as an idea that, whoa, I'm just saying hold back here.  We're dealing in an arena of ignorance both in science and in society, and we have to — I'm a little nervous about proposing answers — and I don't think you are proposing it — that would lead people to have one or another kind of posture here.  But look at the pressures that are on us from the powers around.


DR. McHUGH:  Do you have any response to that?

PROF. HARDT:  I'd be happy to comment on it.  Thank you very much.  I think your points are very well taken.

Before I comment on those, let me go back to Dr. Gómez-Lobo's question to me because I should reference an article that I think is very helpful for understanding how one might think about the state's role in conscience and protecting physicians and patients alike. 

Robert Vischer is a law professor at the University of St. Thomas.  He wrote a wonderful article, not in the Stanford Law Review, but another one of Stanford's law reviews, and the title escapes me exactly, but it was something along the line of Pharmacies, Conscience, and the Marketplace, Robert Vischer, V-I-S-C-H-E-R, and it's a very nicely done article in my opinion.

Dr. McHugh, to come back to your points, let me just try to comment on your comments.  All of them were very well made.  When you press that case further to the margins, I share your unease.  I have some unease about Dr. McMahon's original response, and that's one of the reasons why I like the case, because it causes me unease, too, and I like conscience.

At the end of the day in my opinion, this is going to come down to some moral casuistry.  We're going to be dependent on people of good judgment to try to make good decisions in the clinical encounter.  And if I'm going to protect conscience which I think we have to do if we're going to have medicine as a moral profession and if we're going to have any substantive sense of the moral life at all, I don't think we can do that without a notion of conscience.

If I'm going to protect that, I have to allow for the possible bad judgment, the occasional slip into bigotry, the occasional patient embarrassment.  I'm not happy about that at all.  I wish it were otherwise.  But I don't think that we can bend.

And then on a related point when you talk about the significance of sexuality and how so many of these issues of conscience congregate around that, I do hold to the idea that our bodies convey moral meaning, that sexual expression is morally significant. 

But I also worry tremendously that many of our decisions and our commitments fall on women especially hard, and I think for that reason we have to be diligent in attending to our consciences to make sure that we are not unnecessarily imposing burdens on women when they already have been burdened with quite a bit.

DR. McHUGHI agree with those issues, and I'm just anxious for us to understand that this arena of our work is not solved by technology and how we deal with technology.  It very much relates, as you say, to what it means to us and what it means to the other person and particularly to women.  The transformation of the concern for women that has come — well, to put it quite simply, one of the negative consequences of the contraceptive revolution has been the problems.  Women have exchanged one set of problems for another set of problems. 

I won't develop that anymore, but it's a very, very interesting theme for us to think about, whereas in the past it used to be theme of their vulnerability to unwanted pregnancy, now it is their vulnerability to very serious involvement with infectious disorders.  It is said that — The New England Journal said that 40 percent of coeds in colleges, young women in colleges, have human papilloma virus.  That's a terrible thing for them.  These women have been terribly abused.  So I'm of your opinion.  It's just that I'm glad to hear you say what you say, that these are dangerous waters and that we can make errors of judgment in both ways.

CHAIRMAN PELLEGRINO:  Thank you, Paul.  Dr. Bloom?          

DR. FOSTER:  Could I just make one brief comment? I think that — I think that one of the concerns about conscience in medicine and so forth that you've been talking about has to do with a certain narrowness of what the conscience is involved with and particularly with issues of sex and so forth.

I would say that in the broader sense of conscience and morality — for example, the expression of human concern for other humans, of love, and things of that sort — is widely considered a plus for somebody who is applying for residency or medical school.

I interviewed a student Friday, an MD/PhD student from — I'm not — I used to chair the admissions committee.  I don't have anything to do with it, but I'm talking about residency now from Johns Hopkins.  This kid was judged by one of the members, senior members, of the Hopkins faculty as the best student that he had ever known at Hopkins.  He's written 16 papers already.  He goes all over the world to manage medicine in Africa and so forth because of human concerns, and so — he's a pharmacologist.  And so I mentioned him to David Mangelsdorf who is the chairman of our Pharmacology — we have the best Pharmacology Department in the world — he's a member of the National Academy, and Al Gilman who just won the Nobel Prize was the chairman of it.  It's ranked in the last five years as the best department.

And I mentioned this to David Mangelsdorf, and he wrote a long note to this student praising his conscience, that he's going to be a great scientist eventually, but considered a great plus.  So we need to be careful not to narrow the definition of conscience to whether you can treat erectile dysfunction to the broader sense. 

And one of the things that's happened so often is, and particularly in Catholic background, that it's seen as a narrow thing and not necessarily as an absolute thing.  For example, you know, in the Holocaust Museum there's a business about a woman in World War II who saved Jews by having intercourse with a Nazi SS, you know, and so one might argue that this sin, so to speak, was cancelled by love.  Kierkegaard used to say, "Love covers a multitude of sins."  So I just want to be certain that we're not — at the medical school where I work, it's oftentimes mentioned by people, scientists on the admission committee, that it's a plus that somebody cares for other humans in addition to knowing science.  I just want to be sure we don't narrow conscience to one aspect.


PROF. HARDT:  Could I just briefly comment on that, Dr. Pellegrino?


PROF. HARDT:  I couldn't agree more.  And just to be very brief, it's why I wanted to articulate that, one, conscience isn't just for religious people; two, any decision that makes a moral determination of good or bad is a decision of conscience; and, three, the reason that we seem — it's those cases frequently around sexuality, reproduction, human embodiment that garner public attention, and it's the answer of conscience in the negative that garners public attention versus the student you're referencing who, when we talk about him having a fully formed and flourishing conscience, what we mean by that is this is going to be a person of compassion, wisdom, good judgment, etcetera.  So I appreciate your point.


DR. BLOOM:  I only raise this question because the discussion seemed to be flagging when I raised my hand. 

But to probe the dimensions that we've just been on, I was only on the faculty of one medical school — that was the four years I spent at Yale — and there in the second year, I had a student that I brought into my lab because he seemed like a curious scholarly person and I could see a little bit of a glint of curiosity in his eyes and showed him how to do some of the procedures I was doing.  And after about a week and a half, he came back to me and said that, you know, "I really can't do animal experimentation."  I said, "Well, that's fine, Dan.  There's lot of people who don't do that in medicine, and I do it because that's how I think the future will be solved.  But there's no reason for you to do it."  And I can understand.  It's messy and so forth.  They are healthy animals when we start, and we make something less out of them.

But a few years later in San Diego I was debating in front of a crowd of people who did not like animal research and was astonished to find a physician on the stage opposing animal research.  Now if the future of medicine is in experimentation, can a physician have an ethical aversion to having animal research be done?

CHAIRMAN PELLEGRINO:  That was directed at you, Dr. Hardt.

PROF. HARDT:  I wish it was directed at you.

CHAIRMAN PELLEGRINO:  Well, I will certainly answer, but go ahead.

PROF. HARDT:  That — I don't know enough about the question specifically to say it may be the case that that would be an inherent conflict.  It may be the case that one could find a middle position that would say we aren't adequately protecting animals in such a way as to resolve people's moral concerns.  But with that, I'm going to defer to an expert.

CHAIRMAN PELLEGRINO:  Well, I'm not an expert.  I would respond, Floyd, to that one saying, if you have that position you can't use any of the results of animal experimentation.  If you live that life, it's a real constriction.

Now I want to respond to Dan's comment as well.  I certainly would not accept the notion of conscience narrowly.  When I talked, those were merely statements of experience and fact in response to Robby George.  My own feeling is, conscience applies to every moral act that we take [from] the narrowest and the broadest. 

And without extending the discussion, I feel that the real question is, where in the order of priority of things does one's personal conscience stand with reference to another person's conscience?  And I would defend the right of each person to [hold to his own] conscience unless it somehow produces harm for another person...

The real question comes up... when there was no other physician available...  I think the preventive act of making known to the patient the things you will not do at the very, very outset so that they don't enter a relationship with you is an important preventative.

But nonetheless I think someone who opposes animal research should not take advantage of animal research including himself or herself.  So when it comes to penicillin for meningococcemia, [for example, he may feel the source is tainted morally, so] he shouldn't be taking it... 

Yes, Ben?

DR. CARSON:  Just a quick and hopefully simple question.  With your background in theological ethics, you might be able to come up with the answer for this.  What is the difference between applying conscience and being judgmental, or is it a continuum and are they compatible?

CHAIRMAN PELLEGRINO:  Our last question.

PROF. HARDT:  The difference between being judgmental and applying one's conscience?  I'll start by saying that I'm not a big fan of people who say we shouldn't be judgmental.  We make judgments day in and day out.  Any time you meet someone, you make a judgment about them.  When you hear them speak, you make a judgment about them.  Our life is made up of judgments.

Now we shouldn't be — our judgments shouldn't be reflective of a mean-spiritedness or a lack of consideration.  They should be carefully judged.  They should be considered. 

So I can appreciate — I think I understand where your point is going.  But I want to say that conscience and judgment technically are very similar. One is making a judgment about an action for its rightness, wrongness, goodness, badness.  But when I make that judgment, I don't have to in making it diminish the person I'm making it about.  And I think that that is maybe where we slip into judgment in the way that you are describing it.  And it's in that diminishment that I would be worried that a physician would be operating outside of the covenant she's participating in if she's doing that.

DR. GEORGE:  Ed, may I add?  It's Robby.

CHAIRMAN PELLEGRINO:  Oh, there you are.

DR. GEORGE:  Just based on my own experience in the academic world, I think I have the answer for Ben's question.  It is that when you are agreeing with me, you are exercising moral conscience.  When you are disagreeing with me, you're being judgmental.

CHAIRMAN PELLEGRINO:  Thank you very much.  And with that, we will go to lunch and be back at 2:00 o'clock.

DR. HURLBUT:  Can I just add one little comment to this, the last statement that in judging one is not denigrating the opposite view?  I think we have an obligation in medicine that's not often mentioned, and that is to try to find ways forward that sustain the consciences of all of the population. 

And I just want to add that at this moment in our medical scientific research, sort of, interface history, we're encountering a situation over stem-cell research where we have a huge percentage of our population that has moral qualms about the way we're proceeding, and it certainly strikes me that we would be wise to find a way forward that we didn't increase these conflicts of conscience in our society.


  - The President's Council on Bioethics -  
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