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Friday, November 21, 2008

Session 5: Conscience and the Health Care Professions

Holly Fernandez Lynch, J.D. Associate, Hogan and Hartson, Washington, D.C.


CHAIRMAN PELLEGRINO:   Good morning. Thank you, Council members. I think we'll begin this morning's session on the subject of conscience in the healthcare profession, a continuation of a discussion we've been having over several meetings.

Thank you very, very much. Our speaker is Holly Fernandez Lynch, who is an associate with Hogan and Hartson here in Washington, D.C. She also is the author of a very recent book on this particular subject, and we've invited her for her expertise in this area. Ms. Lynch ?

MS. LYNCH: Hi, everyone. I want to thank you all for the opportunity to speak to you today. It's great to be called the expert in anything after a year as an associate at a D.C. law firm. I've sort of become used to not knowing much about really anything at all.

So I'm really pleased to talk to you today, and I do have to give the disclaimer that my views that I express today are my own and shouldn't be attributed to Hogan & Hartson or its clients.

So I want to get right into things today because,more so than my presentation, I'm interested to hear what you all have to say. I want to continue the discussion you began back in September on this topic and see if we can move things forward a bit more.

Just to give you a brief overview about what we'll be talking about, I want to briefly describe why I don't think legal arguments get us very far here, which is probably an odd thing for a lawyer to say. But I really think this needs to be more of a moral discussion about the parameters of the medical profession. Then we'll move on to talk about various ideas where access won't be the driver of our conclusions. So one area is the idea that there are certain services that the profession should be expected to withhold, certain access problems that we should encourage. We don't want doctors to provide certain services. And at the other side of things, certain circumstances where we might be unwilling to accept a physician's refusal, even when access is not a problem.

And then we'll get into the really difficult question of the" last doctor in town" and what that doctor's obligations might be and some iterations of the last-doctor-in-town example, such as emergency services, referral obligations, and the duties to provide full, informed consent.

So to make sure we're all on the same page, my research and thinking on this topic has really focused on physicians, not on pharmacists or nurses or other members of the healthcare team. And the reason for that was I was sort of intrigued when I first started thinking about this issue by the idea that physicians have been granted traditionally the most autonomy of any member of the healthcare team.

And beyond that, I have seen some interesting examples of compromises in the pharmacy setting or in the hospital setting where people have pointed to a higher-level institution that's capable of sort of balancing patient access concerns and professional ability to refuse.

I didn't really see an easy institutional solution for physicians who are able to hang up their own shingle and don't necessarily need to be anyone's employee. So that's why I started with physicians. And I also want to make clear that I am by no means a moral philosopher. I understand that you had a discussion of the philosophy behind conscience back in September. For my purposes, I want to stress the value of having moral diversity in medicine writ large. I don't think we really need to focus on the level to which a person's refusal gets to deep levels of their personal integrity.

For our purposes here I think it's valuable to protect all types of normative judgment about the proper ends of medicine. So even though I'm using conscience or conscientious refusal, it's sort of a shorthand for just normative moral judgments about the proper ends of medicine.

And the underlying theme I want to stress for my entire presentation is sort of the John Stuart Mill model of encouraging discussion and debate in an area where we don't know what the right answer is. So to put it as frankly as I can, we don't know, empirically speaking, whether abortion is right or wrong. So I worry about pushing moral refusers out of the profession entirely. I think it's important to encourage this moral diversity in areas where we're really unsure what the right answer is.

So as I mentioned, I will talk about the legal rights arguments that I'm sure you're all aware of. You've heard patients say, "I have a legal right to this service, and I've been denied my right." And you've heard physicians say, "I have a legal right to exercise my religious beliefs, even in a professional setting." And I don't think either one of those arguments quite gets things right.

From the patient's perspective, one of the major criticisms of the American healthcare system is that we really don't have a right to much. And what we do have a right to is frequently a negative right against government interference, as opposed to a positive entitlement to certain services.

Again, abortion is a perfect example. I have a right against undue government interference in my ability to obtain an abortion, not necessarily a right to walk up to any physician and say, "You must provide this service."

Beyond that sort of Constitutional legal argument, I think it's important to recognize that the profession has been granted a lot of autonomy in terms of the doctor/patient relationship. Doctors are free to accept certain patients or not accept certain patients, and that sort of gives them protection of conscience completely separate from conscience clauses.

They can refuse to take on a patient for almost any reason other than discriminatory reasons or things along those lines. So the point being, I don't think that there's a legal argument to what patients might be claiming for services from any particular individual. They might have claims against the government or claims against the profession as a whole, but it's not a one-to-one right.

From the doctor's perspective, they actually do have a legal right as things stand now. With all of these conscience clauses that are currently on the books, they can point to those and say, "I have a legally protected right to refuse." But what I want to point out is that I think there's a strong argument that conscience clauses as they exist today are within the discretion of state and federal legislatures.

I think we can get at this best by using an example. Say State X recognizes that its citizens are having difficulty accessing some medical service that the state thinks is integral to their well-being. The state licensing board might impose a requirement that all physicians seeking licensure in the state be willing and competent to provide that particular service.

Now, to be clear, that's exactly what state licensing boards cannot do under conscience clauses as they currently exist. But that type of licensure obligation could reasonably be described as a neutral law of general applicability. And this is the standard that the Supreme Court has set forth in First Amendment jurisprudence as the test of whether a particular legal restriction is a violation of free exercise rights.

So that licensure law would be neutral because it's not intended to burden religious beliefs. It might have that incidental effect, but its true intention is to preserve patient access, and it's a law that's generally applicable. It doesn't apply only to moral refusers but, in fact, to all physicians seeking licensure in the state.

So from a Constitutional perspective I just want to point out I don't think existing conscience clauses are mandatory. And so I worry about physicians just pointing to these laws and saying, "I have a right." We should talk about what should be as opposed to what currently is, and that's why I don't think the legal arguments get us very far. We need to start talking about moral responsibilities and the moral rights that patients can claim based on those things.

So first I had a chance to speak to some of the Council staff last month, and the topic came up, "Well, what about a person who sort of objects to basic principles of Western medicine? They're unwilling to perform surgery or they think that pharmaceutical intervention is wrong."

I recognize that people hold those views. I want to move quickly away from that because I don't necessarily think those are the people that we're calling doctors. I want to talk about people we would all agree fit the description of doctors and what their moral obligation should be as members of the profession.

Generally speaking, the defining characteristic of profession is that they have an obligation to place the interests of society above their own in many contexts, this idea that they have a special knowledge base and special privileges which result in special obligations. But that primacy principle is not absolute. We let doctors choose where in the country they want to practice. We let them choose whether to accept new patients. We let them choose the hours that they want to practice. And we let them choose their specialties, limited only by the number of available residency positions.

So there are self-interested decisions in medicine that we accept. And the question is whether the exercise of moral objection is one of those self-interested decisions that we should be willing to accept as not a violation of professional duty.

I think there are a bunch of models that you've already been introduced to that will help us think about the role of the physician. From a purely descriptive standpoint, I think it's interesting to use a model that's been applied in the context of infectious disease to ask whether physicians have an obligation to undertake certain physical risk.

And so this was applied back in the '80s when there was a debate about whether physicians had an obligation to treat HIV patients. And the way this model would look at things, say were they willing to accept this level of risk of infection before, and, if so, they should be willing to accept this same level of physical risk even though it's a different disease. So if they were willing to treat hepatitis patients before, they should be willing to treat HIV patients now.

I bring up this example not to say that, well, if physicians are willing to accept certain physical risks they must thereby be willing to accept certain moral risks. This is not to say that moral risks are somehow less than physical risks.

Instead, the idea here would be — when physicians entered the profession, were they expected to undertake moral risk? And I think as a purely descriptive matter the answer to that question is no, given the existence of these laws that have been on the books for several decades.

But the problem with this model is that it's purely descriptive. It doesn't tell us how things should be. In terms of normative models of the profession, certainly you've all heard the ends of the spectrum, people who say that the physician's views should win out no matter what and people who say the patient's access interests should win out no matter what.

And, again, I think the ends of the spectrum often get things wrong, and this is no exception. From the physician's perspective, the idea is that both doctor and patient are morally autonomous individuals and physicians don't lose that autonomy when they enter the profession.

And I think normally we accept and encourage boycotts of things that we find objectionable. We think it's appropriate to try to convince others not to do things that we think are wrong. The problem with those types of boycotts in closed profession is that they can end up having an undue influence, sort of an undemocratic imposition of views on other individuals.

From the patient's perspective, you have some people who say, "Why are we even talking about conflicts of conscience in healthcare? If you're unwilling to perform a service the patient requests, just find something else to do." If you're afraid of heights, don't be a pilot. If you're unwilling to do this service, don't be a doctor.

I think that's far too simplistic of a solution for the reasons I was mentioning earlier about the value of having moral diversity in medicine, not having a purely homogenous group of physicians without anybody who's unwilling to step up and say, "No, I don't think this is the proper ends of medicine. I don't think that what you're asking for is appropriate."

Beyond that, I think we would be doing a disservice to society to exclude doctors who might be excellent physicians who are just unwilling to do one thing. I might be a great OB-GYN who's just unwilling to perform abortion services.

And so I'd encourage us to think about this issue as just one of subspecialization. I think it's a really simple, elegant way of characterizing the moral refuser. Maybe the whole specialty is responsible for X, Y, and Z services, but some specialists are only responsible for X and Y.

And, you know, we have models like this already in the profession. We have surgeons, and then we have orthopedic surgeons, and then we have some surgeons who focus on knee surgery or some particular patient population.

I don't think that there's any reason to conceptualize moral refusers any differently from that, and it allows individuals who have sort of lost the larger debate about what should be legal to create their own moral subcommunity, to find patients who agree with those views, who are willing to accept a more restricted scope of professional services.

The problem with this is that we could end up with a situation where all physicians are choosing the same subspecialties and there are big gaps of professional services that patients remain without access to.

And so for that reason I think we need to move away from talking about the responsibilities of individual physicians and start to talk about obligations of the profession as a whole. And this idea has been articulated by a number of commentators on the issue of conflict of conscience, the idea being that you can bifurcate the responsibilities of individual refusers from the profession as a whole.

As long as the patient can access the service from some willing physician, individual physicians don't necessarily have to do everything that they're asked. And I think it's important to focus on the idea that the profession can avoid conflict by trying to avoid situations where refusers stand in the place of the profession as a whole, avoid scenarios where the profession's obligations sort of trickle down to the individual physicians. And that's why I think the institutional solutions are a best bet.

I want to stress that this is the profession's obligation and not necessarily the obligation of employer. This is one of the main criticisms of the recent HHS proposed rule to set up more definitions of existing conscience clause protection.

The problem here is that we're sort of left without a higher level institution, and we can easily point to employers and say, "Okay, we think it's important to have refusers in the profession. So, employers, you can't fire them."

Because the employers don't have professional obligations and they, in fact, have businesses to run, I think it's asking too much of them to subsidize the beliefs of moral refusers. What we need to do is preserve room in the profession, but we don't need to create sort of an artificial market. I think Title 7 has really come up with an appropriate balance between business interests of employers and reasonable accommodations of the religious and moral beliefs of employees.

If not the employer, then, who will bear the profession's obligation? It's not good enough to say the profession has a responsibility to preserve access and not point to some specific body that can take actions to calibrate supply and demand in the medical field.

And so I'm not going to get into this too much, but my proposal is that state licensing boards really step things up and sort of recalibrate and reorganize state licensing boards to bear the responsibility of making sure that patients can access services that are important to them while also allowing physicians to exercise their moral belief and enter these subspecialties.

I think licensing boards really can stand in as the profession as a whole because they're responsible for creating the medical monopoly. We can talk about this more during the question-and-answer period if you're interested, but I worry it's a bit too specific for our purposes here.

So I'd like to move on to talk about what I mentioned before. Maybe there are some areas where access problems are exactly what we want. And what I mean by that is maybe there are some things that we have put in the professional monopoly precisely because we don't think patients should be doing them. And this is the idea that there's a distinction between services that are legal and services that are ethical, and maybe there's been a delegation of responsibility to not provide unethical services placed on the medical profession.

With that being said, I think it's crucial to recognize that there's nothing necessarily — no offense to anyone here — about being a physician that endows you with some level of ethical expertise. You might have more familiarity with ethical dilemmas. You might have thought about them harder. But there's no necessary reason that a doctor would come to a particular conclusion about a moral dilemma that we should accept as more valid than any other member of society.

So if we're going to allow the medical profession to restrict the services that it has an obligation to provide — certainly they don't have an obligation to provide illegal services. And we can also say they don't have an obligation to provide services that are, as a matter of their expertise, not going to forward the patient's aim.

I think the best way to get at this is an example. If I go to my doctor and say, "I want Vitamin C injections for my cancer," the doctor has the expertise to know that's not the appropriate course of treatment for treating the patient's problem. Those scientific and medical expertise issues can also be appropriately carved out of the profession's obligation.

But beyond that, there might be other things to carve out. We just can't leave it to the profession to decide on its own what those things should be. I think this would have to be a broad social debate about things that are appropriately excluded from the basket of services provided by the profession.

I also want to touch on these issues of validity and sincerity of the refuser's grounds for refusal. And here the idea is even when access concerns can be avoided there may be some grounds for refusal that we're still unwilling to accept. Even if I refuse and the patient could easily go to Dr. Pellegrino sitting right next to me, there might be some reasons that we don't want to protect from my refusal.

I think certainly we can't reject refusals on the grounds that they are right or wrong, true or false, because, again, we just don't know. But I do think we can draw a line between objections to a service and objections to a patient.

And a perfect example of this is the case in California that was decided this summer of a woman who sought reproductive assistance and was told that her physicians would not help her with her fertility treatments either because she was unmarried or because she was a lesbian. The reason for their refusal is sort of up in the air. It's still being litigated.

I don't think which of those two it ends up being actually matters because I think both involve a dignitary harm of having your person judged as opposed to your choices judged. So I think it's appropriate to protect refusals that are consistent across the board: I won't provide in vitro services to anyone versus I won't provide in vitro services to you because you're a lesbian or you because you're African-American.

Those types of bigoted refusals are not appropriate within the profession, and resolving them by saying, "Well, the patient can get access elsewhere" really sets up a sort of separate-but-equal scenario that is just unacceptable, should never have been acceptable, and I don't think we want to protect that type of refusal.

So now the meat of what I'd like to talk to you all about today, and this is what I think will be most controversial, and I'm really interested to hear what you have to say. But the idea that there may be some scenarios where we truly can't separate the individual physician from the profession, a situation where the profession's obligations have now trickled down to the individual doctor because that doctor is the only one who's available to provide the service that the patient seeks.

Now, here, because the individual is standing in the shoes of the profession as a whole, I think we can legitimately say they have a responsibility as a professional to provide access to the service. We're not dealing with sort of moral equals where they only have an obligation not to interfere with one another. This is a hard case because somebody's views are being imposed on somebody else, no matter which way we decide. Either the physician's views are being imposed on the patient because they won't get the service or the patient's views are being imposed on the physician because the physician will have to do it.

In that scenario, because the physician has voluntarily entered this role, I think it's appropriate to say that the physician must do it as a matter of professional ethics. But that being said, I don't think that we can necessarily legally impose that obligation. The problem with enforcement is that it would set up huge disincentives.

First, you can only have a responsibility to do things that you're competent to do. And so we might have a situation where physicians are being expected to gain competence to prepare for this last-doctor-in-town situation. If we force them to undergo training in the things that they find morally objectionable, they just won't enter the profession, and we won't have a compromise at all. We'll lose that moral diversity. We'll lose that counsel of restraint because they just won't enter the field.

Even if we only impose the obligation in the hard cases on physicians who already have the competence — maybe it's something that's not a technical service. Maybe it's termination of lifesaving care where it's not a matter of knowing how to do it; it's just a matter of being willing to do it. If we enforce the obligation in those cases, the refuser will just quit. They're not going to do it. I mean, that's sort of the idea behind the moral refusal.

So the individual patient who's seeking the objectionable service will be no better off because they're still not getting it, and we might create a situation where other patients who are seeking morally neutral services are also worse off by virtue of the refuser quitting.

If it's truly the last OB-GYN in town and that's why they have this obligation, if they quit, everybody in that town is now left without important medical services. So I really worry about these disincentive effects, and that leads me to believe that it will be inappropriate to legally enforce this obligation that I do think exists.

Now, in my scenario with the licensing board I've come up with sort of a complicated way of sort of compensating patients when they are denied services in this last-doctor-in-town situation. It's not a perfect solution.

It's sort of payments of a fine, the idea being that the licensing board would have violated its obligation as a representative of the profession to preserve access. And certainly, you know, a monetary compensation is not as good as getting a service, but when you think about what legal enforcement would entail, it really would just be a monetary fine on the physician.

We're not in the business of physically taking the physician's hand and making them do the service. So really the patient is sort of stuck in those scenarios. It's a matter of who pays the fine. So one of the more difficult iterations of the last-doctor-in-town scenario is the obligation to provide emergency services. This is beyond just imposing the doctor's views on the patient or the patient's views on the doctor. Here we have a situation where if the patient doesn't get the service, the doctor's views have sort of been imposed irreversibly and forever. That's why we'd be calling it an emergency.

Unfortunately, I don't have the solution. I can't snap my fingers and say what we should do in an emergency situation. What I can do is say we need to think hard about how we should define emergencies. I think these are the types of things that would impose an avoidable, serious, irreversible consequence on the patient, either right now or in the near future. But I do worry that those same disincentives that I mentioned before are still present in the emergency scenario. It's just that the consequences for the patient are so much greater that maybe we can really say, "These are the type of professional obligations that we should be legally enforcing."

Now, there's a caveat to that, which is, again, you can only have an obligation to do what you're competent to do, and so I don't necessarily think we should be expecting all physicians to gain training in morally objectionable services just to prepare for these emergency scenarios. In fact, we don't expect that of nonrefusing physicians.

You don't have to become an expert in everything just to prepare for the situations that may arise. And that may, in fact, help get us closer to a solution on the emergency side of things because refusers could sort of avoid the competence to provide the objectionable service. Of course, that doesn't get the patient in any better of a situation.

So I would like to focus our discussion on what to do in the emergency context and also what to do about the obligation to provide referrals to other willing providers if you yourself are unwilling to provide the service.

Now, in the emergency context, we might be willing to impose and enforce an obligation on the physician simply because the patient can't protect him or herself. In a referral context, maybe there are things we could do to help the patient protect themselves so that the physician still can have protection of his or her moral beliefs.

And here the institutional things might come in again. Are there other places where we can make information available to patients where they could find other willing providers? Because it's not just a matter of sophisticated individuals being able to navigate the Internet and their insurers and figure out where else to go.

Maybe we can make that information more easily accessible to patients who have been denied services so that they don't have to rely on their physicians. With that being said, if the patient really can't find anybody else — this is another variant on the hard case.

The doctor, by not telling the patient where else to go, has sort of created a situation where he or she is the last doctor in town. I think in terms of levels of moral complicity, certainly it's better to tell the patient who else might be willing to provide the service as opposed to actually doing the service himself.

With that being said, moral complicity is a huge problem. It's a valid argument, I believe, to say it's quite bad — maybe not as bad to tell you who will perform the morally objectionable service. So, again, I think we're sort of stuck in not an intractable situation. I think there can be solutions from the institutional level down. But I'm not quite sure what we should do until we get those institutional solutions in place.

And, finally, I think that there are some baseline obligations that are less difficult to handle, the first of which is an obligation on physicians to provide full notice of their moral beliefs and their grounds for refusal right up front, try to avoid conflict before the patient won't be able to find anybody else.

And this is the idea of encouraging doctors and patients to match based on their shared beliefs. The idea of the subspecialist requires the doctor to disclose the types of services they're willing to provide. And I think it should be pretty uncontroversial. It's not a major burden on the physician. If we can help avoid conflict at the front end, it shouldn't be too much of an imposition on the patient.

And I do want to make clear that there are some things patients should be expected to do to accommodate the moral beliefs of their physician. They should try, if possible, to find somebody else instead of demanding the service from the moral refuser.

So in addition to notice of moral beliefs, I think it's important for physicians to have a full understanding of the situation before them, have all of the scientific information that will help them decide whether their moral beliefs really prevent them from providing a service the patient is after.

And, in fact, I want to stress this. This is sort of two-way street: physicians to be encouraged to have an open mind and to really think about why the patient is seeking the service and why the patient's reasons may, in fact, convince the physician that it's acceptable to provide the service.

And, finally, the obligation of informed consent. And I know Prof. Schneider might have some questions about this obligation between the medical profession and the legal profession, but my perspective is that failure to disclose available alternatives to the patient is really an abuse of power.

The reason that society can work and be successful is that we've sort of delegated different tasks to different members of society. I don't have medical expertise; I have legal expertise, and that works because Dr. Pellegrino and I can sort of swap services. I don't need to know everything about everything because I can rely on other people.

I have to rely on my physician to tell me what options might be out there. If he doesn't tell me, I won't even know that I need to protect myself from anything. And I really think that that's a paternalistic imposition that's really an abuse of power.

I know it's controversial, that to some degree there are some people who say in terms of moral complicity even providing an informed consent goes too far. I think this needs to be a baseline obligation on all physicians, including refusers.

So to wrap things up, I think physicians should not be expected necessarily to comply with all patient requests in all circumstances. I don't think necessarily that they should be willing to pay a price because I don't think they've always been violating a duty. If somebody else can do it, I'm not necessarily violating my duty.

The profession as a whole has a collective obligation to preserve patient access, and sometimes that professional obligation can trickle down to individual physicians. I think it's crucial to protect room for conscience in the profession.

We shouldn't force refusers out, but we don't need to necessarily subsidize their views. But we need to find a solution that can balance patient interests and physician interests, not legal rights, to the extent we can.

So that's my presentation, and I'm really interested to hear what you all have to say and think about this topic.

CHAIRMAN PELLEGRINO: Thank you very much. I've asked Prof. Schneider to open the discussion. Carl ?

PROF. SCHNEIDER: I have a couple of questions to get us started. The first one is an empirical question. I have no idea how common these kinds of conflicts are and how difficult it has been to resolve them. I have no idea how often people come to doctors and doctors say, "I have qualms of conscience, and I can't help you."

And I don't know whether they are the kinds of situations where it is difficult to refer a patient to someone else. I just have no sense at all of whether this is an interesting hypothetical problem or a widespread social problem. And I'm particularly curious about that because bioethics has specialized in intensive investigation of questions which affect almost no one.

The second question I have is essentially how does the law's treatment of lawyers' conscience objections to providing services differ from the ethical/legal treatment of doctors who have conscientious objections to services? And let me, for the benefit of people who haven't ever had to take a course in legal ethics, give a quick sense of why I think this is kind of an interesting question.

Doctors and lawyers are the two — medicine and law are the two classic professions. The classic sociological definition of a profession includes professional autonomy, both in the sense that the profession regulates itself and that individual members of the profession make decisions about their own work and about their own behavior and to a very large extent about their own ethical behavior.

Nevertheless, the way that legal ethics and medical ethics have developed has been, I think, maybe even radically different. And to put it in an enormously crude generalization, lawyers have believed that the standard sociological description of professional autonomy, individual and group, is a good thing and have gone a long way toward preserving that kind of autonomy.

With doctors, that has been much less true. I think one of the easy examples of this is in the law of informed consent. The legal duty of informed consent for doctors is very well developed, and there is a lot of specific legal writing, both in cases and in statutes, that lays out what kinds of duties of informed consent doctors have had, and there are suits — not as many as doctors think there are, but there are suits which patients try to vindicate their right to informed consent.

Perhaps the most distinguished exponent of legal ethics in the last generation is a man named Geoffrey Hazard, and this is what he says about the idea of informed consent for lawyers and clients: The idea that lawyers and clients should share legal decisions is difficult to reconcile with several considerations. In other words, shared decision-making is difficult to reconcile with several considerations.

First, the lawyer usually knows more about the legal aspects of the problem than the client and more than the client practically can be told. Second, the lawyer typically is inured to the emotional distressive conflict and can therefore deal with it more steadily.

Third, the decisions in carrying out a legal matter often require unabashed assertiveness. Lawyers are used to taking such measures while ordinary people are not. Also, some clients expect the lawyer to take responsibility for a difficult choice: "What should I do?"

Well, one takes oneself back fifty years to the standard medical explanations of why informed consent would be a bad thing, and word for word, comma for comma, that is exactly the explanation you would have gotten. It's been completely rejected in the medical context.

It is still perfectly respectable in the legal context to the extent that there are some kinds of questions that legal ethicists talk about as being purely reserved for lawyers to handle. Questions about how you're going to handle some of the more technical parts of litigation, even if they have consequences for clients, are regarded as being within the lawyer's discretion.

More broadly, I think that here has not developed in law the kind of external ethical regulation that you see in medicine. In other words, there is no legal equivalent of bioethics, of a profession and an enterprise whose job it is to tell doctors how they ought to behave. There is no Belmont Report for lawyers. There is no attempt to wrap up all of the principles of legal ethics in beneficence, autonomy, justice, and for those who prefer, nonmaleficence.

There is, rather, a practice of leaving these kinds of ethical questions to the work of the legal profession to evolve. You know, I think part of the reason for this is that lawyers make the rules for lawyers, and lawyers make the rules for doctors, and there is something — it is a lot easier to see the virtues of regulating yourself than to see the virtues of having other people regulate themselves.

But I also think that when you read the ethical literature in law and compare it with the bioethical literature, you get a much more serious ethical discussion in the professional legal literature than you do in bioethical literature. And I think the same thing is true in a related area, which is the regulation of research ethics.

If you read the Belmont Report or if you read the literature on research ethics, and particularly if you encounter the education on research ethics that is given researchers by IRBs, you would see what Prof. Elshtain yesterday described as an extraordinarily thin ethics.

If you read the writing of, for example, social scientists on the ethical problems of doing ethnographic research, you see people who are actually involved in the work itself, who know what the real ethical problems are, who are extraordinarily sensitive to those ethical problems, and who write about them in a way in which difficulties are appreciated.

So it's not at all clear to me that the traditional model which the lawyers follow is the wrong one, but the difference between legal ethics and medical ethics... I think is quite significant.

So my specific question here is not to all of these generalities I have been enjoying but to ask whether there is some kind of parallel to this problem in legal ethics and, if so, how it is resolved and whether that resolution tells us anything about the problem in the medical situation.

Sorry, I forgot to say something. I enjoyed reading your book and plan to steal from it in the writing of my case book, with your permission.

MS. LYNCH: Of course. Well, to answer your very first question about the empirical nature of this question, it's actually something that I struggled with when deciding to write a book, and I should say I started to write an article, and it sort of took on a life of its own and turned into a book.

And I struggled with it because I think there are so many really important questions in bioethics, and certainly I know the Council struggles with this. How do you decide to talk about this question as opposed to setting every single session trying to figure out how to deal with health insurance, lack of access in this country?

I mean, there are questions that affect a ton of people, and there are questions that affect a handful, relatively speaking, but that have really big consequences for those people that they affect. And so I don't know that it necessarily matters whether this is a problem that's, you know, happening every single day to lots and lots of people.

I think the question is how bad are the consequences for the people to which is does happen. But there was an article in The New England Journal back in 2007 that tried to get at some of these empirical questions.

And I know that it suggested that as many as forty million Americans may be cared for by physicians who are undecided or believe that they have no obligation to disclose information about medically available treatments that they consider personally objectionable and as many as 100 million Americans, one in three, may be cared for by physicians who are undecided or believe they have no obligation to provide patients with referrals.

There was a less scientific survey in Self magazine that found that nearly one in twenty respondents had reported that their doctors refused to treat them on some occasion for moral, ethical, or religious reasons. So it's a pretty significant number. I don't want to endorse this Self magazine study. Otherwise there could be a ton of self-selection and other types of biases there.

But from an empirical perspective it does seem like this is a real issue. You know, we see news reports in the pharmacy context of this happening quite frequently. The Benitez case in California, the lesbian insemination case I was talking about earlier, got a lot of press. So it's certainly an area that people are concerned about and interested in.

In terms of the legal parallels, I think it's interesting to note that lawyers are permitted to recuse themselves when they believe they can't be a zealous advocate for their client. And I've heard people say the same thing about physicians.

I've heard people say, you know, "Look, do I really want the physician who doesn't want to be doing this to perform my abortion? Thanks, but no thanks. I really want somebody I can trust and who's going to give me good medical services."

And the client says the same thing: "If the lawyer fundamentally disagrees with my goal, I don't want that lawyer." There are similar types of emergency scenarios in the legal context where we have laws that require minors seeking abortion to get court approval before they can do that.

And we've seen situations where the court has had some difficulty getting somebody to represent that minor. Different courts have dealt with this in different ways. There have been cases where courts have censured lawyers for refusing.

Again, I think the professional obligation — we can sort of take this a step higher and make sure that the legal profession is providing access to its services, just the same way we can expect the medical profession to make sure it's providing access to its services.

In terms of informed consent in the legal context versus the medical context, I don't know that I quite see things the same way as maybe Prof. Hazard or, from what I understand, how you were describing things in the sense that the lawyer's obligation is to advance the client's interests and the lawyer may make decisions based on the lawyer's expertise about how to best advance the patient's interests.

They might engage in discussions trying to convince the client of what his or her interests should be based on that legal experience. But I don't think as a legal community we would sort of pat the lawyer on the back who says to the client, "I'm not going to do X, Y, and Z things because I disagree with your end. We're going to do things my way."

There's a difference between professional expertise and decisions made on that basis and pure disregard for the client's goal. And I think that's the exact problem we're dealing with in the medical context with regard to informed consent, making sure that patients know what services they may have an option to seek out from some willing provider.

I think it's crucial we put the obligation on the profession to bear the expertise but to not go beyond things that are part of their expertise, if that makes sense. I'm not quite sure that gets at your question.

PROF. SCHNEIDER: My question was just about whether there were parallels or not. I guess one thing that strikes me is that — is two things. One is a lot of the codes of ethics specifically say to lawyers, "Part of the advice that you give may be based" — and almost implying should be based — "on your ethical view of the situation."

You don't just sit there and tell the client what the legal possibilities are. You say to the client, "You are legally entitled to do this, but I believe that would be a wrong thing to do, and let me tell you why."

Now, in real life it's hard to give some kinds of clients some kinds of advice when you want their business. And the way that it usually works out is that the lawyer finds a way of telling the client that it is in the client's own best interest to do the ethical thing and not just to do the ethical thing because it's ethical.

The other thing that strikes me is that the law has a problem that I think you were referring to, which is that you have to provide representation for all kinds of truly loathsome people, and you have to provide representation for people who may not be loathsome but whose views are not much appreciated in the community. And so a problem for legal ethics has been how to tell people, how to tell lawyers that they should provide their services to these obnoxious or eccentric people, even though the lawyer finds them personally reprehensible.

MS. LYNCH: Right. So in terms of the counseling role of the lawyer, I think there's a good argument that physicians can engage in similar counseling as long as it doesn't move to a level of condemnation or proselytizing about their beliefs.

I think it's acceptable for the physician to say, "I will not perform an abortion because I believe it's wrong for X, Y, and Z reasons." I don't think that the patient is necessarily harmed by hearing those reasons. The patient's interest is gaining access, and the profession can make sure that that access is granted.

So I think the lawyer acceptably engaged in that counseling. The physician may also engage in that counseling. The question is whose ends win out, and I think the patient's ends need to be the physician's goal.

If the physician can't do it, we have to make sure somebody can within that body of professional obligations that we were talking about before that's appropriately limited to not only things that are legal but also things that we think are ethically appropriate as a society together.

The lawyer, I think, has the same obligation to advance the client's end. And if that can't be done by this particular attorney, the profession needs to make sure somebody is available to provide services to meet those ends.

CHAIRMAN PELLEGRINO: Thank you, Carl. My first commentator is Prof. Gómez-Lobo.

PROF. G Ó MEZ-LOBO: Thank you. I greatly enjoyed your exposition and the material that I've read. In fact, I would like to praise you for your idea or your project of finding a compromise because, of course, there are much more radical positions out there.

It is my understanding that, for instance, in Switzerland there was a movement to require the people in the health profession, physicians and nurses, to be trained in abortion, for instance, even against their conscience. And sometimes I sense that there may be a movement going in that direction. So I think your position is praiseworthy.

However, I have problems with some of the basic conceptualization of the whole discussion, and if you'll allow me to perhaps make a few suggestions it would help the exchange of ideas. First of all, I'm not sure I fully agree with some of your characterizations of conscience. First of all, I think that conscience is private but not subjective in the following sense that, for instance, my tastes or my toothache are subjective.

But conscience is a judgment which may be true or false. And when we make claims that may be true or false, we're risking, so to speak, a claim about the world. And that should be borne in mind. Judgments of conscience of the physician are about the real world.

And here comes the next problem. There was talk, for instance, about physicians' obligations and sacrifices or about both sides having to sacrifice something to reach this commendable middle ground. And I'm not sure it's really like that.

The reason is this: I think that a serious refusal of conscience of the physician would not be justified by saying, "Oh, I want to keep my integrity." That would be senseless. Integrity is a moral virtue which follows upon following one's conscience.

But the content of the judgment of conscience of the contentious physician has to be about the patient, not about himself. In other words, when a physician refuses to perform an abortion, the judgment made there is that it would be morally wrong to kill the baby. So it's about the baby, not about himself. That's the first thing.

So I don't think it can be put in terms of a conflict between physicians and patients. In both cases what is at stake is the patient. Now, what we have here is the conflict between an action which the physician deems to be morally wrong and an action which the patient probably deems to be morally right.

However, the action itself, it seems to me, is not part of the medical goals. I hope I'm corrected by my medical colleagues here, but if the goals of medicine imply preventing illness, curing illness, confronting the patient, et cetera, the first question that one should ask is is a pregnancy an illness or not, is an abortion therapy or not.

And that's where language gets blurry because there's a lot of talk about service. And service — or desired services seem to cover a lot of things that go beyond, at least as I understand, the goals of medicine. That's why I wonder, for instance, whether in internal medicine you find many patients expressing strong desires from which the physician would have recused himself. I would think that someone with hepatitis and coming in with a strong desire to have something done to her — how the physician would react to that.

Now, the final point I want to make is this, which is the reason why the notion of compromise is extremely difficult to find in these areas. I think that there may be forms of compromise in the law, but in moral philosophy the problem is this: It's that the only thing we go by when we act is our moral judgment of a situation, the judgment of conscience.

We don't have another source. There is no other way. It's our judgment on the situation. So every time someone, a physician or another individual, is asked to act against their conscience, that is going to be a morally wrong act. And the question is — can we go there? Is it reasonable to have a legal norm or bind physicians or any other kind of person to do exactly what they deem they should not be doing. Now, I'm thinking about serious cases. I agree with you that there are maybe frivolous cases or cases that should not be considered at all. I don't think that there's a valid moral judgment on not treating someone because of his or her race, for instance.

But there is a valid judgment if the physician considers that it's the good of the person that is at stake. In other words, if the act is going to be an act of maleficence, a violation of known maleficence, then I don't see how anyone could be required to go that route. So I realize that probably is what you call the emergency situations, that is probably more delicate of that. Happily, what you propose as a legal code seems to leave the physicians clear of that. So those would be my comments. Thank you.

MS. LYNCH: The first point you made about conscience being private but not subjective and a judgment that may be true or false I think is right in the sense that yes, it's true or false, but no, we don't know whether it's true or false. I can't say to you your belief is wrong, right?

PROF. G Ó MEZ-LOBO: You can perfectly well if you give me a good argument.

MS. LYNCH: So there are some things that maybe we could come to an agreement on, but there are some things — abortion is a perfect example — where we can't empirically decide when does this thing become a baby, a human.

PROF. G Ó MEZ-LOBO: I think we can.

MS. LYNCH: I respectfully disagree, I guess, about whether I can tell somebody else who also has good arguments for why they believe what they do that their arguments are wrong, my judgment of the case is right, and they should agree with my judgment. I can try to convince them.

PROF. G Ó MEZ-LOBO: Yeah, we should argue the matter. I mean, we could do it right away.

MS. LYNCH: No, I agree we should argue, but we may get to a point in our argument where we just have gotten as far as we can go and neither one of us can claim victory as having found the moral truth. I mean, that's why these questions are so difficult. That's exactly why they're so difficult.

In terms of the idea about — I think you mentioned about pregnancy being an illness or what services are sort of beyond the ends of medicine or the goals of medicine, I think that there are judgments about physicians have an obligation to provide services that patients need as part of their healthcare, and there are questions about what those needs are versus desires.

I think we need to take a step back, though, and look at what has the profession been given a monopoly over. They've been given a monopoly over things that may be just desires as opposed to needs, things that may be treatments of conditions rather than illnesses.

Pregnancy is a condition, not necessarily something that's wrong with a body. So as a fact that the profession has a broader monopoly, I think we can use that to say they have an access obligation beyond just treatment of disease.

And I think your point about the physician when they refuse is about the patient not necessarily about the doctor — I agree it's about the patient, but I do think it's about the doctor. It's a judgment that I can't harm the patient, like that the patient is asking me to do something that I think is harmful to them, and that's why I think it's wrong. That's about the patient.

But it's also about me because I couldn't sleep at night if I did it. I would be going against the tenets of my religious belief if I did it. I would have some sort of retribution from a higher power if I did it. I think these are things that — why people are saying it's about me and it's about protecting the patient.

DR. ROWLEY: I'd like, if I could, just sort of, with your permission, Bill — this exchange, it seems to me, has highlighted the difference in the way members of the Council have come to various judgments from our very first meeting.

And Alfonso has laid out in ways that are for him logical based on firmly held beliefs that he is absolutely correct in what he says such that there isn't really room for discussion, and therefore we're at the same impasse that we've been at from the very beginning, it seems to me, and I'm not able to go back and pinpoint the items, though I think that there were probably several early on, in the way he framed the issues that made it absolutely clear in this example that the physician has the right and the obligation to be absolutely firm and rigid and that compromise is not possible in that situation.

I think for me it was a clear example where I don't agree with the conclusion, though as he outlined it, you can say he got there logically. But I think it's emblematic of what we've been through for quite a number of years.

CHAIRMAN PELLEGRINO: I think I'll go down the list of people who want to comment, and then maybe hold your comment till the end. I have Hurlbut, George, McHugh, Meilaender. Janet, you've already had a chance, but you can if you wish. So Bill Hurlbut ?

DR. HURLBUT: So first I want to commend you for your focus on this issue and being ahead of the curve enough to write a book on this when it's just coming into great prominence, not just with promulgation of new guidelines for regulations by the Secretary of HHS, but shows a very evident dilemma about to come into collision with what appears to be imminent, the realization of the relaxation of the principles on which federal funding will be applied to stem cell research.

I think we're going to see the expansion of this out of the realm of abortion into a much wider arena that relates to research and clinical practice so that whereas now there may be relatively few cases of people objecting to participating in certain things, I think you may see a very large number of people.

It's going to cause a lot of turmoil in our research centers and our hospitals. And, actually, it's already much bigger than people realize. If you take your principles where provision of access is very important, you ask how common it is.

Well, if you broaden this out and say, well, it's not just the things that have been typically considered the controversies, but you broaden it out to consider that a doctor or at least the medical profession as a whole should have an obligation to provide a balanced access to information and maybe even referral to services that meet the range of a reasonable minority of patient intentions and desires, then one would have to consider including issues like natural family planning and snowflake babies.

And I doubt that people that go into the IBF clinics are ever really or at least not regularly told about adoptable embryos, for example, and certainly not about natural family planning techniques, which actually have a very good medical basis to them.

So it's a broad problem, really, when framed in your terms. However, I would like to challenge your terms slightly, while seeing good in it. And there's a couple of statements you made — and I want to be brief because I know there are a lot of good comments to be made by others.

But first you said access must be the driver. And I find that a little bit of a trouble assertion because I think at least one step deeper. Access should be aligned more fundamentally around principles consistent with a coherent view of the proper role of medicine, because I don't think we need to — just because we're a pluralistic society it doesn't mean we have to offer views of everything.

And just because somebody can disagree, I still think we need a coherent view of what medicine is. And notwithstanding the elements of truth in what Janet just said, I think there are some things that you could argue about that are still pretty inconsistent with medicine, and I would refer to those things, for example, as yesterday we were talking about the patients who want their limbs amputated.

One could say, well, that's just their point of view. And yet to quote Art Caplan — I don't always agree with Art Caplan, but he says — contrary to the spirit of what you said, he says, "It's absolutely utter lunacy to go along with a request to maim somebody."

Now, I don't mind that kind of absolutism, and the reason I don't is because it seems inconsistent with the fundamental principles of medicine to go around cutting people's legs off. So, then, what is going to guide us and how are we going to keep from having just a total sort of full spectrum of opinions and personal beliefs? Medicine has to be oriented around something that is coherent, something that is consistent, a vision that has an integrated sense of purpose.

This is a really important thing as the basic paradigm of medicine shifts off of its traditional purposes, which were to cure disease and alleviate suffering, as we discussed yesterday, to a new paradigm of liberation which escapes all bounds of natural coherence and puts whatever the patient wants into the hands and even obligations of the medical profession. But the problem with such a vision is it's deracinated from any concept of natural reality and natural relationships and what I consider the proper ends of medicine. It's simply open to human imagination.

So my final thing I want to just raise, a slight correction in what you said. You said nothing about being a physician endows you with ethical expertise. Well, I certainly agree that there's a broader community of discussion in ethical issues, and doctors and scientists should humbly acknowledge the realms of insight from philosophers, theologians, and just general people living in the world.

I mean, common people who aren't even considered educated by the rarefied notions of education in today's world, people who have been educated by the crucible of experience — mothers with handicapped children and so forth, people who really know what life is by living it, should be included in this dialogue. Nonetheless, as Dan Foster yesterday so eloquently and movingly said, the physician who's properly embedded in humility, his humility of experience, and within the tradition of his profession across time and culture, not just one little segment of this sort of flavor-of-the-month ethics which floats through any social group including doctors, but one who's embedded broadly in the roots of medicine does, I believe, have a special kind of ethical expertise in the realm of medicine.

And that is that we see things. We sift and sort them. We experience the consequences of treating them. We watch patients over the course in a way that nobody else in society does. And we're one of the few professions that actually sees people suffer and die anymore, and it informs you.

And what it did to me in my training was it informed me and clarified and, I think, channeled and confined my vision of what medicine should properly be, the proper ends of medicine. And here I want to just quote again what I did yesterday, the principles that Dr. Schneiderman left us with.

He said, "We started with a premise that physicians are obligated to offer only those treatments that have a reasonable chance of achieving a therapeutic goal." And I think the word "therapeutic" could be narrowed to certain things. And he went on to say, "We are a healing profession committed to helping and serving the sick."

And even some of the things you've mentioned today I don't think — while they maybe should be legal, don't necessarily qualify in those categories as healing and therefore are not the obligation of either the licensure board or the profession as a whole to endorse.

CHAIRMAN PELLEGRINO: Thank you, Bill. Dr. George ?

PROF. GEORGE: Dr. Pellegrino, I wonder if in view of the detail of the points that have already been put to Ms. Lynch whether she might like to answer those now, and then I'm going to lead into some other areas.

MS. LYNCH: Sure. Briefly, because I'd like to hear what other people have to say, I generally agree with the broad concepts that you've put forth. First, things like natural family planning or things that are sort of out of the ordinary realm are precisely the types of things that should be disclosed as available options.

And part of the proper ends of medicine should be the types of things that the profession should have an obligation to preserve access to. Getting to the point about access being the driver and the proper ends of medicine, I wasn't able to get into that too much during the presentation, but it gets to that point about the profession not having an obligation to provide those services that are illegal, of course, not having an obligation to provide those services that are just scientifically or medically unsound. Those are clear restrictions on the profession's obligation.

These other areas about amputation of a limb, helping sixty-seven-year-old women conceive children, helping women conceive using sperm from their husband who has just died — these are the fuzzy areas that I think we need to decide does the profession have an obligation to provide those services.

These are the things when people view them, they go on The Today Show and get attacked for having done them. People, Art Caplan or others, write in the media about they should not have done those things.

My point was that the profession of medicine shouldn't stand up on high and say, "We're not doing X, Y, and Z." They need to engage in a debate with society as a whole, those people who have learned through experience to understand what the proper ends of medicine should be.

My point was that it just shouldn't be an insular professional ethic. Certainly the realm of professional access obligation can be narrowed from what's legal and I think should be narrowed. I just worry about delegating that task wholeheartedly to the medical profession.

CHAIRMAN PELLEGRINO: If I may, I'd like to proceed down the list of speakers so that everyone has a chance. Robert, you are next.

PROF. GEORGE: Thank you, Dr. Pellegrino, and thank you, Ms. Lynch, for your presentation. Since I'm a great believer in the Biblical statement that blessed are the peacemakers, I'm going to lapse into my usual role of trying to make peace between my colleagues.

And I want to use a little colloquy to show Dr. Gómez-Lobo and Dr. Rowley that actually they're in heated agreement, that there's no real disagreement here. And I'll do that by beginning by saying you don't really think, do you, that the absence of agreement on moral issues entails the proposition that there's no truth of the matter on those issues?

MS. LYNCH: I agree there's truth. I think we don't know what the truth is.

PROF. GEORGE: That was going to be my next question. So the fact that there is disagreement about a fundamental moral question means that we can't really know what the truth is, and we can only know what the truth was if the truth were empirically verifiable.

MS. LYNCH: Right.

PROF. GEORGE: Do you see immediately what the problem with that position is? You've just endorsed a standard of truth, determination of the truth, which is itself not empirically verifiable.

MS. LYNCH: I'm not sure that I follow.

PROF. GEORGE: You've just endorsed a standard of what has to be metaphor to be able to say that we know the truth of the matter, such as the truth of the question of whether truth can be known only if it's empirically verifiable. Right? You've just endorsed the standard. But notice that the standard can't meet the criteria you've set out for truth.

MS. LYNCH: Because it's unknowable?

PROF. GEORGE: It's not verifiable. But you do want to say that you know that we can't say, we can't know what the truth is. That's something you know. You know that we can't know what the truth is. But, of course, that's not something that's empirically verifiable. So there's a problem here. I think you're going to have to — if you're going to argue that line, you're going to have to grapple that.

MS. LYNCH: And the tension here — and perhaps it has been overstated, but I'm not sure that it has. The tension is people can make a reasonable strong argument why abortion is wrong, and people can make a reasonable strong argument why we should preserve access to abortion and that, in fact, there are some interests or consequences that are worse than the consequence of providing an abortion.

CHAIRMAN PELLEGRINO: I'd like to intervene here, which I rarely do. I think the fundamental question that Janet pointed out is one of irreconcilability at this point, and I think it's an important question, but I don't think we can —

PROF. GEORGE: Yeah. I don't want to pursue it very long, but I do want to make the point that —

CHAIRMAN PELLEGRINO: You make the point very well.

PROF. GEORGE: The belief that not only that there is truth but that we can know the truth, far from shutting down argument, gives us the incentive to engage with each other in argument in the hope that we will arrive at the truth. That doesn't mean that we will reach agreement. It doesn't mean that we will arrive at the truth. But it certainly doesn't shut down argument. In fact, if you took the opposite view, that there is no way in the end of knowing the truth, then the point of argument seems to be lost, and rhetoric turns into just a matter of manipulation. And I'll leave it at that, Dr. Pellegrino, but I do have a couple of other areas I'd like to explore with Ms. Lynch.

CHAIRMAN PELLEGRINO: We're under a timeline, and that's why I'm trying to move it along, but I think this is a crucial question. Let me add my word here. I think that this is a very serious issue, as was pointed out. I think it's one we're going to be facing.

I'm on the record as stating very clearly and without equivocation that I think [audio lost] and I think having the opportunity to just lay it out again once more in light of our discussion of conscience is what we're trying to do rather than try to settle it here. I agree with you, but I think I've been very much in favor of the exchange of ideas. Why don't you go ahead, Robby, and I want to move around the others and then get down to the rest of it.

PROF. GEORGE: Okay. I'll just do one more, then. I had two more, but let me just do one. Ms. Lynch, I want to explore with you a little bit this very interesting distinction that you introduced us to about objections by physicians based on judgments about acts and objections of physicians based on judgment about persons and this concept that you mentioned of dignitarian harm in the case of objections based on persons as opposed to acts and what you referred to at one point as bigoted motives.

Just a test, to give you a hypothetical case, let's say that there is a physician in the assisted reproduction business who is of the Orthodox Jewish faith. He believes that sexual relations should be within marriage, that marriage is a man and a woman. He believes that children should be raised in the context of that kind of family, and he has moral objections to other sorts of arrangements.

He is approached by a woman who identifies herself as being a polyamorist. She's in a multiple-party sexual arrangement, and the members of that group have decided that they want a child, that she wants to be the person to conceive the child.

He says, "Look, I can't do that. I don't believe in the kinds of relationship you would be bringing that child into, a sexual partnership of multiple parties, a polyamorous union, and therefore I'm not going to perform this service in this context for you. If you're simply coming here with your husband, I would do that. But this is a different arrangement that you're suggesting."

Is that a case of objecting to an act or a person? If it's to a person, would we want to say that he's a bigot or that anything about his views is bigoted? Where does that fall? On which side of the line?

MS. LYNCH: So I agree that perhaps the use of the word "bigoted" was potentially going too far, but this example that you've laid out I believe is identical to this case of the lesbian woman whose physician disagreed with her lifestyle choices, felt that the child would not be in an appropriate familial situation, and therefore objected to the patient instead of objected to the service.

Now, I understand that those views might be legitimately held, and, in fact, in the reproductive context, we are in a serious quandary of having people being able to tell other people, "You should not be able to have a child" or "I won't help you have a child because I don't think you'd be an appropriate parental figure."

I think we must draw the line somewhere between objections that are appropriate and objections that we think go too far, and we need to draw a line that would allow us to reject refusals based on racist beliefs or other judgments of the patient. And I think your example is precisely the sort that even though it's a genuine moral belief, that's not the type of moral belief we can protect in this realm.

PROF. GEORGE: So his belief against polyamory is like a racist belief in the relevant respect?

Ms. Lynch: You've put it in stark terms, but I think the consequence is the same.

PROF. GEORGE: Thank you.


DR. MCHUGH: Thank you, Ms. Lynch. It's very interesting, and there were vibrations here that I would agree with and vibrations, though, that cause me distress. And I want to just go over what a psychiatrist can face and therefore, since psychiatrists are doctors — that's debated by some, but they are. And they face and I face personally issues that relate to patients and their behaviors, particularly. And I think you'd call a behavior, perhaps, a condition rather than a disease, although you wouldn't get that distinction out of DSM.

I have patients coming to me who live by the Duchess of Windsor's view that you cannot be too rich or too thin, and they're emphasizing the thinness that they wish me to encourage in them by giving them appetite suppressants.

And I reject that, saying that already they have lost — for example, they have lost their periods. They are thin to the extreme, and I believe that they are suffering from an overvalued idea, an idea about thinness that now gets into the realm of anorexia nervosa. And I don't think you would object to my deciding that. You'd say that I was acting in the best interest of the patients.

But there's another arena where I've been called a bigot, and that is with young children who believe that they have gender identity disorder. These are children ages ten, eleven, pre-pubescent children, usually boys, who believe that they are actually women, girls, and there are places in this country where they are prepared to give them medications to suppress their puberty with the view that if this boy went through the testosterone-enhancing period of puberty that his idea that he is a girl would perhaps be suppressed or brought into more conflict or even perhaps forgotten.

And I say no, that's an abuse of children. And not only is it an abuse of children, it's an abnormal parenting thing, and the parents should not encourage this. The parents should work on this overvalued idea, promoted, by the way, on the Internet and things of this sort, and stop it.

Now, I am told that I am a bigot because I am dealing with a person's identity. Now, I happen to hold a view with some considerable evidence that this is not the person's identity except in the sense that it's an idea and an idea that we have good evidence that will lead to trouble in future life.

Now, this is an opinion, an opinion based on some empirical evidence, but not an opinion, by the way, shared by everyone. So am I doing the wrong thing? Is this an expression of my conscience, or is it an expression of my professional opinion that not only should I not give them this medicine but I shouldn't refer them to doctors who will give them this medicine because there are such doctors who will. This is the kind of problem in relationship to behavior that I face, and I vibrate a bit from what you said.

CHAIRMAN PELLEGRINO: Thanks, Paul. The next name is Dr. Meilaender.

PROF. MEILAENDER: Well, I have a number of things to say. I'm just going to say a couple. I applaud the attempt to find a way through such deep disagreements. I have to tell you that I don't think it's going to work until you change some of the fundamental moves that you're making. But I just have two questions. The second of them is going to sound really simplistic, although it's the one I actually care more about, and I'd be interested to know what you say.

The first is, if I understand you correctly, the sort of compromise you're attempting to shape depends on distinguishing between the profession as a whole and the individual practitioner. I mean, that's based on your way to try to sort through it.

But what if there's not any agreed-upon body of professional opinion on one or another question? And how exactly do we figure out what the agreed-upon body of professional opinion is? I mean, is it just a vote among practitioners, or how do we do that? Until we can answer that question, we really don't know what the application of your view will look like or amount to. So that's one question.

The other, the sort of simplistic kind of question but that I'd be interested to hear you say something about it — I can put it in just a sentence. What does it mean for one person to impose something upon another?

CHAIRMAN PELLEGRINO: Janet, do you have —

DR. ROWLEY: No, I don't have one.


Ms. Lynch: Sure. So I want to quickly touch on Dr. McHugh 's questions. I thought those are actually really interesting examples. The first thing to say is no, I don't think you're a bigot. You shouldn't be stressed about that.

For the anorexic patient, I think that that is a true exercise of your medical expertise. This is not the normal situation where we can say the patient's ends are just something that I disagree with. Here you're exercising your medical expertise to say, "What you are asking me to do as a psychomatic matter is wrong as a medical matter." I don't think that's necessarily an exercise of conscientious refusal.

In the case of these gender identity issues, first, you fit nicely into the model I laid out about objections to the service versus objections to the patient. My understanding is you're not providing these services to some patients and not others; you're just saying across the board this is wrong.

And there, too, you're basing it on medical expertise and some empirical evidence about maybe these identity issues resolving themselves or if you take action early in the patient's life brings more problems down the road.

So I think these are all medical expertise issues that are appropriately exercised and not necessarily an example of these conscientious refusals.

Prof. Meilaender, the idea first about what does it mean to impose one's views on another — I know that's sort of, to use your term, gets people to vibrate a little bit. It makes them a little uncomfortable to say that a physician's refusal — that the absence of an act is actually imposing anything on someone else. And I think what we really need to do is focus on the consequences. So I said in the hard case we do have a problem where either the physician wins or the patient wins, and that's what I mean by imposing the view.

PROF. MEILAENDER: Well, but if that's what you want to do, then I think you'll get a lot farther if you drop the language of imposition.

Ms. Lynch: Is there a language that you would find preferable? I don't like the words "win."

PROF. MEILAENDER: Well, you could have said what you just said without concluding with the notion that somebody wins.

Ms. Lynch: But the idea is that there's a consequence as a result of somebody's action or inaction that has an effect on someone else, and that's what I mean by imposition.

PROF. MEILAENDER: And I don't think that's what the language of imposition means in ordinary parlance. And so it's a bad idea to use that term.

CHAIRMAN PELLEGRINO: Are there further comments? Well, I'd like to make a brief one of my own, lest I be misunderstood. I believe very, very strongly that we must preserve individual conscience, that particularly for the physician or anybody else there's a two-way idea behind imposition.

I agree with Gil that "imposition" is a bad word. By taking your own position it does not necessarily impose on someone else. But I do think the reason we have brought this kind of question to the group is that this is where the trajectory of the question is going, that we are facing an incommensurable set of beliefs and that there is — I agree with Robby that we should continue the dialectic without any question.

But in the interim, as a physician, I feel and see and encounter in my own seeing of patients today, an enormous increase in the notion that somehow I should be value-free. And you've heard presentations before this group of value-free physicians.

I'm not trying to convince anybody of my position. I simply want it known for the record that my position — and it's expressed in the literature, so I've not invented something for the occasion — is that one of the most important things is to preserve the conscience of the individual physician in a morally pluralistic society which is becoming increasing pluralistic and increasingly antagonistic to the possibility of even discussing this.

So, Robby, while I think you're absolutely right, joining that conversation has been extremely difficult. I think we should join. On the other hand, I think it's in the interest of this Council to hear an attempt at a compromise.

I think you know that I do not believe this compromise can work because the fundamental question is irresolvable at the present time, and it's a question for the larger society. And this issue with the physician is a much bigger question.

But certainly for the physician it's a crucial question today for those of us who feel there are some things that we cannot compromise upon, and particularly that include complicity in reference as well as complicity in making the action available.

On the other hand, providing information beforehand I think is a very important prophylactic that physicians ought to be initiating, and that is to make known to their patients at the very outset what they will do and what they will not do. But any moral position doesn't have a "do not do" — "I do not do [inaudible] is not a moral position.

I'm sorry for intervening. Occasionally I do this, and I feel like I ought to make that clear since I'm chairing this session, not participating as a proponent except for my own view.

We'll come back at 10:50 and resume discussion. And thank you very, very much for your presentation.


  - The President's Council on Bioethics -  
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