Right of Conscience Laws

I swear by Apollo Physician, by Asclepius, by Hygieia, by Panacea and all the gods and goddesses, making them my witnesses …
I do not recall if we recited the Hippocratic Oath when I graduated from medical school in 1983. It is unlikely that we did. According to the Association of American Medical Colleges, by the early 1980s, only 9 percent of medical school graduation ceremonies involved taking an oath. Today, more than half of medical schools include some type of oath in their ceremonies—usually a statement unique to the school rather than the archaic oath attributed to Hippocrates.

This is all well and good. There is very little in the Oath that is relevant to the modern physician, and quite a bit that should offend our sensibilities. Medical schools surely object to teaching students the art of medicine “without fee or indenture.” Debt-ridden medical graduates might be tempted by this clause, but would quickly change their minds when their former professors showed up asking for cash. Imagine the awkward exchange: “You have to give me the money—you swore by Apollo and all those other guys.”

Along with its odd prohibition on helping patients with kidney stones, and its casual acceptance of slavery, the Oath has become an anachronism. If you are saddened by this development, take heart. State legislatures are working to revive the relevance of the Hippocratic Oath. This revival takes the form of various “Medical Right of Conscience” laws.

According to H. 3518, the “Medical Ethics and Diversity Act,” introduced this year in the South Carolina House of Representatives:
The General Assembly finds that the right of conscience is a fundamental and unalienable right. It was central to the founding of the United States, has been deeply rooted in our Nation's history and tradition for centuries, and has been central to the practice of medicine, through the Hippocratic Oath, for millennia.
Nearly identical homage to the Hippocratic Oath can be found in North Carolina’s Health Care Heroes Conscience Protection Act, and Arkansas’ recently passed Medical Ethics and Diversity Act.

These laws are an affront to medical ethics.

This proposed right of conscience law would allow any person or entity—be it a physician, nurse, pharmacist, social worker, hospital, or insurance plan—to refuse to participate in any way in providing health care services if doing so violates the person’s or entity’s conscience. The act does not stop with merely empowering healthcare providers to deny care to patients. It also grants civil, criminal, and administrative immunity to persons and entities who exercise their right of conscience.

Wait—there is more. A person or entity who exercises their right to deny medical care is entitled to threefold damages if any action is taken—or threatened to be taken—in response. Regardless of the harm that may result from their refusal to provide care, they may not be fired, transferred, demoted, or reassigned from their current position.

These laws could create a scenario in which individuals and entities may (1) secretly object to certain healthcare services and procedures, (2) place themselves in positions where they may be called upon to participate in these services, (3) refuse to participate with little or no prior notification, (4) place their own religious and moral preferences above the interests of the patient, (5) maintain their status and position through force of law, and (6) take legal action against their supervisors and employers if their right to obstruct medical care is challenged.

Rather than limiting moral conflicts to the physicians who actually provide medical services, this law extends conscience rights to practically everyone, regardless of how peripheral their role may be in the healthcare environment. Anyone who “facilitates or participates in the provision of health care services,” from the housekeeper to the chairman of the hospital board, will be empowered to deny their services.

Does your religion forbid birth control? Do you believe transgender medicine is immoral? Does your Facebook group oppose vaccinations? Step right up. Here is your chance to throw a monkey wrench into the machinery of medicine. No one can stop you, even if your inaction causes patient harm. You can’t be touched. You are immune from consequences.

Missing from these laws is any concern for the right of patients to access legally available healthcare services. The obvious aim is to create a culture of hostility, turning all of us into citizen-soldiers on the frontline of an ever-expanding culture war. Healthcare organizations, being risk-averse, will reluctantly limit their scope of services. Women will find it more difficult to access reproductive health services. The LGBTQ community will be shut out. Patients will be harmed. These concerns are not hyperbole. They formed the basis of arguments against similar conscience rights rules proposed by the Trump administration—rules that were blocked by federal courts in 2019.

I have never taken the Hippocratic Oath, but I have attested on numerous occasions that I will abide by the AMA Principles of Medical Ethics. Despite the absurd claim that the Hippocratic Oath is the fountainhead of our unalienable right of conscience, it contains absolutely no guidance on balancing the conflict between personal morality and duty to the patient. Fortunately, the Principles of Medical Ethics are quite clear on these matters:
A physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights … be honest in all professional interactions … respect the rights of patients … make relevant information available to patients … use the talents of other health professionals when indicated … except in emergencies, be free to choose whom to serve … regard responsibility to the patient as paramount … [and] support access to medical care for all people. (Further guidance on exercising the right of conscience is provided by Code of Medical Ethics Opinion 1.1.7).
A physician’s freedom to choose the patients they serve and the services they provide is amply protected by current law and ethical standards. However, this freedom must be tempered by the duty to be honest, to provide complete and accurate information, and to refer patients when we are unable—for technical or moral reasons—to provide the services they seek. Laws claiming to protect the right of conscience are a duplicitous attempt to make the unscrupulous zealot the arbiter of morality. They replace honesty and choice with deceit and discrimination. They violate every tenet of the Principles of Medical Ethics, and they must be firmly opposed.

This article was published in South Carolina Family Physician.