Elizabeth Sepper (Washington U. School of Law) has posted Taking Conscience Seriously. The abstract follows.
For too long, the conventional account of morality in medicine has placed conscience firmly on one side of the moral divide. The archetypal doctor who refuses to participate in controversial treatments—most commonly end-of-life care, abortion, sterilization, and contraception—has been the lodestar of legislative efforts and scholarly accounts. In the name of institutional conscience, healthcare facilities have also been permitted to assert moral or religious objections to care and impose them on employees and affiliates of all beliefs and backgrounds. Doctors, nurses, and institutions that are willing to deliver controversial care have been virtually absent from discussions.
This Article aims to reframe the debate by taking conscience seriously. Through engagement with the moral philosophical literature, it makes two inter-related arguments. First, conscience equally may compel a doctor or nurse to deliver a controversial treatment to a patient in need. Yet legislation meant to protect conscience, paradoxically, has undermined the consciences of these doctors and nurses. Second, endowing healthcare institutions with conscience via legislation is theoretically and practically problematic. By privileging the institutions’ rights to refuse to provide certain treatments, legislation impinges on the rights of individual providers to provide care they feel obligated by conscience to deliver. Ultimately, if legislation is to protect conscience, it must negotiate between competing claims of conscience of health providers and the facilities in which they work—regardless of whether they refuse or are willing to provide controversial care. This Article introduces a new framework for achieving a better balance between the interests of institutions, individual doctors and nurses, and the patients who depend on them for care.