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beyond medicine

Navigating New (and Rocky) Terrain
“We should want a society in which we have both the freedom and the institutions which serve health and the will to share the fruits of human endeavor.” Prominent doctors DANIEL SULMASY and JOHN LANE clarify what threatens the integrity of their own work and the future of the medical profession.

by Patrick Duffy

The medical field in the United States is now coming to grips with the re-election of President Barack Obama and its implications regarding his hallmark piece of legislation, the Affordable Care Act. The United States has seen numerous lawsuits filed on the grounds of infringements of religious liberty by the government; although the Supreme Court upheld the healthcare law in June, it has recently revived the challenge of Liberty University in Lynchburg, VA, that Obama’s healthcare law violates the school’s religious freedoms (Liberty University v. Geithner, 11-438). Another issue which is equally consequential–but has been overlooked–is the fact that doctors, nurses, and patients must reassess the potential repercussions of the legislation on the daily practice of medicine. The President will move forward with this bill while questions surrounding the issue of the physician’s freedom of conscience are coming to the fore as an ominous consequence since the passage and subsequent confirmation of the Affordable Care Act and the institution of the controversial Health and Human Services mandate. Traces sat down with two of the most prominent voices addressing conscience issues–Dr. Daniel Sulmasy, Kilbrine-Clinton Professor of Medicine and Ethics at the University of Chicago, and Dr. John Lane, President-Elect of the Catholic Medical Association and Professor of Radiology at the Mayo Clinic.
As the Catholic Medical Association has cited, “Healthcare reform legislation must respect the integrity of the physician-patient relationship.”  What role has the physician’s freedom of conscience played in your relationships with patients?
JL: This hasn’t hit me yet personally, but what disturbs me is the efforts I see in some segments of the medical community to downplay, if not denigrate, the importance of a physician forming and following his conscience. For example, the well-respected Julie Cantor, MD, stated recently, “Federal laws may make room for the rights of conscience, but healthcare providers... should cast off the cloak of conscience when patients’ needs de
mand it.”

DS: Questions of conscience come up all the time. There are certain things I think that are not good for patients, even if they ask for them. For example, I had a patient, a television executive who was a producer for a night-time program, who asked for a sleeping pill. I probed a little bit more and it turned out that not only was she working nights, but she also had a boyfriend who was working days and actually lived in Ireland. She lived in NY and was flying back and forth all the time. She seemed very anxious and distraught, and I asked her if she had thought that maybe the reason for her trouble sleeping had something to do with her lifestyle, and perhaps she should re-examine that. She got very angry and left. And yet, I think it is my duty as a physician to ask those questions and not simply do whatever the patient wants me to do. You go to a shoe salesman, and even if they don’t look good on you, he will sell you the shoes. My job as a physician is to do what is best for the patient at all times; I need to operate with a level of professional integrity that will honor that.

Do you see this ability to interact with your patients changing in the post-Affordable Care Act medical environment?
JL: Arguably, what will impact a physician’s ability to interact with patients is strict, top-down federal control of reimbursement, through the Independent Payment Advisory Board and through “quality standards,” which will stipulate that certain procedures must (or must not) be followed or that certain materials must be used. For example, Obamacare funds a program to facilitate shared decision making. Its purpose is “to facilitate collaborative processes between patients, caregivers, or authorized representatives and clinicians” in decision making and to provide them with “information about tradeoffs among treatment options....” The collaborative process will use “patient decision aids.” The problematic part, however, is the requirement that the program will “contract with an entity to establish standards and certify patient decision aids.” Shared decision-making centers will be a component of the program and funds for such centers “shall not be used to purchase or implement use of patient decision aids other than those certified.”

According to President Obama, “Doctors prescribe contraception not only for family planning, but as a way to reduce the risk of ovarian and other cancers. And it’s good for our healthcare system in general–because we know the overall cost of care is lower when women have access to contraceptive services.” Where do you foresee that the doctors’ judgments will rank among treatment considerations (regarding both the overall effectiveness and the morality of a method of treatment)?
DS: First, it is true that birth control pills can be used for purposes other than birth control. They can be used to regulate a woman’s cycle and to treat endometriosis; it has never been the case that Catholic institutions have not provided birth control pills for such purposes. It’s not that estrogen is intrinsically evil, but the way it is used can be. Obama is not forcing Catholic institutions to give out something they have never given out before, since they have been using birth control pills to treat these conditions. Second, we should address this idea that it will help save money. There is a foolishness about healthcare savings that can be achieved through prevention. Prevention should be done because it is in the interest of patients, not because it saves money. In fact, it may actually end up costing money because if you don’t die of a heart attack and end up living in a nursing home, you will actually be “costing more money.” The point of healthcare and prevention is not to save money. The moment we begin to believe it is, we have already distorted the doctor–patient relationship.

So the cost of healthcare should not be a criterion for how doctors treat patients...
JL:  Absolutely not. We should want a society in which there are both the freedom and institutions required to develop new drugs, devices, treatments, and operations which serve human life and health and the will to share the fruits of human endeavor in a just, generous, and compassionate manner. But a top-down, federal government-controlled approach to healthcare will result in neither the new options in medicine we desire nor the justice and compassion that people deserve.

Much of the focus of the HHS debate has been on how institutions will insure and pay for contraceptives for employees. On a more individual level, how will the healthcare reforms change how doctors perform their daily work?
DS: It is important to recognize that the mandate regards institutions, and this mandate will change the institutional landscape. A tolerant society ought to allow different kinds of healthcare to flourish. It is an intolerant society which will close down faith-based healthcare institutions in order to achieve this elusive goal of “equality,” because everything becomes mush–where there is a veneer of flourishing yet everything is the same. I think that we become the lesser for it. Beyond that, if this kind of legislation can pass, it opens the door for pieces of legislation which would apply not solely to institutions, but also to individual practitioners. While this piece of legislation does not do this, it contains the seeds of saying it is possible, in the longer term, to force individual practitioners to violate their own consciences. This is why it is better to stop it now, before it happens.

But currently, is there sufficient space for the physician’s freedom of conscience when considering treatment within the new system?
DS: We are feeling the limitation of our freedom to practice already. I think that the initiation of restrictions began not with the HHS mandate, but with the rescinding of the Leavitt rules [issued at the end of 2008 by the HHS to protect healthcare providers from discrimination] by the Obama administration. That substantially weakened the ability of practitioners to not participate in practices they think are morally objectionable, which includes questions of whether pharmacists have to give out the “morning after pill” and whether a nurse needs to assist in an abortion. The protections of conscience have been weakened under the Obama administration. It’s important to note that this was a decision made a few years ago by the Obama administration to rescind the conscience rules put in place by the Bush administration and this action was separate from the current HHS mandate.

JL:  I agree. For too many years, federal conscience laws have been too narrow, ill-defined, and toothless to provide meaningful protection. The Bush administration under then-Secretary of HHS, Mike Leavitt, published a regulation to implement federal laws, but this was rescinded by the Obama administration. All indications are that the Obama administration intends to shrink, rather than maintain or expand, the scope of protection for conscience rights.