Medical Disobedience

Abstract

America’s medical conscience regime is broken. Doctors or nurses who conscientiously deny care get shielded from being sued, fired, or prosecuted — even if they don’t tell patients what their options are. Yet there’s no solicitude for clinicians who have equally moral reasons to deliver services their hospital or state restricts. This asymmetry selectively burdens providers and drives patients underground. Contested practices run the gamut: from abortion to aid-in-dying, from puberty blockers to conversion therapy, from opioids to ivermectin. Some the law permits; others it forbids. Some are safer, or cheaper. Others fall within the medical norm, rather than push its boundaries. These particulars matter. So does the fact that conscientious provision honors patients’ wishes, while conscientious refusal overrides them. A principled system would protect refusers less and providers more, with carve-outs for both tailored to distinct levels of authority: the employer and the government. Conscience exemptions from workplace policies demand clear disclosures and meaningful offsets: both to shore up patient access and to distance institutions from services they oppose. For civil or criminal violations, conscience should excuse partially at most. So no blanket immunity for malpractice or abandonment. A limited defense, for providers too, would mitigate punishments for supplying clinically reasonable care. The long-simmering tension between law and medicine has reached a boiling point. Relief requires equipping a diverse society and dynamic profession to navigate the controversies of our time and adapt to change from within.

Keywords

abortion law, disobedience, healthcare law

Document Type

Article

Year

2023

Publication Title

Harvard Law Review

Volume

136

Number

4

Starting Page

1030

Publication Info

Fox, D. (2023). Medical disobedience. Harvard Law Review, 136(4), 1030-1111. https://harvardlawreview.org/print/vol-136/medical-disobedience/

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