Medical Disobedience and the Conscientious Provision of Prohibited Care

Dov Fox


Should doctors ever be allowed to offer care their state or employer forbids? What if their deeply held personal values or beliefs demand they treat patients in need? We’re used to hearing about physicians, nurses, EMTs, pharmacists, and even entire hospitals refusing to perform, participate, or inform patients about care they’re conscientiously opposed to. These conflicts pit clinician conscience against patient welfare, professional norms, or a fair allocation of scarce resources. But restrictions on medical practice raise a question that’s been largely missing from debates in medicine, ethics, and law. When should appeals to conscience exempt a clinician from penalty or prosecution for delivering proscribed care? The American legal system treats clinician conscience in radically different ways, depending on whether it’s invoked to turn patients away, or to take them in. All but two states carve out conditions under which doctors who conscientiously refuse care can’t be fired, disciplined, or sued. But for those who conscientiously deliver care their government or institution rules out, just three states spare even their jobs. Is the selective protection of clinician conscience justified? Or should claims stand or fall together, whether clinicians appeal to conscience as a reason to deny care, or provide it?There may be good reasons for this asymmetry. Perhaps being made to do something your conscience forbids is worse than being prevented from doing something your conscience demands. Or maybe conscientious provision is no less worthy, just more onerous for facilities, medical teams, and healthcare payers to accommodate. Yet taking conscience seriously seems to call for an openness to extending protections comparable to those the law affords conscientious refusal to clinicians whose conscience instead compels them to deliver care that law or policy otherwise prohibits. Does the procedure or treatment abide by the standard of care? Is care prohibited by a private institution or public one? By state law, or federal? What interests does that prohibition serve? Is the prohibited care a matter of life and death? For non-emergency treatment, are other options available to patients in need? Did consent come from the patient herself, or a guardian? Did the clinician defy the ban in secret, or as an open act of civil disobedience? Has she exhausted reasonable efforts to change the prohibition itself? Or tried to work around it in narrower ways? Should this defense be across-the-board or context-specific? Set forth by statute, common law, or jury nullification? Should these exemptions be limited to job loss and tort liability, or also cover criminal indictment and prosecution?