The argument before the Supreme Court in the case of FDA v. Alliance for Hippocratic Medicine focused mostly on the question of whether or not the doctors in the case—a group of OB/GYN physicians—had standing to bring the original suit in the first place. This was one of the two important legal issues present in the case, the other being the nature and extent of the FDA’s authority to make rules about the circumstances under which mifepristone, or really any drug at all, can be made available to the public. But during the course of the arguments, the doctors’ attorney, Erin Hawley, made a comment that although brief, was radical in its challenge to basic ethical obligations in medicine.
Hawley’s case rested in large part on the assertion that the doctors she represented had been forced to violate their consciences by providing care to women who have chosen to terminate their pregnancies, which they find morally objectionable. In fact, as the Department of Health and Human Services makes clear, physicians are protected from being forced to perform or assist in the performance of abortion or sterilization procedures if doing so would be contrary to the physician’s religious beliefs or moral convictions. (Note that the conscience clause does not allow one to refuse treatment of any other medical condition, say diabetes or asthma, to a woman just because one may be aware that she had chosen to terminate a pregnancy.) The Supreme Court justices acknowledged the validity and authority of the conscience clause even as most of them seemed deeply skeptical of the claim that the physicians had effectively been stripped of its protection by the wide availability of mifepristone.
In the course of the back and forth between Hawley and the justices, she made a stunning assertion: “FDA’s outsourcing of abortion drug harm to Respondent doctors forces them to choose between helping a woman with a life-threatening condition and violating their conscience. This Hobson’s Choice is intolerable.” This is not a Hobson’s choice at all. If a physician ever, in any circumstance, is capable of providing life-saving therapy and abandons the patient for any reason without making provisions for another physician to provide the care, that physician has violated a basic and fundamental principle of medical ethics. It is unethical for physicians to make a moral judgement about any aspect of a patient’s life and use that moral judgement as an excuse to refuse to provide care in a life-threatening situation. All of us have opinions, sometimes very strongly held, about all sorts of behaviors and choices people make in their lives, but doctors are healers of the body, not agents of the criminal justice system or executioners of the divine judgements of whatever Supreme Being we happen to worship.
At our medical school, we teach our students that it will be part of their professional and ethical obligation as physicians to see the humanity of each and every one of their patients, no matter what our or their religious, cultural, political or social allegiances happen to be. We give medical care to patients because they are human beings, not because they are Christians, or Jews, or Muslims, or atheists, or Democrats, or Republicans, or men, or women.
There may be times in the course of a physician’s career when the doctor develops such strong negative feelings about a patient that he or she cannot trust himself or herself to act in the patient’s best interest. Such instances are not unheard of, but the circumstances under which they arise are often unusual, and they are generally quite rare. Physicians may also refuse to provide care if they have been abused by a patient, or if the needed or requested care is outside the scope of their practice or expertise. In those circumstances, the physician still generally has an obligation to refer the patient to another doctor who can provide the care the patient needs.
Hawley has every right to make sure that her clients are protected by the conscience clause. But to suggest that a physician can refuse to provide care for a life-threatening condition because of a personal belief goes beyond the clause and threatens the moral and professional fabric of the practice of medicine, and the trust that very sick patients have every time they enter an emergency room that they will receive the treatment they need.
Neil Schluger, M.D., is Dean of the School of Medicine and Professor of Medicine at New York Medical College.