A Question of Ethics:
I Object: Ethical and Practical Considerations Around Conscience-based Objections

Dr. Kade Goepferd: This is Talking Pediatrics, a clinical podcast by Children’s Minnesota, home to the Kid Experts, where the complex is our every day. Each episode, we bring you intriguing stories and relevant pediatric health care information as we partner with you in the care of your patients. Our guests, data, ideas and practical tips will surprise, challenge, and perhaps change, how you care for kids.

Welcome to Talking Pediatrics. I’m your host, Dr. Kade Goepferd. Today’s segment, a question of ethics recognizes that pediatric clinicians do ethics every day. And our guest host, Dr. Ian Wolfe, director of ethics, offers helpful guidance for pediatric clinicians navigating those everyday ethical issues.

Ian Wolfe: Welcome everyone to another episode of A Question of Ethics. Today we’re going to talk about conscience-based objections, and over the last few years, the term ‘conscience objection’ has been heard more and more in health care. In this episode, I want to explore the ethical considerations of conscience-based objections, when they’re appropriate, when they’re not, and how to know. And with me today is Thaddeus Pope. Thaddeus Pope is a professor of law at Mitchell Hamline School of Law. He is a well-known and well-regarded bioethicist and has written on conscience-based objections in the past. Thanks for joining us today in question of ethics, Thad. And so I want to start off first of all with the big question, which is, what is a conscience-based objection?

Thaddeus Pope: Well, I think of James Bond. So you’ll recall he had a license to kill, right? So normally you’re not supposed to kill people, but James Bond had permission from the British government. So I think health care conscience-based objection is analogist because clinicians are supposed to provide medical services and interventions consistent with the standard of care, but a conscience-based objection gives them permission not to do that, or at least they’re asserting a right not to follow the standard of care, not to follow what they normally would have a duty, an ethical or legal duty to do.

Ian Wolfe: Interesting. Yeah. So what you’re talking about there is permission to not do something that’s standard, legally allowable medical intervention that a patient is requesting. So it is an objection to participate in some type of act. Correct?

Thaddeus Pope: Yes. The normal expected duty or obligation of the clinician would be to provide the requested health care service. And the clinician is saying for personal or moral or religious reasons, I don’t want to do that. I don’t want to do what is normally expected of a clinician in my situation.

Ian Wolfe: So over the last few years, I’ve felt that the concept of conscience objection has become a little more unclear. I know it’s different institutions where I trained. I’ve had cases that have come up for the ethics consultant and the ethics committee on a nurse practitioner saying that they have a conscience objection to providing a football physical for a child because of a belief that that’s then allowing them to go get harmed, a med student objecting to performing a sexual health history for an adolescent. And recently, I think with states, or at least the conversation in politics and many states which seem to be changing some of their laws around conscience objection or at least the conversation itself leading to clinicians now saying, I consciously object to using identified names, participating in, say, administering medications as opposed to, I think what we used to think of it as is mostly in the US of I will not participate in an abortion. What are your thoughts on that?

Thaddeus Pope: I think traditionally it’s come up in three big areas end of life. So there’ll be medical aid and dying. Withholding life, sustaining treatment, withdrawing life sustaining treatment. So this whole host of medical decision making at the end of life, second gender affirming care. And then third, and by far, this is the biggest one, which is all reproductive care, whether that’s abortion, contraception, sterilization, and so forth. So those are I think the three big ones. But more recently because of the way that some vaccines were developed, including in Minnesota, we’ve had a number of cases, but we have clinicians objecting to pediatric vaccinations as well as COVID vaccinations. Circumcision, I guess, is another one. I guess contraception remains a really big one in the pediatric context. So the boundaries are fuzzy because it doesn’t have to be, I guess what people would say theistic, right? It doesn’t have to be based in a recognized religion with a church. It could be a moral reason. It could be even many of the laws use the word personal. It could be a personal or ethical reason. So it’s in a sense almost unlimited, at least from a legal perspective in some states as to what could constitute a legitimate conscience-based objection.

Ian Wolfe: People have a right to continue to develop their deeply held beliefs just as they continue to live in the world.

Thaddeus Pope: I should add one thing, which is it’s not completely unhinged. There are limits, I think, to what we would call a conscience-based objection. So if you are objecting for purely professional reasons, so let’s say you don’t want to provide ivermectin to a patient with COVID that’s not moral, personal, religious, or ethical, that’s because it’s completely ineffective, right? The CDC and the FDA and everybody else says that it’s a horse deworming medication. It doesn’t help with COVID. And so your objection is because it’s outside the standard of care and it’s completely futile and ineffective. So I think that’s separate. So there’s some reasons that clinicians might object to doing something which wouldn’t be a conscience-based objection. They’d be a purely professional objection. And I think the other thing that should be separated from what constitutes a conscience-based objection is invidious discrimination. So typically what we’re talking about when the clinician objects is they’re objecting to the procedure, an abortion, a sterilization, and they’re not objecting to the patient. So race, color, national origin, you can’t say, I don’t want to treat a person like you that you can’t do. That’s prohibited under federal law. And generally, whatever conscience-based rights you have don’t permit you to engage in that kind of invidious discrimination.

Ian Wolfe: So the example I often use in teaching, especially we talk about this at the American Nurses Association level, is you might have a conscience-based objection to participating in an abortion, but you can’t object to taking care of somebody who just had one recently, and they need health care for that. That would be discrimination, not a conscience-based objection.

Thaddeus Pope: I guess it’s important to mention that the boundaries get fuzzy because typically when we say the word ‘participate’ in an abortion, you and I are in Minnesota, but if we were in Florida or Montana or South Carolina or Ohio, the new laws there and many states have been enacting something called the med laws, MED, medical ethics and diversity laws. These are super broad. So they’ll say, Hey, if you don’t want to participate, you don’t have to, period, no matter the consequences to the patient, and the word participate in those states means anything, right? So I don’t want to provide the procedure. I don’t want to refer the procedure. I don’t want to talk to the patient about the procedure. I don’t want to clean up the room. I’m a janitor. I don’t want to clean up the room after the procedure or before the procedure or prep the room. So it’s anything that is no matter how long the chain, anything that is at all connected, people might or could assert an objection to. Now, those are the minority. That’s only maybe 6, 7, 8 states. So I should emphasize to the listeners that generally that’s the minority position.

Ian Wolfe: Some of the reason I think that this topic is of interest now is because some of these different states developing these more expansive definitions of that, I think it sort of muddies the water than what do we do practically when as more people are expanding their own than personal definitions of it. So from an ethics perspective, I think the point out here is that the ethical tension is the right to your conscience objection, but also the patient’s right to access standard legal health care,

Thaddeus Pope: Maybe it’s better to say potential, potential tension

Because there might not be a tension between the clinicians, right, to live with their integrity and the patient’s right to access legal legitimate services. Why? Because, well, maybe the procedure is not even available in your state. So if you have a conscience-base objection to abortion and you live in Texas, well, they aren’t going to get an abortion anyway. Or even if you’re in Minnesota now, abortion is legal legally, but if you work for a Catholic affiliated entity, the entity doesn’t provide abortions. It doesn’t permit you to provide abortions. So the fact that you have a conscience-based objection doesn’t really create attention with the patient. The entity’s objection does, but yours doesn’t. I mean, you couldn’t do it anyway.

Or maybe you have a conscience-based objection that doesn’t really affect patient care. So maybe your children’s hospital requires everybody to wear a certain uniform or something, right? But you want to wear some religious garment, right? Well, okay, you want a deviation from the regular rules for a conscience-based reason. Again, fine doesn’t affect patient care. So I think a lot of the times conscience-based objections don’t create tension with the patient, but absolutely they can. And the good news is, even when there is a tension between what the clinician wants and what the patient wants, we can typically manage those such that everybody gets what they want.

Ian Wolfe: How does one manage those tensions? Like say I’m a clinic leader or a director of a unit or a nurse leader, et cetera. All of a sudden a staff member says, I have a conscience objection to this particular procedure, et cetera. How do we manage that?

Thaddeus Pope: Well, the first thing, you used the words a second ago, all of a sudden a clinician mentions to their supervisor. So hopefully that isn’t the way that it happened. So hopefully when you first join Children’s, some systems have literally a form like a checklist. You have a problem with any of the following procedures. So in other words, it’s discussed during your onboarding process with the institution. And then we could take that into account when scheduling which unit you work in or which shifts you work. Maybe we don’t want to put you on the midnight shift. You’d be the only one there. If you were on the other shift, if the thing you object to comes up, then we could easily sub you out with somebody else. I think by far and away that’s in the guidance that’s in a lot of the other professional society guidance, this idea, which make it known, be transparent about it with your employer.

Ian Wolfe: In fact, a lot of the just professional codes of ethics say you have a responsibility to notify supervisors of any potential conflict or conscience objection that might impact care.

Thaddeus Pope: And that fits with I think the general theme, which is, I guess I’ll use the tag out, which is you don’t need to do it, but you need to find somebody else to replace you. If you are the one responsible and the patient needs this service, especially if they need it in an urgent sort of way, then yes, you don’t need to provide it, but you do need to replace yourself. We sometimes call that at the institutional level, the concept of transfer, right? If your whole institution doesn’t want to do something because they think it’s for conscience-based reasons, again, they don’t need to provide it, but you’ve got to get that patient to another institution that is willing to provide that disputed service. So that’s the way we’ve always tried to resolve these things, which is we think we can have our cake and eat it too, which is you don’t need to do anything you think is immoral, but we also want to make sure the patient gets access to that service.

Ian Wolfe: So you’re still ensuring that the patient has an opportunity to access that legal standard care. And also you don’t have to do it. So really, I think making sure that that key piece of it is there that makes sense to this ethicist who would point out the ethics tension there, is that this patient still deserves right to access the care even if you have a right to not be the one to provide it. And that of course, key lessons in bioethics education, right, are the quintessential cases of the lone pharmacist in a regional area. The difficulty around then, how do you provide that same care but also respect the conscience- based objection.

Thaddeus Pope: It’s easier to do what I just said, which is everybody’s happy just transferred to somebody else in metropolitan Minneapolis than it is in Brainerd or north of Brainerd in Minnesota in these rural areas. Because as you said, many times you’re it, it’s a great concept like transfer or tagout, but it’s harder to implement in smaller institutions and harder to institute in rural settings. Absolutely.

Ian Wolfe: Yeah. Burden on the patient certainly increases. So getting back to some of the practical, what do we do questions, which I’m always interested in as an ethicist here, and this has come up I think a little bit, at least in practice, around things like gender affirming care where it’s not clear that you’re actually participating in a procedure. And I know some states are expanding that, but in general, I think, we think about a participation versus a refusal based on someone’s identity. So I know in some states that’s even expanding on, well, it’s lifestyle things, but in general, I think the consensus is that that’s at least, especially I know from the American Nurse Association Code of ethics, that becomes discrimination when it’s based on someone’s identity. How does one then identify between that, whether their conscience-base objection is legitimate or not?

Thaddeus Pope: In practice we have these very strong anti-discrimination rules that apply to basically all health care entities in the United States, and therefore to their employees called the Section 1557 regulations, which prohibit discrimination on the basis of gender or gender identity. So it prohibits all of this stuff. Call your clinical ethics consultant or your risk management and have them advise you on whether that would be a legitimate assertion of a conscience-based rejection. I think the question you just asked actually is hard. Am I not treating you because I don’t want to provide affirming care? Am I not treating you because you are a transgender person? I mean, some of that might require the clinician to actually self-reflect about what it is that they’re doing there, but I think they should be forced to explain and articulate, well, why is it that you don’t want to treat this person today, a figure out what is your reason? And then secondly, somebody might need to help you determine whether that’s a legitimate reason.

Ian Wolfe: Yeah, this came up when we had a resident who in a different institution where I was in training that they felt that they had an objection to doing a sexual health history, their adolescent rotation. It turns out it was actually a GME requirement. And so I think there was a lot of considerations then for that individual on one, whether this was deeply held where they couldn’t do it at all, because that had not only maybe conscience-based objection considerations for themselves, but whether they could even continue in their training program. And I don’t know the details of the requirements or whether that adolescent medicine was a place that they could even then practice and things like that. So I think it’s a good call out to say you might want to really investigate your own conscience-based objections to understand where that leads you.

So another thing that I think is hard to navigate is from the leader perspective. We talked a little bit I think, about some of the strategies to take and to consider, but as a leader, you hope that your staff come to you with their conscience objections, so you know how to better establish your service line, set up your clinic, but that doesn’t always happen. So what are some tips for leaders from the legal perspective on things to consider when working with staff who might have a conscience-base objection, either known beforehand or as something maybe comes up?

Thaddeus Pope: So if you are a leader, so we’re not talking about the individual clinician, but the manager of the clinicians, then

Ian Wolfe: Manager of a clinic, medical director charge nurse on the unit that day,

Thaddeus Pope: You should have written policies and procedures because this is common, and you shouldn’t make ad hoc decisions about which clinicians can assert objections. So you should have written policies and procedures. We wrote one for a TS for the ICU context. AAP has guidance. A lot of the national professional societies have guidance documents, which I think could then guide or shape the policies and procedures of an individual hospital or entity. The second thing is you have to work with HR on this one. So HR isn’t often brought in on ethics policies in a clinical setting, but on this one, you’re talking about how you are treating your employees and they have rights as employees. So the traditional old classic example is, I don’t want to work on Saturdays. I don’t want to work on the Sabbath. So you generally have a duty under employment discrimination laws to honor those if you can, unless it would be a unreasonable burden on the entity to honor the objection, because otherwise you’re not just have problems with patient care, which of course you want to make sure that patients get access to the care, but you don’t want to open yourself up or open up your institution to employment-related complaints and litigation.

This is about assuring access to legitimate health care services, but it’s also about protecting the moral integrity of your employees. And if you violate that moral integrity, well, you may cause them to leave. Obviously, we’re living in a shortage right now, so you can have a staffing problem, but you may also open yourself up to litigation.

Ian Wolfe: Well, I think that’s such the important point when I talk about conscience-base objections is really pointing out that this is about trying to respect both the moral integrity of individuals, but also the patient’s right to health care that is standard and legal, we should note. And I like to recognize those things as tensions because otherwise, then you look at this more of this person versus that person, and it’s really about trying to respect both things. And so it sounds like that’s really where the takeaways come to is you know, have a conscience-base objection. You have an interest in letting your leaders know if your code of ethics, that’s so you have an ethical obligation to make it known beforehand. Would you agree with that?

Thaddeus Pope: I think that’s right. I think because the whole point is we want to do everything to mitigate and hopefully even eliminate the likelihood that the patient is actually going to be deprived of a needed health care service.

And so later on, when somebody’s retrospectively, and it could be the state nursing board, it could be your employer, it could be other organizations when somebody is looking backwards and say, Hey, did you do everything that you could have done to avoid this outcome? And I think if you hadn’t made an early upfront disclosure when you were first hired, or at least maybe what you got married and changed religions or when the conflict first arose, then I think somebody could say, no, you didn’t do everything you could have done to mitigate this conflict. You could have been scheduled differently if your supervisor had known.

Ian Wolfe: Right? And then that’s important for our supervisors is to consider that, make sure you look at what policies are available, but then also working with potentially clinical ethics. Although like you said, this is also a heavily HR area of concern as well, to try to balance all those different things out there. I know during the COVID pandemic that there was a little bit more HR involvement. I’ve heard around the country in several different work areas, really vetting whether something was a legitimate conscience-based objection. You had certain people refusing, say COVID vaccine mandates based on religious objections, but the leader of said religion who’s publicly going out and saying that, and this really put, I assume HR in a difficult spot of how much do they actually vet conscience-based objections.

Thaddeus Pope: That’s generally in the health care context. It doesn’t need to be religious. The clinician’s right to assert a conscience-based objection is broader than just a religious objection. It could be moral, ethical, personal, but those COVID exemptions, by the way, similarly pediatric vaccine exemptions, right? Generally your kid needs to be vaccinated to go to a public school, but then some many states say, well, if you have religious objection, then you don’t.

Ian Wolfe: Or philosophical as it is in Minnesota.

Thaddeus Pope: Sadly, I don’t think people push probe very much on that. And what we saw, by the way, is I think it was California. California used to have a personal exemption. So you decide, I just don’t want to get my kid vaccinated. I don’t have a religious reason, I just don’t want to do it. Right? They got rid of that and then the religious objection spiked. So all those people who had never been asserting religious objection discovered that they had a religious objection, surprisingly so I think a lot of those probably were bogus. I think same thing in COVID, we saw the religious objection spike because somebody told them, oh, just tell your boss it’s religious. There’s this advice going around. It’s a pretext. The problem is it’s super difficult to vet that out,

Ian Wolfe: And as you said earlier in the health care context, generally speaking, we have the ability to provide both respect for conscience objection and getting service because we have enough staff to shift in and take over. And so that’s maybe led us not to really need to vet as much or just that, as you say, the practicalities of vetting it are burdensome.

Thaddeus Pope: I’m an optimist. Everybody can walk away happy, right? The clinician can abstain from the objectionable service, yet the patient still gets the service because there’s another clinician right around the corner who can step in, and I think that we should do everything that we can in terms of transparency so we can help get to that happy outcome.

Ian Wolfe: I share that optimism because I do think it’s important that clinicians maintain their wholeness of character and moral integrity. We want that while we also want to, at the same time ensure patients have access. So I very much appreciate and share that optimism. The final takeaway that I’d like to bring home discrimination is not a part of conscience-based objection. Meaning, as you stated earlier, that if the reasons are because I don’t agree with such and such as lifestyle, whatever that may be, or religion or as you said, sexuality, that is discrimination and not a part of conscience objection, at least from an ethics perspective, depending on the state, the legal perspective might be different.

Thaddeus Pope: So one thing to step back, if you’re thinking you’re a clinician and you’re thinking, oh, is this a legitimate conscience-based objection, I can assert or not even before you go to your manager or to HR or to ethics consultant or risk management or anybody, you should stop and think, yeah, and ask the question that you just asked, because if it is because of the patient’s race, gender, national origin, gender, gender identity, and there’s a number of other categories, then that’s not a legitimate conscience-based objection. Not only as you said ethically, but also legally because all of these are Title vii, title ix, these are all federal laws back since the sixties. That is prohibited. It’s prohibited by HHS. It’s prohibited by federal law and whatever conscience-based right you might have under law isn’t going to excuse you from engaging invidious discrimination on any of those prohibited categories.

Ian Wolfe: Professor Pope, thanks so much for spending your time with us and really diving into what has become these days, more and more, a very complicated situation, or at least a complicated concept of conscience-based objection. Who has a conscience-based objection? How do we navigate it? What do you do as leaders and some of our ethical obligations that we have as folks who might have a conscience-based injection? Thank you so much.

Thaddeus Pope: Thanks for having me.

Dr. Kade Goepferd: Thank you for listening to Talking Pediatrics. Come back next time for a new episode with our caregivers and experts in pediatric health. Our showrunner is Cora Nelson. Episodes are produced, engineered and edited by Jake Beaver and Patrick Bixler. Our marketing representatives are Amie Juba and Krithika Devanathan. For information and additional episodes, check us out on your favorite podcast platform or go to childrensmn.org/talkingpediatrics.