Today’s podcast may be a stretch for our listeners. Please stick with us. No matter what your position on medical aid in dying (I’m ambivalent) or abortion (I’m pro-choice), this is a bioethics podcast, and I hope that we can all agree that the ethical issues at stake deserve a critical re-think. All three of today’s guests are well established bioethicists.

Let me start by quote/paraphrasing one of today’s guests, Mara Buchbinder, who puts her finger on the issue we talk about today:

“Typically when we think about conscience in medical ethics we think about it in terms of a negative claim of conscience, where a clinician refuses (or objects) to provide care. But what we know from my research and those of others, people also articulate a positive claim of conscience: they feel compelled to provide a service - whether it’s abortion provision or medical aid in dying - because of a deeply held conviction that this is the right thing to do.”

I’ll continue by quoting Lisa Harris, who wrote in the NEJM:

Bioethicists have focused on defining conditions under which conscientious refusals are acceptable but, with rare exceptions, have neglected to make the moral case for protecting the conscientious provision of care. Indeed, there is a real asymmetry between negative duties (to not do something) and positive duties (to do something) and, accordingly, between negative and positive claims of conscience. Violations of negative claims are considered morally worse than violations of positive ones.However, as bioethicist Mark Wicclair argues, the moral-asymmetry thesis does not provide adequate ethical justification for current conscience law, which protects only conscience-based refusals. Moral integrity can be injured as much by not performing an action required by one's core beliefs as by performing an action that contradicts those beliefs.

Lisa was writing about providing abortion care, but she just as easily could have been writing about providing medical aid in dying in states where it is illegal.

Today we wrestle with this issue of conscientious provision. We start by talking with Robert Brody, an internist who recalls physicians helping patients die during the height of the AIDS epidemic in San Francisco. Robert was first asked by one of his own patients for assistance in dying in 1991, far before aid in dying was legalized in California in 2016. Robert went on to be the founding chair of the board of Compassion and Choices, the major national advocacy organization for medical aid in dying. Today, medical aid in dying is legal in some 10 states, and illegal in others.

Also today, in the wake of the Supreme Court’s recent Dobbs decision, some 13 states ban abortion. To examine how clinicians might act in the face of such bans, we turn to Lori Freedman, who wrote a book about clinicians (primarily Ob-Gyn’s) who work in Catholic Hospitals. She describes the “workarounds” these clinicians used to skirt the rules in order to provide reproductive care for women.

We talk about the parallels between these issues at the beginning and end of life, and areas in which these parallels fall apart. For example, Jack Kevorkian excepted, clinicians have not been prosecuted for providing aid in dying in states where it is illegal. In contrast, there is a justified fear of prosecution of providing abortion care in states where it is illegal.

It took contemplation on a bike ride to put my finger on why I “wrestle” with the notion of conscientious provision. On the one hand, when I hear of Ob-Gyn’s in Catholic Healthcare systems using “workarounds” to provide reproductive care, I’m standing up and cheering on the inside. On the other hand, when I hear of workarounds to assist patients to die, or even euthanize them, I worry that we’ve gone back to a time when the doctor or nurse knows best - and should be morally permitted to do whatever they think is right, according to their conscience. Do we really trust all doctors and nurses so far? Would you, with your parents, trust any doctor or nurse to make such life or death decisions, regardless of the law? There have to be limits to conscientious provision, just as there are limits placed on conscientious objection. In conscientious objection, there are general rules, such as: the patient must be given time to seek a clinician who is willing to provide the treatment; and clinicians can only object to specific treatments under specific circumstances. And yet, I worry about explicitly creating ethical rules for conscientious provision. Ought we, in bioethics, create ethical rules for providing care that is illegal? Who will follow them, and what would be their incentive for doing so? Would such ethical guidelines foster or feed suspicion of the motivations of bioethics?

We could have talked for hours. We may reconvene for another podcast as we see how these issues continue to unfold.

Oh life. It’s bigger. It’s bigger than you and you are not me.

-@AlexSmithMD

Many links:

Mara Buchbinder’s book - Scripting Death: Stories of Assisted Dying in America
https://www.ucpress.edu/book/9780520380202/scripting-death

Lori Freedman’s book (forthcoming) - Bishops and Bodies: Reproductive Care in American Catholic Hospitals
https://www.rutgersuniversitypress.org/bishops-and-bodies/9781978828865

Lisa Harris piece mentioned on podcast
https://www.nejm.org/doi/full/10.1056/NEJMp1206253

Alta Charo piece mentioned on podccast
https://www.nejm.org/doi/full/10.1056/nejmp058112

Yvonne Lindgren article mentioned on podcast
https://dc.law.utah.edu/cgi/viewcontent.cgi?article=1002&context=ulr

Art Caplan piece mentioned on podcast
https://www.thehastingscenter.org/abortion-law-lessons-from-medical-aid-in-dying/

George Annas piece mentioned on podcast
https://dsc.duq.edu/cgi/viewcontent.cgi?article=3090&context=dlr

https://muse.jhu.edu/pub/1/article/722811

https://journalofethics.ama-assn.org/article/why-post-roe-era-requires-protecting-conscientious-provision-we-protect-conscientious-refusal-health/2022-09

https://www.amazon.com/Doctors-Conscience-Struggle-Provide-Abortion/dp/0807021016/ref=tmm_pap_swatch_0?_encoding=UTF8&qid=1670624994&sr=1-1

SPONSOR:

This episode of the GeriPal Podcast is sponsored by UCSF’s Division of Palliative Medicine, an amazing group doing world class palliative care. They are looking for physician faculty to join them in the inpatient and outpatient setting. To learn more about job opportunities, please click here: https://palliativemedicine.ucsf.edu/job-openings

Conscientious Provision of MAID and Abortion: Robert Brody, Lori Freedman, Mara Buchbinder

GeriPal - A Geriatrics and Palliative Medicine Podcast