Waldlaw Blog

Saturday, October 15, 2005

The Ethical Duties of Doctors ... And Lawyers

My partner and I had a very interesting conversation over dinner last night, prompted by an article about the case Benitez v. North Coast Women's Care Medical Group. Benitez is a lawsuit, brought by a Southern California lesbian, against a medical group that refused to provide insemination services for her based on her sexual orientation. It was argued in the Court of Appeal last week, so an opinion should be coming out in another month or so. The California Medical Association originally filed an amicus brief supporting the rights of the doctors to refuse insemination services to Ms. Benitez on religious grounds. They later withdrew this brief and wrote a letter in support of Ms. Benitez's right to obtain medical treatment without regard to her sexual orientation. (For full details on the Benitez case, visit Lambda Legal's website at http://www.lambdalegal.org/cgi-bin/iowa/cases/record?record=222.) This case arises in the context of a national movement to allow doctors and pharmacists to refuse treatment on religious grounds. Examples include a Michigan law, passed by the Michigan House in May, 2004 on a vote of 69-35, titled the Conscientious Objector Policy Act, which would have allowed health care providers to refuse treatment to patients for moral, eithical or religious reasons. It was broadly believed that this bill, if enacted into law, would have allowed doctors to refuse to provide treatment to LGBT patients except in emergencies. Similarly, pharmacists are fighting for the right to refuse to fill prescriptions on moral and religious grounds. As stated by the president of Pharmacists for Life -- who was herself fired from an Ohio Kmart for refusing to fill birth-control prescriptions -- "What's been going on is the use of medication to stop human life, that violates the Hippocratic Oath that medical practitioners should do no harm." (See http://www.bet.com/WebApplications/betRoot/Templates/Posting_ArticlePrintFriendly.aspx?{F2932381-1829-49CF-8247-B1415EFB6B6A for a longer article on this issue.) This whole issue raises very interesting questions about the obligations of professionals to work within their professions, even when the work may offend their personal values or religious beliefs. I encountered this issue more than once while working as a public defender. Two obvious examples came during my stint trying felonies in Oakland Superior Court, with two different outcomes. In the first, I was asked to represent a retired Nicaraguan Contra general who at one point, angry at what he perceived as a disrespectful comment from me, said: "Do you know who you're talking to?? Do you know how many Communists I've killed with my own hands?!" He carried a photograph of Oliver North in his breast pocket during his trial, for courage. Needless to say, we had our political differences -- to be blunt, I found him reprehensible, completely regardless of what he was charged with, which was ugly enough in and of itself. Nevertheless, I represented the man because that was my job, and I won him an excellent result following a full jury trial. In other words, I did my job well, because ... that is what I was trained to do. In the other case, I was asked to represent a young man charged with breaking the jaw of a man who had just left a gay bar -- a "gay bashing" incident. The young man was adamantly professing his innocence of the charge and, after reviewing the evidence, I actually thought he might well be right. I nevertheless declared a "conflict of interest" in that case and had someone else assigned to it, because I was concerned that my mixed feelings -- based on my own experiences with and strong opinions about anti-gay violence and harrassment -- would interfere with my ability to do my job. So I felt my ethical obligation was to decline to personally represent the client -- but to see that someone good was appointed in my stead so that he would be well-represented. So what do doctors do who have a "conflict of interest"? Do they refuse treatment that would allow lesbians to have children, because their sincere religious beliefs tell them that lesbianism is an unpardonable sin? Where do the licensing requirements for doctors -- and for lawyers -- control, over and above the personal ethics/morals of those doctors/lawyers? The American Medical Student Association wrote a long letter to the California Medical Association about the Benitez case, in which they framed the issue this way: "Since Hippocrates' time, physicians have answered a calling to treat all who are in need of our care, regardless of who the patient may be.... As physicians, our obligation is first and foremost to our patients. We are allowed to refuse to comply with our patients' requests in a very limited number of circumstances: when the care required is beyond the physician's scope of practice; when the care is something that a particular physician does not offer to any patient; and when providing a particular procedure would violate a physician's conscience." The AMSA went on to note that the problem in the Benitez case was that the doctors were refusing to perform a procedure not because of an opinion that the procedure was unethical or immoral, but rather because they found the patient objectionable. This seems like a good distinction to me. When I found my client objectionable, I nevertheless provided the best representation I could based on my ethical obligations as a lawyer. When I found the crime so objectionable as to make me question my ability to provide the caliber of counsel required, I declined representation. But I found other, able counsel for the client. I did not leave him unrepresented. And this is important. What does this mean for doctors? Am I actually arguing in favor of a physician's right to refuse to perform abortions, if s/he feels unable to do so without violating a hearfelt moral/religious principal? I guess I am -- with confidence that there will always be doctors who can perform abortions without offending their personal ethics -- the same way that I support my friend Lisa's right to refuse to perform circumcisions, even though she's Jewish, because she can't bring herself to personally do this procedure. But I also expect the physicians to respectfully assist the patients in finding other medical professionals to provide the services that they, themselves, feel ethically unable to provide. This is the least that our professional oaths require. As a professional myself, I have experienced the tension between taking a vow to perform one's services well for whomever needs one's help, and still having one's own heartfelt moral compass that says "there are certain things I cannot do." And here's the bottom line: I don't want my abortion performed by a doctor who finds the procedure reprehensible. I don't want to be defended at trial by someone who secretly wants to see me convicted. And I hope that there will always be enough doctors -- and enough lawyers -- with diverse religious, ethical and moral beliefs that the full range of services can be provided to all that need them, without compromising the personal integrity of the individuals performing the services. That said, I believe it is the responsibility of every doctor, every lawyer, every pharmacist to make sure that patients/clients know how and where to find able professionals to assist them in getting their needs met, and no one's personal morality or religion should prevent us from performing our professional duties to this extent. This seems like a reasonable compromise when personal ethics and professional oaths are in conflict, and one we all should be able to live with.


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