The Case against Institutional Conscience

INTRODUCTION In the United States today, federal laws immunize healthcare providers who refuse, on moral or religious grounds, to perform or assist in performing certain procedures. These "conscience clauses" cover not just individual providers, but institutions as well. Catholic hospitals (1) are chief among those institutions receiving conscience protection. Catholic hospitals operate in accordance with the Ethical and Religious Directives for Catholic Health Care Services ("Directives"), promulgated by the U.S. Conference of Catholic Bishops (USCCB). (2) The Directives define Catholic healthcare's mission of caring for the underserved and also limit or prohibit particular medical treatments, including abortion, tubal ligation, vasectomy, advance directives, and other end-of-life procedures. (3) Catholic hospitals assert the right, as an entity, to act in accord with the Directives, which are deemed to be a hospital's conscience. Further, all employees must comply with the Directives. (4) Therefore, the recognition of institutional conscience restricts the full protection of individual conscience for those employees whose moral or religious persuasions diverge from the Directives. That restriction is possible because a Catholic hospital's conscience overrides individual conscience when the two conflict, sometimes causing practitioners serious dilemmas. In December of 2000, a Catholic hospital asked its Chief of Obstetrics and Gynecology, Dr. Yogendra Shah, to step down from that position because he performed abortions at a private clinic. (5) In March of 1998, a Roman Catholic hospital in New York forced Dr. David Mesches out of his position as Chairman of the Department of Family Medicine. (6) In an attempt to ensure the completion of a merger between one Catholic and two secular hospitals, Dr. Mesches had offered to lease space in his offices as a clinic to provide the reproductive services that the surviving hospital would no longer offer. (7) Dr. Mesches commented to a local newspaper that the right to an abortion is "the law of the land" and added "it's the right thing to do." (8) He was afterwards dismissed. (9) A recent article, which published the results of thirty interviews with obstetrician-gynecologists who described their experiences treating miscarriages in Catholic hospitals, documented the challenge faced by those who work in Catholic hospitals and struggle to abide by the Directives. (10) Dr. S, who used to work in an urban Catholic hospital in the Northeast, described the following situation: I'll never forget this; it was awful--I had one of my partners accept this patient at 19 weeks. The pregnancy was in the vagina. It was over.... And so he takes this patient and transferred her to [our] tertiary medical center, which I was just livid about, and, you know, "we're going to save the pregnancy." So of course, I'm on call when she gets septic, and she's septic to the point that I'm pushing pressors on labor and delivery trying to keep her blood pressure up, and I have her on a cooling blanket because she's 106 degrees. And I needed to get everything out. And so I put the ultrasound machine on and there was still a heartbeat, and [the ethics committee] wouldn't let me because there was still a heartbeat. This woman is dying before our eyes. I went in to examine her, and I was able to find the umbilical cord through the membranes and just snapped the umbilical cord and so that I could put the ultrasound--"Oh look. No heartbeat. Let's go." She was so sick she was in the [intensive care unit] for about 10 days and very nearly died.... She was in DIC [disseminated intravascular coagulpathy].... Her bleeding was so bad that the sclera, the white of her eyes, were red, filled with blood.... And I said, "I just can't do this. I can't put myself behind this. This is not worth it to me." That's why I left. …