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Conscience, legalism, and the clash of rights


Federal law prohibits hospitals that receive certain federal funds from forcing employees to participate in abortions. But in September of 2011, the University of Medicine and Dentistry of New Jersey announced that nurses employed in the hospital it runs must care for patients having an abortion, reversing, as Stein wrote, “a long-standing policy exempting employees who refuse based on religious or moral objections.” In October, a group of objecting nurses filed a federal lawsuit, and in November, U.S. District Judge Jose Linares granted a request for a temporary restraining order barring the hospital from requiring the objecting nurses to undergo any “training, procedures or performances relating to abortions…”

In December the hospital reversed its policy and agreed that nurses who have conscientious objections to assisting with abortions would not have to help with the pre- or postoperative care of these patients except when the mother’s life is threatened and other nonobjecting staff are not available to assist. The presiding judge made it clear that the parties would be back in court if they violated either the letter or spirit of the agreement.

By no means is abortion the only problem of conscience for nurses. In 2015, thousands of nurses across the United States refused forced flu vaccinations, choosing to either lose their job as a result, or endure shame and ridicule for being forced to wear a mask while on duty during flu season. In Michigan, a nurse was fired from her hospital job for refusing to take the flu-shot on religious and health grounds. It should be noted that the Affordable Health Care Act mandates healthcare facilities to have 90% of their employees vaccinated with the flu vaccine or lose full reimbursements of Medicare and Medicaid payments.

A California nurse refused to start CPR on an 87-year-old woman because the assisted living facility’s policy did not permit it. Another nurse guarded the door to a patient’s room to prevent personnel to initiate CPR on a patient who had refused it.

In an interesting twist, Sharon Buchbinder, RN, Phd, writing in “Everyday Health,” said that nurses have a right not to care for Ebola patients under some circumstances: “If their healthcare organization has not prepared in accordance with the CDC Checklist for Ebola Preparedness, nurses and other healthcare workers, including triage personnel, are putting their lives and the lives of other patients and their families at risk. No other occupation, including the military and law enforcement, expects you to place your family in harm’s way. In my opinion, if a nurse or other healthcare worker is put into this ethical dilemma, she has an obligation to refuse to care for a patient with Ebola.”

And there are more situations – a lot more. Certainly “conscience” has been recognized in American law up to and including soldiers’ conscientious objection during war – giving conscience primacy over law. Should someone be fired (as threatened in New Jersey) or fined or even jailed for “stashing” other patients meds to give to rural home-bound hospice patients in the middle of the night (as threatened in a Montana case)? Or should these persons be excused from a law/regulation/policy because they are following their conscience?

Is a nurse’s fear of reprisals if she/he fails to comply with facility policy more important than emergency intervention? The letter of the law may not be just. Laws themselves may be unjust. If conscience is not respected and the law – even in a democratic republic – is given primacy, how then do citizens change immoral laws, as was the case in slavery (many state laws and a Supreme Court decision upheld slavery laws), or the case with Martin Luther King, Jr., and others as they battled segregation and discrimination?

Should commonly agreed upon laws and regulations take precedence over individual conscience? Does accommodating an individual’s conscience necessarily have to lead to chaos? Can institutional policies be held as superior to the law, as in the abortion and CPR cases? Does territorial professional legislation trump mercy as in the case of the hospice nurses and restrictive dispensing laws?

Is the will of the many superior to the conscience of the one? The military, even in times of war, have made allowances for conscientious objectors; certainly reasonable accommodations can be made for dissenters.

Certainly there are times when the rights of one person clash with the rights of another, and in those cases a balance of rights must be found. Absolutism – whether in law or morality – ultimately leads to injustice. Thus it is that the International Council of Nurses (ICN) and the American Nurses Association have adopted positions in support of rights of refusal: “Fundamental to nursing is to respect human rights and dignity, and to be treated with respect” (ICN, 2005). The ICN Position Statement on Nurses and Human Rights is consistent with Article 25 of the Universal Declaration of Human Rights when it states that the ICN “views health care as a right of all individuals … including the right to choose or decline care, the right to accept or refuse treatment or nourishment … and the right to die with dignity.”

In Wolfe versus Schroering, the Supreme Court acknowledged the rights of healthcare personnel to refuse to participate in abortion procedures. Ultimately, outcome of this case also established that nurses were not the instruments of the orders of physicians, hospitals, or even patients. Rather, nurses are independent human beings who have rights as well as responsibilities. This was the first time, in law, nurses were specifically mentioned as moral agents. The long-term consequences include the establishment of freedom of conscience for nurses — and that right extends far beyond abortion, as nurses grapple with the moral dimensions of new technologies and new understandings. Not only do I believe in the primacy of conscience, I spearheaded the brief amicus curie in Wolfe versus Schroering that presented health professional’s position.

While ethics is a discipline that helps one determine what is the right thing to do in a given situation, morality consists of what one does about what one thinks is right. If others – physicians, hospital leadership, and so on — can force a person to do what he or she sincerely believes to be wrong – then the person is immoral, by his or her own definition. Do we really want to place vulnerable populations in the hands of immoral persons? I think not.

Is this inconvenient? Yes. But it not only is do-able, it is essential for all that we accommodate freedom of conscience. Otherwise, there is no such thing as independent practice, or even independent human beings. Any one in a service profession becomes the instruments of the demands of others.

As with any freedoms or any rights, responsibilities are associated: the responsibility of stating your beliefs even before being employed in an area, and the responsibility of safeguarding the lives and well-being of those affected by your decisions (including referring patients/clients to others who have no objections to a procedure).

Thus, the law, the profession – and my humble self – agree about the primacy of conscience. I am most interested to learn what today’s practicing nurse thinks – especially in regard to the increasing power of contemporary scientific and social advances.

Selected references

Buchbinder SB. Hear Me Out. Can nurses refuse to treat Ebola patients. Special to Everyday Health. www.everydayhealth.com/columns/hear-me-out/are-nurses-prepared-work-with-ebola-patients/ October 23, 2014.

Danquah v. University of Medicine and Dentistry, Temporary Restraining Order (November 3, 2011). www.adfmedia.org/files/DanquahTRO.pdf

Danquah v. University of Medicine and Dentistry, Transcript of Proceedings (December 22, 2011) at http://www.adfmedia.org/files/DanquahSettlementTranscripts.pdf Other court documents and briefs in this case may be found at http://www.adfmedia.org/News/PRDetail/5176

Nurses Fired for Refusing to Take Flu Vaccine. Health Impact News.(2015) http://healthimpactnews.com/2014/nurse-fired-for-refusing-flu-shot-sues-hospital-federal-and-state-governments-for-100000000/

Stein R. New Jersey Nurses Charge Religious Discrimination over Hospital Abortion Policy. The Washington Post, November 27, 2011.

The Nurse’s Role in Ethics and Human Rights: Protecting and Promoting Individual Worth, Dignity, and Human Rights in Practice Settings. American Nurses Association Position Statement of June 14th 2010, p.4.

Wolfe v. Schroering. CIV. A. NO. C-74-186-L(B) section 11. 388 F.Supp. 631 (1974).

Leah Curtin is Executive Editor, Professional Outreach for American Nurse Today






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