Head Off Conflicts Over Conscience-Based Refusals of Care

BALTIMORE – There are many situations in which a physician may find that a treatment requested by an employing institution or a patient is contrary to the physician's religious or moral beliefs–but the best practice is to prevent these conflicts in the first place, Helen Norton, former Deputy Assistant Attorney General for Civil Rights, said at a conference on conscience-based refusals in health care sponsored by the University of Maryland School of Law.

Although Title VII of the Civil Rights Act of 1964 requires employers to “reasonably accommodate” any sincerely held belief, the clause stating that the accommodation must not pose an undue hardship on an employer has led courts to consistently rule that almost any compromise offer extended by an employer will meet that standard. Ms. Norton, now of the law school, advised letting prospective employers know up front of any treatments or procedures you are unwilling to perform or participate in.

“In general, I think it's a very good idea to identify possible conflicts sooner rather than later,” she said in an interview. “Advance notice gives the institution a chance to plan ahead, identify reasonable accommodations, and make arrangements that address the concerns of all involved. Plus institutions are likely to see such notice as a gesture of good faith–as are courts, if a matter ever ends up in litigation.”

Treatments that more often result in conscience-based refusals include abortion, prescribing emergency contraceptives, care for the terminally ill, and sterilization procedures.

What a physician is legally obligated to do varies by state. Although in most states, while physicians are required to perform any emergency treatment, emergency contraceptives are often placed in a different category.

“Four states have passed conscience clause statutes that go beyond the usual focus on abortion, and sometimes sterilization, to allow pharmacists to refuse to dispense emergency contraception,” Ms. Norton said. “It's true that some state conscience clauses make clear that health care providers' refusals are not protected when they identify the conflict during certain emergency situations–like public health emergencies or in the middle of patient care when no other provider is available. But as far as I know, the four don't-have-to-dispense-EC states do not define a patient's interest in emergency contraception as such an emergency.”

Ms. Norton noted that Title VII protects only employees, not independent contractors.

“Most state conscience clause statutes, on the other hand, allow health care workers generally–regardless of their status as employee or independent contractors–to refuse to provide certain services,” she said.

As to whether there is any limit to how burdensome a compromise offer extended by an employer to an employee can be while still protecting the employer legally, “there is not a very clear answer,” Ms. Norton said. “What does 'reasonable accommodation' mean? Some courts define reasonable accommodation to mean any change offered by the employer that would eliminate the conflict between the employee's conscience and his or her job. This would include a transfer to a job that does not involve the challenged procedure, even if the new job offers less pay or a less attractive location.

As to the direction the law is likely to take, Ms. Norton expects the diversity of state statutes to continue. “In the short term, I think we'll continue to see a lot of action–and variation–on the state front. Some states clearly are focused primarily on protecting individual providers' claims of conscience and thus are enacting broader conscience clause statutes that, for example, protect a pharmacist's refusal to dispense EC. On the other hand, others are clearly focused primarily on patient access to health care services and thus are enacting laws that require institutional providers to expand access to that care.”

Ultimately, the different legislative approaches taken by states are setting up the kind of situation that has historically tempted Congress to weigh in, she said.

BALTIMORE – There are many situations in which a physician may find that a treatment requested by an employing institution or a patient is contrary to the physician's religious or moral beliefs–but the best practice is to prevent these conflicts in the first place, Helen Norton, former Deputy Assistant Attorney General for Civil Rights, said at a conference on conscience-based refusals in health care sponsored by the University of Maryland School of Law.

Although Title VII of the Civil Rights Act of 1964 requires employers to “reasonably accommodate” any sincerely held belief, the clause stating that the accommodation must not pose an undue hardship on an employer has led courts to consistently rule that almost any compromise offer extended by an employer will meet that standard. Ms. Norton, now of the law school, advised letting prospective employers know up front of any treatments or procedures you are unwilling to perform or participate in.

“In general, I think it's a very good idea to identify possible conflicts sooner rather than later,” she said in an interview. “Advance notice gives the institution a chance to plan ahead, identify reasonable accommodations, and make arrangements that address the concerns of all involved. Plus institutions are likely to see such notice as a gesture of good faith–as are courts, if a matter ever ends up in litigation.”

Treatments that more often result in conscience-based refusals include abortion, prescribing emergency contraceptives, care for the terminally ill, and sterilization procedures.

What a physician is legally obligated to do varies by state. Although in most states, while physicians are required to perform any emergency treatment, emergency contraceptives are often placed in a different category.

“Four states have passed conscience clause statutes that go beyond the usual focus on abortion, and sometimes sterilization, to allow pharmacists to refuse to dispense emergency contraception,” Ms. Norton said. “It's true that some state conscience clauses make clear that health care providers' refusals are not protected when they identify the conflict during certain emergency situations–like public health emergencies or in the middle of patient care when no other provider is available. But as far as I know, the four don't-have-to-dispense-EC states do not define a patient's interest in emergency contraception as such an emergency.”

Ms. Norton noted that Title VII protects only employees, not independent contractors.

“Most state conscience clause statutes, on the other hand, allow health care workers generally–regardless of their status as employee or independent contractors–to refuse to provide certain services,” she said.

As to whether there is any limit to how burdensome a compromise offer extended by an employer to an employee can be while still protecting the employer legally, “there is not a very clear answer,” Ms. Norton said. “What does 'reasonable accommodation' mean? Some courts define reasonable accommodation to mean any change offered by the employer that would eliminate the conflict between the employee's conscience and his or her job. This would include a transfer to a job that does not involve the challenged procedure, even if the new job offers less pay or a less attractive location.

As to the direction the law is likely to take, Ms. Norton expects the diversity of state statutes to continue. “In the short term, I think we'll continue to see a lot of action–and variation–on the state front. Some states clearly are focused primarily on protecting individual providers' claims of conscience and thus are enacting broader conscience clause statutes that, for example, protect a pharmacist's refusal to dispense EC. On the other hand, others are clearly focused primarily on patient access to health care services and thus are enacting laws that require institutional providers to expand access to that care.”

Ultimately, the different legislative approaches taken by states are setting up the kind of situation that has historically tempted Congress to weigh in, she said.

BALTIMORE – There are many situations in which a physician may find that a treatment requested by an employing institution or a patient is contrary to the physician's religious or moral beliefs–but the best practice is to prevent these conflicts in the first place, Helen Norton, former Deputy Assistant Attorney General for Civil Rights, said at a conference on conscience-based refusals in health care sponsored by the University of Maryland School of Law.

Although Title VII of the Civil Rights Act of 1964 requires employers to “reasonably accommodate” any sincerely held belief, the clause stating that the accommodation must not pose an undue hardship on an employer has led courts to consistently rule that almost any compromise offer extended by an employer will meet that standard. Ms. Norton, now of the law school, advised letting prospective employers know up front of any treatments or procedures you are unwilling to perform or participate in.

“In general, I think it's a very good idea to identify possible conflicts sooner rather than later,” she said in an interview. “Advance notice gives the institution a chance to plan ahead, identify reasonable accommodations, and make arrangements that address the concerns of all involved. Plus institutions are likely to see such notice as a gesture of good faith–as are courts, if a matter ever ends up in litigation.”

Treatments that more often result in conscience-based refusals include abortion, prescribing emergency contraceptives, care for the terminally ill, and sterilization procedures.

What a physician is legally obligated to do varies by state. Although in most states, while physicians are required to perform any emergency treatment, emergency contraceptives are often placed in a different category.

“Four states have passed conscience clause statutes that go beyond the usual focus on abortion, and sometimes sterilization, to allow pharmacists to refuse to dispense emergency contraception,” Ms. Norton said. “It's true that some state conscience clauses make clear that health care providers' refusals are not protected when they identify the conflict during certain emergency situations–like public health emergencies or in the middle of patient care when no other provider is available. But as far as I know, the four don't-have-to-dispense-EC states do not define a patient's interest in emergency contraception as such an emergency.”

Ms. Norton noted that Title VII protects only employees, not independent contractors.

“Most state conscience clause statutes, on the other hand, allow health care workers generally–regardless of their status as employee or independent contractors–to refuse to provide certain services,” she said.

As to whether there is any limit to how burdensome a compromise offer extended by an employer to an employee can be while still protecting the employer legally, “there is not a very clear answer,” Ms. Norton said. “What does 'reasonable accommodation' mean? Some courts define reasonable accommodation to mean any change offered by the employer that would eliminate the conflict between the employee's conscience and his or her job. This would include a transfer to a job that does not involve the challenged procedure, even if the new job offers less pay or a less attractive location.

As to the direction the law is likely to take, Ms. Norton expects the diversity of state statutes to continue. “In the short term, I think we'll continue to see a lot of action–and variation–on the state front. Some states clearly are focused primarily on protecting individual providers' claims of conscience and thus are enacting broader conscience clause statutes that, for example, protect a pharmacist's refusal to dispense EC. On the other hand, others are clearly focused primarily on patient access to health care services and thus are enacting laws that require institutional providers to expand access to that care.”

Ultimately, the different legislative approaches taken by states are setting up the kind of situation that has historically tempted Congress to weigh in, she said.