Conscientious Refuser Accommodation Continues to Undermine Patient Care

Abstract

The case against the accommodation of conscientious refusers in the health care setting has been made [1]. Not everyone agrees, of course [2]. My objective is not to litigate the lack or otherwise of justifications for the accommodation of conscientious refusers. The reader should note that I am only concerned about the accommodation of conscientious refusers, because a conscientious objector could still decide to live up to their professional obligations, while a conscientious refuser has clearly decided not to. Allow me to address today specifically one claim made by critics of conscientious refuser accommodation, namely that by virtue of the idiosyncratic untestable nature of conscience claims access to health care turns into an access lottery, given that patients cannot possibly know what it is that their health care professional may object to on grounds of conscience. Catholic philosophers like Chris Kaczor did respond to this by saying that such concerns are wildly overblown and, for all practical intents and purposes, this isn't a real-world issue in the United States [2]. Evidence to the contrary exists for a fair number of other countries [1, pp. 103–109].

But what about the United States? Two Yale University law professors, Douglas NeJaime and Reva B. Siegel have reported some years ago that religious activist pressure groups have drafted model legislation aimed at enshrining conscience rights in state legislation across the United States [3]. The objective here is on each occasion to subvert patient rights to access care that these groups consider objectionable (typically, but, as we shall see, not limited to, abortion care, life-shortening end-of-life care, IVF for same sex couples).

A risk of these kinds of policies, once enshrined in law, is that they might be so broad as to permit a wide range of unprofessional refusals by health care professionals, to the detriment of patients' access to needed care, even care that should be uncontroversial in the eyes of these pressure groups. This may or may not have been inadvertent, but it remains an uncontrolled effect of current legislation in many states in the United States. As NeJaime and Siegel note in a different paper, “many healthcare refusal laws allow doctors or nurses to refuse to treat a patient even in an emergency situation and do so without requiring that healthcare professionals provide advance notice of their objection to the employer so that the patient receives needed care” [4]. While supposedly these kinds of laws were driven by the need to protect “life,” they quickly mutated into laws that readily discarded and disrespected human life in the name of cultural conquest.

Which takes me to the foreseeable consequences of the latest such legislation, the state of Tennessee's 2025 Medical Ethics Defense Act. It passed into law in late April 2025 [5]. Unsurprisingly, perhaps, the document does not defend medical ethics, it is designed to give health care professionals who wish to behave unprofessionally a free pass. The Act defines “conscience“ as: “the sincerely held ethical, moral, or religious beliefs or principles held by a healthcare provider” [6]. Given that this Act exists to protect unprofessional refusals to provide care, refusals that are based on untestable claims about the substance of a provider's conscience, it stipulates that “a healthcare provider must not be required to participate in or pay for a healthcare procedure, treatment, or service that violates the conscience of the healthcare provider.” It is perhaps noteworthy here that only refusals to provide care are protected, but not, for instance, health care providers who might wish to provide abortion care on grounds of their professional conscience [7]. This does seem to suggest that the Act isn't quite about the protection of the provider conscience, but only about the protection of the purported or real conscience of the conscientious refuser. In other words, it's not about the protection of conscience and more about cultural conquest.

Be that as it may, though, my main contention was that these sorts of legislations have a side effect that I suspect even the most ardent defenders of conscientious refuser accommodation will find difficult to justify. Because of the idiosyncratic nature of the substance of “conscience” claims that are accommodated by conscience definitions used in laws like the Tennessee legislation, access to health care turns into an access lottery. It is impossible for patients to quite know whether their health care providers might object to particular procedures because of their real or purported idiosyncratic personal beliefs.

A case supporting this interpretation has already been reported from Tennessee [8]. Just 3 months after the legislation came into effect a 35-year-old pregnant woman was reportedly denied prenatal care by a physician because the health care professional objected to her being unmarried. Here is no concern about human life that ostensibly needs protection, because the patient in question didn't look for abortion care, she very much wanted to proceed with the pregnancy and give birth to a healthy baby. The doctor had qualms about the pregnant woman being not married. It is somewhat ironic that Tennessee's legislators termed their 2025 Unprofessional Health Care Professional Conduct Defense Act the 2025 Medical Ethics Defense Act as the substance of the Act truly betrays what medical ethics is all about. This particular patient had the wherewithal to seek care in another state, but not every patient is equally well-resourced.

Let me end this Editorial by reminding health care professionals of what is widely considered to be the modern version of the Hippocratic Oath, the World Medical Association's Declaration of Geneva. The world's doctors promise there in no uncertain terms that “THE HEALTH AND WELL-BEING OF MY PATIENT will be my first consideration” [9]. In Tennessee's Medical Ethics Defense Act the real or purported conscience of the health care professional is apparently the legislators' first consideration, provided the professional wishes to refuse to provide care.