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The conscience of care ::navigating health in the culture wars /
No full text"American law categorically protects clinicians who invoke conscience to refuse standard care, from Plan B to IVF. Yet clinicians enjoy no conscience protections when they offer prohibited care, as in states that restrict abortion. Dov Fox exposes the untenable logic of this lopsided system and argues for urgently needed reform"-
Conscience or Disobedience? Comments on Dov Fox, “The Lopsided Law of Medical Conscience”
No full textI am grateful to have been asked to comment on Dov Fox’s excellent and thought-provoking paper. Fox argues that “the conscience regime that governs American healthcare is broken.” By this, he means that whereas conscientious healthcare deniers are protected in various ways by state legal systems, conscientious healthcare providers are not similarly protected. This, argues Fox, is both morally unjust and legally indefensible. Instead, he claims, we should replace our tattered and unjust conscience regime with one that vindicates most forms of conscience, whether they involve denial or provision of healthcare, for those who invoke it in good faith, though this may sometimes require that conscientious providers pay to offset the harms of accommodation. The major restrictions on the invocation of conscience in the healthcare arena Fox accepts are: respect for informed consent, no discrimination on the basis of morally arbitrary characteristics, such as race, sex, and age, and no abandonment in emergencies
The Lopsided Law of Medical Conscience
No full textWe’re used to hearing about conscientious refusers, as when clinicians or institutions summon religion to deny services they deem sinful or wrong. Less familiar are conscientious providers, compelled to help make patients better, keep them well and relieve their suffering. Our medical conscience system protects refusers alone. When doctors or nurses deny care by appeal to their heartfelt convictions, conscience laws shield them from being not only fired but sued for malpractice or prosecuted for endangering patients or abandoning them. But clinicians who have equally sincere and moral reasons deliver services their hospital or state forbids go virtually unprotected. This radical asymmetry is wholly exceptional, indefensible, and unjust.
It’s easy to assume that being forced to do something like treat against your will is worse than not being allowed to undertake such treatment. This distinction between acts and omissions looms large in life and law. But it has less purchase in the context of medicine, where clinicians owe patients affirmative duties like disclosing key information and avoiding unreasonable harms. Nor need the delivery of care cost more to accommodate than its denial. The price of furnishing painkillers, birth control and other pills is just a telehealth appointment and prescription pad. It’s not as if refusals are costless. They can delay urgent care like emergency contraception and force hospitals to recruit backup staff. Religion can’t justify the asymmetry, either. Conscience clauses vindicate secular beliefs just the same. And some conscientious providers themselves appeal to a spiritual calling. The law should make at least as much space for their conscience as refusers’. Speaker Bio
Dov Fox is the Herzog Research Professor of Law at the University of San Diego, where he founded and directs the Center for Health Law Policy & Bioethics. Named professor of the year for both teaching excellence and outstanding scholarship, he also holds the university’s highest academic honor bestowed on faculty in any field.
Fox’s articles have been published in leading journals of law (e.g., Harvard Law Review, Yale Law Journal), medicine (e.g., New England Journal of Medicine, Journal of the American Medical Association), and public health (Foreign Affairs, American Journal of Public Health). His work has also been featured in national newspapers (e.g., New York Times, Wall Street Journal), magazines (e.g., The Atlantic, The Economist), and television programs (e.g., CBS This Morning, NBC Today Show).
Part One of his original series “Donor 9623” was named Audible’s #1 podcast of 2020 and submitted for a Pulitzer Prize in investigative journalism. Fox’s latest book, “Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law,” was published by Oxford University Press. His next book is “The Conscience of Care: Navigating Health in the Culture Wars
The Lopsided Law of Medical Conscience
No full textWe’re used to hearing about conscientious refusers, as when clinicians or institutions summon religion to deny services they deem sinful or wrong. Less familiar are conscientious providers, compelled to help make patients better, keep them well and relieve their suffering. Our medical conscience system protects refusers alone. When doctors or nurses deny care by appeal to their heartfelt convictions, conscience laws shield them from being not only fired but sued for malpractice or prosecuted for endangering patients or abandoning them. But clinicians who have equally sincere and moral reasons deliver services their hospital or state forbids go virtually unprotected. This radical asymmetry is wholly exceptional, indefensible, and unjust.
It’s easy to assume that being forced to do something like treat against your will is worse than not being allowed to undertake such treatment. This distinction between acts and omissions looms large in life and law. But it has less purchase in the context of medicine, where clinicians owe patients affirmative duties like disclosing key information and avoiding unreasonable harms. Nor need the delivery of care cost more to accommodate than its denial. The price of furnishing painkillers, birth control and other pills is just a telehealth appointment and prescription pad. It’s not as if refusals are costless. They can delay urgent care like emergency contraception and force hospitals to recruit backup staff. Religion can’t justify the asymmetry, either. Conscience clauses vindicate secular beliefs just the same. And some conscientious providers themselves appeal to a spiritual calling. The law should make at least as much space for their conscience as refusers’. Speaker Bio
Dov Fox is the Herzog Research Professor of Law at the University of San Diego, where he founded and directs the Center for Health Law Policy & Bioethics. Named professor of the year for both teaching excellence and outstanding scholarship, he also holds the university’s highest academic honor bestowed on faculty in any field.
Fox’s articles have been published in leading journals of law (e.g., Harvard Law Review, Yale Law Journal), medicine (e.g., New England Journal of Medicine, Journal of the American Medical Association), and public health (Foreign Affairs, American Journal of Public Health). His work has also been featured in national newspapers (e.g., New York Times, Wall Street Journal), magazines (e.g., The Atlantic, The Economist), and television programs (e.g., CBS This Morning, NBC Today Show).
Part One of his original series “Donor 9623” was named Audible’s #1 podcast of 2020 and submitted for a Pulitzer Prize in investigative journalism. Fox’s latest book, “Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law,” was published by Oxford University Press. His next book is “The Conscience of Care: Navigating Health in the Culture Wars
Introduction to Symposium on Birth Rights and Wrongs, by Dov Fox
No full textThis symposium consists of four essays by leading academic commentators developing their distinctive takes on the book, followed by a conclusion by Professor Fox containing detailed responses to each of them. This introduction provides a very brief, largely descriptive tour d’horizon of the commentators’ essays
Geosynthetic confined pressurized slurry (GeoCoPS)
No full textComputer program to calculate water pressure inside a geotube or similar structure made from geotextile
The Legal Challenge of Abortion Stigma—and Government Restrictions on the Practice of Medicine
No full textDuring the 2016 election, Donald Trump won conservative support by promising that he would, if elected, nominate “pro-life” justices to the U.S. Supreme Court. Whether President Trump makes good on his campaign promise to restrict abortion rights may come down to competing impulses of the chief justice, John Roberts. On the one hand, he is basically a social conservative who has voted to protect state regulations that limit when and how women can terminate their pregnancies. On the other, the chief justice, as steward of the Court’s legacy, is reluctant to intensify partisan divides on the bench and willing to affirm even precedents with which he disagrees. These dueling dispositions -- from the man whom many see as the new “swing justice” -- hold the key to a blockbuster new case that legal historians call “the most unpredictable the Supreme Court has been on abortion in decades.”The case is not just about abortion access. Before addressing the constitutional status of a law’s far-reaching limits on abortion, the Court will have to decide whether clinics and doctors have a right to challenge the law in the first place. This question concerns a legal doctrine that courts refer to as constitutional standing. It poses this issue: Who is entitled to bring suit against government regulations? Is it only the people most directly affected, in this case, the women prevented from ending their pregnancies? Or can clinics or doctors also sue—whether because the law also affects them or because they seek to stand up on behalf of their patients, when social conditions make it extremely difficult for them to publicly defend themselves? I argue that regulated practitioners should be allowed to sue under either theory of standing, and that precedent demands the Court strike down laws like this one that make it unduly difficult for women to exercise their constitutional right for no demonstrable health benefit or other legitimate interest
Transparency Challenges in Reproductive Health Care
No full textFew medical specialties in the United States are as opaque as assisted reproductive technology (ART). ART operates free of regulation about serious and preventable kinds of errors that might be called ART “never events”: the destruction, contamination, misdiagnosis, and switching of materials that cannot be chalked up to inevitable slips of hand or reasonable lapses in judgment. Elsewhere in health care delivery, these kinds of mistakes — surgery on the wrong body part or patient, for example — are publicly reported by mandate in 25 states and the District of Columbia. But no system exists to track similar such transgressions when they take place at fertility clinics, sperm banks, egg vendors, or surrogacy agencies. Crowd-sourcing can help enhance market transparency about ART never events in the absence of regulation or remedy under public law, private law, or professional associations. This chapter introduces a user-generated platform that solicits reflections from reproductive patients about the care they received. Aggregated and detailed never-event reporting enable patients to select providers who deliver the quality care that’s most relevant to their risks, needs, preferences. This system of patient reviews faces unique challenges, however, beyond the usual concerns about unrepresentative samples, distorted metrics, and the risk of misleading evaluations. It must also account for factors like the stigmatized care, intangible injuries, and out-of-pocket expenses that distinguish medical treatment within the reproductive context
Luck, Genes, and Equality
No full textGrowing powers of genetic control dislodge a basic assumption of distributive justice: that social and economic goods should be distributed among people with the fixed biological inequalities given by the natural lottery. This Article explores how an egalitarian society should allocate access to genetic advantages. I develop and critically analyze principles of genetic equality, genetic priority, genetic lottery, and a genetic decent minimum.
The Article begins by providing practical and normative reasons to expand the domain within which the striving for justice is morally relevant to the hereditary basis of certain traits. I argue that the currency of genetic redistribution consists in general-purpose traits like health, vision, and intelligence, as these goods contribute to the biological component of basic capabilities, like being healthy, seeing properly, and being able to reason
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