Doctors And Patients

Anti-abortion forces continue to seek ways to incrementally end run around laws mandating the legality of abortions. One of the latest tactics in this effort is to attempt to permit doctors to exercise "individual conscience" in administering medical care. This has broader implications than abortion. Here's the issue:

A doctor who is opposed to abortions need not conduct one. The question is whether that doctor should give a patient seeking an abortion a referral to another doctor who will. There is also a question in my mind about whether that doctor, confronted with a rape or incest victim, or even more obviously in the case of a pregnancy that threatens the mother's life, should be required to proceed with the abortion despite the objection.

Similarly, a doctor who has a moral (read: religious) objection to non-marital or gay sex acts may refuse to dispense fertility drugs or other treatment to a non-married or homosexual couple seeking to conceive. The question is whether that doctor should refer the couple to a fertility clinic that would dispense the medical care.

Similarly with contraception -- the first place I saw this issue come up, back in Tennessee.

Now, other than my concerns about exigent, time-senstivie circumstances for performing an "emergency" sort of abortion requested by the patient, I'm not suggesting that the doctor needs to be personally involved in the dispensing of medical care to which the doctor has an objection. But I tend to agree with Mike's pointedly vulgar post that the doctor's moral objection ought not to be the end of the line for the patient. The doctor owes the patient a reasonable sort of referral so that the patient can get the medical care she seeks.

I know as a lawyer, I may have a moral objection to something my client does, or wants to do. I do not have to take on the representation of any particular client. But that doesn't mean I am free from all duties to that person. So let's say, hypothetically, I get approached by someone who says he has a legitimate fear of prosecution for child molestation and possession of child pornography. I don't want to do a kiddie-porn case. Ever. So I tell the prospective client, "Sorry, I don't handle cases like that."

But it can't end there. No matter how strongly I suspect the guy is guilty, no matter how strong my moral objection to his conduct might be (and it would be pretty strong in that case) I still need to do two more things. First, I need to steer him in the direction of a lawyer who will take on the case. A competent lawyer who I have no reason to believe will mishandle the guy's situation. At minimum, I need to get him steered towards a lawyer referral service that will get him the referral he needs. And second, I owe him a duty of confidentiality. I cannot tell anyone about the identity of this person or the nature of his request.

These are not onerous ethical burdens, in my opinion. But if I am not willing to shoulder those burdens, then I have no business being a lawyer. I have to be willing to keep a confidence even of someone I do not form an attorney-client relationship with. I have to be willing to represent my profession as a whole and understand how even morally culpable people are entitled to the system's benefits.

Similarly, a doctor owes some ethical duties too. She need not dispense medical care that she objects to dispensing. But she is also a member of her profession, a representative of a complex, confusing, and highly-technical world that laypeople are told to rely upon and trust for good advice. She needs to know what options are available for the people who seek her advice and assistance, and as a representative of her profession, she needs to get people, even those who are not her patients, steered in a direction reasonably calculated to produce the medical care to which they are entitled. And she should not be disclosing the request or the identity of the requestor to anyone, either.

Let's make the analogy as close to the pro-life side as I can get it. Instead of a kiddie-porn case, let's say someone comes to me and says "I want to kill my wife. How can I do it and get away with it?" I don't want to take this person on as a client. But I still owe this person 1) a referral to an appropriate attorney, and 2) confidentiality. I can certainly say, "That's a really bad idea, you're talking about murder and that's both morally wrong and very much against the law, so my advice to you is don't even try to do it." I can also say, "There's really no way you can plan to commit a murder and get away with it; that's movie stuff and real life doesn't work like that," or I can also just say, "I don't do criminal law," and leave it at that.

But in all of these cases, I should also say, "If you're not going to listen to me, then call the bar association and get a referral to talk to a really experienced criminal defense lawyer." I am not facilitating the proposed murder by doing this. The guy is either going to (try to) kill his wife, or he isn't. My job, beyond preserving confidentiality, is to get him pointed in the right direction. I am not being asked to kill anyone. Debatably, I am being asked to abet a murder, and I am free to decline that request. But as a member of the legal profession, I am also obliged to make sure that things don't end there, and the guy is able to learn his rights, his obligations, and most of all, the risks he faces.