Mandating Disclosure of Conscience-Based Limitations on Medical Practice

Nadia N. Sawicki

doi:10.1177/0098858816644717

Mandating Disclosure of Conscience-Based Limitations on Medical Practice

Published online by Cambridge University Press: 06 January 2021

Nadia N. Sawicki

Show author details

Nadia N. Sawicki*: Affiliation:
Loyola University Chicago School of Law, Beazley Institute for Health Law and Policy
*: Email: [email protected]

Article contents

Abstract
References

Get access

Rights & Permissions

Abstract

Stakeholders in law, medicine, and religion are unable to reach consensus about how best to address conflicts between healthcare providers' conscientious objections to treatment and patients' rights to access medical care. Conscience laws that protect objecting providers and institutions from liability are criticized as too broad by patient advocates and as too narrow by defenders of religious freedom. This Article posits that some of the tension between these stakeholders could be mitigated by statutory recognition of a duty on the part of healthcare institutions or providers to disclose conscientiously motivated limitations on practice. While this solution would not guarantee a patient's access to treatment, referral, or information from any given provider, it would prevent some of the more egregious cases of denial of treatment—those where patients are not made aware that a legal and clinically defensible treatment option is excluded from a provider's or institution's scope of practice and so have no opportunity to seek care elsewhere.

Type: Articles
Information: American Journal of Law & Medicine , Volume 42 , Issue 1 , March 2016 , pp. 85 - 128

DOI: https://doi.org/10.1177/0098858816644717 [Opens in a new window]
Copyright: Copyright © American Society of Law, Medicine and Ethics and Boston University 2016

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Limitations on medical practice may be motivated by either religious or non-religious conscience-based beliefs; the disclosure proposal offered herein would apply to both.

2 While many scholars have suggested that providers may have an ethical obligation to make such disclosures, these proposals have never been analyzed from the perspective of legal duty. See, e.g., Antommaria, Armand H. Matheny, Conscientious Objection in Clinical Practice: Notice, Informed Consent, Referral, and Emergency Treatment, 9 Ave Maria L. Rev. 81, 92-93 (2010)Google Scholar (arguing that providers have professional obligations to disclose interventions they refuse to provide for reasons of conscience); Brock, Dan W., Conscientious Refusal by Physicians and Pharmacists: Who is Obligated to do What, and Why?, 29 Theoretical Med. & Bioethics 187, 195 (2008)CrossRef Google Scholar (noting that while some physicians disclose their objections to patients at the start of the treatment relationships, “it will be necessary to repeat [the objection] later at the time the service becomes relevant for the patient's condition”); Cavanaugh, T.A., Professional Conscientious Objection in Medicine with Attention to Referral, 9 Ave Maria L. Rev. 189, 191 (2010)Google Scholar (arguing for conscientious objectors in medical practice to disclose their objections and explain their reasoning to patients who request further information); Harrington, Maxine M., The Ever-Expanding Healthcare Conscience Clause: The Quest for Immunity in the Struggle Between Professional Duties and Moral Beliefs, 34 Fla. St. U. L. Rev. 779, 814 (2007)Google Scholar (arguing that the fiduciary duty to inform “seems broad enough to encompass a patient's right to know whether a physician has a personal, moral belief that might affect the physician's professional judgment”); Rosalind Ekman Ladd, Some Reflections on Conscience, Am. J. Bioethics 32, 32 (2007) (discussing the problem of physicians who conceal the fact that their refusal to offer treatment is based on conscientious beliefs; suggesting that physicians “be required to tell patients what areas of practice would be against their conscience”); Law, Sylvia A., Silent No More: Physicians' Legal and Ethical Obligations to Patients Seeking Abortions, 21 N.Y.U. Rev. L. & Soc. Change 279, 304 (1994)Google Scholar PubMed (“Physicians whose conscientious beliefs do prevent them from providing patients with abortion services or counseling should be required to inform patients of that limitation.”); Pellegrino, Edmund D., Commentary: Value Neutrality, Moral Integrity, and the Physician, 28 J.L. Med. & Ethics 78, 79 (2000)CrossRef Google Scholar PubMed (noting that “physicians have an obligation to make their religious or other beliefs overt and clear at the beginning of the medical relationship,” and should, “at a minimum, inform patients—in a brochure and in conversation—of their moral and religious beliefs and the things they cannot or will not do”); Seale, Clive, The Role of Doctors' Religious Faith and Ethnicity in Taking Ethically Controversial Decisions During End-of-Life Care, 36 J. Med. Ethics 677, 681 (2010)CrossRef Google Scholar PubMed (noting the suggestion that “religious doctors disclose their moral objections to certain procedures to patients so that patients can choose other doctors if they wish”); Patrick A. Tully, Morally Objectionable Options: Informed Consent and Physician Integrity, Nat'l Cath. Bioethics Q. 491, 503 (2008) (recommending that physicians disclose their religious objections to patients); Vischer, Robert K., Conscience in Context: Pharmacist Rights and the Eroding Moral Marketplace, 17 Stan. L. & Pol'y Rev. 83, 112 (2006)Google Scholar PubMed (noting that information is necessary for patients to effectively participate in the market for healthcare services, and arguing that pharmacies should be required to publicize their positions on controversial drugs); see also American Medical Association, Code of Medical Ethics: Opinion 10.061: Physician Exercise of Conscience (adopted Nov. 2014, issue June 2015), http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion1006.page [http://perma.cc/U78M-FMG9] [hereinafter, AMA Opinion 10.06] (requiring that physicians disclose to potential patients any interventions they cannot in good conscience provide).

3 I am sympathetic to these concerns, and recognize the risk of legal protections for objecting providers potentially expanding to such a degree that the medical profession will effectively be freed from even the most basic requirements of federal and state non-discrimination laws–for example, where providers rely on conscientious or religious beliefs to deny service to patients on the basis of their race, religion, gender, marital status, or LGBTQ status. See, e.g., N. Coast Women's Care Medical Group, Inc. v. San Diego Cty. Superior Court, 189 P.3d 959, 959 (Cal. 2008) (holding that physicians may not claim a First Amendment religious freedom defense where they denied fertility treatment to a lesbian couple in violation of California's Unruh Civil Rights Act). However, this Article is premised on the presumption that if it is not possible to roll back (or prevent the expansion of) legislation protecting physicians' rights to deny treatment on grounds of conscience, a legal duty of disclosure would be an effective way to mediate the laws' impact on patient access to care.

4 See, e.g., Geoffrey Gerow, The Right of Conscience for Medical Providers, Christian Med. & Dental Ass'ns (2016), http://cmda.org/resources/publication/the-right-of-conscience-for-medical-providers [https://perma.cc/RS2Y-8SRZ] (quoting President Obama in a speech he delivered in 2009, in which the President agreed that there may not be a general consensus on the abortion issue and we should “honor the conscience of those who disagree with abortion”).

5 Complaint, Means v. U.S. Conference of Catholic Bishops, No. 1:15-CV-353, 2015 WL 3970046, at *24 (W.D. Mich. June 30, 2015) (dismissed for lack of personal jurisdiction and failure to state a claim).

6 A provider's conscientious or religious beliefs do not always lead to refusals to provide care. In some cases, a provider's beliefs (or lack thereof) may make him more likely to provide some types of services. See Daaleman, Timothy P. & VandeCreek, Larry, Placing Religion and Spirituality in End-of-Life Care, 284 JAMA 2514, 2514-15 (2000)CrossRef Google Scholar PubMed (citing studies suggesting that non-religious physicians may be more willing to endorse or assist with physician-assisted suicide); Seale, supra note 2, at 677 (finding that in the end-of-life care context, physicians in the United Kingdom who identify as “non-religious” are more likely to “provide continuous deep sedation until death”). This Article, however, focuses exclusively on refusals to provide care, because such refusals directly impact patients' ability to access medical services.

7 Many of these “conscience clauses” were passed directly after the Supreme Court's decisions in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, which established and reinforced a woman's constitutional right to terminate a pregnancy with the assistance of a willing physician. Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 846 (1992); Roe v. Wade, 410 U.S. 113, 166 (1973). For a brief summary of applicable federal laws, see Overview of Federal Statutory Healthcare Provider Conscience Protections, U.S. Dep't of Health & Hum. Servs., http://www.hhs.gov/ocr/civilrights/faq/providerconsciencefaq.html [https://perma.cc/MU5P-2WTY]. For a survey of state conscience laws applicable in the context of reproductive care, see Guttmacher Institute, State Policies in Brief: Refusing to Provide Health Services (2016). See also Wilson, Robin Fretwell, Essay: The Limits of Conscience: Moral Clashes over Deeply Divisive Healthcare Procedures, 34 Am. J.L. & Med. 41, 44-45 (2008)CrossRef Google Scholar PubMed (discussing whether states ought to “provide conscience clause protections even if they are not constitutionally mandated”).

8 See sources cited supra note 7.

9 Sepinwall, Amy J., Conscience and Complicity: Assessing Pleas for Religious Exemptions in Hobby Lobby's Wake, 82 U. Chi. L. Rev. 1897, 1911 (2015)Google Scholar; see infra note 32.

10 See State-by-State Guide to Physician-Assisted Suicide, ProCon.org, http://euthanasia.procon.org/view.resource.php?resourceID=000132 [https://perma.cc/9982-HNXR] (last updated Oct. 5, 2015).

11 Casey, 505 U.S. at 846; Roe, 410 U.S. at 113 (1973); Griswold v. Connecticut, 381 U.S. 479, 484-86 (1965).

12 This legal definition may differ from the ways in which physicians and medical ethicists use the term. However, given that this Article suggests a legal solution, I rely primarily on legal language.

13 The determination of whether a physician has breached the standard of care in any given case is made by a jury, which relies on testimony from medical experts. The typical malpractice case involves a “battle of the experts” so to speak, where juries are faced with differing interpretations of the standard of care offered by the plaintiff's expert and the defendant's expert.

14 See generally Hall v. Hilbun, 466 So. 2d 856, 866, 871 (Miss. 1985) (defining the physician's legal duty as the obligation “to use minimally sound medical judgment and render minimally competent care in the course of the services he provides,” and outlining the expectation that a minimally competent physician will “possess or have reasonable access to such medical knowledge as is commonly possessed or reasonably available to minimally competent physicians in the same specialty or general field of practice throughout the United States, to have a realistic understanding of the limitations on his or her knowledge or competence, and, in general, to exercise minimally adequate medical judgment”); McCourt v. Abernathy, 457 S.E.2d 603, 606-07 (S.C 1995) (upholding a jury instruction defining the standard of care as “generally recognized practices and procedures which would be exercised by ordinary competent practitioners in a defendant doctor's field of medicine under the same or similar circumstances”); 70 C.J.S. Physicians and Surgeons § 83 (2005) (“As a general rule, a physician or other health-care provider is only required to possess and exercise the degree of skill and learning possessed and exercised, under similar circumstances, by the members of his or her profession in good standing, and to use ordinary and reasonable care and diligence, and his or her best judgment, in the application of his or her skill to the case.”); Steven E. Pegalis, Am. Law Med. Malpractice § 3:3 (3d ed. 2015) (“The standard by which the physician should be judged is the degree of knowledge and concomitant medical or surgical skill that a physician under the same or similar circumstances should ‘reasonably’ possess.”). Some jurisdictions use an even lower standard of “minimal” competence, on the grounds that requiring a higher standard—such as that of the “average” physician—would “arithmetically suggest that the lower 50 percent of our physicians regularly engage in medical malpractice.” Hall, 466 So. 2d at 871.

15 See generally Hall, 466 So. 2d at 871 (noting that because “medicine is not an exact science” and there are “legitimate differences of opinion regarding medications to be employed in particular contexts,” physicians should not be held liable for “the mere exercise of a bona fide medical judgment”); McCourt, 457 S.E.2d at 607 (“The mere fact that the plaintiff's expert may use a different approach is not considered a deviation from the recognized standard of medical care. Nor is the standard violated because the expert disagrees with a defendant as to what is the best or better approach in treating a patient. Medicine is an inexact science, and generally qualified physicians may differ as to what constitutes a preferable course of treatment. Such differences to preference under our law do not amount to malpractice.”); Pegalis, supra note 14 (noting that where there are “reasonably applicable alternative methods of diagnosis or treatment[,] [a] physician choosing one or the other method would not violate a “standard” of good medical practice … [s]ince each method would be within the acceptable medical “standard”).

16 See generally Chumbler v. McClure, 505 F.2d 489, 492 (6th Cir. 1974) (“Where two or more schools of thought exist among competent members of the medical profession concerning proper medical treatment for a given ailment, each of which is supported by responsible medical authority, it is not malpractice to be among the minority in a given city who follow one of the accepted schools.”); O'Connor, Meghan C., The Physician-Patient Relationship and the Professional Standard of Care, 46 Tort Trial & Ins. Prac. L.J. 109, 126-27 (2010)Google Scholar (discussing the “respectable minority” rule).

17 In 2012, the rate of abortions in America was 13.2 abortions per 1,000 women between the ages of 15 and 44. Pazol, Karen et al., Abortion Surveillance–United States, 2012, 64 Ctrs for Disease Control & Prevention Morbidity & Mortality Wkly. Rep. 1, 1 (2015)Google Scholar PubMed.

18 In a 2011-2013 study of women ages 15-44 who had had intercourse, 18.5% had, in their lifetime, relied on female sterilization as a birth control method; 12.4% had relied on male sterilization. Key Statistics from the National Survey of Family Growth, Ctrs. For Disease Control & Prevention, http://www.cdc.gov/nchs/nsfg/key_statistics/c.htm#contraception [https://perma.cc/3ECS-D7GK] (last updated Apr. 20, 2015).

19 Over 99% of women ages 15-44 who have had intercourse have used at least one method of contraception in their lifetime. Contraceptive Use in the United States, Guttmacher Inst. (Oct. 2015), http://www.guttmacher.org/pubs/fb_contr_use.pdf [https://perma.cc/WU7N-FW2M]. For statistics on the family planning services received from medical providers in a one-year period, see Martinez, Gladys et al., Use of Family Planning and Related Medical Services Among Women Aged 15-44 in the United States: National Survey of Family Growth, 2006-2010, 68 Health & Human Servs. Nat'l Health Stat. Rep. 1 (2013)Google Scholar.

20 See infra notes 90-93 and accompanying text.

21 Combs, Michael P. et al., Conscientious Refusals to Refer: Findings from a National Physician Survey, 37 J. Med. Ethics 397, 397 (2011)CrossRef Google Scholar PubMed (“[C]onduct[ing] a cross-sectional survey of a random sample of 2000 US physicians from all specialties.”).

22 Id. at 399.

23 Curlin, Farr A. et al., Religion, Conscience, and Controversial Clinical Practices, 356 New Engl. J. Med. 593, 593, 597 (2007)CrossRef Google Scholar PubMed (reporting “a cross-sectional survey of 2000 U.S. physicians from all specialties”). A 2009 study by some of the same authors found that 11% of physicians believed there is no obligation to refer patients to other providers when the patient requests a procedure the physician finds objectionable, and 7% of respondents were undecided. Lawrence, Ryan E. & Curlin, Farr A., Physicians' Beliefs About Conscience in Medicine: A National Survey, 84 Acad. Med. 1276, 1276, 1279 (2009)CrossRef Google Scholar (reporting a “stratified” survey of 1000 U.S. primary care physicians).

24 Curlin et al., supra note 23, at 598. The authors define “intrinsic religiosity” as “the extent to which a person embraces his or her religion as the ‘master motive’ that guides and gives meaning to his or her life.” Id. at 595.

25 Id. at 597.

26 Id. at 598.

27 Id. at 597. A later study by some of the same authors found that 22% of physicians disagreed or strongly disagreed with the statement, “Physicians should not let their religious beliefs keep them from providing patients legal medical options.” Lawrence, Ryan E. & Curlin, Farr A., Autonomy, Religion and Clinical Decisions: Findings from a National Physician Survey, 35 J. Med. Ethics 214, 216 (2009)CrossRef Google Scholar PubMed. However, the phrasing of this statement makes it difficult to discern whether the physicians were objecting to the provision of information or the provision of services. The authors concluded that patients who are concerned about the availability of certain services “should ask their doctors ahead of time whether they will discuss such options.” Curlin et al., supra note 23. This suggestion, however, has been criticized on the grounds that patients may not be in a position to know what services a provider deems controversial, and therefore may not be well-situated to ask such questions. Frader, Joel & Bosk, Charles L., The Personal Is Political, the Professional Is Not: Conscientious Objection to Obtaining/Providing/Acting on Genetic Information, 151 Am. J. Med. Genetics 62, 64 (2009)Google Scholar.

28 Ramondetta, Lois et al., Religious and Spiritual Beliefs of Gynecologic Oncologists May Influence Medical Decision Making, 21 Int'l J. Gynecological Cancer 573, 576 (2011)CrossRef Google Scholar PubMed.

29 Smugar, Steven S. et al., Informed Consent for Emergency Contraception: Variability in Hospital Care of Rape Victims, 90 Am. J. Pub. Health 1372, 1372, 1373 (2000)Google Scholar PubMed (reporting the results of a phone survey of fifty-eight hospitals, both Catholic and non-Catholic). However, eight of the twelve employees who reported a hospital policy against discussing emergency contraception for rape victims admitted that “relevant information likely would be provided to victims,” either by providers at the hospital, in the gynecology or other department, or by rape counselors. Id. at 1373. See also Emerson, Joelle, Emergency Contraception in the Emergency Room: “EC in the ER” Analysis and Recommendations, 5 DePaul J. For Soc. Just. 129, 155 (2011)Google Scholar (citing the Clara Bell Duvall Reproductive Freedom Project called “Emergency Contraception For Victims Of Sexual Assault In Pennsylvania Hospitals (2007)”, which found that many Pennsylvania hospital emergency rooms did not provide emergency contraception or information about emergency contraception, even after the passage of Pennsylvania's “EC in the ER” law).

30 Smugar, supra note 29.

31 U.S. Conference of Catholic Bishops, Ethical and Religious Directives for Catholic Healthcare Services 20 (5th ed. 2009), http://wwwmigrate.usccb.org/issues-and-action/human-life-and-dignity/health-care/upload/Ethical-Religious-Directives-Catholic-Health-Care-Services-fifth-edition-2009.pdf [https://perma.cc/7HA2-83Q5] [hereinafter, USCCB Directives] (emphasis added).

32 See NeJaime, Doug & Siegel, Reva B., Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale L.J. 2516, 2570 (2015)Google Scholar; Tully, supra note 2, at 492. For further discussion of this issue, see infra Section V-B.

33 This author has been unable to identify any research about patients' understanding or expectation of individual physicians' conscience-based limitations on care.

34 Belden Russonello & Stewart, Religion, Reproductive Health and Access to Services: A National Survey of Women 13, 20 (2000) (reporting that of the 1,000 women 18 years or older who were surveyed, 45% of women expected to have access to such medical services and 23% said they did not know whether they should expect access to such services). See also Miller, Patricia, Religion, Reproductive Health and Access to Services, 21 Conscience, no. 2, 2000, at 2Google Scholar PubMed.

35 Belden Russonello & Stewart, supra note 34, at 14.

36 Id. It is unclear from the survey report whether these options were provided by the surveyors, or whether participants independently were asked to identify prohibited services.

37 See Stulberg, Debra B. et al., Religious Hospitals and Primary Care Physicians: Conflicts over Policies for Patient Care, 25 J. Gen. Internal Med. 725, 725 (2010)CrossRef Google Scholar PubMed (“Religious hospitals represent approximately 13% of all U.S. community-based hospitals and provide nearly 20% of hospital beds.”).

38 Reed Abelson, Catholic Hospitals Expand, Religious Strings Attached, N.Y. Times, Feb. 20, 2012, at A1.

39 Id. (quoting Jill C. Morrison, who is senior counsel specializing in health and reproductive rights at the National Women's Law Center).

40 Freedman, Lori et al., Obstacles to the Integration of Abortion into Obstetrics and Gynecology Practice, 42 Persp. Sexual & Reprod. Health 146, 147 (2010)CrossRef Google Scholar PubMed (conducting qualitative interviews with thirty obstetrician-gynecologists).

41 Id. at 148-49.

42 Public Health Service Act, 42 U.S.C. § 238n(a) (2012) (prohibiting government discrimination against healthcare entities on the basis of refusal to provide abortions or referrals for abortions).

43 NeJaime & Siegel, supra note 32, at 2541 (“In fact, many of the laws expressly authorize[] providers to withhold referrals, as well as the kinds of counseling or information that would provide patients with notice that there were alternative forms of treatment available in which they might be interested.”).

44 See, e.g., 745 Ill. Comp. Stat. Ann. 70/6 (West 2010) 745 Ill. 70/6 (West 2010) (“Nothing in this Act shall relieve a physician from any duty, which may exist under any laws concerning current standards, of normal medical practices and procedures, to inform his or her patient of the patient's condition, prognosis and risks, provided, however, that such physician shall be under no duty to perform, assist, counsel, suggest, recommend, refer or participate in any way in any form of medical practice or healthcare service that is contrary to his or her conscience.”) (emphasis added); La. Rev. Stat. Ann. § 40:1299.31 (protecting providers from liability or discrimination for refusal to “recommend, counsel, perform, assist with or accommodate an abortion.”); S.C. Code Ann. § 44-41-50 (2002) (physicians cannot be required to “recommend, perform or assist in the performance of an abortion” if they provide notice to their institution; however, this provision only seems to provide legal immunity to those who “perform or assist”) (emphasis added).

45 See, e.g., Mo. Ann. Stat. § 197.032 (West 2004) (protecting providers from discrimination “on the grounds that they refuse to undergo an abortion, to advise, consent to, assist in or perform an abortion”) (emphasis added); Mont. Code Ann. § 50-20-111(2) (West 2015) (“All persons shall have the right to refuse to advise concerning, perform, assist, or participate in abortion because of religious beliefs or moral convictions.”) (emphasis added); Or. Rev. Stat. Ann. § 435.485(1) (West 2011) (“No physician is required to give advice with respect to or participate in any termination of a pregnancy if the refusal to do so is based on an election not to give such advice or to participate in such terminations and the physician so advises the patient.”) (emphasis added).

46 See, e.g., Ark. Code. Ann. § 20-16-304(5) (2014) (“No private institution or physician … shall be prohibited from refusing to provide contraceptive procedures, supplies, and information when the refusal is based upon religious or conscientious objection.”) (emphasis added); Colo. Rev. Stat. § 25-6-102(9) (2015) (“No private institution or physician … shall be prohibited from refusing to provide contraceptive procedures, supplies, and information when such refusal is based upon religious or conscientious objection[.]”) (emphasis added); Fla. Stat. Ann. § 381.0051(5) (West 2014) (“The provisions of this section shall not be interpreted so as to prevent a physician or other person from refusing to furnish any contraceptive or family planning service, supplies, or information for medical or religious reasons[.]”) (emphasis added).

47 Or. Rev. Stat. Ann. § 435.485(1) (West 2011) (“No physician is required to give advice with respect to or participate in any termination of a pregnancy if the refusal to do so is based on an election not to give such advice or to participate in such terminations and the physician so advises the patient.”) (emphasis added).

48 Supporters of such laws reject the contention that some of the outcomes described below (in particular, avoiding pregnancy via emergency contraception, abortion, or sterilization) constitute adverse health outcomes, given that fertility and pregnancy are natural functions of a healthy human body. That said, the broad debate about conscientious objection in the context of reproductive medicine is occasioned by the fact that many patients and medical providers consider an unwanted pregnancy to be an adverse outcome directly related to one's health status. At the very least, a patient who is not able to avoid an unintended pregnancy is subject to the medical risks of pregnancy, which can be substantial. See Jamie Lindemann Nelson, Transgender, in The Routledge Companion to Bioethics 557, 566 (John D. Arras et al. eds., 2015) (recognizing that “although neither unwanted fertility nor pregnancies count as diseases, physicians are involved in how people respond to them, and [health] insurance plans, both private and social, very often cover them”); Bo, Corrado Del, Conscientious Objection and the Morning-After Pill, 29 J. Applied Phil. 133, 139 (2012)Google Scholar (defining “unwanted pregnancy” as a “harm”); Wicclair, Mark R., Is Conscientious Objection Incompatible with a Physician's Professional Obligations?, 29 Theoretical Med. Bioethics 171, 178-79 (2008)CrossRef Google Scholar PubMed (noting the argument that “an unwanted pregnancy is neither a disease nor a malady,” but recognizing throughout that access to legal healthcare services is a good and that the interests of individual patients are relevant to an evaluation of the merits of various conscientious objection models).

49 See, e.g., Freedman, Lori R. et al., When There's a Heartbeat: Miscarriage Management in Catholic-Owned Hospitals, 98 Am. J. Pub. Health 1774 (2008)CrossRef Google Scholar PubMed (describing findings of a qualitative survey of physicians whose medical judgment about issues of patient safety was interfered with by religiously-motivated institutional policies); Stulberg et al., supra note 37, at 725 (finding in a cross-sectional survey of general internists, family physicians, and general practitioners that 19% of physicians who had worked in religiously affiliated institutions “had experienced conflict with the institution over religiously based patient care policies”).

50 For other examples, see Law, supra note 2, at 279-81.

51 Complaint, Means v. U.S. Conference of Catholic Bishops, No. 1:15-CV-353, 2015 WL 3970046, at *2 (W.D. Mich. June 30, 2015). Note, however, that Means' suit was not against the hospital or its providers, but against the U.S Conference of Catholic Bishops and the Catholic Health Ministries, which promulgated and adopted the policies that allegedly caused injury to Means. Id. at *1. On June 30, 2015, the District Court dismissed Means' suit for lack of personal jurisdiction (with respect to USCCB) and failure to state a claim. Means v. U.S. Conference of Catholic Bishops, No. 1:15-CV-353, 2015 WL 3970046 (W.D. Mich. June 30, 2015) (holding that the doctrine of ecclesiastical abstention prohibited the court from adjudicating the claim, as doing so would require interpretation of Catholic doctrine, but that Means could pursue a remedy against individual healthcare providers for medical negligence).

52 Press Release, American Civil Liberties Union, Suit Claims Religious Directives Put Women's Health at Risk (Dec. 2, 2013), https://www.aclu.org/religion-belief-womens-rights/aclu-sues-bishops-behalf-pregnant-woman-denied-care-catholic-hospital.

53 Amelia Thomson-Deveaux, Bishops May Not Be the Crooks This Time, Am. Prospect (Dec. 5, 2013), http://prospect.org/article/bishops-may-not-be-crooks-time [https://perma.cc/AV9T-GJ2Y] (quoting law professor Robin Fretwell Wilson).

54 See, e.g., Brownfield v. Daniel Freeman Marina Hosp., 256 Cal. Rptr. 3d 240, 245 (Cal. Dist. Ct. App. 1989) (finding that a malpractice claim may proceed where a rape victim alleges that she was not provided with information about emergency contraception, and suffered damages as a result).

55 See, e.g., Sabrina Rubin Erdely, Could Your Doctor Deny You Healthcare?, SELF (May 22, 2007, 12:00 AM), http://www.self.com/wellness/health/2007/05/denial-of-health-care/ [https://perma.cc/59XK-3Z65] (describing the experiences of multiple rape victims who were denied emergency contraception by an emergency room physician at Good Samaritan Hospital in Lebanon, Pennsylvania).

56 See generally Jones, Bonnie Scott & Weitz, Tracy A., Legal Barriers to Second-Trimester Abortion Provision and Public Health Consequences, 99 Am. J. Pub. Health 623, 623 (2009)CrossRef Google Scholar PubMed (noting how partial birth abortion bans and ambulatory surgical center requirements “threaten to further reduce access to and quality of second-trimester abortion care”).

57 See generally Abelson, supra note 38 (discussing restrictions on care, including tubal ligation, at Catholic hospitals and their affiliates).

58 See generally Stulberg, Debra B. et al., Tubal Ligation in Catholic Hospitals: A Qualitative Study of Ob-Gyns' Experiences, 90 Contraception 422, 422 (2014)CrossRef Google Scholar PubMed (surveying physicians at Catholic hospitals that prohibit simultaneous Cesarean delivery and tubal ligation, requiring patients to undergo “unnecessary subsequent surgery” and be put at risk of later unwanted pregnancy); Letter from Brooke A. Tucker, Staff Attorney, & Michael J. Steinberg, Legal Dir., Am. Civil Liberties Union of Michigan, to the Mich. Dep't of Licensing & Regulatory Affairs in the Bureau of Healthcare Servs. (Dec. 4, 2014), http://www.aclumich.org/sites/default/files/2014_ReproRights_LettertoLARA.pdf [https://perma.cc/T9J4-6GEZ] (urging the Department to prohibit Genesys Health System from implementing a ban on tubal ligation which is “contrary to the appropriate standard of care”).

59 See, e.g., Foster, Angel et al., Do Religious Restrictions Influence Ectopic Pregnancy Management? A National Qualitative Study, 21 Women's Health Issues 104, 104 (2011)CrossRef Google Scholar PubMed (finding that some Catholic hospitals do not provide women access to and information about treatment options for women with ectopic pregnancies, thereby subjecting women to unnecessary medical risks); Freedman et al., supra note 49 (describing findings of a qualitative survey of physicians whose medical judgment about issues of patient safety was interfered with by religiously-motivated institutional policies); Raghavan, Ramesh, A Question of Faith, 297 JAMA 1412 (2007)CrossRef Google Scholar PubMed (describing the experience of the author's wife, pregnant with twins, whose uterus was expelling the fetuses at 21 weeks and due to the hospital's policies prohibiting abortion, the wife was transferred to a teaching hospital where the twins were delivered stillborn); National Women's Law Center, Below the Radar: Healthcare Providers' Religious Refusals Can Endanger Pregnant Women's Lives and Health 2 (2011) [hereinafter Below the Radar], http://www.nwlc.org/sites/default/files/pdfs/nwlcbelowtheradar2011.pdf [https://perma.cc/2NUC-LXXZ] (reporting “disturbing examples of treatment practices that increase the odds of medical complications that place women's lives and health at risk”); Jacob M. Appel, After St. Joseph's: Are Women Still Safe in Catholic Hospitals?, Huffington Post (May 16, 2010, 9:23 PM), http://www.huffingtonpost.com/jacob-m-appel/after-st-josephs-are-wome_b_578086.html [https://perma.cc/Z5B5-F2VE] (“At the present moment, as a physician, I would not feel comfortable with a woman I cared about seeking obstetric services at a Catholic hospital. In fact, I would not want a pregnant woman I cared about obtaining any medical treatment at a Catholic hospital. From this point forward, I will tell my pregnant patients, in all but the most emergent and high-risk circumstances, to instruct any ambulance that picks them up to avoid Catholic hospitals.”); Michael Clancy, Nun at St. Joseph's Rebuked Over Abortion to Save Woman, Ariz. Republic (May 19, 2010, 1:16 PM), http://archive.azcentral.com/arizonarepublic/news/articles/2010/05/15/20100515phoenix-catholic-nun-abortion.html#ixzz3uJG5lMWl [https://perma.cc/8JHY-CKXJ] (describing the excommunication of Sister Margaret McBride, a member of the ethics committee and the vice president of mission integration at St. Joseph's Hospital and Medical Center, for her participation in a decision to approve termination of an 11-week pregnancy deemed necessary to save the life of a woman suffering from pulmonary hypertension); Sabrina Rubin Erdely, Doctors' Beliefs can Hinder Patient Care, NBC News (June 22, 2007, 2:26 PM), http://www.nbcnews.com/id/19190916/ns/health-womens_health/t/doctors-beliefs-can-hinder-patient-care/#.VmoMxISmbFk [https://perma.cc/G4RM-JMZQ] (describing a patient whose was at risk of serious infection when her water broke at fourteen weeks, leaving the fetus unable to survive, but was told at the local Catholic hospital that she could not be admitted for an abortion “unless there was a risk to her life”; a physician described the stance as being outside the standard of care). Similar concerns arise when objecting providers at non-religious institutions fail to assist with such procedures. See Shelton v. Univ. of Med. & Dentistry of New Jersey, 223 F.3d 220 (3d Cir. 2000) (in an employment discrimination case, describing the hospital's stance that a nurse's religiously-based refusals to assist in pregnancy termination for life-threatening pregnancies “risked patients' safety”).

60 Below the Radar, supra note 59, at 4.

61 See id.; Stulberg, supra note 49.

62 Below the Radar, supra note 59.

63 Am. Civil Liberties Union v. Trinity Health Corp., No. 15-cv-12611 (E.D. Mich. filed Oct. 1, 2015). The lawsuit claims that as a result of hospital policies under the Directives, hospitals have “repeatedly and systematically failed to provide women suffering pregnancy complications … with the emergency care required by EMTALA [Emergency Medical Treatment and Labor Act] and the Rehabilitation Act,” and that as a result, women “have become septic, experienced hemorrhaging, contracted life-threatening infections, and/or unnecessarily suffered severe pain for several days at a time.” Id. at 2. In all the cases, the plaintiffs resided in geographic locales where a Trinity Health hospital was the only hospital providing emergency obstetrics and gynecological care, or the only hospital taking that patient's insurance. Id. at 3-4.

64 Liz Szabo, ACLU Sues Catholic Hospital Chain Over Emergency Abortions, USA Today (Oct. 1, 2015, 5:20 PM), http://www.usatoday.com/story/news/2015/10/01/aclu-sues-catholic-hospital-chain-over-emergency-abortions/73147778/ [https://perma.cc/6FBR-6TCX].

65 In a response by the Catholic Health Association (CHA) to a study of miscarriage management at Catholic hospitals, the organization noted that some of these cases may have resulted from providers' or institutions' “misinterpretation” of the Directives. “CHA has since clarified that a woman should be treated if her health is endangered and that treatment should not be delayed until there are signs of life endangerment.” Below the Radar, supra note 59, at 13.

66 See generally Mark R. Wicclair, Conscientious Objection in Healthcare: An Ethical Analysis 33, 45-48 (2011) (discussing the “incompatibility thesis,” or, the theory that “conscience-based refusals to provide legal goods or services within the scope of a practitioner's competence are incompatible with professional obligations of physicians”); Brock, supra note 2 (discussing the impact of moral controversies within the medical profession and society at large that have led to conscientious refusals by some physicians to provide those services to their patients); Wicclair, supra note 48, at 171 (examining the “assumption that conscientious objection is incompatible with a physician's professional obligations (the ‘incompatibility thesis’)”).

67 By way of example, consider the recent controversy surrounding Indiana's broadly-worded Religious Freedom Restoration Act. See Michael Barbaro & Erik Eckholm, Right to Deny Service to Gays Stirs Broad Uproar, N.Y. Times, Mar. 28, 2015, at A1.

68 See May, Thomas & Aulisio, Mark P., Personal Morality and Professional Obligations: Rights of Conscience and Informed Consent, 52 Persps. Biology & Med. 30, 32 (2009)Google Scholar PubMed (arguing that patients' dependence on physicians for information requires limiting physicians' conscience-based refusals to provide information).

69 While this burden is by no means minimal, it is less burdensome than other alternatives. See discussion infra Part V.D.

70 See, e.g., 410 Ill. Comp. Stat. Ann. 70/2.2 (West 2008) (requiring that hospitals providing services to victims of sexual assault “develop a protocol that ensures that each survivor of sexual assault will receive medically and factually accurate and written and oral information about emergency contraception”); Mass. Gen. Laws Ann. ch. 111, § 70E (West 2014) (requiring that hospitals provide female rape victims of childbearing age with “medically and factually accurate written information prepared by the commissioner of public health about emergency contraception,” as well as access to emergency contraception upon request); N.J. Stat. Ann. § 26:2H-12.6c (West 2005) (requiring that emergency healthcare facilities provide victims of sexual assault with “medically and factually accurate and objective oral and written information about emergency contraception and sexually transmitted diseases”).

71 See, e.g., Harrington, supra note 2, at 811-14 (taking this position in the context of “wrongful birth” litigation).

72 AMA Opinion 10.06, supra note 2. The AMA policy also imposes a duty to refer and to provide “impartial guidance to patients about how to inform themselves regarding access to desired services.” Id. At its 2015 meeting, the AMA House of Delegates voted to adopt the Council on Ethical and Judicial Affairs' Report 1-I-14, Physician Exercise of Conscience (pending publication). See Council on Ethical and Judicial Affairs, CEJA Report 1-I-14 9 (2014).

73 Antommaria, Armand H. Matheny et. al., American Academy of Pediatrics Committee on Bioethics, Policy Statement: Physician Refusal to Provide Information or Treatment on the Basis of Claims of Conscience, 124 Pediatrics 1689, 1689 (2009)Google Scholar. “Permitting physicians, on the basis of a claim of conscience, not to disclose a legally available treatment option of which the patient is unaware but might otherwise choose would significantly undermine the practice of medicine. For example, it would be unfair for a victim of sexual assault who was unfamiliar with emergency contraception not to be informed of its existence.” Id. at 1691. The Policy Statement also notes that while physicians can respectfully explain their objections to treatment, patients should be permitted to decline to hear this explanation. Id. at 1691-92.

74 Am. Coll. of Obstetricians and Gynecologists Comm. on Ethics, Committee Opinion No. 385: The Limits of Conscientious Refusal in Reproductive Medicine 1, 5 (2007) (reaff'd 2013), http://www.acog.org/Resources-And-Publications/Committee-Opinions/Committee-on-Ethics/The-Limits-of-Conscientious-Refusal-in-Reproductive-Medicine [https://perma.cc/46RN-8CBP] [hereinafter ACOG Opinion No. 385].

75 American Nurses Association Position Statement on Reproductive Health (adopted March 27, 1989), http://www.rnaction.org/site/PageServer?pagename=CUP_Arch_100208_en2_hhs&ct=1 [https://perma.cc/E3VH-MLNU] (“ANA believes that the healthcare client has the right to privacy and the right to make decisions about personal healthcare based on full information and without coercion. It is the obligation of the healthcare provider to share with the client all relevant information about health choices that are legal and to support that client regardless of the decision the client makes.”). In March 2010, however, the ANA approved a new version of its Position Statement on Reproductive Health, which replaces the text above with the following: “ANA believes that healthcare clients have the right to privacy and the right to make decisions about personal healthcare based on full information and without coercion.” American Nurses Association Position Statement on Reproductive Health (Approved 3/10), http://www.nursingworld.org/MainMenuCategories/Policy-Advocacy/Positions-and-Resolutions/ANAPositionStatements/Position-Statements-Alphabetically/Reproductive-Health.html [https://perma.cc/5VMN-V7LC].

76 Note, however, that the most current scientific research indicates that emergency contraception does not operate post-fertilization and so does not prevent the implantation of or otherwise cause the destruction of the fertilized embryo. See generally International Federation of Gynecology & Obstetrics, Mechanism of Action: How Do Levonorgestrel-Only Emergency Contraceptive Pills Prevent Pregnancy? (March 2012), http://www.arhp.org/uploaddocs/ICEC_FIGO_MoA_Statement_March_2012.pdf [https://perma.cc/EG3A-KALG] (“Most studies show that LNG ECPs … have no mechanism to prevent implantation.”); Pam Belluck, No Abortion Role Seen for Morning-After Pill, N. Y. Times, June 6, 2012, at A1 (“Studies have not established that emergency contraceptive pills prevent fertilized eggs from implanting in the womb … Rather, the pills delay ovulation, the release of eggs from ovaries that occurs before eggs are fertilized.”).

77 See Ben-Shahar, Omri & Schneider, Carl E., The Failure of Mandated Disclosure, 159 U. Pa. L. Rev. 647, 743-44 (2011)Google Scholar (concluding that legally-mandated disclosures typically fail to achieve their goals in part due to their “length, complexity, and difficulty,” and suggesting that disclosure mandates would be more effective if they were “brief, simple, easy”).

78 Davis, John K., Conscientious Refusal and a Doctor's Right to Quit, 29 J. Med. & Phil. 75, 86 (2004)CrossRef Google Scholar.

79 Id.

80 AMA Opinion 10.06, supra note 2.

81 The ACOG also notes: “[i]n the process of providing prior notice, physicians should not use their professional authority to argue or advocate these positions.” ACOG Opinion No. 385, supra note 74, at 5.

82 See sources cited supra note 2.

83 Patient Self-Determination Act, 42 U.S.C. § 1395cc(f) (2012); 42 C.F.R. § 489.102(a)(1)(ii) (2015).

84 See, e.g., Colo. Rev. Stat. § 15-14-507(1) (2015) (“A healthcare provider or healthcare facility shall provide notice … of any policies based on moral convictions or religious beliefs of the healthcare provider or healthcare facility relative to the withholding or withdrawal of medical treatment. Notice shall be provided, when reasonably possible, prior to the provision of medical treatment or prior to or upon the admission of the principal to the healthcare facility, or as soon as possible thereafter.”); N.J. Stat. Ann. § 26:2H-65(b) (West 2007) (“A private, religiously-affiliated healthcare institution may develop institutional policies and practices defining circumstances in which it will decline to participate in the withholding or withdrawing of specified measures utilized to sustain life. Such policies and practices shall be written, and shall be properly communicated to patients and their families and healthcare representatives prior to or upon the patient's admission, or as soon after admission as is practicable.”); N.Y. Pub. Health Law § 2984(3) (McKinney 2015) (permitting private hospitals to refuse to honor patients' healthcare decisions if doing so would be “contrary to a formally adopted policy of the hospital that is expressly based on religious beliefs or sincerely held moral convictions central to the facility's operating principles” and the facility so informs the patient prior to or upon admission).

85 But see Colo. Rev. Stat. § 15-14-507(1) (2015) (requiring notice to be provided by “[a] healthcare provider or healthcare facility”). One state, California, has also imposed a limited disclosure requirement on health insurers. Cal. Health & Safety Code § 1363.02 (West 2008) (requiring health insurers to include a notice in their provider directory that some hospitals and providers restrict access to reproductive services, and instructing patients to call their providers or health plans for more information).

86 See, e.g., California Reproductive Freedom, Accountability, Comprehensive Care and Transparency (FACT) Act, California Health and Safety Code Division 106 Ch. 2 Pt. 2 § 123472(b)(1) (requiring that unlicensed facilities providing pregnancy-related services disclose that they are not licensed medical providers), upheld by A Woman's Friend Pregnancy Res. Clinic v. Harris, No. 2:15-CV-02122-KJM-AC, 2015 WL 9274116 (E.D. Cal. Dec. 21, 2015); Local Law No. 17 of the City of New York (requiring pregnancy service centers to disclose whether or not they have a licensed medical provider on staff and whether or not they provide or provide referrals for abortion, emergency contraception, or prenatal care), enjoined in part by Evergreen Ass'n Inc. v. City of New York, 740 F.3d 233 (2d Cir. 2014); City of Baltimore Ordinance 09–252 (requiring limited-service pregnancy centers to disclose that they do not provide or refer for abortion or birth control services) and Greater Balt. Ctr. For Pregnancy Concerns, Inc. v. Mayor of Balt., 721 F.3d 264 (4th Cir. 2013) (vacating District Court's injunction); Montgomery County Resolution No. 16–1252 (requiring limited service pregnancy centers to disclose that they have no licensed medical professionals on staff) and Centro Tepeyac v. Montgomery Cty., 722 F.3d 184 (4th Cir. 2013) (upholding District Court's grant of summary judgment to plaintiffs in suit challenging county resolution); Austin, Texas City Code chapter 10-10 (requiring crisis pregnancy centers to disclose that they have no healthcare professionals on site), enjoined by Austin LifeCare, Inc. v. City of Austin, No. A-11-CA-875-LY, 2014 WL 3381636 (W.D. Tex. June 23, 2014).

87 H.R. HB1371 FA1 (Okla. 2015) (floor amendment introduced by Emily Virgin), http://www.oklegislature.gov/Billinfo.aspx?Bill=HB1371 [https://perma.cc/33ZL-3LBC]. As of July 15, 2015, the bill had not moved forward to a House vote.

88 See generally legislation cited supra notes 45-56.

89 One benefit of statutory imposition of a disclosure duty, as compared to establishment by common law as described in Part IV.B, is that it avoids the contextual limits of informed consent doctrine. Common law generally requires informed consent only at the point of making a treatment decision (or even more narrowly, in the context of consent to surgical interventions only), and does not impose disclosure duties on physicians earlier in the doctor-patient relationship or outside the context of particular medical interventions. See infra note 119 and accompanying text; see also Truog, Robert D. et al., Is Informed Consent Always Necessary for Randomized, Controlled Trials? 340 New Eng. J. Med. 804, 804 (1999)CrossRef Google Scholar PubMed (distinguishing between general and specific consent to medical treatment, noting that “physicians typically order routine tests and prescribe standard medications under the general consent for treatment but obtain specific consent before undertaking a major diagnostic or therapeutic procedure, before prescribing a potentially toxic medication, or whenever a patient's values and preferences would be expected to have a substantial influence on the clinical course chosen.”).

90 O'Connell, Katharine et al., First-Trimester Surgical Abortion Practices: A Survey of National Abortion Federation Members, 79 Contraception 385, 385 (2009)CrossRef Google Scholar PubMed (finding that, in a survey of NAF administrators and providers at 364 facilities, 63% of providers of first-trimester abortions are obstetrician-gynecologists).

91 See American Congress of Obstetricians and Gynecologists Committee on Healthcare for Underserved Women, ACOG Committee Opinion No. 612: Abortion Training and Education 1, 2-3 (Nov. 2014), http://www.acog.org/Resources-And-Publications/Committee-Opinions/Committee-on-Health-Care-for-Underserved-Women/Abortion-Training-and-Education [https://perma.cc/5KRV-HN53].

92 See Turk, Jema K., et al., Availability and Characteristics of Abortion Training in US OB-GYN Residency Programs: A National Survey, 89 Contraception 271, 271, 274, 276 (2014)CrossRef Google Scholar PubMed (reporting that in a survey of 362 residents, representing 161 of the 240 residency programs contacted, there is routine abortion training in 54% of programs, and opt-in training in 30% of programs); see also Emily Bazelon, The New Abortion Providers, N.Y. TIMES, July 14, 2010, at MM (“Today, about half of the more than 200 OB-GYN residency programs integrate abortion into their residents' regular rotations. Another 40 percent of them offer only elective training.”).

93 Stulberg, Debra B. et al., Abortion Provision Among Practicing Obstetrician–Gynecologists, 118 Obstetrics & Gynecology 609, 611 (2011)CrossRef Google Scholar PubMed (finding in a survey of 1,800 practicing OB/GYNs that 97% encountered patients seeking abortions). This study, however, found that while almost all OB/GYNs had encountered patients seeking abortions, only 14% of providers surveyed actually performed them. Id.

94 Ben-Shahar & Schneider, supra note 77, at 743.

95 42 U.S.C. § 1320a-7b(b) (2012) (“Whoever knowingly and willfully solicits or receives any remuneration (including any kickback, bribe, or rebate) … in return for purchasing, leasing, or ordering … any good … for which payment may be made in whole or in part under a Federal healthcare program, shall be guilty of a felony … ”.).

96 42 U.S.C. § 1395nn (2012) (“Prohibition of certain referrals.”).

97 42 U.S.C. § 1320a-7h (2012).

98 See generally Transparency and Disclosure of Health Costs and Provider Payments: State Actions, Nat'l Conf. on State Legis., http://www.ncsl.org/research/health/transparency-and-disclosure-health-costs.aspx [https://perma.cc/24YS-6PZM] (last updated Aug. 2015) (compiling records of state actions over the past two decades that promote efforts to improve transparency in health charges and provider payments).

99 See generally Love, Denise et al., All-Payer Claims Databases: State Initiatives to Improve Healthcare Transparency, 1439 Commonwealth Fund 1, 2 (2010)Google Scholar (“To address their need for comprehensive information about health and healthcare, a growing number of states are developing what are known as all-payer claims databases (APCDs)”; Jo Porter et al., The Basics of All-Payer Claims Databases: A Primer for States 1, 1 (2014), http://www.rwjf.org/content/dam/farm/reports/issue_briefs/2014/rwjf409988 [https://perma.cc/54CT-7HND] (“Since 2010, state interest in APCDs has grow at a steady pace. Currently, more than 30 states have, are implementing, or have strong interest in APCDs ….”).

100 See supra text accompanying notes 84-85.

101 See generally Hafemeister, Thomas L. & Spinos, Selina, Lean on Me: A Physician's Fiduciary Duty to Disclose an Emergent Medical Risk to the Patient, 86 Wash. U.L. Rev. 1167, 1188 (2009)Google Scholar (“Because patients generally seek the services of a physician when they are sick, injured or concerned about their health, because doctors have unique access to a patient's medical information and superior insight into a patient's medical condition, and because physicians control patients' ability to obtain needed medical treatment, patients are highly dependent on their physicians and should be able to rely on their physicians to protect and promote their well-being. For these reasons, the judiciary has routinely found a fiduciary relationship to exist between physicians and patients.”); Mehlman, Maxwell J., Dishonest Medical Mistakes, 59 Vand. L. Rev. 1137, 1148 (2006)Google Scholar (“The law regards a number of relationships as fiduciary, and as numerous courts have recognized, the relationship between physician and patient is among them.”); Oberman, Michelle, Mothers and Doctors' Orders: Unmasking the Doctor's Fiduciary Role in Maternal-Fetal Conflicts, 94 Nw. U. L. Rev. 451, 455-56 (2000)Google Scholar PubMed (“Widespread adoption of fiduciary terminology in reference to doctors and patients began in the 1980s…. Physicians' increasing comfort with the fiduciary terminology is seen by official statements of the two principal associations for American physicians, the American Medical Association and the American College of Physicians, which utilize the fiduciary model when describing the relationship between physicians and patients.”); Rodwin, Marc A., Strains in the Fiduciary Metaphor: Divided Physician Loyalties and Obligations in a Changing Healthcare System, 21 Am. J.L. & Med. 241, 247 (1995)Google Scholar (“Contemporary literature in medicine and medical ethics assumes that physicians are indeed fiduciaries and focuses on how they should fulfill this role.”).

102 Tom L. Beauchamp & James F. Childress, Principles of Biomedical Ethics 311 (6th ed. 2009); see also id. at 311-17 (discussing conflicts of fidelity and divided loyalties).

103 Note that the legal principle of fiduciary duty differs from the principle of fiduciary duty as it may be understood by physicians and ethicists. In the ethical context, the scope of a physician's fiduciary duty is dependent one one's understanding of the scope and purposes of medical practice. In the legal context, however, fiduciary principles impose concrete legal requirements that, at least at the baseline, are not subject to dispute.

104 See Tamar Frankel, Legal Duties of Fiduciaries 98-108 (2012) (discussing the main duties of a fiduciary).

105 Id. at 246-80 (discussing actual and possible equitable remedies when a fiduciary duty is breached, including punitive damages).

106 Some commentators have also argued that case law supports extending fiduciary duties beyond individual physicians, to medical institutions. Furrow, Barry R., Patient Safety and the Fiduciary Hospital: Sharpening Judicial Remedies, 1 Drexel L. Rev. 439, 460-61 (2009)Google Scholar (noting that “[t]he language of fiduciary duty has been creeping from ethical discussions about the doctor-patient relationship into legal discourse about errors in the hospital setting,” and citing cases suggesting that hospitals owe fiduciary duties to patients).

107 See Bobinski, Mary Ann, Autonomy and Privacy: Protecting Patients from Their Physicians, 55 U. Pittsburgh L. Rev. 291, 347 (1994)Google Scholar PubMed (noting that “[j]urisdictions with more generous disclosure requirements typically rely, at least in part, on fiduciary principles as a basis for the disclosure obligation”); Oberman, supra note 101, at 455, 459 (citing Leslie Miller's argument that “the doctrine of informed consent is an outgrowth of the Anglo-American concept of the fiduciary relationship” and noting that the principle of fiduciary duty is used as a tool in medical malpractice cases, “generally as it relates to the duty to obtain an informed consent”).

108 See, e.g., Shultz, Marjorie Maguire, From Informed Consent to Patient Choice: A New Protected Interest, 95 Yale L.J. 219, 280 (1985)CrossRef Google Scholar PubMed (noting the disclosure obligations of fiduciaries, “especially where there is any possible division of loyalty”).

109 Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 485 n. 10 (Cal. 1990) (noting also that “the reason why a physician must disclose possible conflicts is not because he has a duty to protect his patient's financial interests, but because certain personal interests may affect professional judgment”).

110 Indeed, this is why many patient advocates object to strong legal protections for conscientious refusals. Many patients believe that having access to a full complement of legal medical procedures serves their interests better than limiting such access (even if an objecting physician believes that a particular procedure does not serve the patient's best interests and so should not be offered). There are a variety of explanations of why a physician who acts in accordance with his conscientious convictions might interpret his patient's best interests differently than how the patient herself would interpret them. Behavioral science research about identity-protective motivate reasoning offers one such explanation. See, e.g., Kahan, Dan M., Ideology, Motivated Reasoning, and Cognitive Reflection, 8 Judgment & Decision Making 407 (2013)Google Scholar (explaining ideologically motivated cognition as a mechanism used by individuals to help maintain identity-affirming affirming beliefs, even where such beliefs are contradict empirical evidence).

111 But see Rodwin, supra note 101, at 251-53 (“In some situations, the law has … required physicians to act for the benefit of parties other than their patients.”).

112 See Bobinski, supra note 107, at 348 (1994) (“There has been little judicial analysis of the appropriateness of applying fiduciary-based disclosure obligations to the physician-patient relationship, and virtually no judicial analysis of the special problems presented by provider-associated risk.”); Oberman, supra note 101, at 459 (noting that while physicians are commonly considered fiduciaries, “there is no line of cases in which doctors have been found liable for acting in ways that ignore or undermine a patient's best interests” outside of the medical negligence context); Rodwin, supra note 101, at 242 (noting that “although doctors perform fiduciary-like roles and hold themselves out as fiduciaries in their ethical codes, the law holds doctors accountable as fiduciaries only in restricted situations”).

113 See, e.g., D.A.B. v. Brown, 570 N.W.2d 168, 170-71 (Minn. Ct. App. 1997) (holding that plaintiff's claim that physician failed to disclose kickbacks was a malpractice claim, not a fiduciary duty claim); Neade v. Portes, 739 N.E.2d. 496 (Ill. 2000) (discussed in detail below). See generally Furrow, supra note 106, at 452-53 (noting that while fiduciary principles were often raised in managed care contexts when physicians failed to disclose financial conflicts of interest, courts generally rebuffed the theory).

114 Neade, 739 N.E.2d. at 500.

115 Id. at 502. While not addressing the issue explicitly, it appears that the Neade court left open the possibility that Neade could include the allegations of failure to disclose within his malpractice claim. Id. at 504-503 (“Thus, we need not recognize a new cause of action for breach of fiduciary duty when a traditional medical negligence claim sufficiently addresses the same alleged misconduct.).”); see also Shea v. Esensten, 208 F.3d 712, 716 (8th Cir. 2000) (holding that, where a patient died after his physician failed to refer him to a cardiologist, a jury could find the physician liable for negligent misrepresentation for failing to disclose financial incentives to avoid referrals, regardless of the quality of the actual treatment provided).

116 Neade, 739 N.E.2d. at 508 (Harrison, C.J., dissenting) (emphasis added).

117 Id. at 507.

118 See Bobinski, supra note 107, at 347 (arguing that “[f]iduciary law … presents a possible avenue for future growth of a more vibrant disclosure duty” in the medical context); Mehlman, supra note 101, at 1157 (referring to the Supreme Court's argument in Pegram v. Herdich that “fiduciary duty ‘boils down’ to malpractice” as a “non sequitur”).

119 In some states, common law duties of informed consent do not apply to all physician-patient interactions, but only in limited contexts, such as surgery or other invasive medical treatment. See, e.g., Morgan v. MacPhail, 704 A.2d 617 (Pa. 1997) (limiting informed consent liability to “surgical or operative” procedures); Karlsons v. Guerinot, 394 N.Y.S.2d 933, 939 (N.Y. App. Div. 1977) (limiting informed consent liability to cases involving “some affirmative violation of the patient's physical integrity such as surgical procedures, injections or invasive diagnostic tests”). Thus, not every situation of physician non-disclosure described in Section II, above, would be captured by an expanded common law disclosure duty. See sources cited supra note 89.

120 See generally Sawicki, Nadia N., Modernizing Informed Consent: Expanding the Boundaries of Materiality, 2016 U. Ill. L. Rev. (forthcoming May 2016)Google Scholar (manuscript at 6).

121 Jessica W. Berg et al., Informed Consent: Legal Theory and Clinical Practice 44-49 (2d ed. 2001) (“Two cases [Natanson v. Kline and Mitchell v. Robinson] decided in different jurisdictions within two days of each other in 1960 clearly indicated that there was to be no turning back from the imposition of an affirmative duty of disclosure.”).

122 Id. at 135 (discussing that “moving away from a battery theory” and toward “[a] negligence theory based on a duty to disclose” indicated that “the courts moved informed consent law further away from customary medical practice”).

123 Barry R. Furrow et al., Health Law 314 (2d ed. 2000) (noting that “more than twenty-five states” have adopted a “physician-based standard,” either by judicial decision or by statute, but that the patient-based standard is now “approaching a majority position”). For a more thorough explanation of the history of and distinction between the two standards, see Berg et al., supra note 121, at 46-52.

124 See generally, Sawicki, supra note 120 (manuscript at 11).

125 For example, in Wood v. Univ. of Utah Med. Ctr., 67 P.3d 436 (Utah 2002), the court addressed a case where a hospital negligently misread genetic tests and failed to inform the plaintiff that her child had an 85% probability of being born with Down Syndrome. The plaintiff's claim against the hospital was denied because Utah's Wrongful Life Act prohibited causes of action “based on the claim that but for the act or omission of another, a person would not have been permitted to have been born alive but would have been aborted.” Id. at 439. The plaintiff argued that the Act would protect even physicians who intentionally withhold genetic information because of their personal objections to abortion. Id. at 442. The Court recognized that the Act abrogated a common law cause of action for malpractice for failure to inform, thereby implying that such a cause of action would otherwise be available in the absence of the Act. Id. at 446. See also Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975) (permitting wrongful birth claim to go forward against a physician who failed to inform his pregnant patient of the risks of rubella, where the patient testified that she would have had an abortion had she been properly informed, despite the fact that eugenic abortions at the time were illegal in Texas); Harbeson v. Parke-Davis, Inc., 656 P.2d 483, 491 (Wash. 1983) (en banc) (allowing wrongful birth claim to proceed, and holding that while physicians maintain a right to refuse to perform abortion, they nevertheless have a duty to “impart to their patients material information as to the likelihood of future children's being born defective, to enable the potential parents to decide whether to avoid the conception or birth of such children”). See generally Harrington, supra note 2, at 811-14 (discussing informed consent obligations in the context of wrongful birth suits).

126 See generally, Sawicki, supra note 120 (manuscript at 31-44) (discussing “[p]atients' [n]on-[m]edical [i]nterests”); Shultz, supra note 108, at 284-85 (“Certainly the duty would not be to disclose all that the doctor knows, but only what is materially relevant to the patient at the time of the disclosure. The doctor should affirmatively offer the following information: (1) material clinical observations or test results that describe the condition … (2) interpretation of this information by the doctor and her advisers, including material judgments and conclusions based on the data; and (3) material possible responses that the patient might elect in light of the information and the possibilities known to the doctor.”).

127 Daar, Judith F., Informed Consent: Defining Limits Through Therapeutic Parameters, 16 Whittier L. Rev. 187, 188-89 (1995)Google Scholar PubMed.

128 Sawicki, supra note 1200 (manuscript at 31-44).

129 Id. (manuscript at 34).

130 Johnson v. Kokemoor, 545 N.W.2d 495, 497 (Wis. 1996). The plaintiff in Kokemoor testified that she asked Dr. Kokemoor a direct question about his experience, to which he gave an allegedly misleading response. Id. at 499. However, because the plaintiff framed her claim as one grounded in failure of informed consent rather than negligent misrepresentation, the Wisconsin court analyzed it by reference to affirmative disclosure obligations under the law of informed consent. Id. at 504 n.29.

131 Id. at 497.

132 Id. at 505.

133 Id. at 498 (quoting Martin v. Richards, 531 N.W.2d 70, 78 (Wis. 1995)).

134 See, e.g., DeGenarro v. Tandon, 873 A.2d 191, 192 (Conn. App. Ct. 2005) (holding that provider's lack of experience with the dental equipment used on the patient must be disclosed if it adds to the risk of the patient's procedure); Barriocanal v. Gibbs, 697 A.2d 1169 (Del. 1997) (discussed below); see also Goldberg v. Boone, 912 A.2d 698, 717 (Md. 2006) (holding that it was an issue for the jury to determine whether the availability of a more experienced surgeon was material for the purposes of informed consent); Wlosinski v. Cohn, 713 N.W. 2d 16, 20 n.1 (Mich. Ct. App. 2005) (rejecting an expanded disclosure duty, but limiting its holding to “statistical data regarding past treatment and other background information that has no concrete bearing on the actual risks of a given procedure”) (emphasis added).

135 Barriocanal, 697 A.2d at 1169.

136 Id. at 1173 (quoting 18 Del.C. § 6801(6)).

137 See, e.g., Hawk v. Chattanooga Orthopaedic Group, 45 S.W.3d 24, 24 (Tenn. Ct. App. 2000) (allowing informed consent claim under Tennessee statute to proceed where surgeon failed to inform patient that he had a disabling hand condition that may have impaired his performance); see also Slutzki v. Grabenstetter, No. 01-1482, 2002 WL 31114657, at *1 (Iowa Ct. App. Sept. 25, 2002) (finding that surgeon has no duty to disclose that she suffered from a herniated disc where the condition only caused pain when the physician was using her arms above shoulder level, and during operations “the operating table was always adjusted to the surgeon's level of comfort, and when in a position to operate her arms are always down”); May v. Cusick, No. 99-2520, 630 N.W.2d 277 (Wisc. Ct. App. 2001) (finding no duty to disclose history of two minor strokes where there was no evidence that physician suffered residual effects from the strokes that would constitute a material risk).

138 See, e.g., Kaskie v. Wright, 589 A.2d 213, 217 (Pa. 1991) (refusing to expand the doctrine of informed consent to cases where the plaintiffs were not informed of “facts personal to the treating physician,” like alcoholism).

139 See Hidding v. Williams, 578 So.2d 1192, 1198 (La. Ct. App. 1991) (upholding trial court finding that failure to disclose chronic alcohol use was a breach of the duty to obtain informed consent, where the trial judge found as a matter of fact that the physician “abused alcohol at the time of [plaintiff's] surgery,” and expert testified that performing surgery under the influence of alcohol would be a breach of the standard of care and that a physician suffering from alcohol dependence should inform his patient of this fact); see also Albany Urology Clinic P.C. v. Cleveland, 528 S.E.2d. 777, 781 (Ga. 2000) (denying informed consent, fraud, and battery claims grounded in a physician's failure to disclose “negative personal life factor [history of cocaine use] that, although not directly related to the professional relationship, may, depending upon a patient's subjectively held beliefs, impact upon the patient's consent” where there was no evidence that the physician was under the influence of cocaine at the time of treatment); Mau v. Wisconsin Patients Compensation Fund, No. 02-0244, 668 N.W.2d 562 (Wisc. Ct. App. 2003) (unpublished) (denying an informed consent claim where a doctor with a history of substance abuse had not been using drugs in the months before treating the patient, and was not operating under the influence at the time of the operation).

140 Hidding, 578 So.2d at 1198; Williams v. Booker, 712 S.E.2d 617, 620 (Ga. Ct. App. 2011) (“The mere fact of a physician's drug or alcohol addiction or use at the time of the alleged malpractice does not create, in and of itself, a separate issue or claim of medical malpractice. Rather, ‘it is only when that alcoholism translates into conduct falling below the applicable standard of care that it has any relevance.’”).

141 See, e.g., Faya v. Almaraz, 620 A.2d 327, 333 (Md. 1993) (finding a viable informed consent claim by patients of an HIV-positive surgeon because the risk of transmission, while “extremely low,” was foreseeable, and the consequences of transmission are dire); Estate of Behringer v. Medical Center at Princeton, 592 A.2d. 1251, 1280 (N.J. Super. Ct. 1991) (finding that in a discrimination claim by a physician against a hospital that required him to disclose his HIV status, the risk of HIV transmission would be a legitimate concern to reasonable patients, warranting disclosure, because the risk, while low, is not negligible, and the potential harm is severe). However, given the dramatic advances in medical care for HIV-positive patients in the past decades, and the fact that many HIV-positive patients go on to lead long and fulfilling lives, it is unclear whether these legal conclusions would still stand today.

142 Many courts hold that disclosure of a physician's personal characteristics is not required under common law theories of informed consent, even where those characteristics arguably increase the medical risk to the patient. Courts adopting this view base it on a narrow vision of medical materiality -- the idea that doctors only need to disclose risks “inherent in the treatment,” and not risks that are dependent on who is performing the procedure. See, e.g., Curran v. Buser, 711 N.W.2d 562, 572 (Neb. 2006) (finding that the standard of care did not require disclosure of physician's disciplinary history); Cipriano v. Ho, 908 N.Y.S.2d 552, 552 (N.Y. Sup. Ct. 2010) (noting lack of common law to support an informed consent claim based on failure to disclose prior restriction of physician's surgical privileges); Kaskie v. Wright, 589 A.2d 213, 217 (Pa. Super. Ct. 1991) (refusing to expand informed consent to require disclosure of physician's alcoholism and lack of license to practice, noting that in this case the patient was indeed informed of the risks of the “particular procedures … irrespective of the surgeon performing them.”); see generally Sawicki, supra note 120, at 29.

143 Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 480 (Cal. 1990).

144 Id. at 485 (emphasis added).

145 D.A.B. v. Brown, 570 N.W.2d 168, 170-71 (Minn. Ct. App. 1997).

146 See, e.g., Baylis, Francoise & Downie, Jocelyn, Professional Recommendations: Disclosing Facts and Values, 27 J. Med. Ethics 20, 21 (2001)CrossRef Google Scholar PubMed (arguing that physicians' duty to render their reasoning transparent requires disclosure of both “factual-informational details and value judgments”); Kuczewki, Mark G., Talking About Spirituality in the Clinical Setting: Can Being Professional Require Being Personal? 7 Am. J. Bioethics 4, 9 (2007)CrossRef Google Scholar (arguing that clinicians, in the informed consent process, “make clear the values that are guiding their recommendations,” referring to cultural and spiritual values); see also Peter Ubel, Medical Facts Versus Value Judgments, 372 New Eng. J. Med. 2475, 2476 (2015) (arguing that the medical community must recognize and be more explicit about the fact that supposedly impartial professional treatment guidelines sometimes incorporate value judgements).

147 Brody, Howard, Transparency: Informed Consent in Primary Care, 19 Hastings Ctr. Rep. 5, 7 (1989)Google Scholar PubMed.

148 Id.

149 Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 485 (Cal. 1990).

150 See Shultz, supra note 108, at 274 (“Decisions made in a climate of conflicting values or judgments are every bit as consequential to patients as those made when there are [financial] conflicts of interest.”).

151 See generally Hall, Mark A., Law, Medicine, and Trust, 55 Stan. L. Rev. 463, 470 (2002)CrossRef Google Scholar PubMed (explaining that trust is the “glue” that holds the doctor-patient relationship together).

152 Id. at 498.

153 Id. at 509-10.

154 Id. at 505.

155 See Jason Fodeman, The New Health Law: Bad for Doctors, Awful for Patients, Inst. for HealthCare Consumerism, http://www.theihcc.com/en/communities/policy_legislation/the-new-health-law-bad-for-doctors-awful-for-patie_gn17y01k.html [https://perma.cc/4AYR-KS37] (“Health care is currently one of the most regulated industries in the country. Doctors already devote a significant amount of their day to detailed documentation, paperwork, and signatures. This takes away from potential time doctors can spend at the bedside with their patients.”).

156 The court cited only two cases in support of this proposition: Wooley v. Maynard, which established a strict standard of scrutiny for compelled non-commercial speech, and Whalen v. Roe, which described physicians' constitutional challenge to a statute requiring reporting of patient information relating to prescription drugs as “clearly frivolous.” Whalen v. Roe, 429 U.S. 589, 604 (1977). Neither provides useful guidance with respect to the scope of professionals' First Amendment rights. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. at 884.

157 Post, Robert, Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech, 2007 U. Ill. L. Rev. 939, 950-51 (2007)Google Scholar; see also Pickup v. Brown, 740 F.3d 1208, 1228 (9th Cir.) (noting that “the First Amendment tolerates a substantial amount of speech regulation within the professional-client relationship that it would not tolerate outside of it.”).

158 Keighley, Jennifer M., Physician Speech and Mandatory Ultrasound Laws: The First Amendment's Limit on Compelled Ideological Speech, 34 Cardozo L. Rev. 2347, 2349 (2013)Google Scholar.

159 See, e.g., Gaylord, Scott W., A Matter of Context: Casey and the Constitutionality of Compelled Physician Speech, 43 Am. J. L. Med. & Ethics 35, 44 (2015)CrossRef Google Scholar PubMed (arguing that under Casey, compelled disclosures “are subject only to ‘reasonableness’ or rational basis review”); Post, supra note 157, at 971-72 (concluding that “state regulation [of physician speech] is scrutinized under the same rational basis standard that applies to all regulations of medicine.”). Note, however, that some courts have held that a higher standard of scrutiny might apply to prohibitions on physician speech. See King v. Governor of New Jersey, 767 F.3d 216, 233 (3d Cir. 2014) (holding that prohibitions of professional speech are constitutional only if they directly advance the State's interest in protecting citizens from harmful or ineffective professional practices and are no more extensive than necessary to serve that interest).

160 Sawicki, Nadia N., Informed Consent as Compelled Professional Speech: Fictions, Facts, and Open Questions, 50 Wash. U. J. L. & Pol'y (forthcoming Feb. 2016) (manuscript at 16)Google Scholar.

161 Id. (manuscript at 40).

162 Id.

163 See, e.g., Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 576 (5th Cir. 2012) (holding that “informed consent laws that do not impose an undue burden on the woman's right to have an abortion are permissible if they require truthful, nonmisleading, and relevant disclosures”); Planned Parenthood Minn. v. Rounds, 530 F.3d 724, 735 (8th Cir. 2008) (holding that the First Amendment permits the state to “use its regulatory authority to require a physician to provide truthful, non-misleading information relevant to a patient's decision to have an abortion”); Comprehensive Health of Planned Parenthood of Kansas & Mid-Missouri, Inc. v. Templeton, 954 F. Supp. 2d 1205, 1217 (D. Kan. 2013) (holding that “that while the state cannot compel an individual simply to speak its ideological message, it can use its regulatory authority to require a physician to provide truthful, non-misleading information relevant to a patient's decision to have an abortion). But see Stuart v. Camnitz, 774 F.3d 238, 242 (4th Cir. 2014) (finding abortion informed consent laws compelling physician speech unconstitutional after applying intermediate scrutiny). For a critique of the application of the Casey standard in professional speech cases, see Stuart v. Huff, 834 F. Supp. 2d 424, 430-31 (M.D.N.C. 2011); Halberstam, Daniel, Commercial Speech, Professional Speech, and the Constitutional Status of Social Institutions, 147 U. Pa. L. Rev. 771, 834 (1999)CrossRef Google Scholar; Keighley, supra note 158, at 2351; Post, supra note 157, at 979.

164 See, e.g., Tex. Med. Providers Performing Abortion Services, 667 F.3d at 572 (vacating and remanding District Court's grant of preliminary injunction against a compelled “display-and-describe” ultrasound law); Planned Parenthood Minn. v. Rounds, 653 F.3d 662 (8th Cir. 2011) opinion vacated in part on reh'g en banc sub nom., 662 F.3d 1072 (8th Cir. 2011); Planned Parenthood Minn. v. Rounds, 686 F.3d 889 (8th Cir. 2012) (upholding statutory disclosure provisions); Comprehensive Health of Planned Parenthood of Kan. v. Templeton, 954 F. Supp. 2d 1205 (D. Kan. 2013) (upholding denial of preliminary injunction against abortion informed consent provisions). But see Stuart, 774 F.3d at 250 (applying Sorrell intermediate scrutiny, affirming District Court's grant of physicians' motion for summary judgment and issuance of permanent injunction against compelled “display-and-describe” ultrasound law).

165 If a court were to simply apply the Employment Division v. Smith standard, it would be relatively easy for a state to demonstrate that the requirement that physicians disclose religious- or conscience-based limitations on practice is a “valid and neutral law of general applicability.” Employment Div. v. Smith, 494 U.S. 872, 879 (1990). If a plaintiff were to bring a statutory, rather than constitutional claim, state Religious Freedom Restoration Acts would require proof of a compelling state interest and the use of least restrictive means to achieve that interest. See, e.g., Barbaro & Eckholm, supra note 67 (“The Indiana law opens the door for individuals or companies to refuse actions that impose a ‘substantial burden’ on their religious beliefs. If that refusal is challenged in court, a judge must balance the religious burden with the state's ‘compelling interest’ in preventing discrimination, according to the law.”).

166 While dealing with commercial speech rather than professional speech, the Appellate Court for the District of the District of Columbia addressed a similar argument in Priests for Life v. U.S. Department of Health and Human Services, 772 F.3d 229, 235 (D.C. Cir. 2014), where religious employers objected to a self-certification requirement for the HHS contraceptive coverage accommodation. Noting that while filing a self-certification form “may include ‘elements of speech,’ [it] is ‘a far cry from the compelled speech’ that the Supreme Court previously has found to be unconstitutional.” Id. at 271. “Requiring Plaintiffs to give notice that they wish to opt out of the contraceptive coverage requirement no more compels their speech in violation of the First Amendment than does demanding that a conscientious objector self-identify as such.” Id; see also discussion of contraceptive mandate litigation, infra Part V.C.

167 See, e.g., Planned Parenthood Minn. v. Rounds, 653 F.3d 662 (8th Cir. 2011) opinion vacated in part on reh'g en banc sub nom; Planned Parenthood Minn. v. Rounds, 662 F.3d 1072 (8th Cir. 2011) and on reh'g en banc in part sub nom; Planned Parenthood Minnesota, N. Dakota, S. Dakota v. Rounds, 686 F.3d 889 (8th Cir. 2012) (upholding S.D.C.L. 34-23A-10, which requires physicians to provide women seeking abortions with a written statement informing them that “the abortion will terminate the life of a whole, separate, unique, living human being; [t]hat the pregnant woman has an existing relationship with that unborn human being and that the relationship enjoys protection under the United States Constitution and under the laws of South Dakota; [and] [t]hat by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated[.]”).

168 See Robbins, Lauren R., Open Your Mouth and Say ‘Ideology’: Physicians and the First Amendment, 12 U. Pa. J. Const. L. 155, 162 (2009)Google Scholar.

169 See Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985).

170 Id. at 651. Some commentators have interpreted Zauderer's requirement that the disclosure be factual as being linked to the requirement that a disclosure be a reasonable regulation of commercial activity. See Post, supra note 157, at 971 (arguing, with respect to abortion informed consent laws, “[i]f the disclosures required … are false, [the state] can have no legitimate interest in mandating them, and they are unconstitutional because irrational.”).

171 See Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor of Baltimore, 721 F.3d 265, 283 (4th Cir. 2013) (vacating district court's injunction of crisis pregnancy center disclosure law on the grounds that the district court erroneously discounted the argument that the speech mandate relates to commercial speech and should be subject to Zauderer review); A Woman's Friend Pregnancy Res. Clinic v. Harris, No. 2:15-CV-02122-KJM-AC, 2015 WL 9274116, at *26 (E.D. Cal. Dec. 21, 2015) (upholding requirement that crisis pregnancy centers disclose the existence of public family planning and abortion services, applying professional speech standards but holding that the disclosure law would likely survive even strict scrutiny for fully protected speech). In most of the crisis pregnancy center speech mandate cases, challengers have argued that the mandates should be evaluated under strict scrutiny because the centers are not “commercial” actors or engage in speech that is “informed by a religious and political belief[s].” Greater Baltimore Center v. Mayor of Baltimore, 683 F.3d 539, 554 (4th Cir. 2012), on reh'g en banc, 721 F.3d 264 (4th Cir. 2013); see also Evergreen Ass'n, Inc. v. City of New York, 801 F. Supp.2d 197, 205 (S.D.N.Y. 2011) (noting that “plaintiff's missions … are grounded in their opposition to abortion and emergency contraception”). However, some courts have held that even if intermediate or strict scrutiny applies, the speech mandates would be constitutional. See A Womans' Friend Pregnancy Res. Clinic, 2015 WL 9274116, at *24 (applying professional speech standards but holding that the disclosure law would likely survive even strict scrutiny). One court has applied strict scrutiny to overturn a crisis pregnancy center mandate on the grounds that that it “mandates discussion of controversial political topics” and “requires centers to mention controversial services that some pregnancy services centers … oppose” but this decision is anomalous and seems inconsistent with Supreme Court jurisprudence. See Sawicki, supra note 160, at 35 (citing Evergreen Ass'n, Inc. v. City of New York, 740 F.3d 233 (2d Cir. 2014), cert. denied sub nom. Evergreen Ass'n, Inc. v. City of N.Y., N.Y., 135 S. Ct. 435 (2014), and Pregnancy Care Ctr. of N.Y. v. City of New York, 135 S. Ct. 435 (2014).

172 See, e.g, Cavanaugh, supra note 2, at 198-200 (contrasting referral with mere disclosure of information, and further noting that referral is “endors[ement]” of an objectionable treatment); Tully, supra note 2, at 494-97 (discussing the complicity problems with “full-disclose-and-referral” requirements).

173 See Tully, supra note 2, at 502-03 (explaining why complicity doctrine would not bar mere disclosure of morally impermissible options); see also Lustig, Andrew, Conscience, Professionalism, and Pluralism, 18 Christian Bioethics 72, at 87-88 (2012)CrossRef Google Scholar (arguing for public disclosure by pharmacists of their refusal to offer contraceptives: “Lest one argue that such a ‘publicity’ requirement unduly burdens the dissenting professional, the analogy to conscientious objection in the context of military conscription seems helpful as applied here. As we have seen, rights of conscience are not to be confused with claims of immunity to the negative consequences that may flow from the exercise of such rights; as we have seen, “conscience without consequences” seems a notion peculiarly at odds with the stringency of the claim being made. Thus, if the requirement of publicity in fact leads to adverse economic consequences for the dissenting pharmacist, these may be viewed as the necessary costs of conscientious action.”).

174 USCCB Directives, supra note 31, at 20.

175 Commenting on the Tamesha Means case, John Haas, president of the National Catholic Bioethics Center, suggested that Mercy Health Partners may have erred in interpreting Directive 27 too narrowly. Haas explained that under the doctrine of double effect and Directive 47, treatment that will cure a pregnant woman's “serious pathological condition” is morally permissible even if it results in the death of the fetus. While the USCCB is responsible for issuing ethical guidelines, Hass emphasized, individual physicians and hospitals are responsible for interpreting and implementing those guidelines correctly; the USCCB, he argued, should not be held responsible for an individual actor's failure to follow its guidance. Julie Asher, Ethicist Sees Informed Consent at Issue in ACLU Suit, Not Directives, Nat'l Cath. Rep. (Dec. 9, 2013), http://ncronline.org/news/people/ethicist-sees-informed-consent-issue-aclu-suit-not-directives [https://perma.cc/2Y3A-9ZTL].

176 Ron Hamel, Early Pregnancy Complications and the Ethical and Religious Directives, May-June 2014 Health Progress 48, at 50-51; see also Michael R. Panicola & Ronald P. Hamel, Conscience, Cooperation, and Full Disclosure: Can Catholic Healthcare Providers Disclose “Prohibited Options” to Patients Following Genetic Testing?, Jan-Feb 2006 Health Progress 52 (arguing that under Catholic doctrine, “good moral reasons exist for providing patients with all factually relevant information, including that related to prohibited options”).

177 Hamel, supra note 176, at 50.

178 Tully, supra note 2, at 502.

179 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

180 Wheaton College v. Burwell, 134 S. Ct. 2806, 2807 (2014).

181 Id. at 2814; see also Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Sebelius, 134 S. Ct. 1022, 1022 (2014) (granting injunction, and holding that “applicants need not use the form prescribed by the Government and need not send copies to third-party administrators”).

182 Interim Final Rules Regarding Coverage of Certain Preventative Services, 79 Fed. Reg. 51092 (proposed Aug. 27, 2014) (to be codified at 26 C.F.R. pt. 54; 29 C.F.R. pt. 2510, 2590 and 45 C.F.R. pt.147).

183 Id.

184 While relevant only from a legal perspective, rather than an ethical perspective, it is worth noting that courts evaluating complicity-based challenges to the HHS Interim Final Rule's self-certification requirement have uniformly rejected them (often also rejecting challenges to the EBSA Form 700), typically concluding that it is federal law, rather than the self-certification, that “triggers” contraceptive coverage. Wheaton Coll. v. Burwell, No. 14-2396, 2015 WL 3988356 (7th Cir. July 1, 2015); E. Texas Baptist Univ. v. Burwell, No. 14-10241, 2015 WL 3852811 (5th Cir. June 22, 2015); Univ. of Notre Dame v. Burwell, 786 F.3d 606 (7th Cir. 2015); Geneva Coll. v. Sec'y U.S. Dep't of Health & Human Servs., 778 F.3d 422 (3d Cir. 2015); Michigan Catholic Conference & Catholic Family Servs. v. Burwell, 755 F.3d 372, 387 (6th Cir. 2014) cert. granted, judgment vacated sub nom. Michigan Catholic Conference v. Burwell, 135 S. Ct. 1914 (2015); Priests for Life v. U.S. Dep't of Health and Human Services, 772 F.3d 229 (D.C. App. 2014). Many of these cases are now on appeal to the United States Supreme Court, consolidated as Zubik v. Burwell. Geneva Coll. v. Sec'y U.S. Dep't of Health & Human Servs., 778 F.3d 422 (3d Cir. 2015), cert. granted, sub nom. Zubik v. Burwell, 83 U.S.L.W. 3894 (U.S. Nov. 6, 2015) (No. 14-1418).

185 See, e.g., The Little Sisters of the Poor's Brief on the Interim Final Regulation at 1, Little Sisters of the Poor Home for the Aged v. Burwell, (No. 1:13-cv-02611-WJM-BNB), 2014 WL 4489994, at *1 (10th Cir. Sept. 8, 2014) (“Thus the government seeks to coerce the Little Sisters to participate by giving information about its plan and plan administrators, which the government uses to offer those entities incentives to take action contrary to the terms of the plan and religious beliefs of the Little Sisters.”).

186 Id. at 2 n.2.

187 See Whiteside v. Lukson, 947 P.2d 1263, 1265 (Wash. Ct. App. 1997) (expressing concern that broadening the informed consent duty would require disclosure of “the physician's own health, financial situation, even medical school grades[.]”)

188 See supra notes 78-79 and accompanying text.

189 Curlin et al., supra note 23, at 595. However, it is not clear from this study whether the physicians' willingness to discuss their own religious beliefs and objections is contingent on a patient's request, or whether physicians are willing to affirmatively initiate the conversation.

190 Keonig, Harold G. et al., Physician Perspectives on the Role of Religion in the Physician-Older Patient Relationship, 28 J. Fam. Prac. 441, 443 (1989)Google Scholar; see also Christian Medical and Dental Association, Ethics Statement: Sharing Faith in Practice 88 (1997) (noting that members “should be prepared to share [their] faith with patients and colleagues” when prompted, and states that where providers “choose to make their faith manifest through their statements, attire, or their office environment,” these indicators “are not inherently disrespectful of patients and have the beneficial effect of making them aware of their doctor's perspective”); Olive, Kenneth E., Physician Religious Beliefs and the Physician-Patient Relationship: A Study of Devout Physicians, 88 South Med. J. 1249, 1252 (1995)CrossRef Google Scholar PubMed (finding that 32% of devout physicians-those “having religious or spiritual beliefs that are an important part of one's life”-report sharing their beliefs with patients).

191 Keonig et al. supra note 190, at 443.

192 Curlin, Farr A. et al., The Association of Physicians' Religious Characteristics with their Attitudes and Self-Reported Behaviors Regarding Religion and Spirituality in the Clinical Encounter, 44 Med. Care 446, 446 (2006)CrossRef Google Scholar PubMed (conducting a cross-sectional survey of 2000 U.S. physicians from all specialties, finding that 43% believe it is appropriate for a physician to discuss his own religious beliefs or experiences when a patient asks, and an additional 43% believe it may be appropriate in other contexts as well).

193 Id. at 449. However, not all studies reach the same conclusion. One study of OB/GYNs found that more physicians favored non-disclosure of religious objections in some scenarios. The study in question presented physicians with a vignette in which a patient who was 8 weeks pregnant sought an abortion, her physician denied her request for reasons of conscientious objection, and either disclosed or did not disclose his objection. 33% of respondents favored the doctor who disclosed, while 54% favored the doctor who did not disclose. The study's authors speculate that the reasons for this preference might be because OB/GYNs believe they lack “the authority or the expertise to properly explain their objections to patients,” or perhaps because the respondents support anticipatory disclosure rather than waiting to disclose until a patient actively seeks an objectionable procedure. Rasinski, Kenneth A. et al., Obstetrician-Gynaecologists' Opinions about Conscientious Refusal of a Request for Abortion: Results from a National Vignette Experiment, 37 J. Med. Ethics 711 (2011)CrossRef Google Scholar PubMed (using a random sample of 1800 U.S OB/GYNs).

194 See, e.g., Holly Fernandez Lynch, The Value of Doctor-Patient Morals Matching, in Conflicts of Conscience in Healthcare: An Institutional Compromise 87, 87-98 (2008) (commenting on doctor-patient matching); Curlin, Farr A., A Case for Studying the Relationship Between Religion and the Practice of Medicine, 83 Acad. Med. 1118 (2008)CrossRef Google Scholar PubMed (advocating for increased dialogue between patients and physicians to clarify expectations and facilitate values-based matching); see also Robert E. Moffit et al., Patients' Freedom of Conscience: The Case for Values-Driven Health Plans, Heritage Foundation (2006), http://www.heritage.org/research/reports/2006/05/patients-freedom-of-conscience-the-case-for-values-driven-health-plans [https://perma.cc/3BXR-Y5WD] (arguing that patients should have “the freedom to choose health plans and physician networks that respect and support their ethical, moral, and religious values”). While these proposals tend to focus primarily on the religious and conscientious needs of patients, rather than those of providers, they serve the needs of both parties equally well.

195 See generally Siegel & NeJaime, supra note 32 (arguing that accommodation of complicity-based conscience claims in medical practice and beyond amplifies the dignitary harms suffered by the citizens whose behavior objectors condemn).

196 Id. at 2576.

197 Id.

198 Though note the possible constitutional objections to a scripted disclosure, as explained in Part V.B.

199 But see Tully, supra note 2, at 502, 504 (suggesting that physicians not only disclose their religious objections to certain treatments, “but also explain the nature of these moral objections and why physicians neither perform these procedures nor offer referrals for them” in an effort to “persuade” patients).

200 See generally Antommaria, supra note 2, at 92-93 (discussing prospective notice requirements).

201 See Tully, supra note 2, at 501-02 (describing one physician's waiting room disclosure notice, but criticizing this approach as “impersonal” and noting that it “miss[es] the opportunity for the physician and patient to engage in a dialogue about the moral dimensions of the treatments in question”).

202 How this disclosure is made would be a matter of great importance. For example, it is unlikely that patients would be truly informed if the disclosure were buried in a three-page long consent document. See generally Ben-Shahar and Schneider, supra note 77.

203 See supra Part IV.B. for an outline of the elements of a common law informed consent action.

Article contents

Mandating Disclosure of Conscience-Based Limitations on Medical Practice

Abstract

Access options

References

Save article to Kindle

Save article to Dropbox

Save article to Google Drive

Reply to: Submit a response

Your details

You have entered the maximum number of contributors

Conflicting interests