Human Exceptionalism

Life and dignity with Wesley J. Smith.

New Federal Rule Protects “Conscience” Rights Could Also Support Futile Care Theory


The Department of Health and Human Services will publish its Final Rule tomorrow protecting the rights of conscience for health care workers who refuse to perform medical acts with which they morally disagree. The rule specifically applies to abortion and sterilization. But it also has a general clause that, as I read it, could apply to medical futility. From the Rule:
2) (d) Entities to whom this paragraph (d) applies shall not:(1) Require any individual to perform or assist in the performance of any part of a health service program or research activity funded by the Department if such service or activity would be contrary to his religious beliefs or moral convictions.

(2) Discriminate in the employment, promotion, termination, or the extension of staff or other privileges to any physician or other health care personnel because he performed,assisted in the performance, refused to perform, or refused to assist in the performance of any lawful health service or research activity on the grounds that his performance or assistance in performance of such service or activity would be contrary to his religious beliefs or moral convictions, or because of the religious beliefs or moral convictions concerning such activity themselves.
I think this provision could easily be interpreted to protect doctors against who don't want to provide tube feeding for patients diagnosed as in PVS or who refuse wanted life-sustaining treatment based on their moral view that the quality of life of the patient isn't worth living and/or worth spending limited resources upon.

This is of some concern to me. However, the rules only apply if a physician, nurse, or other covered health care worker is discriminated against for their act of conscience. I don't expect medical futilitarians to ever face job discrimination since the care will be pulled with consent of hospital bioethics committees.

On the other hand, I think the rule could protect health care institutions from sanction for imposing futile care--so there may be a problem after all.

On the other, other hand, it will also protect doctors and health care facilities from having to participate in assisted suicide.

So overall, a good job. As a consequence, expect the new administration to work overtime to undo what has been done.


Sign up for free NRO e-mails today:

Subscribe to National Review