Mr. Bush, Mr. Obama, and the Amish Bus Driver

Posted on March 16, 2009
Filed Under General Rationing Issues, Medical ethics |

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The Obama administration announced in late February that it is rescinding a new policy, quietly enacted by President Bush on his last day in office, which offers “protection from discrimination” to healthcare workers who decline to participate in healthcare services they find to be objectionable on religious or moral grounds.

According to most authorities, for decades now federal law has protected doctors and nurses who decline to provide abortion services as a matter of conscience, so to DrRich it is not clear why Mr. Bush felt compelled to issue this new “conscience rule” in the first place.  In reading between the lines of some news reports,  the new policy was probably instigated by pro-life organizations like the Family Research Council, which (DrRich surmises) wanted the outgoing president to put on one more layer of protection before the barbarians breached the gate.

Well, boys, your gambit has backfired.

President Obama might have chosen to merely rescind Mr. Bush’s new conscience rule, and could have done so before most people had even heard about it, thus simply putting things back to where they had been for the past 30 years (that is, where healthcare workers were federally protected in matters of conscience). Then we could have just said no harm, no foul, and gone about our business. But that is not what he has done. Instead, the president has formally invited debate, specifically, he initiated a 30-day “comment period” on what the government’s position should be on the matter of healthcare workers’ individual consciences. Rather than restoring the status quo, he apparently intends to issue another policy that “clarifies” the matter once and for all.

And as a result, both sides of our ongoing political discourse, left and right, have now taken up the debate. And consequently, it seems to DrRich, the argument is no longer merely about whether healthcare workers, in matters of individual conscience, ought to have extra-special, Bush-style protections, or merely revert to the standard, federal protections they have enjoyed for decades.

Rather, the issue now seems to have become whether, really, healthcare workers ought to be permitted to invoke their religious or moral convictions at all when it comes to providing legal healthcare services.

So thanks a lot, Mr. Bush, for opening up this hornet’s nest on your very last day in office. To most of us in the Lands of Hinter, things seemed, really, pretty OK the way they were. But now look what you’ve provoked.

Mr. Bush has violated one of DrRich’s great principles of leading a life of deliberative quietude: Don’t pick at scabs; don’t talk about your feelings; and don’t try to clarify a serviceable policy that is allowing you to pass safely over the thin layer of ice covering some highly divisive issue.  You’d think that after eight years in office he’d know better.

The issue as it now seems to be framed poses a major problem for conservatives who do not believe that medical professionals should be compelled to violate their moral convictions regarding the performance of certain life-ending procedures such as abortion, assisted suicide or euthanasia.  The problem, as the question is now framed, is that the liberals have established certain strong premises which have the appearance of rendering their argument logically unassailable. Indeed, it has become very difficult to counter their argument without seeming (or being) entirely unreasonable.

As Rachel Maddow has slyly put the question, it’s the old matter of the Amish bus driver. If you’re Amish, and have religious or moral convictions against internal combustion engines, then you have disqualified yourself from employment as a bus driver. (Presumably this same logic would also disqualify Al Gore.) So, it appears, the left (now that the right has gratuitously stirred up the issue in the first place), asserts that the same rule ought to apply to medical professionals.

To spell it out: Once you agree, as a licensed medical professional (that is, as the holder of a privileged and restricted position within society), to accept payment from the government or from government-regulated insurance companies to provide approved medical services, then you are naturally obligated to provide any legitimate medical services that lie within the purview of your job. Specifically, if necessary in order to conduct the job you have agreed to do, you are obligated to check your personal  - and most especially, your religious - convictions at the door.  If you are unwilling to carry out this obligation, then, like the Amish bus driver, you should simply be disqualified from that privileged position. This logic is eminently simple.

In fact, it can be reduced to an elementary syllogism:

Premise 1. Society awards physicians exclusive contracts to provide legitimate medical services.

Premise 2. Society deems abortion (and perhaps assisted suicide and euthanasia) to be legitimate medical services.

Conclusion: Therefore, contracted physicians are obligated to provide abortion (and perhaps assisted suicide and euthanasia).

Many conservatives are nearly apoplectic over the idea that doctors who are morally opposed to life-ending medical services must either agree to provide those services or get out. But conservatives, proud of their self-described tradition of acting on the basis of hard data and cold logic (unlike those silly liberals who let simple emotions guide them), find themselves in this instance stymied by the very foundation of logic - the syllogism. They are hoisted on their own petard.

Indeed, doctors who object to life-ending medical services find themselves in quite a fix, and what’s more, as we will see, it is a fix that has resulted from the actions of their own profession.

When we are faced with a syllogism whose internal logic is unassailable, but whose conclusion we strongly believe to be wrong, then Aristotle teaches us to check our premises. But when we do so we quickly see that, while both premises may “feel” wrong to many physicians, in 2009 they are indeed correct.

Premise 1 asserts that the physicians’ primary obligations are defined by a contract between themselves and society - or (let’s be frank) the state.

Until just a few years ago doctors could have legitimately objected to this assertion, since from the time of the ancient Greeks the physician’s prime obligation was defined by a direct covenant between themselves and the individual patient. And the precepts of medical ethics that governed the behavior of physicians were focused entirely on sanctifying that doctor-patient relationship. Those ethical precepts took precedence over everything else, like ethical precepts are meant to do, and at least in principle superceded all other authority down through the ages.

But alas, modern doctors don’t hold to such things anymore. And in recent years they have made their departure from their ancient ethical principles, and from the traditional doctor-patient relationship, fully explicit.  They have done this to such an extent that they can no longer even aspire to the relatively minor sin of hypocrisy.  (Say what you will about hypocrites.  At least they espouse firm principles which, being human, they can violate.)

It is clear, of course, that doctors do not work for their patients anymore. Instead, they now work for the government and the government-regulated insurance companies. Still, this new kind of working relationship does not necessarily have to wreck medical ethics or the doctor-patient relationship, were it managed thoughtfully. (DrRich describes how this could be accomplished in his book.) But rather than figure out how to preserve their professional obligations within a new economic paradigm, the medical profession instead has chosen to issue a revised set of ethical precepts “for a new millennium,” aimed at adjusting what were supposed to have been (and had been, for the prior two millennia) timeless principles, in order to comport with the changing needs of society.  And so, of its own accord, the medical profession has abandoned its foundational ethical precepts, and thereby has abandoned the classic doctor-patient relationship - the very thing which defined the practice of medicine to be a professional endeavor in the first place. The medical profession has redefined itself by a new obligation to the changeable needs of the collective, instead of its old obligation to the expectations of the individual patients who place their lives in their hands.

In short, the profession of medicine has formally and voluntarily converted itself into a primarily contractual enterprise (i.e., as contractors for the government and government proxies), instead of a primarily ethical enterprise between themselves and their patients.

And so, whereas Premise 1 could have been easily cast aside just a few years ago (which is why it still “feels” wrong to a lot of doctors), today it is entirely legitimate.

Premise 2 recognizes abortion to be a legitimate medical service. And while assisted suicide is currently legal in only a couple of states, within a few years it is likely to be legal in more than 20 states - that is, if this “service” has not been nationalized by then. And of course, modern utilitarian medical ethicists assure us that assisted suicide and euthanasia are ethically equivalent acts. So Premise 2, being somewhat forward looking, includes all three life-ending actions which will very likely become legitimate, approved “medical services” in the foreseeable future.

The medical profession not too many decades ago was quite clear on the ethical status of life-ending actions taken by physicians. Such actions in all their forms were proscribed. The Hippocratic Oath forbids taking actions intended to end life, and specifically calls out abortion as one of those  forbidden actions. But the Hippocratic Oath (like, in some respects, the Declaration and the Constitution) has become merely quaint.

One of the reasons DrRich appreciated the Hippocratic Oath, when it was recited at his medical school graduation back in that different era, was that it so clearly reflected non-religious standards. Yes, it blustered on about Asclepius and Hygieia and so on, but even the ancient Greeks didn’t really take their gods seriously. The Oath invoked the gods in the same manner in which our founders invoked the Creator in the Declaration of Independence. As DrRich understands the founders (most of whom did not seem particularly devout to him, and in fact seemed particularly non-religious), they were not really asserting that our foundational principles come directly from a being named God (though they were fine with the notion that it would be interpreted that way). Rather they were saying, “We hold these principles to be so fundamental that to violate them would violate our very reason to exist. They are our bedrock, and to challenge them would be fatal to our enterprise. Here we draw our line in the sand, and we will defend this line to our deaths.”

The Hippocratic Oath was like that.

The invocation against physicians ending innocent life was a clear line in the sand, and its purpose was a practical one rather than a religious one. For, in order to legally take an innocent life we are required to say either that sometimes it is perfectly OK to kill an innocent human being, or that for some reason (because, for instance, at such-and-such a stage of fetal development the potential human is not yet viable) a particular innocent life is not really a human being after all. If it is sometimes perfectly OK to kill an innocent human being, our society is terminally corrupt. On the other hand, any definition of “human being” that society may provide (beyond the ultimate definition suggested by nature, that is, the point where sperm and the egg combine to form a new life entity), will necessarily be a fundamentally arbitrary definition. And once society undertakes to define human life arbitrarily, then there is nothing to stop society from changing that arbitrary definition as expediency requires.

Wise Hippocrates (DrRich suspects), foreseeing that mankind was likely to continue with its periodic spurts of genocidal indignation against this or that sub-human subset of our species, and seeing that it would be fatal to the medical profession to allow its special arts to be turned toward aiding such efforts, and realizing that it would be impossible, once physicians engaged in any small but legitimized taking of innocent life, to stop its escalation if the exigencies of a society under duress demanded it, came to the conclusion that the profession required an absolute proscription here. This proscription was not a religious statement, but a practical and entirely secular one, based on a long and thoughtful observation of human nature, and aimed at keeping the medical profession focused on its real mission (caring for individual patients) rather than becoming an instrument of societal or political imperatives. And for over two thousand years the medical profession followed this line of reasoning.

The Hippocratic Oath has not been read during medical school graduation ceremonies for decades now. The reason it was dropped has nothing to do with the usual claptrap you hear about not wanting to swear to Greek gods anymore. It has to do with the fact that doctors no longer subscribe to the content. It is no coincidence that the oath disappeared from the program in very short order during the 1970s, right after the Rowe v. Wade decision.  In any case, over the past few decades many physicians - possibly a majority - have quite gotten over their queasiness about taking actions to end innocent life. And the ones who still object to it, the Amish bus drivers of healthcare  - well, they’re the ones whose fate will be decided by Mr. Obama’s promised ruling.

So Premise 2 clearly expresses the actual default position of the medical profession today. While, for many physicians, it (like Premise 1) “feels” wrong, Premise 2 stands on its own merits.

Thus, like it or not, almost entirely due to the “evolution” of the profession of medicine itself rather than to any externally imposed changes, our  syllogism appears entirely correct.

The implications of this syllogism are quite disturbing, and go far beyond merely forcing pro-life doctors to either get with the program or get out. For what this syllogism really says is that society (or to be more specific, the state), will determine which medical actions are legitimate (or to be more specific, ethical), and that physicians being (through their own voluntary capitulation) mere contractors working at the pleasure of the state, are thus obligated to just shut up and sing. To say it more plainly, what is medically ethical is to be determined by the state, and doctors (except for the ones acting as collaborators and spokespersons for the state, whose job will be to make the ethical pronouncements seem medical in origin), will have nothing to say about it.

And when we view the history of mankind, we see that when the sovereign state is the entity which determines what is ethical, there is always hell to pay.

History teaches us that the state is sovereign not because it is inherently the most ethical entity within a social construct, or even an ethical entity in any sense.  Sovereignty is determined by power, not ethics. Indeed, the most useful definition of “sovereign power” is: that power which has the ultimate ability to impose its will by the exertion of force. The state is inherently a political and power-based entity, whose survival depends on manipulating the political landscape and the ability to threaten or exert adequate violence when required. Such a beast is inherently poor at ethics.

DrRich happens to believe that American society is essentially good, and constitutes the most ethical large and sustained social system that has yet been devised by mankind. Yet when pressed by economics, war, political strife, manifest destiny or a myriad of other stresses, even our government has behaved dismally and frankly unethically, and has done so on numerous occasions throughout its history. One merely needs to consider slavery, the Dred Scott decision, the Mexican-American war, the treatment of native Americans, World War II internment camps, and the Tuskegee study (DrRich ignores more recent history here to avoid stirring up still-fresh controversies) to get a taste of what kinds of government behavior we in our culture are capable of justifying to ourselves under duress. (To put this in perspective, of course, other highly-developed Western cultures during the past century, where powerful sovereign authorities assumed the right to define ethical actions, performed atrocities that cause ours to pale in comparison.)

As DrRich has been fond of pointing out on this blog, the need to find ways to ration American healthcare covertly has created extreme duress within our healthcare system, and within the government and the insurance companies responsible for administering it. And as a result covert rationing has already produced deeply and widely distributed behaviors that are harmful, inefficient, unfair and yes, frankly unethical, which affect even the smallest aspect of American healthcare.  Ceding to the state - desperate to ration healthcare in any manner it can get away with - the right to define what is medically ethical, and assigning to doctors the obligation of simply obeying, sounds to DrRich like a prescription for catastrophe.

So as we wait for Mr. Obama to promulgate his revised rule on the right of medical professionals to express their moral convictions regarding life-ending medical services, we should keep in mind the bigger question. Will the state continue to recognize and accommodate the moral convictions of individual healthcare workers, or will it assert its sovereign authority to become the final arbiter of what constitutes ethical medical activity, and insist that mere contractors simply follow its lead in every particular?

Mr. Obama’s decision will not define the final outcome, but it will say a lot about what kind of healthcare system he thinks we should have, and what kind of society he thinks we should become.

Comments

10 Responses to “Mr. Bush, Mr. Obama, and the Amish Bus Driver”

  1. Sandra Brown MD on March 16th, 2009 3:57 pm

    I don’t see the need to hide in Europe over this one.

    It puts me in mind of the Patriot Act. The ACLU was screaming about it immediately, when most of the populace was hunkering down. All the innocent people said, so what, they’re not going to wiretap me and I don’t have anything to hide if they do. Let the liberal whiners be the first in the stew pot if things get really bad.

    A relatively short 8 years later the Patriot Act is no more. Necessity became expediency became abuse.The populace said, get out of my computer/phone/house. The powerful American suspicion of government (our most useful national trait) reasserted itself.

    So there may be an aberrant period of grannie-killing but I don’t think it will last.

    Also, we are a much more actively religious country than any other western democracy. Thou Shalt Not Kill is not going the way of the Hippocratic Oath.

  2. NG on March 18th, 2009 1:58 pm

    I’m curious to know if Dr. Rich thinks that law enforcement officers should be/are free to only enforce the laws they believe are in harmony with their religious beliefs?

  3. David on March 18th, 2009 4:40 pm

    NG

    I would say no - officers are NOT allowed to only enforce laws they believe are in harmony with their religious beliefs. Indeed, that is a case in which the government should only hire people who are willing to enforce the law.

    If you believe physicians are employees of the state, then you might have a similar conclusion. I think, though, that the government should not provide medical care or pay physicians, and therefore, should not be telling them anything regarding their beliefs.

    Dr. Rich,

    I thought you would bring up Nazi Germany and physicians who worked in death camps. Certainly a physician’s refusal to work in such camps would be viewed as courageous today - and surely there are those who can see that the government is not always a good arbiter of what is moral.

  4. NG on March 18th, 2009 6:41 pm

    Dr.Rich,

    Maybe acceptance into the medical training schools should be contingent on following the professions acceptable options from the patient’s benefit perspective. This can especially be justified in any school receiving public funds to train these socially needed personnel. You want to voluntarily join the club, then follow the accepted rules.

  5. David on March 19th, 2009 4:02 pm

    NG,

    That’s right! Don’t want to experiment on Jews, I mean follow the rules, then don’t even think about becoming a physician!

  6. albatross on March 19th, 2009 4:50 pm

    I am looking forward to how this idea might be applied to executions (shouldn’t a physician administer the lethal injection?) and torture of suspected terrorist (surely a physician should be involved to avoid letting the poor b-stard die before the answers have been wrung out of him). And the related version that requires psychologists to help apply “cures” for homosexuality to people who want them.

  7. NG on March 20th, 2009 6:55 am

    Look Dr. Rich,

    Don’t try to make physicians the only savior of society. If a society is way off, then it is way off, and no profession or endavor will likely seem “moral” in the eyes of some. Complete chaos with little meaningful benefit is also the likely result of every provider making up their own individual moral PROFESSIONAL code as to what to offer to patients. It is ass backward and you must know this!

  8. David on March 21st, 2009 11:22 am

    NG,

    I believe Dr Rich is ‘on the lam’ currently but will probably return to address your concerns soon.

    But I DO believe each individual is responsible for “making up” (or at least critically assessing and accepting/rejecting) a moral code, and physicians are no exception to this proscription.

    Yes, the United States, full of individuals making up their own mind about morality - what chaos it has created! Or, one of the most creative, productive, and dynamic countries ever created.

  9. Hal Dall, MD on March 25th, 2009 12:59 am

    I’m late to the party, but DrRich nails this, and NG inadvertently underscores the problem.

    I’m a practicing physician.
    Whose tool must I be?

    Do I take the dictates of the Patient? To do as I am told?
    Of the Insurance Company?
    Of the Government?

    Once I am no longer a professional, rather a technical hireling, I will end up obeying the one with the most money, the most power, and the strongest sanctions. The Government. After all, NG, it would “be justified … receiving public funds”, whether to train or be paid.

    As DrRich states, the Gov’t will “insist that mere contractors simply follow its lead in every particular?”

    NG, when I then “follow the accepted rules” set by Uncle, the patient will have no more choice than I do. I will be a ‘Medical Enforcement Officer’, the patient will get what has been determined from on high whether the person wants it or not. Be careful what you ask for.

    Alternately, let the patient be at liberty to seek the medical care desired, and the doctor at liberty to provide as conscience allows. I’m not needed for the patient to walk through the yellow pages.

    “Liberty means responsibility. That is why most men dread it.”
    George Bernard Shaw

    “Liberty is to the collective body, what health is to every individual body. Without health no pleasure can be tasted by man; without liberty, no happiness can be enjoyed by society.”
    Thomas Jefferson

  10. DrRich on March 25th, 2009 12:38 pm

    NG,

    In my absence both David and Dr. Dall have supplied very good answers to your comments - at least as good as anything I might have supplied. (I especially commend to you Dr. Dall’s comment from earlier today.)

    I will just add a few gratuitous remarks of my own to your three comments:

    1) “I’m curious to know if Dr. Rich thinks that law enforcement officers should be/are free to only enforce the laws they believe are in harmony with their religious beliefs?” No, I do not. The fundamental job of police officers is to project the violence, whenever needed, that establishes the sovereignty of the sovereign authority. Their essential obligation, therefore, is to the sovereign authority. I have argued that the essential obligation of the physician ought to be (and until recent times, was) to the best interest of their individual patients. Therefore, when physicians have to choose between loyalty to the state and loyalty to their patient, they ought generally (if not always) to choose their patient. My objection is to the notion that this choice now must always be for the state.

    2) “You want to voluntarily join the club, then follow the accepted rules.” Yes, I understand the argument of those who take the opposite position of mine. I do not find your restatement of that position here at all responsive to my well-reasoned argument, let alone persuasive.

    3) “Don’t try to make physicians the only savior of society.” Which post did you read? Not mine, surely. I don’t believe mine says anything about physicians being moral saviors. To the contrary, my post laments that physicians have formally abandoned their ethical principles altogether. Perhaps your misreading of my post is my fault, since I am frustratingly poor at times at expressing my ideas. On the other hand, perhaps your misreading of (arguably) a clear expression of thought is endemic to the left side of the political spectrum. I offer as evidence that the Huffington Post referenced my article as being supportive of the Amish bus driver hypothesis!

    Rich

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