The Hippocratic Oath Meets the First Amendment

Elyas Bakhtiari, for HealthLeaders Media, August 21, 2008

When dealing with issues related to health, life, and death on a daily basis, it's almost impossible to avoid controversy. From abortion to assisted suicide, physicians are caught in the middle of plenty of heated moral debates.

The latest comes out of California and pits the First Amendment against anti-discrimination laws. The California Supreme Court ruled this week against physicians who refused to perform an intrauterine insemination on a lesbian because of her sexual orientation. The OB/GYN defendant claimed that her religious views prevented her from performing the procedure and argued that the First Amendment right to freedom of religion protected her from prosecution.

Not so, according to the court. The judges ruled that it was a civil rights issue, no different than if the physician had refused to treat a patient because of race or ethnicity.

Physicians have come down on both sides of the issue. While many applaud the ruling because it reinforces the notion from the Hippocratic Oath that doctors should focus on the good of the patient, some have expressed concern about government entities telling them who and what to treat.

This case was fairly clear cut—California law includes sexual orientation in its civil rights protections. But there is a lot of gray area at the intersection of religion and medicine. What if a physician refuses to provide emergency contraceptives because of religious beliefs? What if a doctor objects to the use of stem cells? At issue is the proper balance between a physician's individual liberty and his or her obligation to a patient (particularly when receiving government funds).

Scholars and lawmakers have grappled with that balance for years, so providing an answer right now is a bit above my pay grade. But let's shrink the scope a little and consider the dynamics of a medical group or hospital.

Leaders have to deal with similar problems of balancing individual autonomy and group accountability. Suppose you are partners with or employing a physician who refuses to perform certain procedures. Should your group give the physician the autonomy to make his or her own decisions or attempt to set a policy and intervene?

If an individual physician's decision affects overall business or leads to a damaging lawsuit, it becomes everyone's problem. In fact, the California case escalated not because of a single physician, but because the overall medical group refused to provide treatment and advised the patient to find another doctor outside the group. The court's most conservative justice said in a separate concurring opinion that an individual doctor could protect against liability by referring patients to other doctors in their practice who did not share their religious objections.

If the group had been prepared with a physician willing to treat the patient or had a policy for dealing with the issue, it might have never gone to court.

These topics are not easy to address, particularly in a close-knit practice. But they become a lot more difficult to deal with after your reputation has been tarnished or a lawsuit has been filed.

Elyas Bakhtiari is a managing editor with HealthLeaders Media. He can be reached at
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