Physicians in Wisconsin: a moral power play?

In response to my post on the Wisconsin governor's promised veto of the new state "conscience clause" (see "An amoral vision of physicians," below), a Mirror of Justice reader emailed me to point out that the statute seems not simply to excuse physicians from actively participating in certain procedures, but also from providing information on certain procedures. The reader writes:

Should we allow doctors to refuse to provide information based on their moral beliefs? This might seem appropriate to us in the abortion context, but what happens when we get a doctor whose morals, unbeknownst to his patients, differ vastly from theirs on matters far less controversial than abortion? Under the law, (based on the description contained in the article) the doctor could refuse to provide information. Obviously, the appropriateness of this situation depends on the specifics, that is, whether the doctor has any duty to refer his patient to another doctor, whether the patient knew up front that the doctor refused to provide information on certain topics, whether the doctor's morals were disclosed at the outset, etc. My point is simply that in at least some circumstances, we're getting into dangerous territory when we allow doctors to refuse to provide medical information (or diagnoses) based on their moral beliefs. Thus, while I generally agree with your comments, I might take exception to that specific aspect of the law.

His email prompted me to track down a copy of the bill (AB 67 -- I'm not sure if this is the most recent version), and indeed it appears that my blanket endorsement of the statute may have been premature. One relevant section of the bill provides that "a hospital or employee of a hospital is immune from liability for any damage caused by a refusal to participate in [a range of activities, including abortion, sterilization, embryo research, fetal tissue transplants, withholding of nutrition/hydration, and euthanasia] if the refusal is based on religious or moral precepts." Significantly, "participate in" is defined very broadly: "to perform, assist in, recommend, counsel in favor of, make referrals for, prescribe, dispense, or administer drugs for, or otherwise promote, encourage, or aid."

The italicized language potentially excuses physicians even from providing information to a patient relating to a certain procedure and its applicability to the patient's circumstances. At a minimum, the statute does not appear to set forth (or preserve) any obligation to inform, as opposed to promote. If a woman's life is threatened by the continuation of her pregnancy, it should at least (in my view) be brought to her attention that abortion is an alternative, even if, for the physician, it is not an alternative in which he or she could participate in good conscience. Other parts of the statute state that a physician's moral or religious objection must be made in writing, which presumably gives the patient notice that the physician, as a general proposition, will not perform the procedure in question. But it is unlikely that a blanket notice will tell the patient much about abortion's potential relevance to the circumstances of her particular case.

Perhaps I'm misreading the statute. (If so, I'd welcome some enlightenment from a reader or co-blogger.) As I've indicated several times on this weblog, I am an unflagging supporter of allowing professionals to integrate their own moral and religious values with their provision of public goods. But I still believe that consumers must be empowered to make the ultimate decision about their own health care (or legal services, education, etc.) -- they just shouldn't be empowered to force a particular professional to facilitate it, especially when it embodies a morally objectionable vision of the good. But if Wisconsin means to allow physicians to avoid even making information about morally contested (but medically prudent) procedures available to the patient, the statute gives me pause. It's one thing to reinject a robust concept of moral agency into the physician's role; it's quite another to give the physician a statutory trump over the patient's own moral agency.

Rob