Health Care Procedures
by Christopher Dodson,
Executive Director, North Dakota Catholic Conference
May 2004

Does a health care provider in North Dakota have a right to not perform a procedure that violates his or her religious or moral beliefs? Does a health care institution have to perform every type of procedure? The answers to these questions surprise many health care providers and puzzle most everyone else.

Enactment of legislation is rarely a simple matter. In many ways, it is like trying to hit a moving target. This is particularly true in North Dakota, where we tend to avoid general, far-reaching laws, and focus on only what is needed at the time. In the aftermath of Roe v. Wade the North Dakota legislature, passed legislation protecting the right of persons not to participate in abortions. At the time, many did not perceive that there would be other procedures in the future to which health care providers might have deep moral objections.

Legislation also consists of compromises. A bill will often include provisions that were not central to the bill’s purpose, but were included in the process. This happened when the legislature passed state’s laws on “living wills” and durable powers of attorney for health care. Recognizing that the law and public perception on end-of-life issues were changing, the legislature included in both laws the right of a health care provider to not engage in a procedure that resulted from a living will or came from an agent with a durable power of attorney for health care.

The result is a hodge-podge of laws that respect the conscience of a health care provider in some circumstances but not others. If the directive to the health care provider comes from a written living will, the provider can opt out. If the directive came from someone acting through a durable power of attorney for health care, the provider can opt out. However, if the very same directive came from the patient or a family member, the provider does not have the right. Unless, of course, the directive is for an abortion, in which case the provider always has the right to opt out.

If you find this confusing, you are probably not alone. Lack of consistency, rather than confusion, is probably the law’s greatest flaw. A person’s conscience deserves respect. If the state recognizes the need to protect the right of a person to engage in health care procedures that violate his or her conscience, it should do so in every situation. The ability to opt out should not depend on the origin of the directive. The source of the request is irrelevant.

An attempt to address this problem in 1997 led to another twist. The legislature did not embrace an effort to provide comprehensive health care conscience protection, but did separate and pass some protection for health care facilities. The new statute states that health care facilities cannot be compelled to provide through a government contact a procedure that violates the facility’s religious or moral policies.

Mounting another effort for comprehensive protection might be difficult. Efforts in other states to pass comprehensive health care conscience protection are facing up-hill battles. “Reproductive rights” proponents oppose any conscience protection for health care providers.
The legislative solution to the problem may rest with another legislative effort. The conscience rights of health care providers were not the only persons affected by this legislative process. The rights and obligations of patients, persons acting on behalf incapacitated patients, and other rights and obligations of health care providers also vary depending upon the circumstances.

An on-going effort to simplify the state’s advance directives laws and make them more “user-friendly” may solve all these problems at one time. The hope is to combine the currently separate – and inconsistent – statutes on advance directives and informed consent for incapacitated persons. A revision of the statutes could provide an opportunity to eliminate the inconsistencies and provide equal protection of the rights of everyone involved.