Rob Stein at the Washington Post has been publishing a series of articles over the past few years about conflicts between the treatment rights of patients and the conscience rights of health care providers. Many states have expanded conscience protection over the past few years.
Yesterday, Rob reported that the federal government may be backing providers. DHHS is reviewing "a draft regulation that would deny funding to any facility that does not accommodate employees who want to opt out of participating in care that runs counter to their personal convictions." While the motivation and intended impact of the regulation concerns abortion, such a regulation would probably have significant impact on futility disputes.
In some situations, when a provider objects, an alternate provider will take her place. But what happens when no alternate provider is available? It seems that, here, a similar problem obtains in both the abortion and the futility context: the de facto removal of the patient's treatment choice. The patient cannot get an abortion or cannot get life-sustaining medical treatment. But under the proposed regulation that result would not be due to any government coercion. The lack of treatment's availability would be due solely to the market, a distortion in which the government has no obligation to redress. Harris v. McRae (1980) .