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Links to North Dakota lawsuits on Circumcision:
Flatt v. Kantak and Meritcare
Fishbeck v. State of North Dakota 1996

On this page:
Reconciling Patient Choice with Physician Conscience
Circumcision of Healthy Boys: Criminal Assault?
Caution Against Routine Circumcision of Newborn Male Infants
Letter to Governor Schafer

Reconciling Patient Choice with Physician Conscience
Casey Frank, JD
(Published in The Colorado Lawyer (November, 1997), 87

Selection from: Ascendant Patient Rights

The right of individuals to make their own medical decisions has been found in federal law for over a century.[47] The drift of these rulings has been an increasing recognition of patients' ability to refuse medical treatment, often as a constitutional liberty interest.[48] Laws protecting moral objections qualify the right of patient autonomy that has gradually emerged from the U.S. Supreme Court.

Rochin v. California affirmed the right to bodily integrity;[49] Skinner v. State of Oklahoma prohibited involuntary sterilization;[50] Griswold v. Connecticut protected contraception;[51] and Roe v. Wade expanded abortion rights, qualified by distinctions among trimesters.[52] The decision in Cruzan v. Director, Missouri Department of Health held that persons have a limited right to refuse treatment through a surrogate.[53]

Courts have often held that patients' rights are superior to conscientious objections. For example, in Brownfield v. Daniel Freeman Marina Hospital,[54] a patient wanted estrogen pregnancy prophylaxis (a "morning-after pill") from a Catholic hospital. The hospital refused to provide any information concerning this treatment. The court ruled that the patient's "right to control her treatment must prevail over respondent's moral and religious convictions." Although state law protected the right to refuse to perform an abortion, the court ruled that this did not apply because the treatment requested constituted pregnancy prevention rather than abortion. Failure to advise the patient as to her options exposed the hospital to medical malpractice damages. However, none were awarded because the plaintiff had sued only to enjoin the hospital's future behavior.

Similarly, in Matter of Patricia Dubreuil,[55] a patient refused blood transfusions following a Caesarean section, based on her religious convictions as a Jehovah's Witness. The hospital argued that abandonment of the patient's children would occur if the patient died. The court ruled there was insufficient proof of abandonment to overcome the strong right to free exercise of one's religion.

Even where courts have been reticent to compel a health care provider to take action contrary to a conscientious objection, the courts have upheld the patient's right to obtain such action elsewhere. Thus, in Gray by Gray v. Romeo,[56] there was consensus that a patient would never recover from a persistent vegetative state. The hospital objected to the termination of artificial feeding as requested by the patient's family. The hospital was ordered to terminate feeding or promptly transfer the patient to a compliant hospital.

Similarly, in Brophy v. New England Sinai Hospital, Inc.,[57] a wife requested the termination of artificial feeding for her husband, who was in a persistent vegetative state. The court would not order physicians to terminate treatment "contrary to their view of their ethical duty towards their patients," but ordered the transfer of the patient.[58]

In at least one case, a conscience-based objection was overridden because of a statutory mandate. In The Matter of Baby K,[59] a Virginia hospital was required, under various laws, to provide treatment to an anencephalic infant. The court appreciated "the dilemma facing physicians who are requested to provide treatment they consider morally and ethically inappropriate," but found no exception in the controlling statutes.[60]

The Brownfield, Dubreuil and Gray courts viewed moral objections with great deference to the needs of patients. The Matter of Baby K, although primarily a futility case, shows that a statutory mandate takes precedence over general moral objections. The Brophy court took a conciliatory approach that met the needs of both patient and physician. In these cases and others,[61] advance notice to patients and assistance in meeting their goals strengthen the health care provider's ability to successfully assert his or her own conscience-based rights.
47. Union Pac. R. Co. v. Botsford, 141 U.S. 250 (1891); but contrast Bowers v. Hardwick, 478 U.S. 186 (1986) (bodily-based rights limited since homosexual practice has no basis in the U.S. Constitution).
48. Cruzan, supra, note 2 at 262.
49. 342 U.S. 165 (1952).
50. 316 U.S. 535 (1942).
51. 381 U.S. 479 (1965).
52. Supra, note 35.
53. Supra, note 2 at 261.
54. 256 Cal.Rptr. 240, 242 (Cal.App. 1989).
55. 629 So.2d 819, 828 (Fla. 1993); accord Fosmire v. Nicoleau, 551 N.E.2d 77 (N.Y. 1990); but contrast State v. Perricone, 181 A.2d 751 (N.J. 1962) (parents guilty of neglect of their infant for refusing, on religious grounds, to grant permission for blood transfusions for the infant).
56. Supra, note 46 at 582-583, 586. See also Matter of Jobes, 529 A.2d 434, 437, 450 (N.J. 1987) (nursing home forced to remove jejunostomy feeding tube in spite of moral objections).
57. 497 N.E.2d 626, 628, 632, 638-39 (Mass. 1986).
58. Id. at 639 n.40.
59. Supra, note 33 at 1027.
60. 42 U.S.C.A. 1395dd; 29 U.S.C.A. 794; The ADA, 42 U.S.C.A. 12101, et seq.; see also The Health Care Decisions Act, Va. Code Ann. 54.1-2990.
61. See, e.g., Elbaum by Elbaum v. Grace Plaza of Great Neck Inc., 544 N.Y.S.2d 840, 847 (N.Y. App.Div. 1989) (law did not support objections to termination of feeding).


Journal of Law and Medicine

Volume 7 February 2000 Pages 301-310

Circumcision of Healthy Boys: Criminal Assault?

"TO: Catherine Ford [who wrote a book condemning FGM but thinks MGM is ok]:
Please take the time to read my legal article [link above]
. We are now beginning to see a floodtide of litigation against those who promote and participate in the genital mutilation of unconsenting defenceless children, irrespective of gender."

Gregory J. Boyle, PhD (Melb & Delaware)
Professor of Psychology
Bond University, Gold Coast
Queensland, Australia 4229

J Steven Svoboda BS (Hons), MA, JD (Hons) (Harv)
Executive Director, >Attorneys for the Rights of the Child, California
Christopher P Price MA (Oxon)
Solicitor, Supreme Court of England and Wales;
Hon Legal Adviser, >National Organisation of Restoring
(NORM), United Kingdom;
Board Member, Attorneys for the Rights of the Child
J Neville Turner LLB (Hons), BA*
Barrister and Solicitor (Victoria); Solicitor (England);
President, OzChild, Children Australia Inc


February 20, 2002.
TO: Members of the College [of Physicians and Surgeons of
FROM: Registrar

RE: Caution Against Routine Circumcision of Newborn Male Infants

The practice of medicine is increasingly becoming evidence based. There is a strong and growing consensus that medical intervention should be based upon sound evidence of expected benefit that outweighs the potential risk of any such intervention.

Where there is little evidence of expected benefit from a surgical procedure, but well recognized risk of surgical complications that may cause harm, it would generally be considered imprudent if not improper for a surgeon to perform such a surgical procedure.

Notwithstanding these fundamental principles, 27.6% of newborn males were circumcised in this province in 2000 2001, in spite of the fact that the Canadian Paediatric Society (CPS) has for two and a half decades explicitly cautioned against routine circumcision of newborn male infants.

Since August 1996, infant circumcision has not been a publicly insured service in Saskatchewan. The decision to de insure the service was based partly on the lack of valid medical indications for the procedure.

Even though citizens must now personally pay for this service, the incidence of routine male circumcision has dropped only moderately over the past five years.

The relatively high rate of newborn male circumcision in Saskatchewan stands in very sharp contrast to that in some other regions of the country. For example, in Nova Scotia the rate has dropped to 1.5%, while in Newfoundland/ Labrador it has dropped to 0.6%.

Such high infant circumcision rates in Saskatchewan in the face of an explicit caution from the CPS is of great concern to the College of Physicians and Surgeons, and ought to be a concern to all physicians who perform the procedure.

Is it possible that so many Saskatchewan physicians are totally unaware of the position of the CPS, and the research evidence that supports that position?

If physicians are unaware of the evidence against routine newborn circumcision, why do they continue to practice in a manner that ignores this evidence?

In my dialogue with Saskatchewan physicians about this issue, I've encountered many who claim to be "neutral in their opinion about routine circumcision, but perform the procedure strictly on the basis of parental preference.

On the surface, that approach might seem commendable as it seems sensitive and responsive to parental values. However, it begs the question as to whether the parents are appropriately informed about the benefits and risk of this procedure. Even more importantly, it begs the question as to whether physicians are providing accurate and adequate information to parents that is likely to yield a truly informed decision on their part.

Informed consent to any surgical procedure relies on an assumption that the decision maker possesses full and accurate information about both the benefits and risks of the procedure. The onus is cast upon the surgeon, who might perform the procedure to ensure that such information is not only conveyed to the decision maker, but is understood by the decision maker.

!t s difficult to identify any other domain of medicine in which physicians would feel comfortable playing such a passive role in a decision pathway culminating in surgery. It is also difficult to identify any other domain of medicine in which practice patterns stand in such stark contrast to research evidence.

When the Council of the College of Physicians and Surgeons reviewed this issue at its last meeting, it directed the Registrar to initiate an effective educational strategy to raise professional and public awareness of this issue. The first step in that strategy is this memo, which is directed to all members of the College who perform circumcisions, or are likely in a position to influence parental decision making on this issue.

These are my recommendations to you:

(1) First, be sure that you are fully and accurately informed about the research literature on this subject, which serves as the basis for the CPS position against routine circumcision of newborn male infants.

You can obtain a copy of the CPS Position Paper, and a succinct summary of the relevant research
evidence by logging on to the CPS website at >

If you are not able to access this information from the CPS website, please give Ms. Jo Anne Wolan a call at the College. We will be pleased to send you a written copy of the CPS position paper.

(2) In any dialogue you have with patients about potential circumcision of their newborn male infants, be sure that you accurately and effectively convey the message that this is not a recommended procedure.

(3) If parents remain adamant in their preference that circumcision be performed, notwithstanding their awareness of the research on the subject, remember that you are under no obligation to perform any surgical procedure for which there are not valid medical indications. You can, and should, respectfully decline to perform the procedure just as you respectfully decline to carry out other requested medical acts that you regard to be inappropriate.

(4) If the parental request for infant male circumcision is based exclusively upon religious beliefs and values, and you are inclined to act in deference to those religious beliefs and values, you would be prudent to require parental signature of a consent document which clearly stipulates that the circumcision in question is not medically indicated and is being performed in accordance with parental religious practices.

In such cases, physicians would be prudent to consult with and seek advice from the Canadian Medical Protective Association before proceeding.


February 21, 1996

Ed Schafer, Governor
State Capitol Building
Bismarck, North Dakota 58505

Dear Governor Schafer, The February 11 letter I wrote summarized my concern regarding the responsibilities of the Board of Medical Examiners as put forth by the North Dakota Century Code statement on unnecessary surgery. Perhaps you have already seen their reference to the issue of routine (and therefore unnecessary) infant circumcision in the Winter 1996 North Dakota Board of Medical Examiners newsletter (enclosed). The statement " . . . it is the conclusion of the Board of Medical Examiners that this issue would be best debated in the state legislature" misses the point; the State Legislature has already debated and determined the responsibilities of the Board. The NDCC expressly states the Commission on Medical Competency and the Board of Medical Examiners' responsibilities to the citizens of North Dakota include the following mandates which address the specifics of this issue. ND Century Code 43-17-31.

Grounds for disciplinary action. Disciplinary action may be imposed against a physician upon any of the following grounds:
6. The performance of any . . . unethical . . . conduct likely to deceive, defraud, or harm the public.
21. A continued pattern of inappropriate care as a physician, including unnecessary surgery.
22. The use of any false, fraudulent, or deceptive statement in any document connected with the practice of medicine.

The Board is instructed by State Law on disciplinary action for the performance of unnecessary surgery. What must be done to hold them accountable to the citizens of our state in their neglect of duties as put forth by North Dakota State Law?

Most Sincerely,

Jody McLaughlin



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