A.) That depends upon the wording of the law. A statute can be drafted broadly so that it can be applied to any kind of medical procedure. On the other hand, it can be written to include a class of procedures (all those affecting life, for example). Finally, a law can also identify specific procedures to which it is to apply. The Website includes examples of different kinds of legislative drafting.
Q.) Why
the different approaches?
A.) Sometimes a law is drafted to respond
to a particular need or concern. For example: many American laws were drawn up in
direct response to the legalization of abortion by a U.S. Supreme Court ruling about
abortion. Hence, many of these laws concern only abortion.
Similarly, concerns with a certain class of procedures (cloning and in vitro
fertilization, euthanasia and assisted suicide) may generate a law that has narrower
application.
The broadest protection, extending to every kind of medical procedure, would likely
reflect a policy of protecting rights of conscience for all citizens, regardless of the
popularity of a particular opinion.
The approach taken may also be influenced by pragmatic judgement about the political
support likely to be available for the proposed law.
Q.) Why has this
become an issue now?
A.) It has actually been an issue
for many years. It was considered in the drafting of the abortion law in the United
Kingdom in 1968, for example. However, the problems faced by conscientious
objectors have not received much publicity, partly because of fear of employment
repercussions (see Repression of Conscience)
and partly because mainstream media have been uninterested.
The problem is of growing importance because of advancing reproductive technologies and
the lobbies for euthanasia and assisted suicide.
Q.) How do
reproductive technologies, euthanasia and assisted suicide make this more important?
A.) The reason usually advanced to
justify coerced participation in sterilization, contraception, or abortion is that the
health care worker's 'personal values' must give way to the choice made by the
patient. The same reasoning would justify coerced participation in various kinds of
reproductive technologies, in euthanasia and in assisted suicide.
Q.) Why has there
been little publicity?
A.) Partly because of fear of employment repercussions (see
Repression of Conscience) and partly because mainstream media have been uninterested, or
have failed to sustain an interest.
Q.) Do Protection
of Conscience Laws make procedures like abortion or sterilization illegal?
A.) No. PCLs prevent people from being forced to
participate in medical procedures, but they do not make them illegal.
Q.) But doesn't a
Protection of Conscience Law mean that the procedures are wrong?
A.) No. Many states provide
alternatives to active military service for conscientious objectors, but such
policies have never been understood to mean that military service is immoral.
Similarly, a Protection of Conscience Law need have no impact on the dominant moral
outlook concerning procedures to which some people object.
Q.) But doesn't a
Protection of Conscience Law mean that the procedures are wrong?
A.) No. Many states provide
alternatives to active military service for conscientious objectors, but such
policies have never been understood to mean that military service is immoral.
Similarly, a Protection of Conscience Law need have no impact on the dominant moral
outlook concerning procedures to which some people object.
Q.) Don't unions
and professional associations protect
their members already?
A.) Unfortunately, their record in this
respect indicates that they are unreliable. (See Repression of Conscience). Moreover, many
people are not members of unions or professional associations.
Q.) Well, maybe
there was nothing in their collective agreements about this. Couldn't unions bargain
for a conscience clause?
A.) Yes. But, in the first
place, many workers are not protected by collective agreements. More
important, freedom of conscience is not merely an employee benefit. It should
be considered an employee right, protected by legislation, lest unions actually bargain it
away in exchange for more vacation pay, for example, or higher overtime rates.
Q.) Our
courts are already clogged. Won't PCLs cause more court cases?
A.) They could result in some prosecutions at first. But they should prevent
litigation and prosecution by discouraging coercive conduct. If problems arise, they
are more likely to be settled without going to court if people can refer to a
single law. And there should be fewer problems as time goes on and people learn
their limits.
Q.)
Aren't PCLs a risk to health because they could interfere with access to some
procedures?
A.) This could only occur if the procedures in question were
of such a questionable nature that large numbers of health care workers refused to
participate. In that case, it would be appropriate to re-examine the nature of the
procedure. A re-examination might suggest, for example, that the procedure should be
done only by medical specialists, or only in certain facilities.
In fact, it is extremely unlikely that large numbers of health care workers would refuse
to participate in morally non-controversial procedures that are actually beneficial
for the patient.
Q.) But
what about access in rural areas? If the only doctor or nurse in town won't do a
procedure, what then?
A.) There are many medical services
that cannot, for economic reasons, be routinely provided in rural areas, and even in
small towns or cities. Such difficulties are usually resolved by visiting
specialists or by sending the patient for treatment at a central location.
What is done for reasons of economy could also be done for reasons of conscience - if
conscience is valued as highly as economics.
Q.) What if
an administrator's conscientious judgement about what medical services are needed leads
him to discriminate against an applicant for employment who is unwilling to participate in
certain procedures? Will PCLs punish the administrator for following his
conscience, and protect the applicant for following his? If so, why?
A.) This kind of conflict can be
prevented or resolved by identifying, in advance, the performance of certain
procedures as a bona fide requirement of a position to be filled. PCLs can be
drafted to allow for such eventualities; the Website Model Statute
illustrates one way of doing this.