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Protection of Conscience Project

www.consciencelaws.org

Service, not Servitude
Periodicals & Papers

2013

Benson IT.  The attack on Western religions by Western law: Re-framing pluralism, liberalism and diversity. International Journal for Religious Freedom, Volume 6, Issue 1/2, 2013.

  • Abstract:  This paper discusses how law is increasingly being used to attack religious associations under the guise of "equality" advancement and "non-discrimination" restrictions. I explore two important insights: first that the concept of "transformation" has been distorted, to shelter approaches to law that fail to respect properly associational diversity. When misused, "transformation" seeks to change the moral viewpoints or religious beliefs of religious associations by force of law. Second, the paper discusses the expansion of law so that it becomes a threat to associations. The "goods of religion" and the "limits of law" need to be more widely recognized and understood both by religious communities and by those involved in law, politics and the media. These insights demonstrate how "equality activists" employ a rhetoric of "equality" to produce inequality, "diversity" to produce homogeneity and "non-discrimination" to discriminate against religious communities and religious beliefs. Several solutions for identifying these errors and resisting them are outlined in brief.[

Berer M.  Termination of pregnancy as emergency obstetric care: the interpretation of Catholic health policy and the consequences for pregnant women.  An analysis of the death of Savita Halappanavar in Ireland and similar cases.  Reproductive Health Matters 2013;21(41):9–17

  • Abstract: Issues arising from the death of Savita Halappanavar in Ireland in October 2012 include the question of whether it is unethical to refuse to terminate a non-viable pregnancy when the woman's life may be at risk. In Catholic maternity services, this decision intersects with health professionals' interpretation of Catholic health policy on treatment of miscarriage as well as the law on abortion. This paper explores how these issues came together around Savita's death and the consequences for pregnant women and maternity services worldwide. It discusses cases not only in Ireland but also the Americas. Many of the events presented are recent, and most of the sources are media and individual reports. However, there is a very worrying common thread across countries and continents. If further research unearths more cases like Savita's, any Catholic health professionals and/or hospitals refusing to terminate a pregnancy as emergency obstetric care should be stripped of their right to provide maternity
    services. In some countries these are the main or only existing maternity services. Even so, governments should refuse to fund these services, and either replace them with non-religious services or require that non-religious staff are available at all times specifically to take charge of such cases to prevent unnecessary deaths. At issue is whether a woman's life comes first or not at all.

Deans Z. Conscientious objections in pharmacy practice in Great Britain. Bioethics. 2013 Jan;27(1): 48-57. doi: 10.1111/j.1467-8519.2011.01918.x. Epub 2011 Jul 29. PubMed PMID: 21797914.

  • Abstract: Pharmacists who refuse to provide certain services or treatment for reasons of conscience have been criticized for failing to fulfil their professional obligations. Currently, individual pharmacists in Great Britain can withhold services or treatment for moral or religious reasons, provided they refer the patient to an alternative source. The most high-profile cases have concerned the refusal to supply emergency hormonal contraception, which will serve as an example in this article.

I propose that the pharmacy profession's policy on conscientious objections should be altered slightly. Building on the work of Brock and Wicclair, I argue that conscientious refusals should be acceptable provided that the patient is informed of the service, the patient is redirected to an alternative source, the refusal does not cause an unreasonable burden to the patient, and the reasons for the refusal are based on the core values of the profession. Finally, I argue that a principled categorical refusal by an individual pharmacist is not morally permissible. I claim that, contrary to current practice, a pharmacist cannot legitimately claim universal exemption from providing a standard service, even if that service is available elsewhere.

Ericson-Lidman E, Norberg A, Persson B, Strandberg G. Healthcare personnel's experiences of situations in municipal elderly care that generate troubled conscience. Scand J Caring Sci. 2013 Jun;27(2):215-23. doi: 10.1111/j.1471-6712.2012.01017.x. Epub 2012 May 22. PubMed PMID: 22612532.

  • Healthcare personnel may perceive troubled conscience when feeling inadequate and powerless. It is important to further explore healthcare personnel's descriptions of situations in daily work, which generate troubled conscience to increase the awareness of such situations. This study aimed to describe health care personnel's experiences of situations in municipal elderly care that generate troubled conscience. In this qualitative study, interviews were conducted with Registered and Enrolled nurses and nursing assistants (n = 20) working in municipal elderly care. . .

Fitzgerald C.  A Neglected Aspect of Conscience: Awareness of Implicit Attitudes. Bioethics. doi: 10.1111/bioe.12058

  • The conception of conscience that dominates discussions in bioethics focuses narrowly on private regulation of behaviour resulting from explicit attitudes. It neglects to mention implicit attitudes and the role of social feedback in becoming aware of one's implicit attitudes. But if conscience is a way of ensuring that a person's behaviour is in line with her moral values, it must be responsive to all aspects of the mind that influence behaviour. There is a wealth of recent psychological work demonstrating the influence of implicit attitudes on behaviour. A necessary part of having a well-functioning conscience must thus be awareness and regulation of one's implicit attitudes in addition to one's explicit attitudes; this cannot be done by an individual in isolation. On my revised conception of conscience, heeding social feedback, being emotionally self-aware and engaging in self-monitoring are important for the possession of a well-functioning conscience. Health professionals may need specific training to help them develop and maintain a well-functioning conscience, which should involve cultivation of awareness of implicit attitudes, emphasis on social feedback and techniques to enable better control over them.

Flynn C, Wilson RF. Institutional conscience and access to services: can we have both? Virtual Mentor. 2013 Mar 1;15(3):226-35. doi: 10.1001/virtualmentor.2013.15.3.pfor1-1303. PubMed PMID: 23472813.

  • It appears, at times, that health care and religion do not mix. Consider the sterilization and contraception coverage mandate under the Patient Protection and Affordable Care Act. The mandate requires nearly all employers and health insurers to cover as "essential health care services" certain sterilization procedures and contraceptives, including emergency contraceptives. Members of the Catholic, evangelical Christian, Mennonite, and Muslim faith communities say that the mandate places them "in the untenable position of having to choose between violating the law and violating their consciences." . . .

Fourie C.  Moral Distress and Moral Conflict in Clinical Ethics. Bioethics. doi: 10.1111/bioe.12064

  • Much research is currently being conducted on health care practitioners' experiences of moral distress, especially the experience of nurses. What moral distress is, however, is not always clearly delineated and there is some debate as to how it should be defined. This article aims to help to clarify moral distress. My methodology consists primarily of a conceptual analysis, with especial focus on Andrew Jameton's influential description of moral distress.

    I will identify and aim to resolve two sources of confusion about moral distress: (1) the compound nature of a narrow definition of distress which stipulates a particular cause, i.e. moral constraint, and (2) the distinction drawn between moral dilemma (or, more accurately, moral conflict) and moral distress, which implies that the two are mutually exclusive.

    In light of these concerns, I argue that the definition of moral distress should be revised so that moral constraint should not be a necessary condition of moral distress, and that moral conflict should be included as a potential cause of distress. Ultimately, I claim that moral distress should be understood as a specific psychological response to morally challenging situations such as those of moral constraint or moral conflict, or both.

Gallagher CT, Holton A, McDonald LJ, Gallagher PJ.  J. The fox and the grapes: an Anglo-Irish perspective on conscientious objection to the supply of emergency hormonal contraception without prescription.  Med. Ethics 30 January, 2013. doi:10.1136/medethics-2012-100975

  • Abstract:  Emergency hormonal contraception (EHC) has been available from pharmacies in the UK without prescription for 11 years. In the Republic of Ireland this service was made available in 2011. In both jurisdictions the respective regulators have included conscience clauses  which allow pharmacists to opt out of providing EHC on religious or moral grounds providing certain criteria are met. In effect, conscientious objectors must refer patients to other providers who are willing to supply these medicines. Inclusion of such clauses leads to a cycle of cognitive dissonance on behalf of both parties.

Objectors convince themselves of the existence of a moral difference between supply of EHC and referral to another supplier, while the regulators must feign satisfaction that a form of regulation lacking universality will not lead to adverse consequences in the long term. We contend that whichever of these two parties truly believes in that which they purport to must act to end this unsatisfactory status quo. Either the regulators must compel all pharmacists to dispense emergency contraception to all suitable patients who request it, or a pharmacist must refuse either to supply EHC or to refer the patient to an alternative supplier and challenge any subsequent sanctions imposed by their regulator.

Harris L. Recognizing conscience in abortion provision.  N Engl J Med 2012; 367:981-983

  • The exercise of conscience in health care is generally considered synonymous with refusal to participate in contested medical services, especially abortion. This depiction neglects the fact that the provision of abortion care is also conscience-based. The persistent failure to recognize abortion provision as “conscientious” has resulted in laws that do not protect caregivers who are compelled by conscience to provide abortion services, contributes to the ongoing stigmatization of abortion providers, and leaves theoretical and practical blind spots in bioethics with respect to positive claims of conscience — that is, conscience-based claims for offering care, rather than for refusing to provide it.

Heino  A, Gissler M, Apter D, Fiala C.  Conscientious objection and induced abortion in Europe.  The European Journal of Contraception and Reproductive Health Care, 2013; 18: 231–233

  • Abstract: The issue of conscientious objection (CO) arises in healthcare when doctors and nurses refuse to have any involvement in the provision of treatment of certain patients due to their religious or moral beliefs. Most commonly CO is invoked when it comes to induced abortion. Of the EU member states where induced abortion is legal, invoking CO is granted by law in 21 countries. The same applies to the non-EU countries Norway and Switzerland. CO is not legally granted in the EU member states Sweden, Finland, Bulgaria and the Czech Republic. The Icelandic legislation provides no right to CO either. European examples prove that the recommendation that CO should not prevent women from accessing services fails in a number of cases. CO puts women in an unequal position depending on their place of residence, socio-economic status and income. CO should not be presented as a question that relates only to health professionals and their rights. CO mainly concerns women as it has very real consequences for their reproductive health and rights. European countries should assess the laws governing CO and its effects on women ' s rights. CO should not be used as a subtle method for limiting the legal right to healthcare.

Ikoku AA.  Refusal in "Bartleby, the Scrivener": Narrative Ethics and Conscientious Objection. Virtual Mentor. March 2013, Volume 15, Number 3: 249-256.

  • Introduction: In 1853 Herman Melville published "Bartleby, the Scrivener," his now most well-known piece of short fiction, which over a century and a half later we can certainly read as an illuminating dramatization of conscientious objection [1]. There are, of course, important differences between Melville's approach to refusal and how we have come to discuss it in medical ethics. The story's setting, for instance, is not clinical; the central exchanges are between the head of a law office and an employee who politely but insistently refuses to carry out his understood duties.

Ikoku AA. Conscience, values, and justice in Savulescu. Virtual Mentor. 2013 Mar 1;15(3):208-12. doi: 10.1001/virtualmentor.2013.15.3.jdsc1-1303. PubMed PMID: 23472810.

  • Introduction: Savulescu's 2006 article in the British Medical Journal takes up perennially unfinished work on the nature and place of conscience, carried out against the background of contested laws shaped by states and their institutions as well as peoples and their professions. His writing on conscientious objection essentially returns to and intervenes in an extended conversation made possible by continued shifts in relations between individual citizens and loci of authority; shifts that characterized the mid-to-late decades of the twentieth century, when debates about war, civil rights, reproduction, and capital punishment made objection a vital mode of participation and engendered fields of practice and scholarship organized around the mission to decentralize decision making.

Kantymir L, McLeod C.  Justification for Conscience Exemptions in Health Care. Bioethics. doi: 10.1111/bioe.12055

  • Some bioethicists argue that conscientious objectors in health care should have to justify themselves, just as objectors in the military do. They should have to provide reasons that explain why they should be exempt from offering the services that they find offensive. There are two versions of this view in the literature, each giving different standards of justification. We show these views are each either too permissive (i.e. would result in problematic exemptions based on conscience) or too restrictive (i.e. would produce problematic denials of exemption). We then develop a middle ground position that we believe better combines respect for the conscience of healthcare professionals with concern for the duties that they owe to patients. Our claim, in short, is that insofar as objectors should have to justify themselves, they should have to do it according to the standard that we defend rather than according to the standards that others have developed.

Kato Y. Conscience in health care and the definitions of death. Croat Med J. 2013 Feb;54(1):75-7. PubMed PMID: 23444250; PubMed Central PMCID: PMC3583397. Free full text

  • Abstract: Brain death or neurologic death has gradually become recognized as human death over the past decades worldwide. Nevertheless, in Japan, the New York State, and the State of New Jersey, one can be exempt from death determination based on neurologic criteria even in the state of brain death. In Japan, the 1997 Act on Organ Transplantation legalized brain death determination exclusively when organs were to be procured from brain-dead patients. Even after the 2009 revision, the default definition of death continued to be cardio-pulmonary criteria, despite the criticism.

The cases of Japan and the United States provide a good reference as social experiments of appreciating conscientious or religio-cultural dimensions in health care. This text theoretically examines the 1997 Act on Organ Transplantation of Japan and its 2009 revision, presenting some characteristics of Japan's case compared to American cases and the implications its approach has for the rest of the world. This is an example in which a foreign idea that did not receive widespread support from Japanese citizens was transformed to fit the religio-cultural landscape.

Brain death (neurologic death) has gradually been recognized as human death over the past decades worldwide. Nevertheless, in Japan, the New York State, and the State of New Jersey, one can be exempt from death determination based on neurologic criteria even in the case of brain death. The New York State established the Guidelines for the Determination of Brain Death (1987, 1995, 2005) to accommodate religious or moral objections to brain death. The State of New Jersey also enacted the Declaration of Death Act (1991) to accommodate religious objections to brain death. All this resulted from the accommodation of religious and moral objections to neurologic criteria.

Hans-Martin Sass argued for "a formula for a global Uniform Determination of Death statute, based on the 'entire brain including brain stem' criteria as a default position, but allowing competent adults by means of advance directives to choose other criteria for determining death during the process of dying." These cases provide a good reference as social experiments in order to evaluate this formula.

In the text, the term "conscience" or its adjective form is chosen as a superordinate concept to moral/religious belief according to conventional usage. Conscience might appear universal whereas religio-cultural dimension differs among nations. In this text, conscience is considered to manifest itself within different societal traditions.

Kinghorn W. Conscience as clinical judgment: medical education and the virtue of prudence. Virtual Mentor. 2013 Mar 1;15(3):202-5. doi: 10.1001/virtualmentor.2013.15.3.medu1-1303. PubMed PMID: 23472808.

  • The degree to which "conscience" should guide physician practice has been frequently debated in recent years within medicine, bioethics, and health policy circles [1-3] and has found new life in the debate about various "conscience protection" rules issued by the G. W. Bush and Obama presidential administrations. In these debates, physician "conscience" has been invoked in the medical literature almost exclusively in cases in which physicians attempt to avoid or to decline participation in practices or procedures that they find morally objectionable, often because such practices violate the physician's religious or cultural practices. In this debate, "conscience" is therefore often associated with religious belief or, at least, with deeply held "values" of the physician in question. . .

Kissler MJ. An examination of conscience. Virtual Mentor. 2013 Mar 1;15(3):185-7. doi: 10.1001/virtualmentor.2013.15.3.fred1-1303. PubMed PMID: 23472804.

  • "There seems to be no rational way of securing moral agreement in our culture," mourns Alasdair MacIntyre in the second edition of After Virtue [1]. In place of a common dialogue, we find a fragmented morality made up of individual commitments - commitments whose incommensurability lends, he argues, to the "shrill tone of so much moral debate." MacIntyre continues, "The rival premises are such that we possess no rational way of weighing the claims of one as against the other." . . .

Kolers A.  Am I My Profession's Keeper? Bioethics. doi: 10.1111/bioe.12056

  • Conscientious refusal is distinguished by its peculiar attitude towards the obligations that the objector refuses: the objector accepts the authority of the institution in general, but claims a right of conscience to refuse some particular directive. An adequate ethics of conscientious objection will, then, require an account of the institutional obligations that the objector claims a right to refuse. Yet such an account must avoid two extremes: ‘anarchism,’ where obligations apply only insofar as they match individual conscience; and ‘totalitarianism,’ where even immoral obligations bind us. The challenge is to explain institutional obligations in such a way that an agent can be obligated to act against conscience, yet can object if the institution's orders go too far. Standard accounts of institutional obligations rely on individual autonomy, expressed through consent. This paper rejects the Consent model; a better understanding of institutional obligations emerges from reflecting on the intersecting goods produced by institutions and the intersecting autonomy of numerous distinct agents rather than only one. The paper defends 'Professionalism' as a grounding of professional obligations. The professional context can justify acting against conscience but more often that context partly shapes the professional conscience. Yet Professionalism avoids totalitarianism by distinguishing between (mere) injustice and abuse. When institutions are – or we conscientiously believe them to be – merely unjust, their directives still obligate us; when they are abusive, however, they do not. Finally, the paper applies these results to the problem of conscientious refusal in general and specifically to controversial reproduction cases.

Lamina MA. Health care providers' attitudes towards termination of pregnancy: A qualitative study in Western Nigeria.  Open Journal of Obstetrics and Gynecology, 2013, 3, 400-410 OJOG doi:10.4236/ojog.2013.34074 Published Online June 2013

  • Abstract: Background: Despite restrictive abortion law in Nigeria, women still seek abortion services. Restrictive policies on abortion make it difficult for safe and legal abortion to be obtained. Hence, abortion is provided on clandestine basis in some private health facilities, and where the cost of such service is prohibitory, women resort to unsafe methods, including visiting quacks and self medication, resulting in severe complications including death. In Nigeria, little is known about the personal and professional attitudes of individuals who are currently providing abortion services. Exploring the factors which determine health care providers' involvement in or disengagement from abortion services may facilitate improvement in the planning and provision of future services.

Methods: Data were collected using qualitative research methods. Thirty-six in-depth interviews and one focus group discussion were conducted between January 2010 and July 2010 with health care providers who were involved in a range of abortion services provision in the Western Nigeria. Data were analysed using a thematic analysis approach.

Results: Complex patterns of service delivery were prevalent throughout many of the health care facilities. Fragmented levels of service provision operated in order to accommodate health care providers' willingness to be involved in different aspects of abortion provision. Closely linked with this was the urgent need expressed by many providers for liberalization of abortion laws in Nigeria in order to create a supportive environment for both clients and providers. Almost all providers were concerned about the numerous difficulties women faced in seeking an abortion and their general quality of care. An overriding concern was poor pre and post abortion counselling including contraceptive counselling and provision.

Conclusion: This is the first known qualitative study undertaken in Nigeria exploring providers' attitudes towards abortion and it adds to the body of information addressing the barriers to safe abortion services. In order to provide an enabling environment and sustain a pool of abortion service providers, a drastic change in Nigerian abortion laws is mandatory, after which policies that both attract prospective abortion service providers and retain existing ones can be developed.

Marsh J. Conscientious Refusals and Reason-Giving. Bioethics. 2013 Feb 28. doi: 10.1111/bioe.12012. [Epub ahead of print] PubMed PMID: 23445457.

  • Abstract:  Some philosophers have argued for what I call the reason-giving requirement for conscientious refusal in reproductive healthcare. According to this requirement, healthcare practitioners who conscientiously object to administering standard forms of treatment must have arguments to back up their conscience, arguments that are purely public in character. I argue that such a requirement, though attractive in some ways, faces an overlooked epistemic problem: it is either too easy or too difficult to satisfy in standard cases. I close by briefly considering whether a version of the reason-giving requirement can be salvaged despite this important difficulty.

Marshall  C. The spread of conscience clause legislation.  Human Rights. Jan 2013, Vol. 39 Issue 2, p15-16. 2p.

  • Abstract: The article presents information on a proliferation in conscience clause legislation to federal and state laws in the U.S. The move is stated to be pitting individual religious autonomy against the public interest, mainly in the areas of education and health care. Right of refusal laws is closely related to abortion conscience clauses are pharmacist.

McLean M.  Conscientious objection by Muslim students startlingJ Med Ethics November 2013 Vol. 39 No. 11

  • I read Robert Card’s recent paper entitled 'Is there no alternative? Conscientious objection by medical students' with great interest.  That Muslim students in America are able to conscientiously object (and this was entertained) to the cross-gender consultation is somewhat startling. I have just left the Middle East, where I worked as a medical educator for five-and-a-half years (2006–2011), and, to the best of my knowledge, even in the conservative, gender-segregated traditional Muslim culture of the United Arab Emirates, not once did a male or female student refuse to examine a patient of the opposite sex. . .

Odell J, Abhyankar R, Malcolm A, Rua A. Conscientious objection in the healing professions: a readers' guide to the ethical and social issues: ethical analyses. May 4, 2013

  • Abstract: What is a health care provider to do when they find that their moral integrity is at odds with professional expectations? Should a nurse with religious objections to assisted reproduction be asked to stop working in obstetrics and gynecology? Can a pharmacist with moral objections to emergency contraception refer a patient to a colleague without being complicit in a perceived moral wrong doing? Should religious organizations be required to provide or pay for objectionable health services? When is a patient's health and well-being more important than a professional's moral integrity? Here we: 1) describe a collaboration between a medical librarian and the Indiana University (IU) Conscience Project 2) outline the subject of conscientious objection in the healing professions, and 3) introduce a new readers' guide on the topic.

Orr RD. Autonomy, conscience, and professional obligation. Virtual Mentor. 2013 Mar 1;15(3):244-8. doi: 10.1001/virtualmentor.2013.15.3.msoc1-1303. PubMed PMID: 23472816.

  •  Health care professionals have a fiduciary relationship with their patients; i.e., because they have greater knowledge and authority than their patients, they have an obligation to be trustworthy and to serve patients' best interests. This has been taught since the era of Hippocrates and continues in contemporary medicine, as stated, for example, in the American Medical Association's Principles of Medical Ethics. . .

Orrung Wallin A, Edberg AK, Beck I, Jakobsson U. Psychometric properties concerning four instruments measuring job satisfaction, strain, and stress of conscience in a residential care context. Arch Gerontol Geriatr. 2013 May 2. doi:pii: S0167-4943(13)00049-6. 10.1016/j.archger.2013.04.001. [Epub ahead of print] PubMed PMID: 23643346.

 

Sepper E.  Contraception and the Birth of Corporate Conscience. Washington University in Saint Louis - School of Law, July 8, 2013

  • Corporations — for-profit and non-profit, religiously affiliated and secular — have filed approximately sixty lawsuits challenging the Affordable Care Act’s requirement that employee health insurance plans cover contraception. In this paper, I contend that a dangerous doctrine of "corporate conscience" may be born of the contraception controversy. Already, a number of courts have indicated a willingness to accept that artificial business entities incorporated for secular, profit-making aims have religious beliefs and consciences that excuse them from compliance with law. Their reasoning repudiates longstanding foundations of corporate law. It transforms conscience, which is inherently human, into the province of business entities.

    Drawing on health law and policy, I argue that these courts fundamentally misunderstand the nature of health benefits. Health insurance is a form of compensation, earned by and belonging to the employee like wages. By neglecting this economic reality, courts draw incorrect conclusions about the responsibility, legal and moral, of employers for the contents of their employees’ insurance plans, and thus about the burden that any regulation imposes. Moreover, courts fail to recognize that the role the ACA ascribes to private employers bears striking similarity to other comprehensive social insurance schemes, all of which have faced and survived challenges based on free exercise. Any employer responsibility for employer-based insurance should be analyzed under this precedent.

    Finally, I suggest that "corporate conscience" would destabilize the rights of employees far beyond the context of contraception. Religiously affiliated commercial actors already assert rights to defy health and safety laws, pay women less, and fire pregnant women. If secular employers succeed in their challenge to the contraception mandate, gender equality and religious freedom will be at risk in all workplaces.

Sepper E. Not Only the Doctor’s Dilemma: The Complexity of Conscience in Medicine. 4 Faulkner L. Rev. 385, 406 (2013)

  • Abstract:   In recent years, conscience has become a national catch phrase, invoked regularly in health policy discussions. The word "conscience," however, often stands in for refusal to deliver abortions or contraception or to remove or withhold life support.

    In this talk, I argue that conscience is not so one-sided, nor medical decisionmaking so straightforward. First, medical decisions - especially those involving questions of life and death - inspire divergent moral convictions. Second, medical decisions do not simply implicate conscience for the provider. They should be thought of instead as involving, at minimum, three parties: patients, providers, and institutions. This three-sided relationship complicates moral decisionmaking, with each party asserting potentially conflicting claims.

    I contend that in responding to conflicts over medical decisions, lawmakers have overlooked their complexity. As a result, existing legislation undermines conscience, risks harm to patients, and destabilizes ethical decisionmaking within medicine itself. The talk concludes with several proposals to improve the law’s approach to morality in medicine.

Sepper E. Taking Conscience Seriously. 98 Va. L. Rv. 1501, 1532-39 (2012), Washington University in St. Louis School of Legal Studies Legal Research Series Paper 13-03-01

  • Abstract:  For too long, the conventional account of morality in medicine has placed conscience firmly on one side of the moral divide. The archetypal doctor who refuses to participate in controversial treatments - most commonly end-of-life care, abortion, sterilization, and contraception - has been the lodestar of legislative efforts and scholarly accounts. In the name of institutional conscience, healthcare facilities have also been permitted to assert moral or religious objections to care and impose them on employees and affiliates of all beliefs and backgrounds. Doctors, nurses, and institutions that are willing to deliver controversial care have been virtually absent from discussions. This Article aims to reframe the debate by taking conscience seriously. Through engagement with the moral philosophical literature, it makes two inter-related arguments. First, conscience equally may compel a doctor or nurse to deliver a controversial treatment to a patient in need. Yet existing legislation meant to protect conscience, paradoxically, has undermined the consciences of these doctors and nurses. Second, endowing healthcare institutions with conscience via legislation is theoretically and practically problematic. By privileging the institutions’ rights to refuse to provide certain treatments, legislation impinges on the rights of individual providers to provide care they feel obligated by conscience to deliver. Ultimately, if legislation is to protect conscience, it must negotiate between competing claims of conscience of health providers and the facilities in which they work — regardless of whether they refuse or are willing to provide controversial care. This Article introduces a new framework for achieving a better balance between the interests of institutions, individual doctors and nurses, and the patients who depend on them for care. 

Shaw, J. and Downie, J.  Welcome to the Wild, Wild North: Conscientious Objection Policies Governing Canada's Medical, Nursing, Pharmacy, and Dental Professions. Bioethics. doi: 10.1111/bioe.12057

  • In Canada, as in many developed countries, healthcare conscientious objection is growing in visibility, if not in incidence. Yet the country's health professional policies on conscientious objection are in disarray. The article reports the results of a comprehensive review of policies relevant to conscientious objection for four Canadian health professions: medicine, nursing, pharmacy and dentistry. Where relevant policies exist in many Canadian provinces, there is much controversy and potential for confusion, due to policy inconsistencies and terminological vagueness. Meanwhile, in Canada's three most northerly territories with significant Aboriginal populations, whose already precarious health is influenced by funding and practitioner shortages, there are major policy gaps applicable to conscientious objection. In many parts of the country, as a result of health professionals' conscientious refusals, access to some legal health services - including but not limited to reproductive health services such as abortion - has been seriously impeded. Although policy reform on conscientious conflicts may be difficult, and may generate strenuous opposition from some professional groups, for the sake of both patients and providers, such policy change must become an urgent priority.

Tollefsen CO. Protecting positive claims of conscience for employees of religious institutions threatens religious liberty. Virtual Mentor. 2013 Mar 1;15(3):236-9. doi: 10.1001/virtualmentor.2013.15.3.pfor2-1303. PubMed PMID: 23472814.

  • An important good for doctors, nurses, and other health care professionals could be described as that of "professional freedom." This is the good of being able to bring one's professional medical knowledge and one's commitments to the norms and values of the medical profession to bear on one's professional judgments and actions. This is, after all, one of the important aspects of being in a profession: professionals are not merely technicians performing the same routine tasks over and over, nor are they functionaries, blindly carrying out orders from above with little or no discretion on their part. . .

Vansickle-Ward R, Hollis-Brusky A. An (Un)clear Conscience Clause: The Causes and Consequences of Statutory Ambiguity in State Contraceptive Mandates. J Health Polit Policy Law. 2013 May 3. [Epub ahead of print] PubMed PMID: 23645878. 

   

Vischer RK. The uneasy (and changing) relationship of health care and religion in our legal system. Theor Med Bioeth. 2013 Apr;34(2):161-70. doi: 10.1007/s11017-013-9248-2. PubMed PMID: 23546737.

  • Abstract:  This article provides a brief introduction to the interplay between law and religion in the health care context. First, I address the extent to which the commitments of a faith tradition may be written into laws that bind all citizens, including those who do not share those commitments. Second, I discuss the law's accommodation of the faith commitments of individual health care providers - hardly a static inquiry, as the degree of accommodation is increasingly contested. Third, I expand the discussion to include institutional health care providers, arguing that the legal system's resistance to accommodating the morally distinct identities of institutional providers reflects a short-sighted view of the liberty of conscience. Finally, I offer some tentative thoughts about why these dynamics become even more complicated in the context of Islamic health care providers.

Weinstock D.  Conscientious Refusal and Health Professionals: Does Religion Make a Difference? Bioethics. doi: 10.1111/bioe.12059

  • Freedom of Conscience and Freedom of Religion should be taken to protect two distinct sets of moral considerations. The former protects the ability of the agent to reflect critically upon the moral and political issues that arise in her society generally, and in her professional life more specifically. The latter protects the individual's ability to achieve secure membership in a set of practices and rituals that have as a moral function to inscribe her life in a temporally extended narrative. Once these grounds are distinguished, it becomes more difficult to grant healthcare professionals' claims to religious exemptions on the basis of the latter than it is on the basis of the former. While both sets of considerations generate 'internal reasons' for rights to accommodation, the relevant 'external' reasons present in the case of claims of moral conscience do not possess analogues in the case of claims of religious conscience. However, the argument applies only to 'irreducibly religious' claims, that is to claims that cannot be translated into moral vocabulary. What's more, there may be reasons to grant the claims of religious persons to exemptions that have to do not with the nature of the claims, but with the beneficial effects that the presence of religious persons may have in the context of the healthcare institutions of multi-faith societies.

West-Oram P. Freedom of Conscience and Health Care in the United States of America: The Conflict Between Public Health and Religious Liberty in the Patient Protection and Affordable Care Act. Health Care Anal. 2013 Mar 29. [Epub ahead of print] PubMed PMID: 23539432.

  • Abstract: The recent confirmation of the constitutionality of the Obama administration's Patient Protection and Affordable Care Act (PPACA) by the US Supreme Court has brought to the fore long-standing debates over individual liberty and religious freedom. Advocates of personal liberty are often critical, particularly in the USA, of public health measures which they deem to be overly restrictive of personal choice. In addition to the alleged restrictions of individual freedom of choice when it comes to the question of whether or not to purchase health insurance, opponents to the PPACA also argue that certain requirements of the Act violate the right to freedom of conscience by mandating support for services deemed immoral by religious groups. These issues continue the long running debate surrounding the demands of religious groups for special consideration in the realm of health care provision. In this paper I examine the requirements of the PPACA, and the impacts that religious, and other ideological, exemptions can have on public health, and argue that the exemptions provided for by the PPACA do not in fact impose unreasonable restrictions on religious freedom, but rather concede too much and in so doing endanger public health and some important individual liberties.

Wicclair MR. Positive claims of conscience and objections to immigration law. Virtual Mentor. 2013 Mar 1;15(3):188-92. doi: 10.1001/virtualmentor.2013.15.3.ecas1-1303. PubMed PMID: 23472805.

  • Dr. Prado flipped the hallway flags outward and pushed his shoulder into the door. Inside the room a man and woman sat, the woman manifestly pregnant. They bowed their heads shyly as he entered and then looked up at him expectantly. . .

Will JF.  Conscience Legislation, the Personhood Movement, and Access to Emergency Contraception.  4 Faulkner Law Review  411 (2013)

  • Introduction:  In the medical setting, conscience legislation serves to protect health care professionals who refuse to provide certain procedures or services that would violate their consciences.  The "Personhood Movement," on the other hand, is characterized by advocates' attempts to adopt legislation or constitutional amendments at the state and/or federal level that would extend the legal and moral protection associated with personhood to members of the human species at the earliest stages of biological development.  The relationship between conscience legislation and the Personhood Movement may not be self-evident, but the connection becomes apparent when considering trends in conscience legislation.  This is particularly true in the context of expanding legal protection to health care professionals who object to certain forms of birth control, such as emergency contraception (EC).