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Protection of Conscience Project

www.consciencelaws.org

Service, not Servitude
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Legal Commentary

The commentaries provided on the website are not a substitute for legal advice provided by a qualified professional.  Commentaries are grouped by national jurisdiction.

UNITED STATES

GENERAL

Symposium: Conscience, conditions, and access to civil society

  • Richard Garnett* |  It is striking how easy it has become for a person to stumble into the status of a symbol – or, these days, a viral meme. Jack Phillips is, or was until fairly recently, a skilled cake artist with a small business, Masterpiece Cakeshop, in suburban Denver. Today, he is a litigant in the Supreme Court of the United States and regarded by many as embodying the tension – increasingly, the conflict – between religious conscience and equality. . .
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Testimony of Most Rev. C. Lori, on behalf of the US Conference of Catholic Bishops

  • Bishop C. Lori* |. . . Religious liberty is also prior to the state itself. It is not merely a privilege that the government grants us and so may take away at will. Instead, religious liberty is inherent in our very humanity, hard-wired into each and every one of us by our Creator. Thus government has a perennial obligation to acknowledge and protect religious liberty as fundamental, no matter the moral and political trends of the moment. . .
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Mandated Contraceptive Coverage: A Public Policy Nightmare

  • Sheryl K. Albers* | Every biennium, legislators introduce new mandates on our health insurance carriers, demanding that insurers pay for personal conveniences outside the boundaries of medically-necessary treatment. The contraceptive coverage mandate stands as one of the most dramatic of these proposals. It forces people of faith to fund chemically-induced abortions, puts matters of personal convenience and choice on the same level of as medically-necessary treatment, requires coverage of drugs which can endanger the safety of women, and increases insurance costs for employers and individuals. . .
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Coakley wrong on conscience rights of pro-lifers

  • Matt Bowman* | Yesterday, Massachusetts Attorney General Martha Coakley, who is running for U.S. Senate, was asked about doctors who object to drugs that contracept or kill embryos. She said, "You can have religious freedom but you probably shouldn't work in the emergency room." . . .According to [Attorney] General Coakley's attitude, religious freedom means the "freedom" for Christians to be driven from the caring professions altogether. . . .
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Protecting the Health Care Providers' Right of Conscience

  • Teresa Stanton Collett* | [Describing cases in Alaska, Texas and California] . . .The common thread running through these cases is the insistence that health care providers comply with patient demands, regardless of the nature of the requests--and regardless of any conflicting demands of the health care providers' consciences. . .[
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Conscience and the Healthcare Worker

  • Marianne Linane*| Healthcare advances are rapidly changing treatments available for any number of conditions. Some of these treatments create a moral dilemma for those in the healthcare field and they are being faced with a decision to either deny delivery of service and perhaps compromise their employment, or compromise their conscience. This paper is a brief summary of history, current law, and attempts being made to resolve the conflict. . .
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Protecting the Rights of Conscience of Health Care Providers (Review)

  • Sean Murphy* | In 1993 Professor Lynn Wardle published a detailed survey of what he called the "patchwork" of American protection of conscience laws. The article not only addressed numerous relevant issues, but included extensive citations of American case law and statutes. While it is a particularly valuable resource for U.S. researchers, a number of his observations and arguments have more general application. . .
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To Market, To Market
Responding to Vischer, Robert, The Pharmacist Wars
The American Enterprise Online, 14 February, 2006

  • Sean Murphy* | . . . It is remarkable that a free-market advocate should assign the state the function of ensuring access to a product - an economic function admirably achieved by free markets - while denying the state a role in the preservation of fundamental freedoms - a political function for which it exists. Happily, it is possible to resolve this contradiction, restoring to the market and to the state the functions proper to each, and to do so in a way that may prove congenial to Professor Vischer.. . .
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Should the Obama Conscience Rules Seek to Protect Persons or Provide Benefits?

  • Christopher Tollefsen* | The state is required to protect persons not just from physical harm but from being forced to violate their limited but definite freedom of conscience. . . President Obama signaled his intention to repeal a rule promulgated in the last days of the Bush administration that codified previous law ensuring that no health care providers at institutions receiving federal funds should be discriminated against for refusing to participate in abortion or sterilization procedures. . .
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Protection for Rights of Conscience in American Law: First Rights or Last Rites? (Draft)

  • Lynn D. Wardle* | Profound moral issues going to the heart of individual religious beliefs and moral conscience are arising in many aspects of health care. . . Regularly. . . the media blare stories about shocking abuses of the rights of conscience of individuals and groups of individuals in the health care field . . . Equally often, the media shouts about sympathetic cases in which health care services or medications are denied by persons and institutions with conscientious objections. . .
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Becket Fund Letter to the US Department of Health and Human Services

  • Kevin J. Hasson* | We recently became aware of the ACLU's efforts to ensnare your office in upending this nation's longstanding commitment to protecting conscience rights in the medical profession. . . The ACLU has no business radically re-defining the meaning of "emergency health care [and their effort] is . . . contrary to the text and purpose of the Emergency Medical Treatment and Active Labor Act ("EMTALA"), the very law the ACLU cites as the basis for its proposal. We will represent, pro bono, any religious hospital or its personnel that HHS threatens because of their conscientious objection to abortion. And we will, if necessary, sue to block any such proposed policy . . .
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Abortion, Conscience, and Doctors

  • Christopher Kaczor* | Suggestions to end conscience protection ignore the importance of conscience and rely on a circular-and baseless-understanding of a woman's "right" to abortion. Following such suggestions would be detrimental to the entire health care system.
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Have US conscience clause protections been eviscerated?

  • James S. Cole* | Can an American nurse refuse to participate in a medical procedure repugnant to her conscience? As of last week, it appears that the answer is no. A Federal Court has ruled that a nurse who was told to assist in a late-term abortion or lose her job cannot file a grievance. . .
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Pulling the plug on the conscience clause

  • Wesley J. Smith* | . . .The ongoing transformation in the methods and ethics of medicine raises profound moral questions for doctors, nurses, pharmacists, and others who believe in the traditional virtues of Hippocratic medicine that proscribe abortion and assisted suicide and compel physicians to "do no harm.". . . Tolerance toward dissenters of what might be called the "new medicine" is quickly eroding. . .
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Roe to the rescue? 
Roe v. Wade could prove an unlikely source of pro-life conscience protection

  • Mark Rienzi* | . . . Pro-lifers have long argued that Roe and Casey were wrongly decided, and that the Supreme Court has no business writing new rights into the Constitution. Nevertheless, a close examination of the Court's stated test yields a surprising result: the right to refuse to perform an abortion actually has better historical support, and better satisfies the Court's stated tests, than the abortion right itself. Thus, so long as Roe and Caseyremain the law, their reasoning also protects the right of healthcare providers to refuse to participate in abortions. . .
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Taking (Conscience) Rights Seriously

  • Melissa Moschella* | . . . The key to understanding conscience rights correctly is to recognize that there is a world of difference between a law that makes me do something I don't want to do, and a law that makes me do something I have an obligation not to do. . .
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Repelling the Attack on Conscience

  • Helen Alvaré* | . . .If opponents of conscience protection want to encourage high-quality, readily available health care for women, especially vulnerable women, they could not do better than to ally themselves with supporters of conscience protections. In the United States, this group is regularly comprised of the kinds of providers and institutions ready to assist the most vulnerable women, even with free or low-cost care. . .
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Re: American Medical Association Resolution 218
(June, 2000)

  • Francis Cardinal George, OMI* | . . .As an active participant in and sponsor of the largest nonprofit healthcare network in this area, I find the quiet little note at the end of this resolution strangely naïve.  It says: "No Significant Fiscal Impact."  Does anyone really believe that driving the largest not-for-profit healthcare network in the nation out of business would have no significant fiscal impact?  . . .  It would have an enormous adverse impact on some of the poorest people in our nation, who turn to Catholic health facilities to receive help in times of need, regardless of their ability to pay.
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Conscientious Abortions?
We Don't Need New Laws Protecting Abortionists

  • Richard M. Doerflinger* |  If we legally protect a "right of conscience" to refuse to assist or perform abortions, shouldn't we also protect "conscience-based" decisions to provide abortions? So asks Dr. Lisa Harris of the University of Michigan, in a recent commentary in the New England Journal of Medicine (further publicized at a Washington Post blog).
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