Protection of conscience provisions may be defined out of existence
In the fall of 2012 the Uruguayan legislature passed the Voluntary Termination of Pregnancy Act, which legalized abortion in the country under certain circumstances. By January, 2013, Reuters was reporting that the law was meeting “fierce opposition” among Uruguayan gynaecologists, with up to a third of them refusing to provide the procedure for reasons of conscience;1 in some locations, almost none will do so. . . Full Text
The Act legalizing abortion in Uruguay, passed in the fall of 2012, includes two protection of conscience provisions.
Section 10 provides protection for existing health care institutions that are part of the National Integrated Health System if they had ideological objections to abortion at the time the law was enacted. They are not required to provide abortion, but “may” reach an agreement with the Ministry of Public Health to arrange for their patients to have abortions elsewhere. If “may” is understood to mean that such arrangements are optional, institutional freedom of conscience will not be compromised. However, it appears that all hospitals that are part of the National Integrated Health System that are opened from this point on will be required to provide abortions.
Section 11 allows conscientious objection by health care workers, but this is limited by the meaning given to “health” in Section 6A.
[Protection of concience provisions: Spanish/English]
M. Mizuno, E. Kinefuchi, R. Kimura
Nurs Ethics January 17, 2013 0969733012463723
This study explored the relationship between professional quality of life and emotion work and the major stress factors related to abortion care in Japanese obstetric and gynecological nurses and midwives. . . . Multiple regression analysis revealed that of all the evaluated variables, the Japanese version of the Frankfurt Emotional Work Scale score for negative emotions display was the most significant positive predictor of compassion fatigue and burnout. The stress factors “thinking that the aborted fetus deserved to live” and “difficulty in controlling emotions during abortion care” were associated with compassion fatigue. These findings indicate that providing abortion services is a highly distressing experience for nurses and midwives. [Full Text]
European Court of Human Rights Gives Ruling on Religious Freedom Cases
ROME, January 16, 2013 (Zenit.org).
Today, the Fourth Section of the European Court of Human Rights has issued an important ruling on freedom of conscience and freedom of religion. While it contains some positive language regarding the wearing of religious symbols, the ruling is deeply worrisome with regards to the freedom to act according to one’s individual conscience. [Read on]
Although euthansia and assisted suicide are criminal offences in Canada, and criminal law is under the jurisdiction of the federal government, the government of Quebec has announced that it will legalize assisted suicide and euthanasia provided by health care workers. [National Post] The commission that recommended this step also recommended that objecting physicians be forced to facilitate the procedures by referral.
It appears that the provincial government will claim that assisted suicide and euthanasia are forms of medical treatment. Since health care is under provincial and not federal jurisdiction, the province will likely argue that the prohibition of these services within the context of health care trespasses on provincial jurisdiction. This was one of the claims of the BC Civil Liberties Association in Carter v. Canada, which it won.
The third legal argument advanced by the BC Civil Liberties Association in Carter was that “treatment and management of the physical and emotional suffering of a grievously and irremediably ill patient” are matters that fall within the “exclusive jurisdiction” of the provinicial government, which is constitutionally mandated to manage health care. Since (according to the plaintiff physician) physician-assisted suicide and voluntary euthanasia are “important component[s] of the provision of health care to grievously and irremediably ill patients,”the lawsuit asked that sections of the Criminal Code (a federal statute) that prevent the provision of this “health care” should be struck down as an unconstitutional interference in provincial jurisdiction, “to the extent that [they] prohibit physician-assisted dying.” See Legalizing therapeutic homicide and assisted suicide:A tour of Carter v. Canada
However, the claim was not adjudicated in Carter because it was not actually argued during the trial.
The province also has the constitutional authority to enforce and administer criminal law, so that it could, in theory, instruct prosecutors not to pursue charges against health care workers who provide the procedures in accordance with government guidelines. It could do this pending the outcome of litigation, and even if the criminal prohibition stands. This is the approach taken in England with respect to assisted suicide, though the English guidelines indicate that health care workers must not be involved.
Should the provincial government refuse to prosecute health care workers who provide the services, it would be possible for the federal government to order the federal police force, the Royal Canadian Mounted Police, to investigate allegations, and to appoint and pay lawyers to act as prosecutors. However, this would be especially contentious in Quebec, since the current government is ideologically committed to the separation of Quebec from Canada and the establishment of the province as an independent nation state. Nationalist elements in Quebec would see that kind of federal intervention as not only a constitutional violation of provincial jurisdiction, but as violation of sovereignty.
Thus, divisions among health care workers on this issue may involve complexities and nuances not encountered elsewhere, and those who resolutely refuse to provide or facilitate assisted suicide and euthanasia may find their circumstances unusually challenging. Nonetheless, prominent Quebec physicians have formed The Physicians’ Alliance for Total Refusal of Euthanasia. The Alliance is directly challenging the medical regulatory authority:
The Quebec College of Physicians does not have the legal or the moral authority to change one of the basic pillars of medicine, or to amend the code of medical ethics, without first conducting an extensive study and consultation with members of the profession. The mere passing of a resolution by the board of directors does not make physician-inflicted death an acceptable form of care.
45 year old identical twin brothers were killed by lethal injection at Brussels University hospital, in Jette, Belgium, by physicians acting under the country’s euthanasia law. The twins, who were deaf, had learned that they were going blind, and decided to be killed rather than never see each other again. The Belgian government has prpoosed an amendment to further expand grounds for euthanasia. [Daily Mail]
Winona Daily News
Charles C. Haynes
Let’s start the New Year with a conundrum as old as the Republic:
When religious convictions clash with secular laws, how far should government go to accommodate religious claims of conscience? . . .In 2013, religious objections to government laws and regulations will once again provoke vigorous public debate, countless court challenges and really tough decisions over whether and when government should accommodate religious claims of conscience. [Read on]
Judges suggest compassionate exception might be made
A three judge panel of the Irish High Court has rejected a suit by a woman suffering from multiple sclerosis to strike down the absolute ban on assisted suicide. The court held that it would be impossible to craft an exemption to cover her particular case that would not have implications for other cases and ultimately endanger other vulnerable people. The Court also ruled that the Director of Public Prosecutions (DPP) cannot issue guidelines to indicate what factors would be considered in deciding whether or not to prosecute someone for assisting a suicide, nor can the DPP be consulted in advance in particular cases. However, the judges commented that the DPP might exercise discretion if there were reliable evidence of compliance with factors similar to those set out in prosecution guidelines issed by the Director of Public Prosecutions in England. They added that they were sure that the Irish DPP would exercise discretion humanely and with sensitivity. The decision is likely to be appealed. [Irish Times; Appeal Likely]
A panel of three judges in Edinburgh is hearing arguments in an appeal by two midwives who were ordered to supervise provision of abortion in the National Health Service Greater Glasgow and Clyde region. A lower court ruled that the protection of conscience provision in the 1967 Abortion Act did not apply to them. [BBC] The case turns upon the definition of “participation,” which is not set out in the Act.