Conscience Clauses, Health Care Providers, and Parents

Nancy Berlinger

Conscience Clauses, Health Care Providers, and Parents

Extract
Conscientious objection in health care always affects someone else’s health or access to care because the refusal interrupts the delivery of health services. Therefore, conscientious objection in health care always has a social dimension and cannot be framed solely as an issue of individual rights or beliefs. . . . Conscience rights are also limited by the foundational duty of care, which must be maintained through referrals and transfers so that a refusal to provide a service does not result in abandonment of a patient. . . Physicians who work in the 11 U.S. jurisdictions that permit terminally ill people, under certain conditions, to request a prescription of lethal medication with the goal of ending their lives may also have mixed emotions and intuitions about participating in medical aid-in-dying. . . Conscientious objection to providing or participating in certain activities on principle should not be used to avoid patient care that a professional finds stressful, or as a remedy for the common problem of moral distress.


Berlinger N. Conscience Clauses, Health Care Providers, and Parents [Internet]. Garrison, NY: The Hastings Center; 2022 May 31.

(Book Review) What it means to be human: The case for the body in Public Bioethics

The deficiencies and dangers of ‘radical individualism’

Margaret Somerville

What it Means to be Human (book)

O. Carter Snead. What it means to be human: The case for the body in Public Bioethics. Cambridge, Mass: Harvard University Press, 2020, pp 321. ISBN-10: 0674987721.

Extract
Anyone concerned about the current values conflicts in our societies should read this book. Although it focuses on conflicts in public bioethics, the insights of the author, O. Carter Snead, have application to a much broader range of values conflicts in what are sometimes called the “culture wars”.

Snead starts with a history of American Public Bioethics. He then asks, “What does it means to be human” and addresses two competing responses – “expressive individualism” and “embodiment” – and articulates the anthropology (the study of human beings and societies) that informs each of these views. He argues the former is inadequate on at least two fronts. First, it “forgets the body” and sees the person as only a mind, a self-actualizing will. Second, it does not contemplate or accommodate human relationships and the reality that we are social beings.

Snead then takes an innovative approach to legal scholarship. He proceeds to an in-depth analysis of six judgments handed down by the Supreme Court of the United States in relation to abortion. He undertakes this analysis in order to determine the law’s view, as manifested in these cases, of what it means to be human, that is, the anthropology that undergirds and informs the judgments he considers. . . continue reading

How should a liberal democracy react to conscientious objection claims

Panel 4: Reacting to Conscience Claims in the Public Square

Royal Irish Academy Symposium

Chair:

  • Mr Bryan Dobson, RTÉ

Panellists:

  • Dr John Adentire, Queen Mary University of London
  • Professor Fiona de Londras, University of Birmingham
  • Senator Michael McDowell, Houses of the Oireachtas

How legislators and governments in liberal democracies should react to claims of conscience.


Royal Irish Academy: How should a liberal democracy react to conscientious objection claims

How should a liberal democracy react to conscientious objection claims?

Panel 2: Conscience in Legal Perspective: Challenges and Controversies 

Royal Irish Academy

Chair:

Professor David Smith, RCSI University of Medicine and Health Sciences

Panellists:

  • Advocate General Gerard Hogan, Court of Justice of the European Union
  • Professor Ronan McCrea, University College London
  • Dr. Regina McQuillan, St Francis Hospice

Conscientious objections in healthcare, services, resistance to authoritarian regimes: effects on third parties: meaning of ‘complicity’ .


Royal Irish Academy: How should a liberal democracy react to conscientious objection claims?

Twin pregnancy, fetal reduction and the ‘all or nothing problem’

Joona Räsänen

Journal of Medical Ethics
Journal of Medical Ethics

Abstract
Fetal reduction is the practice of reducing the number of fetuses in a multiple pregnancy, such as quadruplets, to a twin or singleton pregnancy. Use of assisted reproductive technologies increases the likelihood of multiple pregnancies, and many fetal reductions are done after in vitro fertilisation and embryo transfer, either because of social or health-related reasons. In this paper, I apply Joe Horton’s all or nothing problem to the ethics of fetal reduction in the case of a twin pregnancy. I argue that in the case of a twin pregnancy, there are two intuitively plausible claims: (1) abortion is morally permissible, and (2) it is morally wrong to abort just one of the fetuses. But since we should choose morally permissible acts rather than impermissible ones, the two claims lead to another highly implausible claim: the woman ought to abort both fetuses rather than only one. Yet, this does not seem right. A plausible moral theory cannot advocate such a pro-death view. Or can it? I suggest ways to solve this problem and draw implications for each solution.


Räsänen J. Twin pregnancy, fetal reduction and the ‘all or nothing problem’. J Med Ethics. 2020 Dec 21:medethics-2020-106938. doi: 10.1136/medethics-2020-106938. Epub ahead of print. PMID: 33443129.

Conscience and Compromise : Abortion and the Requirements of Justice in Medical Schools

Kevin Belgrave

McGill Journal of Medicine
McGill Journal of Medicine

Extract
The concerns of students opposed to abortion go well beyond simple personal preference, opinion, or even political leaning. Opposition to abortion rests firmly in the realm of one’s most fundamental beliefs and convictions about human life, human dignity and human rights. Together with this fact is the freedom of an individual to hold and manifest such fundamental beliefs and convictions and not be discriminated against as a result. It is well known that neither physicians, medical students, nor residents could ever be compelled to perform or observe abortions against their will. In this article, however, we have considered the closely related question: is it possible to require medical students to learn in detail the methods and procedures of a medical act that conflicts with their most fundamental beliefs and convictions? The answer has to be no. So long as the bona fide beliefs of an individual – explicitly grounded in conscience or religion – can be reasonably accommodated, they must be. We must respect this basic requirement of freedom in our community. Given the nature of the belief that underlies objection to abortion, it is not difficult to see how thin would be the line between performing an abortion and learning learning the procedure in all the detail required of a physician.


Belgrave K. Conscience and Compromise : Abortion and the Requirements of Justice in Medical Schools. McGill J Med. 2001;8(2):154-156.

The Conscience Defense to Malpractice

Nadia N Sawicki

California Law Review
California Law Review

Abstract
This Article presents the first empirical study of state conscience laws that establish explicit procedural protections for medical providers who refuse to participate in providing reproductive health services, including abortion, sterilization, contraception, and emergency contraception.

Scholarship and public debate about law’s role in protecting health care providers’ conscience rights typically focus on who should be protected, what actions should be protected, and whether there should be any limitations on the exercise of conscience rights. This study, conducted in accordance with best methodological practices from the social sciences for policy surveillance and legal mapping, is the first to provide concrete data on the vital but unanswered question of how these laws actually operate–that is, the precise procedural mechanisms by which laws protect medical providers who decline to provide services that violate their deeply held conscientious beliefs.

This Article demonstrates that state laws vary dramatically in the types of protections they offer. States may immunize health care providers from a range of potential adverse consequences including civil liability, criminal prosecution, professional discipline, employment discrimination, discrimination in educational opportunities, and denial of public or private funding, among others. Of these, immunity from civil liability, or “civil immunity,” is by far the most common procedural protection. In a majority of states, civil immunity is absolute–providing no exceptions in cases of malpractice, denial of emergency treatment, or even patient death. In practice, these laws eliminate patients’ common law right to recover monetary damages when they suffer physical injury as a result of a health care provider’s conscience-based deviation from the standard of care.

While many scholars have examined the impact of conscience laws on patient access to medical care, there has been no comprehensive analysis of these laws’ impact on patients’ right to a tort law remedy when they are denied care. This Article not only raises awareness of the previously unrecognized breadth of protections established by U.S. conscience law, but also challenges basic assumptions about tort law’s ability to remedy harms suffered by victims of medical malpractice in reproductive health care contexts. These findings create an important opportunity for further policy discussion about the scope of health care conscience laws.


Sawicki NN. The Conscience Defense to Malpractice. Calif Law Rev. 2020;108(1255):1255-1316.

The Independence of Judicial Conscience

Barry W. Bussey

Journal of Christian Legal Thought
Journal of Christian Legal Thought

Extract
. . . Competence and character are no longer the sole criteria for evaluating a judicial nominee; candidates face a climate which demands they have the “correct” moral opinions on fundamental human rights issues. Those issues include abortion, marriage, and the euphemistically-termed Medical Assistance in Dying (MAiD). . . to disregard the judicial conscience is to compromise the dignity of the judge, the worth of her convictions, the fullness of her humanity. Even more, it undermines the very essence of what distinguishes a democratic society characterized by diversity, inclusion, and freedom.


Bussey BW. The Independence of Judicial Conscience. J Christian Legal Thought. 2019; 9(2): 34-37.

Selective Conscientious Objection in Healthcare

Christopher Cowley

The New Bioethics
The New Bioethics

Abstract
Most discussions of conscientious objection in healthcare assume that the objection is universal: a doctor objects to all abortions. I want to investigate selective objections, where a doctor objects to one abortion but not to another, depending on the circumstances. I consider not only objections to abortion, but also objections to the withdrawal of life-saving treatment at the request of a competent patient, which is almost always selective. I explore how the objector might articulate the selective objection, and what impact it might have on the patient, within the conceptual space of relevant statutes and professional guidelines.


Cowley C.  Selective Conscientious Objection in Healthcare. New Bioethics 2019 Sep; 25(3): 236-247, DOI:10.1080/20502877.2019.1649861.

Questionable benefits and unavoidable personal beliefs: defending conscientious objection for abortion

Bruce Philip Blackshaw, Daniel Rodger

Journal of Medical Ethics
Journal of Medical Ethics

Abstract
Conscientious objection in healthcare has come under heavy criticism on two grounds recently, particularly regarding abortion provision. First, critics claim conscientious objection involves a refusal to provide a legal and beneficial procedure requested by a patient, denying them access to healthcare. Second, they argue the exercise of conscientious objection is based on unverifiable personal beliefs. These characteristics, it is claimed, disqualify conscientious objection in healthcare. Here, we defend conscientious objection in the context of abortion provision. We show that abortion has a dubitable claim to be medically beneficial, is rarely clinically indicated, and that conscientious objections should be accepted in these circumstances. We also show that reliance on personal beliefs is difficult to avoid if any form of objection is to be permitted, even if it is based on criteria such as the principles and values of the profession or the scope of professional practice.


Blackshaw BP, Rodger D. Questionable benefits and unavoidable personal beliefs: defending conscientious objection for abortion. J Medical Ethics 2019 Aug 31. pii: medethics-2019-105566. doi: 10.1136/medethics-2019-105566. [Epub ahead of print]