Book Chapters Archives - Protection of Conscience Project Library

Rawls, Reasonableness, and Conscientious Objection in Health Care

Xavier Symons

Abstract
Much ink has been spilled in recent years over the controversial topic of conscientious objection in health care. In particular, commentators have proposed various ways with which we might distinguish legitimate conscience claims from those that are poorly reasoned or based on prejudice. The aim of this chapter is to argue in favor of the “reasonableness” approach to conscientious objection, viz., the view that we should develop an account of “reasonableness” and “reasonable disagreement” and use this as a way of distinguishing licit and illicit conscience claims. The author discusses Rawls’ account of “reasonableness” and “reasonable disagreement,” and consider how this might guide us in regulating conscientious objection in health care. The author analyzes the “public reason” account offered in Card (2007, 2014), and argue that we should modify Card’s account to include a consensus among regulators about what counts as “basic medical care.” The author suggests that Medical Conscientious Objection Review boards should consider whether conscience-based refusals are based on defensible ethical foundations.

Symons X. Rawls, Reasonableness, and Conscientious Objection in Health Care. In: Grant B, Drew J, Christensen H, editors. Applied Ethics in the Fractured State (Research in Ethical Issues in Organizations, Vol. 20). Bingley, UK: Emerald Publishing Limited; 2018. p. 45-54. https://doi.org/10.1108/S1529-209620180000020004

The Challenges of Conscience in a World of Compromise

Amy J. Sepinwall

Abstract
The process of crafting and passing legislation might be thought to be the locus of compromise par excellence.1 Yet, where the law that results impinges upon moral or religious belief or practice, the issue of compromise arises anew, in both senses of the word: Individuals who oppose the law on moral or religious grounds believe that their political obedience will compromise them in a fundamental way. Their plea for an exemption from the objectionable legal requirement is, then, a bid for further compromise.2 Compromise in the first sense concerns an undercutting of the self, while compromise in the second sense involves a grant of concessions. Yet, unlike compromises that arise in the legislative process, or at least in some ideal version of it,3 the compromise involved in an exemption from a neutral law of general application involves neither an exchange of benefits nor the prospect of mutual benefit-two hallmarks of compromise in, say, political (and other) negotiations.4 There are several reasons to doubt the wisdom or fairness of the requested exemptions, then.

Sepinwall AJ. The Challenges of Conscience in a World of Compromise. In: Knight J, editor. Nomos LIX: Compromise. New York:NYU Press, 2018. pp. 220-247.

Seeking to square the circle: A sustainable conscientious objection in reproductive healthcare

Emmanuelle Bribosia, Isabelle Rorive

Abstract
While the right to abortion is not spelled out as such in the international or regional human rights treaties, recent developments strongly support the view that a right to safe and legal abortion is a woman’s human right. A sustainable model of conscientious objection in reproductive healthcare must take into account the human rights developments concerning induced abortion. For the past hundred years, conscientious objection has been used almost exclusively in the context of refusal to perform compulsory military service. There are major difficulties in trying to transpose the debate surrounding conscientious objection to the realm of reproductive health. The wider context of conscience claims raised after the legalisation of same-sex unions is even more disturbing. It shows the detrimental effect hat accommodation policies could have on the full operation of non-discrimination law. Recent supranational and national cases show that the recognition of conscientious objection in reproductive healthcare is hardly sustainable on the ground. A snowball effect seems inevitable. And even well-defined legal safeguards are failing. This leads to wide discriminatory treatment based on gender, territorial status, low social condition and ethnicity. This also leads to the failure to recognise the dignitary harm to women and the perpetuation of social prejudice and structural inequality which result from this approach. In other words, designing, implementing and monitoring a strictly regulated conscience clause in reproductive healthcare resembles an effort to square the circle. Something always falls by the wayside, and the ‘something’ is no less than women’s human rights.

Bribosia E, Rorive I. Seeking to square the circle: A sustainable conscientious objection in reproductive healthcare. In Chapter 15, Mancini S, Rosenfeld M, editors. The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality, Cambridge: University Press, 2018 (392-413).

Euthanizing People Who Are ‘Tired of Life’ in Belgium

Raphael Cohen-Almagor, David Albert Jones, Chris Gastmans, Calum Mackellar

Euthanasia and Assisted Suicide: Lessons from Belgium

Abstract
In Belgium and in The Netherlands, a debate is developing about people who express a desire to end their lives although they do not suffer from an incurable, life-threatening disease. In 2000, a court in Haarlem in The Netherlands considered the case of 86-year-old Edward Brongersma who had expressed his wish to die to his general practitioner, Dr Philip Sutorius, claiming that death had ‘forgotten’ him, his friends and relatives were dead, and he experienced ‘a pointless and empty existence’. After repeated requests, Dr Sutorius euthanized his insisting patient and was then put on trial. The public prosecution recognized that Dr Sutorius fulfilled all the legal criteria but one: ‘hopeless and unbearable suffering.’ Therefore, the patient’s request should have been refused. The court did not discipline Dr Sutorius, saying that the patient was obsessed with his ‘physical decline’ and ‘hopeless existence’ and therefore was suffering ‘hopelessly and unbearably’. A spokesman for the Royal Dutch Medical Association reacted to the court judgment by saying that the definition of ‘unbearable suffering’ had been stretched too far and that ‘what is new is that it goes beyond physical or psychiatric illness to include social decline’. The then Justice Minister Benk Korthals said that being ‘tired of life’ is not sufficient reason for euthanasia. Since then, the debate as to whether physicians should comply with euthanasia requests of people who are ‘tired of life’ has been widened and many people in Belgium and in The Netherlands are calling for the law to be expanded in order to include similar patients. The methodology of this research is based on a critical review of the literature supplemented by communications with leading scholars and practitioners. First, concerns are raised about euthanizing people who say that they are ‘tired of life’. Some suggestions designed to improve the situation are offered. The Belgian legislators and medical establishment are invited to reflect and ponder so as to prevent potential abuse.

Cohen-Almagor R, Jones DA, Gastmans C, Mackellar C. Euthanizing People Who Are ‘Tired of Life’ in Belgium. In: Jones DA, Gastmans C, MacKellar C, editors. Euthanasia and Assisted Suicide: Lessons from Belgium. 2017;188-201. Available from: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3052105

Assisted Dying Bill for England and Wales

Raphael Cohen-Almagor

Euthanasia and Assisted Suicide: Global Views on Choosing to End Life

Abstract
This paper is aimed to suggest an improved set of guidelines for physician-assisted suicide. Thus it is very practical, based on 25 years of research in eight countries and it does not expand on the underpinning theoretical basis for the guidelines. I have been an advocate of physician-assisted suicide and explained the reasoning elsewhere, primarily in The Right to Die with Dignity and Euthanasia in the Netherlands. I support the idea that patients should be able to decide the time of their death with the help and support of the medical profession. People have human dignity. At the end of their lives, the medical profession should respect their wishes and help them to the best of their abilities. By ‘dignity’ it is meant worthiness, merit. The Oxford English Dictionary defines it as “the state or quality of being worthy of honour or respect”. Kant explained that human beings are end in themselves and that for something to be an end in itself, “it doesn’t have mere relative value (a price) but has intrinsic value (i.e. dignity)”. He further elucidated that autonomy is the basis for the dignity of human nature and of every rational nature. Kant calls dignity an unconditional and incomparable worth that admits of no equivalent. All rational creatures have it, by virtue of their reason, and dignity constrains the ways in which we can legitimately interact. In a similar fashion, Dworkin asserted that individuals have a right to dignity because they are human. I argue that dignity is both objective and subjective concept. It is socially constructed and made up of values and feelings that one feels about oneself, about one’s self-worth and respect. It is further argued that legislation of physician-assisted suicide is a matter of moral necessity and political expediency.

Cohen-Almagor R. Assisted Dying Bill for England and Wales. In: Cholbia M editors. Euthanasia and Assisted Suicide: Global Views on Choosing to End Life. 2017;29-44.

Conscientious Objection and Civil Disobedience

Kimberley Brownlee

From the chapter introduction

The purpose of this chapter is to consider two types of dissent that are generally described as conscientious, namely, civil disobedience and conscientious objection, both of which raise pressing normative questions not only about the proper parameters of dissenters’ rights and duties within a reasonably good society, but also about both the scope of legitimate toleration of assertions of conscientiousness and the appropriate legal and political responses to conscientious disobedience. In what follows, I begin by outlining the conceptual territory of civil disobedience and conscientious objection. I then offer a qualified endorsement of the moral justifiability of these two practices before examining both the scope and legitimacy of their status as moral rights and their grounds for legal defensibility. Among other things, I challenge the dominant liberal position that, in relation to both moral rights and legal defenses, a more compelling case can be made on behalf of private conscientious objection than on behalf of civil disobedience.

Brownlee K. Conscientious Objection and Civil Disobedience. In: Marmor A editors. The Routledge Companion to the Philosophy of Law. 2012;527-539.

Human Self-Determination, Biomedical Progress, and God

Udo Schuklenk

Extract
Why am I an atheist? Why do I think it is important to speak out against the harmful consequences of religious interpretations of the world and of our place in it? In this essay, I argue not only that we have no good reason to believe that a good, all-powerful, all-knowing God exists, but also that organizations and institutions campaigning in the name of God are frequently working toward preventing desirable societal progress in a number of crucial areas affecting our daily lives.

Schuklenk U. Human Self-Determination, Biomedical Progress, and God. In: Blackford R, Schuklenk U editors. 50 Voices of Disbelief: Why We Are Atheists. Wiley-Blackwell, 2009 Oct 19; 323-331.

Law and Bioethics: A Rights-Based Relationship and Its Troubling Implications

Daniel Sperling

Abstract
This chapter explores the relationship between law and bioethics and calls for a careful evaluation of the law’s contributions to bioethics. It argues that while the law contributed extensively to the development of bioethics, it introduced a language and a way of thinking that are not necessarily appropriate to handle and resolve bioethical issues, and which, in a significant portion of cases, was irrelevant and had little impact on decision-making and behavioural patterns of patients.

Sperling D. Law and Bioethics: A Rights-Based Relationship and Its Troubling Implications. In: Freeman M, editor. Law and Bioethics: Current Legal Issues. Oxford: Oxford University Press2008 Oct. p. 52-78.

What is the relevance of women’s sexual and reproductive rights to the practising obstetrician/gynaecologist?

Dorothy Shaw, Anibal Faúndes

Best Practice and Research Clinical Obstetrics & Gynaecology

Abstract
Women’s sexual and reproductive rights are an integral part of daily practice for obstetricians/gynaecologists and the key to the survival and health of women around the world. Women’s sexual and reproductive health is often compromised because of infringements of their basic human rights, not the lack of medical knowledge. Understanding the relevance of respecting and promoting sexual and reproductive rights is critical for providing current standards of care, and includes access to information and care, confidentiality, informed consent and evidence-based practice. The violation of women’s rights in their daily lives through common problems such as gender-based violence and discrimination results in serious consequences for their health. Obstetricians/gynaecologists are natural advocates for women’s health, yet may be lacking in their understanding of relevant laws or the limits of conscientious objection. This chapter outlines the framework for sexual and reproductive rights, and explores its relevance to the practising clinician.

Shaw D, Faúndes A. What is the relevance of women’s sexual and reproductive rights to the practising obstetrician/gynaecologist? Best Practice and Research Clinical Obstetrics and Gynaecology. 2006 Jun;20(3):299-309.