Institutions (Hospitals, etc) Archives - Page 4 of 6 - Protection of Conscience Project Library

Conscience Clauses for Pharmacists: The Struggle to Balance Conscience Rights with the Rights of Patients and Institutions

Matthew White

Abstract
Conclusion
. . .The patchwork of current conscience protection for pharmacists indisputably fails its purpose-in almost all cases the current legislation is severely one-sided and out of date. Although such conscience protection admirably attempts to embody the purposes of the First Amendment, most of the actual and proposed legislation suffers from severe partisan myopia. Statutes purporting to offer absolute protection to patients, to employers, or to health care providers rather than striking a balance tend to prolong and enlarge conflict rather than resolve it. . .

Patients, pharmacists, and employers all have civil rights implicated in the delicate interactions that surround the use of oral contraception, and decisive action should be taken to enact statutes that protect the rights of each, rather than statutes that protect one group exclusively. Legislators should make a painstaking effort to craft new conscience legislation that protects the conscience rights of pharmacists without inserting the pharmacist between the patient and her doctor. Such legislation should also make some provision for employers that would be substantially burdened by an inability to conduct their business in the event of a bona fide conscience claim.

White M. Conscience Clauses for Pharmacists: The Struggle to Balance Conscience Rights with the Rights of Patients and Institutions. Wisc Law Rev. 2005;6(1611-1648.

(News) “Conscience” clauses allow US corporate providers to refuse care

Janice Hopkins Tanne

British Medical Journal, BMJ — British Medical Journal

Extract
“Refusal clauses” and “conscience exceptions,” which allow US doctors, nurses, and healthcare workers to refuse to provide certain types of health care to patients, are being extended to hospitals, insurance companies, pharmacies, and managed care companies.

Tanne JH. “Conscience” clauses allow US corporate providers to refuse care. Br Med J. 2004;329(7464):476.

When Free Exercise Exemptions Undermine Religious Liberty and the Liberty of Conscience: A Case Study of the Catholic Hospital Conflict

Brietta R Clark

Extract
Conclusion
Using this framework, I propose a more protective principle for free exercise protection than currently exists, one that requires a heightened scrutiny of all laws that burden religious liberty, even neutral laws of general applicability. This review should examine carefully the need for the government law and the possibility of an exemption or accommodation that will not undermine the purpose of the law. However, I would not go as far as some states in providing almost absolute free exercise protection from government laws serving important government interests. Rather, the principle I advocate requires a balancing of interests tipped to favor laws protecting third parties’ from harm over religious claimants’ objections. The Catholic hospital conflict demonstrates how even under this more protective free exercise principle, the rule of law and the self–limiting principle of the liberty of conscience and religious liberty operate as justifiable limits on the scope of free exercise protection. The hospitals’ free exercise interests must be balanced against the potential harm to patients who cannot access necessary reproductive health care and information, which means that in many cases exemptions for religious hospitals will be denied.

Clark BR. When Free Exercise Exemptions Undermine Religious Liberty and the Liberty of Conscience: A Case Study of the Catholic Hospital Conflict. Oregon Law Review. 2003 Fall;82(3):625-694.

Misperception and Misapplication of the First Amendment in the American Pluralistic System: Mergers between Catholic and Non-Catholic Healthcare Systems

Jason M Kellhofer

Extract
This note questions the wisdom of those who contend that Catholic health providers, to constitutionally qualify for government assistance or be permitted to merge with public entities, must be stripped of that which makes them most effective – their religious identity. The threat to sectarian healthcare has steadily been on the rise as can be seen in actions such as the American Public Health Association’s recent approval of a policy statement recommending more government oversight to preclude the dropping of reproductive services when Catholic and Non-Catholic hospitals merge. Section II explores why these mergers occur and why certain services are subsequently dropped. Section III applies a historical analysis to refute the argument that public and private are meant to remain separate. After establishing that pluralism has been and is presently the foundation of the American society and its healthcare, section IV evaluates whether the Establishment Clause or the Free Exercise Clause of the First Amendment is in danger of violation by mergers between Catholic and Non-Catholic hospitals. Finally, section V addresses the argument that Catholic healthcare mergers constructively deny women, most especially indigent women in rural areas, the right to reproductive services, namely abortion.

Kellhofer JM. Misperception and Misapplication of the First Amendment in the American Pluralistic System: Mergers between Catholic and Non-Catholic Healthcare Systems. J. Law Health. 2001-2002;16(1):103-104.

The High Cost of Merging With A Religiously-Controlled Hospital

Monica Sloboda

Berkeley Women's Law Journal — Berkeley Women’s Law Journal

Extract
Conclusion
The trend of hospital mergers between religious and non-religious hospitals may continue to threaten access to reproductive health services, especially for patients who already have limited access because they live in rural areas or have low incomes.l” However, as this essay suggests, there are several avenues that concerned citizens and activists can take to try to prevent the loss of these vital services.l ” The creativity and determination of those who commit themselves to ensuring that reproductive health services will continue to be available to all who desire them has resulted in several viable legal and practical methods of intervention. Although I believe it is important to respect the religious rights and beliefs of others. when the expression of these beliefs encroaches on patients’ rights to access basic health services, intervention is appropriate and necessary. I hope that public outcry, in the forms of legal and grassroots action, will persuade state actors, legislatures, hospital administrators, and clergy to properly acknowledge patients’ rights and participate in the creation of acceptable solutions to the financial problems that hospitals increasingly face. We need solutions that do not deny essential health services to any group of people.

Sloboda M. The High Cost of Merging With A Religiously-Controlled Hospital. Berkeley Women’s Law J. 2001 Sep;140-156.

Private Religious Hospitals: Limitations Upon Autonomous Moral Choices in Reproductive Medicine

William W Bassett

Journal of Contemporary Health Law and Policy

Extract
“Conscience clauses,” protecting the free exercise of religion in ethical decision-making by religiously affiliated hospitals, I believe, should continue to be absolute in reproductive medicine where the hospitals are clearly and unmistakably religious and patient choices of providers are free and fully informed. This conclusion is compelled by the free exercise clause of the First Amendment, as well as by the national interest in preserving and promoting diversity in the voluntary health care sector.

Bassett WW. Private Religious Hospitals: Limitations Upon Autonomous Moral Choices in Reproductive Medicine. J Contemp Health Law Policy. 2001;17:455-583.

Compliance with Patients’s End-of-Life Wishes by Nursing Homes in New York City with Conscience Policies

Cynthia K Hosay

Abstract
Nursing home patients have a constitutional right to refuse treatment. The Patient Self-Determination Act confirmed that right. State laws address the obligations of health care providers and facilities to honor that right. The New York State law is more specific than those of many other states. It allows exemptions for “reasons of conscience” and imposes a number of requirements on nursing homes claiming such an exemption, including the transfer of a patient to a home that will honor an end-of-life wish. This study, conducted by FRIA, 1 investigated the refusal of some nursing homes in New York City to carry out patients’ end-of-life wishes because of conscience-based objections. The study also investigated the willingness of homes which did not have such policies to accept patients transferring from a home with a policy so that the patient’s end-of-life wishes would be honored. Implications for administrators, policy makers, and regulators are discussed.

Hosay CK. Compliance with Patients’s End-of-Life Wishes by Nursing Homes in New York City with Conscience Policies. OMEGA. 2001 Apr;44(1):57-76.

Reproductive Health Services and the Law and Ethics of Conscientious Objection

Bernard M Dickens

Abstract
Reproductive health services address contraception, sterilization and abortion, and new technologies such as gamete selection and manipulation,in vitro fertilization and surrogate motherhood. Artificial fertility control and medically assisted reproduction are opposed by conservative religions and philosophies, whose adherents may object to participation. Physicians’ conscientious objection to non-lifesaving interventions in pregnancy have long been accepted. Nurses’ claims are less recognized, allowing nonparticipation in abortions but not refusal of patient preparation and aftercare. Objections of others in health- related activities, such as serving meals to abortion patients and typing abortion referral letters, have been disallowed. Pharmacists may claim refusal rights over fulfilling prescriptions for emergency (post-coital) contraceptives and drugs for medical (i.e. non-surgical) abortion. This paper addresses limits to conscientious objection to participation in reproductive health services, and conditions to which rights of objection may be subject. Individuals have human rights to freedom of religious conscience, but institutions, as artificial legal persons, may not claim this right.

Dickens BM. Reproductive Health Services and the Law and Ethics of Conscientious Objection. Med Law. 2001;20(2)283-293.

The scope and limits of conscientious objection

Bernard M Dickens, Rebecca J Cook

International Journal of Gynecology & Obstetrics

Abstract
Principles of religious freedom protect physicians, nurses and others who refuse participation in medical procedures to which they hold conscientious objections. However, they cannot decline participation in procedures to save life or continuing health. Physicians who refuse to perform procedures on religious grounds must refer their patients to non-objecting practitioners. When physicians refuse to accept applicants as patients for procedures to which they object, governmental healthcare administrators must ensure that non-objecting providers are reasonably accessible. Nurses’ conscientious objections to participate directly in procedures they find religiously offensive should be accommodated, but nurses cannot object to giving patients indirect aid. Medical and nursing students cannot object to be educated about procedures in which they would not participate, but may object to having to perform them under supervision. Hospitals cannot usually claim an institutional conscientious objection, nor discriminate against potential staff applicants who would not object to participation in particular procedures.

Dickens BM, Cook RJ. The scope and limits of conscientious objection. Int J Gyn Ob. 2000;71(1):71-77.

Informed Consent for Emergency Contraception: Variability in Hospital Care of Rape Victims

Steven S Smugar, Bernadette J Spina, Jon F Merz

Abstract
There is growing concern that rape victims are not provided with emergency contraceptives in many hospital emergency rooms, particularly in Catholic hospitals. In a small pilot study, we examined policies and practices relating to providing information, prescriptions, and pregnancy prophylaxis in emergency rooms. We held structured telephone interviews with emergency department personnel in 5K large urban hospitals, including 28 Catholic hospitals from across the United States. Our results showed that some Catholic hospitals have policies that prohibit the discussion of emergency contraceptives with rape victims, and in some of these hospitals, a victim would learn about the treatment only by asking. Such policies and practices are contrary to Catholic teaching. More seriously, they undermine a victim’s right to information about her treatment options and jeopardize physicians’ fiduciary responsibility to act in their patients’ best interests. We suggest that institutions must reevaluate their restrictive policies. If they fail to do so, we believe that state legislation requirng hospitals to meet the standard of care for treatment of rape victims is appropriate.

Smugar SS, Bernadette J Spina BA, Jon F Merz JD. Informed Consent for Emergency Contraception: Variability in Hospital Care of Rape Victims. Am J Public Health. 2000 Sep;90(9):1372-1376.