Extract Healthcare providers who cite conscientious objection as grounds for refusing to provide components of legal reproductive care highlight the tension between their right to exercise their conscience and women’s rights to receive needed care. There are also societal obligations and ramifications at stake, including the responsibility for negotiating balance between all of these competing interests. . .
. . . There are too many barriers to access to reproductive health- care. Conscience-based refusal of care may be one that we can successfully address.
Wendy Chavkin, Liddy Leitman, Kate Polin, Global Doctors for Choice
International Journal of Gynecology & Obstetrics
Abstract Background Global Doctors for Choice—a transnational network of physician advocates for reproductive health and rights—began exploring the phenomenon of conscience-based refusal of reproductive healthcare as a result of increasing reports of harms worldwide. The present White Paper examines the prevalence and impact of such refusal and reviews policy efforts to balance individual conscience, autonomy in reproductive decision making, safeguards for health, and professional medical integrity.
Objectives and search strategy The White Paper draws on medical, public health, legal, ethical, and social science literature published between 1998 and 2013 in English, French, German, Italian, Portuguese, and Spanish. Estimates of prevalence are difficult to obtain, as there is no consensus about criteria for refuser status and no standardized definition of the practice, and the studies have sampling and other methodologic limitations. The White Paper reviews these data and offers logical frameworks to represent the possible health and health system consequences of conscience-based refusal to provide abortion; assisted reproductive technologies; contraception; treatment in cases of maternal health risk and inevitable pregnancy loss; and prenatal diagnosis. It concludes by categorizing legal, regulatory, and other policy responses to the practice.
Conclusions Empirical evidence is essential for varied political actors as they respond with policies or regulations to the competing concerns at stake. Further research and training in diverse geopolitical settings are required. With dual commitments toward their own conscience and their obligations to patients’ health and rights, providers and professional medical/public health societies must lead attempts to respond to conscience-based refusal and to safeguard reproductive health, medical integrity, and women’s lives.
Abstract Corporations — for-profit and non-profit, religiously affiliated and secular — have filed approximately sixty lawsuits challenging the Affordable Care Act’s requirement that employee health insurance plans cover contraception. In this paper, I contend that a dangerous doctrine of “corporate conscience” may be born of the contraception controversy. Already, a number of courts have indicated a willingness to accept that artificial business entities incorporated for secular, profit-making aims have religious beliefs and consciences that excuse them from compliance with law. Their reasoning repudiates longstanding foundations of corporate law. It transforms conscience, which is inherently human, into the province of business entities.
Drawing on health law and policy, I argue that these courts fundamentally misunderstand the nature of health benefits. Health insurance is a form of compensation, earned by and belonging to the employee like wages. By neglecting this economic reality, courts draw incorrect conclusions about the responsibility, legal and moral, of employers for the contents of their employees’ insurance plans, and thus about the burden that any regulation imposes. Moreover, courts fail to recognize that the role the ACA ascribes to private employers bears striking similarity to other comprehensive social insurance schemes, all of which have faced and survived challenges based on free exercise. Any employer responsibility for employer-based insurance should be analyzed under this precedent.
Finally, I suggest that “corporate conscience” would destabilize the rights of employees far beyond the context of contraception. Religiously affiliated commercial actors already assert rights to defy health and safety laws, pay women less, and fire pregnant women. If secular employers succeed in their challenge to the contraception mandate, gender equality and religious freedom will be at risk in all workplaces.
Abstract In the medical setting, conscience legislation serves to protect health care professionals who refuse to provide certain procedures or services that would violate their consciences. The “Personhood Movement,” on the other hand, is characterized by advocates’ attempts to adopt legislation or constitutional amendments at the state and/or federal level that would extend the legal and moral protection associated with personhood to members of the human species at the earliest stages of biological development. The relationship between conscience legislation and the Personhood Movement may not be self-evident, but the connection becomes apparent when considering trends in conscience legislation. This is particularly true in the context of expanding legal protection to health care professionals who object to certain forms of birth control, such as emergency contraception (EC).
In a recent paper Professor Elizabeth Sepper noted that instead of protecting a health care provider’s conscience, a possible purpose behind broad conscience legislation is to “make abortions, family planning, and end-of-life care more difficult to obtain,” and that the true goal of such legislation is “hostility to reproductive health and patients’ interests.” Indeed, this essay will suggest that the adoption of a personhood framework could represent majoritarian approval of the very principles that cause certain people to conscientiously object to EC. While some have raised concerns that conscience legislation itself could lead to problems with access to EC (especially in rural communities), adoption of a personhood framework seems to pose a much greater risk. This essay describes the expansion of conscience legislation in the medical setting, which reflects a trend toward authorizing the refusal of a broader range of procedures and services by a broader range of health care professionals. It then draws a connection between Mississippi’s very expansive conscience legislation and the decision by a national organization, Personhood USA, to propose a personhood amendment to the Mississippi Constitution. A brief discussion of the relevant biology reveals the relationship between concepts of personhood and EC. This essay suggests that even if a personhood framework is not officially adopted, legislatures that favor the movement and the broad protection of conscience-based refusals may be less inclined to enact measures that protect a woman’s ability to obtain EC. This should be viewed as problematic given that many people, including physicians and pharmacists, may not have an accurate understanding of the reproductive biology associated with early human development and the operation of EC, which may lead such professionals to make conscientious objections based on clinically false information.
Abstract Since 1996, twenty-eight states have adopted legislation mandating insurance coverage of prescription contraceptives for women. Most of these policies include language that allows providers to opt out of the requirement because of religious or moral beliefs—conscience clause exemptions. There is striking variation in how these exemptions are defined. This article investigates the sources and consequences of ambiguous versus precise statutory language in conscience clauses. We find that some forms of political and institutional fragmentation (party polarization and gubernatorial appointment power) are correlated with the degree of policy specificity in state contraceptive mandates. This finding reinforces previous law and policy scholarship that has shown that greater fragmentation promotes ambiguous statutory language because broad wording acts as a vehicle for compromise when actors disagree. Interestingly, it is the more precisely worded statutes that have prompted court battles. We explain this with reference to the asymmetry of incentives and mobilizing costs between those disadvantaged by broad (primarily female employees) versus precisely worded statutes (primarily Catholic organizations). Our findings suggest that the impact of statutory ambiguity on court intervention is heavily contextualized by the resources and organization of affected stakeholders.
Abstract Some philosophers have argued for what I call the reason-giving requirement for conscientious refusal in reproductive healthcare. According to this requirement, healthcare practitioners who conscientiously object to administering standard forms of treatment must have arguments to back up their conscience, arguments that are purely public in character. I argue that such a requirement, though attractive in some ways, faces an overlooked epistemic problem: it is either too easy or too difficult to satisfy in standard cases. I close by briefly considering whether a version of the reason-giving requirement can be salvaged despite this important difficulty.
Extract In the end, although the ACA has made significant headway in expanding insurance coverage of contraception, the controversy surrounding religious and moral objections to contraception means that policy makers continue to struggle to ensure access to this important public health service while respecting religious freedom.
Abstract Catholic physicians practice in a world that condones the use of contraception. In the effort to be morally consistent, questions arise regarding the extent to which one’s participation in the provision of contraceptives constitutes immoral cooperation in evil. Particular challenges face the resident physician, who practices under another physician and within the constraints of local and specialty-wide training requirements. We examine the nature of the moral act of “referring” for contraception and argue that, in limited cases,there is a moral distinction between a referral and an intra-residency patient transfer, and the latter may be morally licit according to the principle of material cooperation
Brooke Winner, Jeffrey F. Peipert, Qiuhong Zhao, Christina Buckel, Tessa Madden, Jenifer E. Allsworth, Gina M. Secura
New England Journal of Medicine
Abstract Background The rate of unintended pregnancy in the United States is much higher than in other developed nations. Approximately half of unintended pregnancies are due to contraceptive failure, largely owing to inconsistent or incorrect use.
Methods We designed a large prospective cohort study to promote the use of long-acting reversible contraceptive methods as a means of reducing unintended pregnancies in our region. Participants were provided with reversible contraception of their choice at no cost. We compared the rate of failure of long-acting reversible contraception (intrauterine devices [IUDs] and implants) with other commonly prescribed contraceptive methods (oral contraceptive pills, transdermal patch, contraceptive vaginal ring, and depot medroxyprogesterone acetate [DMPA] injection) in the overall cohort and in groups stratified according to age (less than 21 years of age vs. 21 years or older).
Results Among the 7486 participants included in this analysis, we identified 334 unintended pregnancies. The contraceptive failure rate among participants using pills, patch, or ring was 4.55 per 100 participant-years, as compared with 0.27 among participants using long-acting reversible contraception (hazard ratio after adjustment for age, educational level, and history with respect to unintended pregnancy, 21.8; 95% confidence interval, 13.7 to 34.9). Among participants who used pills, patch, or ring, those who were less than 21 years of age had a risk of unintended pregnancy that was almost twice as high as the risk among older participants. Rates of unintended pregnancy were similarly low among participants using DMPA injection and those using an IUD or implant, regardless of age.
Conclusions The effectiveness of long-acting reversible contraception is superior to that of contraceptive pills, patch, or ring and is not altered in adolescents and young women. (Funded by the Susan Thompson Buffet Foundation.)
Extract Jürgen Habermas’s recent observations regarding the increasing gulf between traditional religions and contemporary secularism is correct (2002, 2008). The dominant bioethical and political ideologies of the contemporary Western world have come to be not merely secular but often passionately atheistic. Throughout Western Europe and North America, for example, there is a growing movement to undermine the salience of religious discourse, to undue its influence in the public forum, and to erase religion from the public space. Attempts to frame all of medicine within a completely secular morality, relegating religious belief and practice to the realm of private personal choice, have become ever more prominent. Here, one need only consider the current clash between the US Roman Catholic bishops and President Obama’s administration over whether Catholic employers, such as Catholic hospital systems, ought to be legally required to provide insurance coverage for artificial contraception, including abortifacients, in their employer sponsored health care plan.1 In law and public policy, there has been a profound rupture from Traditional Christianity, which secular proponents aggressively seek to place in the distant past, as if Christianity had been an unfortunate, perhaps immoral, accident of history. Habermas’s acknowledgment of the vast divide between traditional religions that approach the world and moral analysis with knowledge of a God Who commands, and secular worldviews that begin all epistemic and normative analysis with the prior assumption that God does not exist, elucidates the fundamental debates of contemporary bioethics.
