Religion Archives - Protection of Conscience Project Library

Freedom of Conscience of Healthcare Professionals and Conscientious Objection in the European Court of Human Rights

María José Valero

Abstract The recent social and legal debate in several European countries on abortion, euthanasia, and assisted suicide has caused a strong resurgence of the concerns of healthcare personnel as to the real possibility of protecting their consciences in their professional sphere. Individual refusal for religious, moral, deontological, or ethical reasons to participate in activities that directly or indirectly could result in the termination of a human life constitutes the most extreme manifestation of the legal phenomenon of conscientious objection. Although the European Convention on Human Rights does not recognize a general right to conscientious objection, since Bayatyan v. Armenia, the case law of the European Court of Human Rights has identified a connection between conscience-related claims to compulsory military service and Article 9 of the Convention. However, to this date, this doctrine has not been applied to cases that affect health-sensitive areas like abortion and contraception. This article analyzes the activity of the European Court of Human Rights in relation to the right to freedom of conscience and to conscientious objection, particularly in healthcare, and offers several final observations projected to possible future conflicts.

Valero MJ. Freedom of Conscience of Healthcare Professionals and Conscientious Objection in the European Court of Human Rights. Religions [Internet] 2022 Jun 16; 13: 558

Referral vs Transfer of Care:Ethical Options When Values Differ

Cynthia Jones-Nosacek

Abstract
Conscientious objection (CO) in medicine is where a healthcare professional (HCP) firmly opposes, with an expression of reasoned disapproval, a legally available procedure or treatment that is proscribed by one’s conscience. While there remains controversy regarding whether conscientious objection should be a part of medicine, even among those who support CO state that if the HCP does not provide the requested service such as abortion, physician assisted suicide, etc., there is an obligation on the part of the objecting HCP to refer to someone who will provide it. However, referral makes the referring HCP complicit in the act the referrer believes to be immoral since the referrer has a duty to know that the HCP who will accept the patient is not only able to do the procedure but is competent in its performance as well. The referrer thus facilitates the process. Since one has a moral obligation to limit complicity with immoral actions when it cannot be avoided, the alternative is to allow the patient to transfer care to another when the patient has made the autonomous decision to reject the advice of the HCP.

Jones-Nosacek C. Referral vs Transfer of Care:Ethical Options When Values Differ. The Linacre Quarterly 2022 89(1):36-46.

How should a liberal democracy react to conscientious objection claims

Panel 3: Theological and Religious Perspectives on Conscience

Royal Irish Academy Symposium

Chair:

Mary McAleese, MRIA, Professor of Children, Law and Religion, University of Glasgow

Panellists:

Professor Linda Hogan, Trinity College Dublin
Professor David Albert Jones, The Anscombe Bioethics Centre
Professor David Novak, University of Toronto

Religious and theological conceptions of conscience; role of conscientious objection within faith traditions; freedom of religion, freedom within religion. Resistance motivated by faith and conscience: military service, health care.

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

Developing Public Policy for Sectarian Providers: Accommodating Religious Beliefs and Obtaining Access to Care

Kathleen M Boozang

Author Extract
The market changes sweeping the U.S. health care industry have a distinctive impact on communities that rely on religiously affiliated health care providers. When a sectarian sponsor subsumes multiple providers, its assertion of religious beliefs can preclude the provision of certain health care services to the entire community. In addition, the sectarian provider’s refusal to offer certain services may violate state certificates of need, licensing, Medicaid managed care, or even professional liability law. This situation challenges both the provider and the state: the provider seeks adherence to religious law, and the state seeks compliance with its law and citizens access to health care.

I propose that the state attempt to ameliorate tensions between civil and religious laws through negotiated accommodation. This concept encourages the sectarian institution to reassess its mission in the current market and to identify alternative avenues of health care delivery that will preserve patients’ access to care without excessively diluting religious identity or beliefs.

Boozang KM. Developing Public Policy for Sectarian Providers: Accommodating Religious Beliefs and Obtaining Access to Care. J Law Med Ethics. 1996;24(2):90-98.

A New Theory of Conscientious Objection in Medicine: Justification and Reasonability

Robert F Card

Robert F. Card. A New Theory of Conscientious Objection in Medicine: Justification and Reasonability. New York & London: Routledge, 2020, 268 pp. ‎ ISBN-10:0367430819

Publisher Summary
This book argues that a conscientiously objecting medical professional should receive an exemption only if the grounds of an objector’s refusal are reasonable. It defends a detailed, contextual account of public reasonability suited for healthcare, which builds from the overarching concept of Rawlsian public reason.

The author analyzes the main competing positions and maintains that these other views fail precisely due to their systematic inattention to the grounding reasons behind a conscientious objection; he argues that any such view is plausible to the extent that it mimics the ‘reason-giving requirement’ for conscience objections defended in this work. Only reasonable objections can defeat the prior professional obligation to assign primacy to patient well-being, therefore one who refuses a patient’s request for a legally available, medically indicated, and safe service must be able to explain the grounds of their objection in terms understandable to other citizens within the public institutional structure of medicine. The book further offers a novel policy proposal to deploy the Reasonability View: establishing conscientious objector status in medicine. It concludes that the Reasonability View is a viable and attractive position in this debate.

A New Theory of Conscientious Objection in Medicine: Justification and Reasonability will be of interest to researchers and advanced students working in bioethics, medical ethics, and philosophy of medicine, as well as thinkers interested in the intersections between law, medical humanities, and philosophy.

The Independence of Judicial Conscience

Barry W. Bussey

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.

Colorado End-of-Life Options Act: A Clash of Organizational and Individual Conscience

Matthew Wynia

Journal of the American Medical Association

Extract
If the courts rule that the Constitution allows hospitals to exert control over individual physicians’ claims of professional conscience, it will be a victory for corporate medicine. But if the state law is upheld, the case could establish that physicians’ professional conscience claims hold or take precedence over the ethical and religious directives of religiously affiliated hospitals. It is possible that at least some religiously affiliated health systems might rather close than allow that outcome.

Wynia M. Colorado End-of-Life Options Act: A Clash of Organizational and Individual Conscience. J Am Med Ass. 2019 Oct 29;322(20):1953-1954.

Professionalism eliminates religion as a proper tool for doctors rendering advice to patients

Udo Schuklenk

Abstract:Religious considerations and language do not typically belong in the professional advice rendered by a doctor to a patient. Among the rationales mounted by Greenblum and Hubbard in support of that conclusion is that religious considerations and language are incompatible with the role of doctors as public officials.1 Much as I agree with their conclusion, I take issue with this particular aspect of their analysis. It seems based on a mischaracterisation of what societal role doctors fulfil, qua doctors. What obliges doctors to communicate by means of content that is expressed in public reason-based language is not that they are public officials. Doctors as doctors are not necessarily public officials. Rather, doctors have such obligations, because they are professionals. Unlike public officials doctors are part of a profession that is to a significant extent self-governing. This holds true for all professions. The …

Responding to religious patients: why physicians have no business doing theology. Jake Greenblum Ryan K Hubbard Journal of Medical Ethics 2019; – Published Online First: 20 Jun 2019. doi: 10.1136/medethics-2019-105452

Schuklenk U. Professionalism eliminates religion as a proper tool for doctors rendering advice to patients. J Medical Ethics. 2019 Sep 12. pii: medethics-2019-105703. doi: 10.1136/medethics-2019-105703. [Epub ahead of print]

(Book Review) The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality

Christopher Cowley

Susanna Mancini and Michel Rosenfeld (eds). The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality. Cambridge: Cambridge University Press, 2018, pp. 493. ISBN: 978-1107173309

Extract
This volume is based on a conference held at the Cardozo School of Law in ew York in 2015, and brings together American and European law academics to discuss the distinctive ways in which conscience claims have ‘spread’ in the public discourse over the last two or three decades. Conscientious objection used to be an individual matter for e.g. draftees and doctors, aimed at recusing oneself from complicity with evil, in contrast to civil disobedience, which was a larger collective movement aimed at changing public opinion and the law. These days, however, conscience seems to be in the news much more, mostly associated with organized religious conservative agendas – hence the title’s reference to a ‘war’ playing out in parallel to the efforts in and around a country’s legislature. Perhaps the most famous recent case of mobilized public conscience was that of the US Supreme Court case of Burwell u Hobby Lobby (2014), in which the owners of a company successfully challenged the legal requirement (under the 2010 Affordable Care Act) that the company fund contraception for its female employees. The owners’ objection was religious, and was framed in terms of their right to religious expression. . .

Cowley C. Book Review: The Conscience Wars; Rethinking the Balance between Religion, Identity, and Equality. New Bioethics. 2019 Sep; 25(3): 286-289, DOI:10.1080/20502877.2019.1647039

Medical referral for abortion and freedom of conscience in Australian law

Joanne Howe, Suzanne Le Mire

Abstract
This article examines legislative changes related to abortion regulation in Australia that create obligations of medical referral on practitioners who have a conscientious objection to abortion. Despite a significant Australian history of accepting secularized conscience claims, particularly in the field of military conscription, the limitation of conscience claims about abortion can be traced to a failure to appreciate the significant secular arguments that can be made to support such claims. We draw on arguments of plurality and pragmatism as capable of providing a firm foundation for legislative protections of freedom of conscience in the case of medical referral for abortion. These justifications are not dependent on religious grounds, and therefore they have the potential to be relevant and persuasive in a secular society such as Australia. Acceptance of a pluralistic argument in favor of freedom of conscience is a powerful commitment to the creation of a society that values human autonomy and a diversity of opinion. It sits comfortably with the democratic values that are enshrined in the Australian political system and institutions. It avoids the potential damage to the individual that may be wrought when conscience is overridden by state compulsion.

Howe J, Mire SL. Medical referral for abortion and freedom of conscience in Australian law. J Law Religion. 2019 Jul 1;34(1):85-112.