Protection of Conscience Project Library
Service, not Servitude
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More specifically, this article explores the question: Is it morally permissible for a lawyer to decline representation of a prospective client who seeks to obtain a legal but immoral objective, if the lawyer reasonably believes that the prospective client will be otherwise unable to obtain legal representation?
Collett TS. The Common Good and the Duty to Represent: Must the Last Lawyer in Town Take Any Case? South Texas Law Review. 1999;40(137-179)
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Bruce Ackerman’s “We The People: Transformations” is elegantly conceived, theoretically clever, rhetorically inventive, and empirically convincing, but it remains ideologically inadequate. . . . In the absence of attention to how people in the United States have come to think about a higher law, Ackerman has fallen back on a Whiggish view where love of liberty and justice is assumed to be part of the human endowment, at least of American humans. Fused convictions about democratic governance and liberal aspirations motivate Ackerman’s We the People. . . . This Whiggish overlay upon the argument of Transformations appears most strikingly in the discussion of Reconstruction, in which all acts are optimized-whether those of intransigent Radical Republicans or white supremacist Southern Redeemers. Some higher force is orchestrating this partisan cacophony into a melodious resolution. . . . I will pose the proposition that two higher law concepts have polarized American politics from Alexander Hamilton through Ronald Reagan, and that they need to be put into the picture of Ackerman’s grand transformative moments.
Appleby J. The Americans’ higher-law thinking behind higher lawmaking. Yale Law J. 1999;108(8):1995-2001.
Abstract
Human rights protections have developed to resist governmental intrusion in private life and choices. Abortion laws have evolved in legal practice to protect not fetuses as such but state interests, particularly in prenatal life. National and international tribunals are increasingly called upon to resolve conflicts between state enforcement of continuation of pregnancy against women’s wishes and women’s reproductive choices. Legal recognition that human life begins at conception does not resolve conflicts between respect due to women’s reproductive self-determination and due to prenatal life. Human rights protect healthcare providers’ claims to conscientious objection, but not at the cost of women’s lives and enduring health.
Cook RJ, Dickens BM. Human rights and abortion laws. Int J Gynecol Obstet. 1999 Apr 22;65(81-87.
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It appears that on many characteristics there are significant differences among members and non-members of HECs. Whether it be a self-selection bias or some other factor, whatever is at work on the composition of HECs seems to have a profound effect pulling toward homogeneity of the membership. This is not necessarily bad if it leads to the best ethical thinking in the institution. It does, however, give pause for thought considering the current widespread emphasis on cultural diversity in society. If diversity is thought to be desirable, is such homogeneity within HECs appropriate?
Self DJ, Skeel JD. The Moral Reasoning of HEC* Members (*Hospital Ethics Committee). HEC Forum. 1998 Mar;10(1):43-54.
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The problem of conscience in ethics consultation is a central part of the creation and selection of the particular standards to which we hold ourselves accountable and the very process by which we come to know,choose, and act on what is right. Finding such standards and agreeing on how to maintain personal and professional integrity forces each of us to regard in the most serious terms the core issues of our work and its meaning. And though external sources such as our profession, religion, or community may all at times influence our sense of appropriate and inappropriate behavior, on some level, each of us must also face these questions personally. At a certain point, we face a confrontation with what we are culturally shaped by modernity to “see” as our own privatized internal guide – our conscience. Turning towards conscience is turning towards a particular kind of confrontation with ourselves.
Zoloth-Dorfman L, Rubin SB. Insider Trading: Conscience and Critique in Bioethics. HEC Forum. 1998 March;10(1):24-33.
Abstract
Central to the Cowdin-Tuohey paper is the concept of a moral authority proper to medical practitioners. Much as I agree with the authors in refusing to degrade doctors to the status of mere technicians, I argue that one does not succeed in retrieving the moral dimension of medical practice by investing doctors with moral authority. I show that none of the cases brought forth by Cowdin-Tuohey really amounts to a case of moral authority. Then I try to explain why no such cases can be found. Developing an insight that is common to all the major moral thinkers in the philosophia perennis, I show that doctors are professionally competent with respect only to a part of the human good; morally wise persons are competent with respect to that which makes man good as man. I try to show why it follows that a) professional expertise has no natural tendency to pass over into moral understanding, and that b) doctor and non-doctor alike start from the same point in developing their understanding of medical morality. It follows that the authors fail in their attempt to de-center the moral magisterium of the Church by setting up centers of moral authority outside of the Church.
Crosby JF. There Is No Moral Authority in Medicine: Response to Cowdin and Tuohey. Christ Bioet. 1998 Jan 01;4(1):63-82.
Abstract
Bioethics has focused on the areas of individual ethical choices — patient care — or public policy and law. There are however, important arenas for ethical choices that have been overlooked. Health care is populated with intermediate arenas such as hospitals, nursing homes, hospices, and health care systems. This essay argues that bioethics needs to develop a language and concepts for institutional ethics. A first step in this direction is to think about institutional conscience.
Wildes KW. Institutional identity, integrity, and conscience. Kennedy Inst Ethics J. 1997 Dec;7(4):413-419.
Abstract
Managed care organizations can produce conflicts of obligation and conflicts of interest that may lead to problems of conscience for health care professionals. This paper provides a basis for understanding the notions of conscience and conscientious objection and offers a framework for clinicians to stake out positions grounded in personal conscience as a way for them to respond to unacceptable pressures from managers to limit services.
Childress JF. Conscience and Conscientious Actions in the Context of MCOs. Kennedy Inst Ethics J. 1997 Dec;7(4):403-411.
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. . . In unanimous rulings last month, [United States] Chief Justice Rehnquist, writing for the court, held that there is no fundamental right to assistance in committing suicide1 and that, legally, distinguishing between refusing life saving medical treatment and requesting assistance in suicide “comports with fundamental legal principles of causation and intent.”
. . . Attempts to decriminalise assisted suicide in Britain have so far fallen well short of legislation.. . . Pressure groups in favour of voluntary euthanasia seem to accept that it will be difficult to achieve euthanasia legislation in one step but consider that assisted suicide represents a more attainable goal. From an opinion survey of Scottish doctors, the medical profession seems less resistant to assisting suicide than to practising euthanasia. . .
. . . it remains to be seen whether societal acceptance of physician assisted suicide will increase and how it will affect both social support for vulnerable and dying citizens and trust between patients and their doctors.
Churchill LR, King NMP. (Editorial) Physician assisted suicide, euthanasia, or withdrawal of treatment: Distinguishing between them clarifies moral, legal, and practical positions. Br Med J. 1997 Jul 19;315(7101):137-138.
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Conclusion
Tennessee Formal Ethics Opinion 96-F-140 attempts to disconnect morality from the lawyer’s work. The Board’s disregard of the lawyer’s moral and religious objections to accepting the appointment suggests either a hostility to the particular religious beliefs asserted by the inquiring lawyer or a willingness to demand lawyers accept being treated as mere means to clients’ and courts’ ends. Hostility to religious beliefs is deeply troubling when exhibited by those who are charged with providing lawyers’ guidance in discerning their professional obligations, but the second possible interpretation of the opinion is equally chilling. To the extent that the Board’s opinion represents the members’ considered judgment that lawyers are obligated to act as amoral facilitators of any action not proscribed by positive law, the power of the state is dramatically enlarged and the power of the individual and other social institutions dangerously diminished. This result cannot be tolerated under the terms of the First Amendment, nor can it be reconciled with the lawyer’s basic human rights.
Collett TS. Professional Versus Moral Duty: Accepting Appointments in Unjust Civil Cases. Wake Forest Law Review. 1997;32: 635-670.