Law Archives - Page 24 of 43 - Protection of Conscience Project Library

Service or Servitude: Reflections on Freedom of Conscience for Health Care Workers

Sean Murphy

Abstract
The authors suggestion that patients should be able to access morally controversial services without compromising health care workers’ freedom of conscience is most welcome, as is their acknowledgment that “other options exist” when pharmacists decline to fill prescriptions.

However, the conflicting interests of patients and health care providers may be accommodated but cannot be balanced because they concern fundamentally different goods. Neither the concept of autonomy nor an appeal to the “needs” of the patient help to resolve conflicts in these situations, while fiduciary obligations cannot necessarily be invoked because they are not governed by fixed rules, and there can be no obligation to participate in wrongdoing.

The fact that post-coital interceptives can cause the death of an early embryo is at the heart of the controversy over the drugs. The authors’ advocacy of mandatory referral follows from their belief this is not wrong. Those with different beliefs do not share their conclusions. Conscientious objection does not prevent patients from obtaining post-coital interceptives from other sources. As the exercise of freedom of speech does not force others to agree with the speaker, the exercise of freedom of conscience does not force others to agree with an objector. Concerns about access to legal services or products can be addressed by dialogue, prudent planning, and the exercise of tolerance, imagination and political will. A proportionate investment in freedom of conscience for health care workers is surely not an unreasonable expectation.

Murphy S. Service or Servitude: Reflections on Freedom of Conscience for Health Care Workers (2004 Dec 20) Protection of Conscience Project (website).

The Limits of Conscientious Objection-May Pharmacists Refuse to Fill Prescriptions for Emergency Contraception?

Julie Cantor, K Baum

New England Journal of Medicine, NEJM — New England Journal of Medicine

Abstract
Several reports have detailed cases in which pharmacists have refused to fill prescriptions for emergency contraception. Should pharmacists have the right to refuse access to these medications? This Sounding Board article discusses arguments for and against the right to refuse and proposes a balanced solution to the problem.

Cantor JD, Baum K. The Limits of Conscientious Objection-May Pharmacists Refuse to Fill Prescriptions for Emergency Contraception?. N Engl J Med. 2004 Nov 04;351(19):2008-212.

(News) Slow progress to reproductive rights

Jocalyn Clark

Canadian Medical Association Journal, CMAJ — Canadian Medical Association Journal

Extract
Religious fundamentalism and a lack of resources are the chief barriers to achieving sexual and reproductive rights for all by 2015, concluded the 2004 International Conference on Population and Development (ICPD) . . . Katherine McDonald, president of Action Canada for Population and Development, said that advocates of the Cairo consensus have been overly distracted by their efforts to isolate and shame US and conservative backlash and must reinvest in a commitment to human rights. “In-depth policy analyses of sexual, reproductive, and abortion rights are lacking,” she said.

Clark J. Slow progress to reproductive rights. Can Med Assoc J. 2004;171(8):841.

(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.

Advance Directives and Dementia

Gregory E Kaebnick

Abstract
A competent person can avoid the onset of dementia by refusing life-sustaining medical care and by voluntarily stopping eating and drinking, bringing life to an end well before any health crisis. A competent person can also try to limit the duration of dementia by drafting an advance directive that sets bounds on the life-sustaining care, including artificial nutrition and hydration, that medical caregivers can provide when the person no longer has the capacity to make her own medical decisions. But between these two strategies there can lie a significant gap. A person could live with moderate to severe dementia for a considerable time, no longer able to voluntarily stop eating and drinking yet also not yet requiring the life-sustaining care forbidden by advance directive. This gap has been much discussed in recent years in the Hastings Center Report. Several years ago (in the May-June 2014 issue), Paul Menzel and M. Colette Chandler-Cramer argued for what they described as a moderate correction to the dominant view that food and water should always be offered to a patient with dementia if the patient expresses a desire to eat and drink. The problem is taken up again by the legal scholar Norman L. Cantor in this issue (July-August 2018), and Cantor, too, tries to find a moderate alternative.

Kaebnick GE. Advance Directives and Dementia. Hastings Cent Rep. 2018 Aug 16;48(4):2.

New Refusal Clauses Shatter Balance Between Provider ‘Conscience’, Patient Needs

Adam Sonfield

Extract
A series of attention-grabbing lawsuits and a crop of new legislation have spotlighted a long-gathering movement to vastly expand the scope of policies allowing health care providers, institutions and payers to refuse to participate in sexual and reproductive health services by claiming a moral or religious objection. In some cases, these radical new policies are intentionally designed to undermine, if not actually eliminate, the ability of governments at all levels, and even private businesses, to balance providers’ “conscience” rights with the ability of patients to exercise their own conscience and gain access to health care services that they want and need.

Sonfield A. New Refusal Clauses Shatter Balance Between Provider ‘Conscience’, Patient Needs. Guttmacher Rep Public Pol. 2004 August:1-3.

(Correspondence) In Response

Bernard M. Dickens, Rebecca J. Cook

Journal of Obstetrics and Gynaecology Canada

Extract

As neither our original Commentary on access to emergency contraception nor our letter response was suitable for fully referenced legal or ethical reasoning, we appreciate this opportunity to expand a little on the substance of both, addressing the points Mr Murphy raises.

Dickens BM, Cook RJ. (Correspondence) In Response. 2004 Aug; 26(8): 706-707.

(Correspondence) Access to Emergency Contraception

Sean Murphy

Extract

In a letter in the February issue of JOGC, Rebecca J. Cook and Bernard M. Dickens state, “Physicians who feel entitled to subordinate their patient’s desire for well-being to the service of their own personal morality or conscience should not practise clinical medicine” (emphasis added).
The statement is unsupported by their own legal references, and it has little to recommend it as an ordering principle in the practice of medicine.

Murphy S. (Correspondence) Access to Emergency Contraception. JOGC. 2004 Aug; 26(8): 705-706.

War Crimes and Legal Immunities: The Complicities of Waffen-SS General Karl Wolff in Nazi medical experiments

Michael Salter, Suzanne Ost

Extract
There is a considerable amount of academic and popular literature on Nazi medical experimentation within concentration camps, however, the existing research largely focuses on the doctors and the details of their experiments and has neglected two interesting themes. The first neglected theme is the potential legal liabilities and defense strategies of those among the SS leadership, such as SS General Karl Wolff. Wolff facilitated these experiments in a purely administrative capacity, but without his contribution this type of war crime would not have been possible. Secondly, the research has neglected the extent to which Wolff was able to avoid legal accountability for these and other war crimes, as a result of his wartime cooperation with a U.S. intelligence agency and his post-war assistance to interrogators within the Allied Military Intelligence as well as the Nuremberg prosecutors. [2] The present article, which is the first in a series of related studies, focuses largely on the first theme. This article gives particular attention to Wolff’s attempts to avoid prosecution by insisting that the experiments were of a voluntary nature, based on the consent of the research subject, and were, therefore, not criminal acts. Additionally, the article focuses on Wolff’s claim that he did not possess the requisite mens rea or intent necessary to secure a criminal conviction.

Salter M, Ost S. War Crimes and Legal Immunities: The Complicities of Waffen-SS General Karl Wolff in Nazi medical experiments. Rutgers J Law Rel. 2004(1);1-69.

Access to emergency contraception

Rebecca J Cook, Bernard M Dickens

Abstract
The merits of non-prescription distribution of levonorgestrel as emergency contraception (EC), which is effective within 72 hours of unprotected intercourse, are contentious. The advantage of promptness and convenience of access may be offset by the absence of medical counselling. Opposition to EC based on the possibility of the drug acting after fertilization but before implantation departs from standard medical criteria of pregnancy. Physicians who propose to apply non-medical criteria, and use religious objections to abortion to deny prescription of EC, must publicize their opposition in advance, so that women may seek assistance elsewhere. When objecting practitioners, or facilities, become responsible for women for whom EC is indicated, such as rape victims, they are bound ethically and legally to refer them to reasonably accessible non-objecting sources of care.

Cook RJ, Dickens BM. Access to emergency contraception. J Ob Gyn Canada. 2003 Nov;25(11):914-916.