Law Archives - Page 12 of 43 - Protection of Conscience Project Library

The Abiding Presence of Conscience: Criminal Justice Against the Law and the Modern Constitutional Imagination

Benjamin L Berger

Abstract
In much contemporary constitutional thought the exercise of state power unbounded by or contrary to the law is nothing other than the failure of justice in the constitutional order. Yet it has not always been so. For a substantial period of common- law legal history the exercise of judgment despite the law was viewed as essential to seeing that justice was done. This article argues that attention to the imaginative architecture of our criminal justice system discloses the continued presence of the concept of the positive conscience-based exception as a dimension of modern constitutionalism. This article looks at jury nullification, the royal prerogative of mercy, and prosecutorial discretion as abiding expressions of the idea that law and reason alone are insufficient to give full expression to our sense of state justice. The persistence of these sites for conscience-based decisions unbounded by the law ought to trouble prevailing theories of modern constitutionalism based on the preeminence of a reason- driven proportionality in which all decisions must be contained and regulated by the reason of law. Without denying the dangers of the exception, this article suggests that the conscientious decision made against or in spite of the law remains an important component of the way in which we imagine criminal justice.

Berger BL. The Abiding Presence of Conscience: Criminal Justice Against the Law and the Modern Constitutional Imagination. U Toronto Law J. 2011;61(4):579-616.

Conscientious objection and the Council of Europe: The right to conscientious objection in lawful medical care. Resolution 1763 (2010)

Resolution adopted by the Council of Europe’s Parliamentary Assembly

Mark Campbell

Journal Extract
The Council of Europe’s Parliamentary Assembly has adopted a resolution on conscientious objection in medicine, ‘The Right to Conscientious Objection in Lawful Medical Care’.¹ In general terms, this resolution (‘the Resolution’) affirms the place of conscientious objection in the medical context while inviting member states to provide appropriate regulation of the practice of conscientious objection. In particular, it provides the following: first, there is a recognition that ‘[n]o person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion, the performance of a human miscarriage, or euthanasia or any act which could cause the death of a human foetus or embryo, for any reason’.² Secondly, the right of conscientious objection is affirmed together with the state’s responsibility ‘to ensure that patients are able to access lawful medical care in a timely manner’.³ Thirdly, it is acknowledged that ‘[i]n the vast majority of Council of Europe member states, the practice of conscientious objection is adequately regulated’.⁴ Fourthly, the Resolution invites member states ‘to develop comprehensive and clear regulations that define and regulate conscientious objection with regard to health and medical services’.⁵ Given that the Resolution sets out broad principles in this area and is not binding on member states—the Parliamentary Assembly has the role of a consultative body within the Council of Europe that seeks through its adopted texts to influence legislation and practice at a domestic level—the purpose of this short article is not to provide a line-by-line analysis of the text. It is rather to ‘read between the lines’ of the Resolution by examining its background and significance.

Campbell M. Conscientious objection and the Council of Europe: The right to conscientious objection in lawful medical care. Resolution 1763 (2010). Resolution adopted by the Council of Europe’s Parliamentary Assembly. Med Law Rev. 2011 Summer;19(3):467-475.

Just how much do medicine and morals mix: catholic hospitals and the potential effects of the Freedom of Choice Act

Carolyn Wendel

Notre Dame Journal of Law, Ethics & Public Policy

Extract
Conclusion
It is undeniable that Catholic hospitals play a pivotal role in the administration of health care in America. The requirement that they follow both federal law and canon law can, however, create conflicting obligations. If FOCA were to pass, Catholic hospitals would be required under federal law to provide abortions and other reproductive services in direct conflict with Catholic teachings. At the same time, because the Catholic Church would view FOCA as an unjust law operating against human good and divine good, Catholic hospitals would also have a moral obligation under church teachings to disobey the provisions of FOCA.

Unable to sell because of their inability to cooperate in an evil act, Catholic hospitals would likely engage in civil disobedi ence. And yet, such tactics would only work for so long. Suits would be brought and courts would almost certainly uphold FOCA as a valid and neutral law that is generally applicable. Despite what many would like to believe, FOCA poses a very real and imminent threat to the existence of Catholic hospitals. And the effect least talked about and yet most important is not what effect such closing would have on the Church itself, but what effect it would have on the 92 million patients that Catholic hospitals treat annually. The effects of FOCA passing and Catholic hospitals closing would be much more than a victory for the pro- choice advocates; it would be a loss to every person who has ever received treatment at a Catholic hospital and to all those who would be denied such services in the future. Perhaps we should take a cue from the medical profession itself and remember above all else: first, do no harm

Wendel C. Just how much do medicine and morals mix: catholic hospitals and the potential effects of the Freedom of Choice Act. Notre Dame J Law Ethics Pub Pol. 2011;25(2):663-688.

Process and Outcomes of Euthanasia Requests Under the Belgian Act on Euthanasia: A Nationwide Survey

Yanna Van Wesemael, Joachim Cohen, Johan Bilsen, Tinne Smets, Bregje D Onwuteaka-Philipsen, Luc Deliens

Abstract
Context: Since 2002, the administration of a lethal drug by a physician at the explicit request of the patient has been legal in Belgium. The incidence of euthanasia in Belgium has been studied, but the process and outcomes of euthanasia requests have not been investigated.

Objectives: To describe which euthanasia requests were granted, withdrawn, and rejected since the enactment of the euthanasia law in terms of the characteristics of the patient, treating physician, and aspects of the consultation with a second physician.

Methods: A representative sample of 3006 Belgian physicians received a questionnaire investigating their most recent euthanasia request.

Results: The response rate was 34%. Since 2002, 39% of respondents had received a euthanasia request. Forty-eight percent of requests had been carried out, 5% had been refused, 10% had been withdrawn, and in 23%, the patient had died before euthanasia could be performed. Physicians’ characteristics associated with receiving a request were not being religious, caring for a high number of terminally ill patients, and having experience in palliative care. Patient characteristics associated with granting a request were age, having cancer, loss of dignity, having no depression, and suffering without prospect of improvement as a reason for requesting euthanasia. A positive initial position toward the request from the attending physician and positive advice from the second physician also contributed to having a request granted.

Conclusion: Under the Belgian Act on Euthanasia, about half of the requests are granted. Factors related to the reason for the request, position of the attending physician toward the request, and advice from the second physician influence whether a request is granted or not.

Wesemael YV, Cohen J, Bilsen J, Smets T, Onwuteaka-Philipsen BD, Deliens L. Process and outcomes of Euthanasia Requests Under the Belgian Act on Euthanasia: A Nationwide Survey. J Pain Symptom Manage. 2011 May 16;42(5):721-733.

Would Accommodating Some Conscientious Objections by Physicians Promote Quality in Medical Care?

Douglas B White, Baruch Brody

Journal of the American Medical Association

Abstract
Conclusion
The notion that protecting physicians’ consciences benefits physicians at the expense of patients has created an overly simplistic dialogue about conscience in medicine. Viewing the issue from a societal perspective and conceptualizing medical quality as a public good allow a more robust understanding of the relationship between CBR and quality medical care. Policies that allow some CBRs while also ensuring patients’ access to the requested services may yield better overall medical quality by fostering a diverse workforce that possesses integrity, sensitivity to patients’ needs, and respect for diversity. This analysis is necessary for a genuine public discussion about how to handle moral pluralism among patients and physicians. The societal perspective should be incorporated into efforts to develop a comprehensive framework for when CBRs should and should not be accommodated.

White DB, Brody B. Would Accommodating Some Conscientious Objections by Physicians Promote Quality in Medical Care?. J Am Med Ass. 2011 May 4;305(17):1804-1805.

A matter of conscience: do conflicting beliefs and workplace demands constitute religious discrimination?

CW Von BergeN, Martin S Bressler

Journal of Behavioral Studies in Business

Abstract
Increasingly, employees maintain they should be provided an unqualified legal right to refuse work activities that violate their ethical, moral, personal, or religious convictions or beliefs-in short, their conscience. This assertion has become one of the more controversial issues confronting employers. This paper presents a brief review of conscientious objection with special attention to objection in medical related areas, followed by new discussion of freedom of conscience in the workplace.

Bergen CV, Bressler MS. A matter of conscience: do conflicting beliefs and workplace demands constitute religious discrimination? J Behavioral Studies in Business. 2011;3:1-14. Available from:

Was It Science, Not Religion?

Maimon Schwarzschild

Abstract
Does freedom of conscience, and perhaps freedom of thought generally, have religious roots? Ronald Beiner’s Three Versions of the Politics of Conscience: Hobbes, Spinoza, Locke traces the idea of conscience as a factor in Western political thought to ideas that crystallized in the seventeenth century. Beiner examines three leading seventeenth century thinkers – Hobbes, Spinoza, and Locke – to explore whether conscience, or rather the idea of freedom of conscience, was specially a religious imperative for these thinkers: whether their religious commitments or their respect for religious integrity underlay and motivated their ideas about freedom of conscience.

Schwarzschild M. Was It Science, Not Religion? 47 San Diego L. Rev. 1125 (2010).

Three Versions of the Politics of Conscience: Hobbes, Spinoza, Locke

Ronald Beiner

Abstract
The organizers of this symposium have posed the question: is the idea of conscience fundamentally rooted in religious commitments? This question inevitably draws us back to the seventeenth century, for that is when the discourse of conscience ultimately originated. And when we consult the most important sources from that epoch, we get, I believe a clear answer to the question, although it may not be the answer that the organizers of the symposium anticipated when they conceived the theme of this gathering.

Beiner R. Three Versions of the Politics of Conscience: Hobbes, Spinoza, Locke. 47 San Diego L. Rev. 1107 (2010).

The First Amendment’s Religion Clauses: “Freedom of Conscience” Versus Institutional Accommodation

Michael J. White

Abstract:
The phrase “freedom of conscience” is, of course, not to be found in the United States Constitution: the First Amendment says only that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” However, it seems probable that one, then-contemporary Protestant conception of freedom of conscience was presupposed in these two clauses. Evidence for this conjecture can be found not only in the debate and proposals concerning the Bill of Rights of the United States Constitution but also in the frequently more expansive language of early state constitutions.

White MJ. The First Amendment’s Religion Clauses: “Freedom of Conscience” Versus Institutional Accommodation. 47 San Diego L. Rev. 1075 (2010).

Theses on Secularism

Nomi M. Stolzenberg

Abstract
Notwithstanding the notorious difficulty of defining religion and the consequent effort on the part of jurists and academics to avoid embracing any particular definition, one model of religion has dominated modern discourse: religion as conscience. Because of the dominance of this model, alternative views – which either subordinate the conscience to other supposedly more fundamental features of religion or dispense with the psychological apparatus of conscience altogether – have been largely submerged in modern political and legal discourse. Yet they will not remain suppressed. As a number of the conference papers have attest, alternatives and challenges to the dominant model have been surfacing with increasing regularity and insistence, particularly in the last decade, in part because the logic of the model seems to have exhausted or deconstructed itself, or driven itself into a corner, but also because theoretical rivals to the conception of religion as conscience have always existed, have never disappeared, and have never stopped pressing their claims.

Stolzenberg NM. Theses on Secularism. 47 San Diego L. Rev. 1041 (2010).