Protection of Conscience Project Library
Service, not Servitude
Abstract
The right to moral freedom is not only analogous to the right to religious freedom. The right to moral freedom, as I explain in this essay, represents a broadening of the right to religious freedom – a broadening that for many of us is compelling.
Perry MJ. From Religious Freedom to Moral Freedom. 47 San Diego L. Rev. 993 (2010).
Abstract
Andrew Koppelman has offered a challenge to Brian Leiter’s view that the proper public attitude toward religion is one of tolerance rather than active respect. Let us explore the nature of that challenge and offer a few observations on the topic.
Wonnell CT. Comment on Koppelman and Leiter. 47 San Diego L. Rev. 987 (2010).
Abstract
In two recent papers, Brian Leiter argues that there is no good reason for law to single out religion for special treatment and religion is not an apt candidate for respect in the “thick” sense of being an object of favorable appraisal. Special treatment would be appropriate only if there were some “moral reason why states should carve out special protections that encourage individuals to structure their lives around categorical demands that are insulated from the standards of evidence and reasoning we everywhere else expect to constitute constraints on judgment and action.” Favorable appraisal would be called for “[o]nly if there were a positive correlation between beliefs that were culpably without epistemic warrant and valuable outcomes. Both arguments depend on a radically impoverished and conception of what religion is and what it does. In this paper, I will explain what Leiter leaves out and offer a hypothesis about why. I will also engage with some related reflections by Simon Blackburn and Timothy Macklem, both of whom influence, in different ways, Leiter’s analysis.
Koppelman A. How Shall I Praise Thee? Brian Leiter on Respect for Religion. 47 San Diego L. Rev. 961 (2010).
Abstract
Most Western constitutions, including the American, single out religious beliefs and practices for special kinds of legal solicitude and protection. In this essay, I want to ask a question about the moral foundations of such a legal practice. Should we think of what I will refer to generically as “the law of religious liberty” as grounded in the moral attitude of respect for religion or on the moral attitude of tolerance of religion? My question will not be which of these moral ideals best explains the existing law of religious liberty in the United States, or elsewhere, though legal doctrine is a relevant data point for the inquiry. Instead, I want to ask which of these moral attitudes makes the most sense given what religion is. Of course, our legal practices offer some evidence about “what makes the most sense” because they are, quite obviously, not detached from our moral attitudes. But the law is but one data point among others, and if it were to turn out that aspects of existing legal doctrine in the United States should yield before the best account of the moral foundations of religious liberty that is a conclusion I am happy to endorse.
Leiter B. Foundations of Religious Liberty: Toleration or Respect? 47 San Diego L. Rev. 935 (2010).
Abstract
Suppose a pharmacist refuses to dispense pills that induce abortion claiming that dispensing such pills runs counter to principles he holds dear. Indeed, the pharmacist claims that forcing him to dispense the pills would violate his freedom of conscience. He even claims that he would not have become a pharmacist had he foreseen an obligation to dispense such pills at the time he entered his profession. Should the pharmacist’s job be protected if he is making a bona fide claim of conscience? And does it matter whether the pharmacist’s objection to dispensing the pills is rooted in religious or nonreligious reasons?
Kolber AJ. Alternative Burdens on Freedom of Conscience, 47 San Diego L. Rev. 919 (2010).
Abstract
Conscience, like most words that describe human experience and recommend human action, has changed its meanings over time and takes on subtly different meanings in different contexts. Since the time of Thomas Aquinas, when conscience referred to moral judgments about action, and our founding era, when “freedom of conscience” dominantly referred to individual religious liberty, our understanding has evolved. In this paper, I concentrate on present usage. My aims are partially descriptive and mainly normative. My hope is that by clarifying various ways the notion of conscience is conceived, I can contribute to a thoughtful elaboration of normative issues concerning responses to assertions of conscience and to near relatives of such assertions.
Greenawalt K. The Significance of Conscience. 47 San Diego L. Rev. 901 (2010).
Abstract
Is there a moral right to freedom of conscience? Should a legal right to freedom of conscience be established in each country on Earth? This essay argues for negative answers to both questions.
Extract
The term freedom of conscience might refer to freedom of thought and the freedom of expression that sustains freedom of thought. In this sense we might affirm the right of each person to form individual opinions about the right and the good, about what we owe one another by way of due consideration of others, and about what is worthy of pursuit in life, on the basis of free discussion of these matters. In the present discussion, these freedoms, important as they might be, are not under consideration. Let us assume freedom of thought and expression are secured. The status of freedom of conscience in the sense that is our concern in this discussion is still wide open.
Arneson RJ. Against freedom of conscience. 47 San Diego L. Rev. 1015 2010
Abstract
During a highly contested process, abortion was partially decriminalised in Colombia in 2006 by the Constitutional Court: when the pregnancy threatens a woman’s life or health, in cases of severe fetal malformations incompatible with life, and in cases of rape, incest or unwanted insemination. However, Colombian women still face obstacles to accessing abortion services. This is illustrated by 36 cases of women who in 2006-08 were denied the right to a lawful termination of pregnancy, or had unjustified obstacles put in their path which delayed the termination, which are analysed in this article. We argue that the obstacles resulted from fundamental disagreements about abortion and misunderstandings regarding the ethical, legal and medical requirements arising from the Court’s decision. In order to avoid obstacles such as demands for a judge’s authorisation, institutional claims of conscientious objection, rejection of a claim of rape, or refusal of health insurance coverage for a legal termination, which constitute discrimination against women, three main strategies are suggested: public ownership of the Court’s decision by all Colombian citizens, a professional approach by those involved in the provision of services in line with the law, and monitoring of its implementation by governmental and non-governmental organisations.
Amado ED, García MCC, Cristancho KR, Salas EP, Hauzeur EB. Obstacles and challenges following the partial decriminalisation of abortion in Colombia. Reprod Health Matters. 2010;118-126.
Abstract
In Stormans, Inc. v. Selecky, a group of Washington pharmacists contended their religious beliefs precluded them from dispensing the drug Plan B, a post-coital emergency contraceptive. They based their argument on rights conferred by the Free Exercise Clause of the First Amendment to the United States Constitution. A United States District Court found in the pharmacists’ favor and enjoined enforcement of rules issued by the Washington State Board of Pharmacy requiring pharmacies to deliver medications. The Ninth Circuit reversed, finding that the district court erroneously applied a heightened level of scrutiny to a neutral law of general applicability. Interestingly, the pharmacists did not bring a claim under the Washington State Constitution, a document that has been interpreted to confer greater protection for free exercise rights than the U.S. Constitution. This Comment argues that even under the Washington State Constitution’s heightened protection of free exercise, the pharmacists’ position in Stormans would ultimately fail. The Board’s rules protect public health and accommodate individual religious objections, thereby satisfying the Washington State Supreme Court’s strict scrutiny test.
Horton NE. Article I, Section II: a poor “plan b” for Washington’s religious pharmacists. Wash Law Rev. 2010 Nov;85(4):739-780.
Abstract
Abortion has been a reality in women’s lives since the beginning of recorded history, typically with a high risk of fatal consequences, until the last century when evolutions in the field of medicine, including techniques of safe abortion and effective methods of family planning, could have ended the need to seek unsafe abortion. The context of women’s lives globally is an important but often ignored variable, increasingly recognised in evolving human rights especially related to gender and reproduction. International and regional human rights instruments are being invoked where national laws result in violations of human rights such as health and life. The individual right to conscientious objection must be respected and better understood, and is not absolute. Health professional organisations have a role to play in clarifying responsibilities consistent with national laws and respecting reproductive rights. Seeking common ground using evidence rather than polarised opinion can assist the future focus.
Shaw D. Abortion and human rights. Best Practice and Research Clin Ob Gyn. 2010;24(5):633-646.