Law Archives - Page 19 of 43 - Protection of Conscience Project Library

Accessing Reproductive Technologies: Invisible Barriers, Indelible Harms

Judith F Daar

Berkeley Journal of Gender, Law & Justice

Extract
Conclusion
The constitutional jurisprudence surrounding assisted conception is only beginning to take shape . . . . When conception occurs naturally, both positive and negative rights surrounding procreation are fairly clear, but grow murky as the reproductive process invites third parties to assist. As methods of assisted conception show increasing technological promise for those whose physical characteristics, social status, or both require they look to ART for family formation, worrisome trends suggest that third party actors are quietly mounting status-based barriers to fertility treatment. Barriers to ART are taking shape on the basis of patient characteristics including wealth, race, ethnicity, sexual orientation, and marital status, all under the guise of preventing harm to offspring and society at large. However, judgments by ART providers and public lawmakers that certain individuals will be unfit parents, veer dangerously close to the coercive eugenics practices of early twentieth century America, practices whose only positive legacy is the extreme caution with which we now approach state-sponsored limitations on reproduction.

Like a pentimento, ART barriers are only beginning to come into view from the experiences of an increasingly diverse and nontraditional reproductive medicine patient population. As each barrier emerges-whether it be a provider refusing treatment to a single or gay or lesbian prospective parent, or a lawmaker attempting to limit the availability of a reproductive technology for reasons unrelated to human health-it is essential to evaluate these actions by the same standards we would evaluate barriers to natural conception. . . . State-sponsored or state-approved limitations on any individual’s right to procreate simply cannot stand in a society that acknowledges the preeminence of reproductive freedom. Justice Douglas’ selfevident observation that reproduction is a basic human right is as durable and universal as the human race-it simply must be nurtured in order to continue to thrive.

Daar JF. Accessing Reproductive Technologies: Invisible Barriers, Indelible Harms. Berkeley J Gender Law Just. 2008 Mar;23(1):18-82.

The Limits of Conscience: Moral Clashes Over Deeply Divisive Healthcare Procedures

Robin Fretwell Wilson

Extract
Refusals by individual pharmacies and pharmacists to fill prescriptions for emergency contraceptives (“EC”) have dominated news headlines. . .These refusals. . .reflect moral and religious concerns about facilitating an act that would cut-off a potential human life.

Recently, conscience-based refusals have ballooned far beyond EC. Pharmacists are refusing to fill prescriptions for birth control, and other ancillary care professionals are asserting their own conscience concerns.

Conclusion
Ultimately we must decide as a community whether we prize access more highly than religious freedom. The older healthcare conscience clauses offer us a range of methods to manage the clash between competing moral interests. If urgency for the service cannot be achieved through better information, state legislatures could make a number of choices. They could choose not to burden the professional’s choice at all—prizing religious liberty more highly than access. They could force providers to provide every service legally requested—prizing patient access more highly than moral or religious freedom. Or they could choose to allow individuals of conscience to exempt themselves up to the point that it creates a hardship for the patient or employer. In a pluralistic society, a live-and-let-live regime like this may be the most we can hope for.

Wilson RF. The Limits of Conscience: Moral Clashes Over Deeply Divisive Healthcare Procedures. Am J Law Med. 2008 Mar 01;34(1):41-63.

Faith, conscience and legislation (Australia)

Darryn Jensen

Extract
If members of legislative assemblies are meant to be our representatives for the purposes of deliberating about whether legislative measures are the right measures in terms of the general good of the community, conscience votes are an essential element of the legislative process. Australian political institutions are a less than perfect embodiment of the deliberative view of the legislative process. The competing mandate view is deeply entrenched in the attitudes of the political class. Accordingly, the explicit designation of a vote as a conscience vote remains a rare event in Australian politics. In so far as members of legislative assemblies are free to vote according to their consciences, it is important for them to understand what a conscience vote ought not to be. . . .

Jensen D. Faith, conscience and legislation (Australia). University of Queensland Law Journal. 2008 Jan;27(2):85.

The Tao of Conscience: Conflict and Resolution (Conscience in Medicine)

Linda MacDonald Glenn, Jeanann Boyce

Extract
The strength of the nondualistic-approach is that it will contribute to “meaningful dialogue about the role of the conscience” which depends on “shared definitions of the relevant terms” (Lawrence and Curlin 2007, 10). This approach of “shared definitions” can also be termed commensurability— when two people who hold incommensurable values can create common ground when one or both changes their values, empathize or agree to disagree and work towards a common goal (Glenn 2003). . . The alternative to seeking commensurability is the enforcement of a law, which is a solution that does not always resolve the underlying issues. The legal system devotes many resources to the resolving of problems, but the result is often “winner-take-all”—without regard to the long-term consequences and impact on the relationship of the parties.

Glenn LM, Boyce J. The Tao of Conscience: Conflict and Resolution (Conscience in Medicine). Am J Bioeth. 2007;7(12):33.

Some Reflections on Conscience (Conscience in Medicine)

Rosalind Ekman Ladd

Extract
The first way to avoid the problems that conscience raises is. . . that physicians and others be required to tell patients what areas of practice would be against their conscience. A second way is not to license physicians, pharmacists or others who will refuse to involve themselves in certain areas of medicine because of conscience. Because the practice of medicine (and pharmacy, etc.) is a social role and society already exercises some control over who may legally perform these roles, adding requirements is not such a radical idea.

Ladd RE. Some Reflections on Conscience (Conscience in Medicine). Am J Bioeth. 2007;7(12):32-33.

Firing Thoreau: Conscience and At-Will Employment

James A Sonne

Pennsylvania Journal of Employment & Labor Law

Abstract
Conclusion
“[H]uman law does not prohibit everything that is forbidden by the natural law. Perhaps this aphorism from Saint Thomas Aquinas says it best. In fact, the very reality of conscientious objection concedes as much given that, with the rare exception of a worker being asked to commit a crime, it always involves an objection to an otherwise legal act. Of course, it is likely no coincidence that those who support or oppose laws conferring a right to object to a particular act seem to also oppose or support, respectively, the act in general. Perhaps, as in the case of the abortion based laws, this is simply the result of political compromise. However, such reflexive logic can grow suspect when it extends in a more general manner, whether that be in providing a global right to refuse in the private workplace or, to the contrary, in barring any refusals at all. As noted from the start, this article provides no panacea. Rather, it simply suggests that the trend of open-ended conscience protection that is presently sweeping the nation in the health care arena insufficiently considers the interests of affected employers in at-will authority. The trend is inconsistent with treatments of conscience in law and culture generally, and ignores the fundamental prejudice and public policy bases that otherwise operate in the limited exceptions to the at-will rule that have been developed to this point. Finally, by removing the issue from the deliberative process between employers and their employees, the trend threatens to balkanize both sides in a manner that is good neither for them nor the communities they serve. Conscience is an important and vigorous principle in our common life. For it to remain so on the job, it must act like any other value in an otherwise free and fair system-submit itself to the marketplace of both work and ideas.

Sonne JA. Firing Thoreau: Conscience and At-Will Employment. Pennsylvania Journal of Labor & Employment Law. 2007 Winter;9(2):235-291.

Pharmacists’ Right of Conscience: Strategies for Showing Respect for Pharmacists’ Beliefs While Maintaining Adequate Care for Patients

Jessica D Yoder

Extract
Conclusion
In conclusion, states may provide pharmacists and pharmacies with rights of conscience without infringing upon the constitutional rights of patients. Pharmacists’ beliefs should be respected and accommodated, especially when there are ways to do so without depriving patients of validly prescribed medications. Specific conscience clause legislation is the best method for protecting pharmacists’ consciences, and such legislation also provides the most clarity and certainty when well- drafted. Conscience clause legislation should address who is covered, whether a religious objection is required, the medications involved, the scope of the protection, any requirements for compliance, and whether a private cause of action is created. Such legislation provides adequate protection to pharmacists and clarifies the rights of both pharmacists and patients. If such legislation operates in tandem with policies such as pharmacist prescribing, doctor dispensing, and doctor referrals to pharmacies known to handle the prescription, which have shown promise in some states, then patients should have adequate access to medications without forcing pharmacists to compromise their beliefs.

Yoder JD. Pharmacists’ Right of Conscience: Strategies for Showing Respect for Pharmacists’ Beliefs While Maintaining Adequate Care for Patients. Valparaiso U Law Rev. 2007 Winter;41(2):975-1025.

Harm reduction or women’s rights? Debating access to emergency contraceptive pills in Canada and the United States

LL Wynn, Joanna N Erdman, Angel M Foster, James Trussell

Abstract
This article compares the ethical pivot points in debates over nonprescription access to emergency contraceptive pills in Canada and the United States. These include women’s right to be informed about the contraceptive method and its mechanism of action, pharmacists’ conscientious objection concerning the dispensing of emergency contraceptive pills, and rights and equality of access to the method, especially for poor women and minorities. In both countries, arguments in support of expanding access to the pills were shaped by two competing orientations toward health and sexuality. The first, “harm reduction,” promotes emergency contraception as attenuating the public health risks entailed in sex. The second orientation regards access to pills as a question of women’s right to engage in nonprocreative sex and to choose from among all reproductive health-care options. The authors contend that arguments for expanding access to emergency contraceptive pills that frame issues in terms of health and science are insufficient bases for drug regulation; ultimately, women’s health is also a matter of women’s rights.

Wynn LL, Erdman JN, Foster AM, Trussell J. Harm reduction or women’s rights? Debating access to emergency contraceptive pills in Canada and the United States. Stud Fam Plann. 2007 Dec 07;38(4):253-257.

Achieving Transparency In Implementing Abortion Laws

Rebecca J Cook, JN Erdman, Bernard M Dickens

International Journal of Gynecology & Obstetrics

Abstract
National and international courts and tribunals are increasingly ruling that although states may aim to deter unlawful abortion by criminal penalties, they bear a parallel duty to inform physicians and patients of when abortion is lawful. The fear is that women are unjustly denied safe medical procedures to which they are legally entitled, because without such information physicians are deterred from involvement. With particular attention to the European Court of Human Rights, the UN Human Rights Committee, the Constitutional Court of Colombia, the Northern Ireland Court of Appeal, and the US Supreme Court, decisions are explained that show the responsibility of states to make rights to legal abortion transparent. Litigants are persuading judges to apply rights to reproductive health and human rights to require states’ explanations of when abortion is lawful, and governments are increasingly inspired to publicize regulations or guidelines on when abortion will attract neither police nor prosecutors’ scrutiny.

Cook RJ, Erdman J, Dickens BM. Achieving Transparency In Implementing Abortion Laws. Int J Gyn Ob. 2007 Nov;99(2):157-161.

“If Your Hand Causes You to Sin. . .”: Florida’s Chemical Castration Statute Misses the Mark

Tanya Simpson

Extract
Recomendations & Conclusion
The United States Supreme Court has identified “the two primary goals of probation—rehabilitation and protecting society from future violations.” Florida can and should redraft its chemical castration statute to comport with these policy goals, pass constitutional muster, and overcome implementation hurdles. In order to draft an effective statute, however, the legislature must acknowledge, as it has in the reports of both chambers, that treatment with MPA has only been shown to be an effective therapy for paraphiliacs when those paraphiliacs volunteer for the treatment, when the treatment is administered in conjunction with psychotherapy, and when certain other criteria are met. . .

Simpson T. “If Your Hand Causes You to Sin. . .”: Florida’s Chemical Castration Statute Misses the Mark. Florida State University Law Review. 2007 Summer;34(1221-1246.