Law Archives - Page 10 of 43 - Protection of Conscience Project Library

An (Un)clear Conscience Clause: The Causes and Consequences of Statutory Ambiguity in State Contraceptive Mandates

Rachel VanSickle-Ward, Amanda Hollis-Brusky

Journal of Health Politics, Policy and Law

Abstract
Since 1996, twenty-eight states have adopted legislation mandating insurance coverage of prescription contraceptives for women. Most of these policies include language that allows providers to opt out of the requirement because of religious or moral beliefs—conscience clause exemptions. There is striking variation in how these exemptions are defined. This article investigates the sources and consequences of ambiguous versus precise statutory language in conscience clauses. We find that some forms of political and institutional fragmentation (party polarization and gubernatorial appointment power) are correlated with the degree of policy specificity in state contraceptive mandates. This finding reinforces previous law and policy scholarship that has shown that greater fragmentation promotes ambiguous statutory language because broad wording acts as a vehicle for compromise when actors disagree. Interestingly, it is the more precisely worded statutes that have prompted court battles. We explain this with reference to the asymmetry of incentives and mobilizing costs between those disadvantaged by broad (primarily female employees) versus precisely worded statutes (primarily Catholic organizations). Our findings suggest that the impact of statutory ambiguity on court intervention is heavily contextualized by the resources and organization of affected stakeholders.

Vansickle-Ward R, Hollis-Brusky A. An (Un)clear Conscience Clause: The Causes and Consequences of Statutory Ambiguity in State Contraceptive Mandates. J Health Polit Policy Law. 2013 May 3. [Epub ahead of print] PubMed PMID: 23645878.

The uneasy (and changing) relationship of health care and religion in our legal system

Robert K. Vischer

Absract
This article provides a brief introduction to the interplay between law and religion in the health care context. First, I address the extent to which the commitments of a faith tradition may be written into laws that bind all citizens, including those who do not share those commitments. Second, I discuss the law’s accommodation of the faith commitments of individual health care providers—hardly a static inquiry, as the degree of accommodation is increasingly contested. Third, I expand the discussion to include institutional health care providers, arguing that the legal system’s resistance to accommodating the morally distinct identities of institutional providers reflects a short-sighted view of the liberty of conscience. Finally, I offer some tentative thoughts about why these dynamics become even more complicated in the context of Islamic health care providers.

Vischer RK. The uneasy (and changing) relationship of health care and religion in our legal system. Theor Med Bioeth. 2013 Apr;34(2):161-70. doi: 10.1007/s11017-013-9248-2. PubMed PMID: 23546737

(Book Review) Why Tolerate Religion?

Robert Merrihew Adams

Brian Leiter. Why Tolerate Religion? Princeton, NJ: Princeton University Press, 2012, 192 pp. ISBN: 9780691153612

Extract
“Why tolerate religion?” The question is raised by someone who thinks there is something wrong about religion as such. To tolerate, Brian Leiter emphasizes, is to “put up” with beliefs or practices that one regards as “wrong, mistaken, or undesirable” (p. 8). His paradigm case of principled tolerance is one in which a “dominant group has the means at its disposal to effectively and reliably change or end [a] disfavored group’s beliefs or practices, and yet . . . acknowledges that there are moral or epistemic reasons . . . to permit the disfavored group to keep on believing and doing what it does” (p. 13). Forcibly changing or ending religious belief has commonly been extremely difficult or impossible to achieve by any means short of total extermination or banishment of the disfavored group, as history shows, and is therefore a really scary project. With his stated paradigm in mind, we might think that Leiter’s statement that “the contemporary problem, at least in the post-Enlightenment secular nations, . . . is why the state should tolerate religion as such at all” (pp. 14-15), would be ominous indeed if it were an accurate reading of political reality.

Adams RM. Why Tolerate Religion? [Internet]. Notre Dame (IN): University of Notre Dame. Notre Dame Philosophical Reviews; 2013 Jan 6.

Freedom of conscience and health care in the United States of America: The conflict between public health and religious liberty in the Patient Protection and Affordable Care Act

Peter West-Oram

Abstract
The recent confirmation of the constitutionality of the Obama administration’s Patient Protection and Affordable Care Act (PPACA) by the US Supreme Court has brought to the fore long-standing debates over individual liberty and religious freedom. Advocates of personal liberty are often critical, particularly in the USA, of public health measures which they deem to be overly restrictive of personal choice. In addition to the alleged restrictions of individual freedom of choice when it comes to the question of whether or not to purchase health insurance, opponents to the PPACA also argue that certain requirements of the Act violate the right to freedom of conscience by mandating support for services deemed immoral by religious groups. These issues continue the long running debate surrounding the demands of religious groups for special consideration in the realm of health care provision. In this paper I examine the requirements of the PPACA, and the impacts that religious, and other ideological, exemptions can have on public health, and argue that the exemptions provided for by the PPACA do not in fact impose unreasonable restrictions on religious freedom, but rather concede too much and in so doing endanger public health and some important individual liberties.

West-Oram P. Freedom of Conscience and Health Care in the United States of America: The Conflict Between Public Health and Religious Liberty in the Patient Protection and Affordable Care Act. Health Care Anal. 2013 Mar 29;21(3):237-247.

Interrupción voluntaria del embarazo y objeción de conciencia en Uruguay

Francisco Cóppola

Abstract
Author Translation
In October 2012 Act 18.987 for the Voluntary Interruption of Pregnancy was passed in Uruguay. This law contemplates the right to conscientious objection, although it lacks conceptual clarity and there was no debate during the discussion of the bill. Thus, declarations by both congressmen and professionals reflect there is confusion regarding such objection. Conscientious objection implies an individual (in this case a health professional) refuses to act in a certain way, which action would be legally enforceable, on account of conscientious issues. Therefore, conscientious objection is an authorization, provided certain requirements and limitations are observed, to refrain from observing a law. This article explores the existence of degrees and nuances within conscientious objection, the importance of distinguishing objectors from pseudo-objectors, whether a previous declaration is necessary or not, its regulatory mechanisms and in particular, the extreme event in which it were necessary to “sacrifice” the freedom of conscience.

Keywords:

Cóppola F. Interrupción voluntaria del embarazo y objeción de conciencia en Uruguay. Revista médica del Uruguay. 2013 Mar;29(1):43-46.

Conscientious Refusals and Reason-Giving

Jason Marsh

Abstract
Some philosophers have argued for what I call the reason-giving requirement for conscientious refusal in reproductive healthcare. According to this requirement, healthcare practitioners who conscientiously object to administering standard forms of treatment must have arguments to back up their conscience, arguments that are purely public in character. I argue that such a requirement, though attractive in some ways, faces an overlooked epistemic problem: it is either too easy or too difficult to satisfy in standard cases. I close by briefly considering whether a version of the reason-giving requirement can be salvaged despite this important difficulty.

Marsh J. Conscientious Refusals and Reason-Giving. Bioethics. 2014;28(6):313-319.

Beyond abortion: Why the Personhood Movement Implicates Reproductive Choice

Jonathon F Will

Abstract
This paper describes the background of the Personhood Movement and its attempt to achieve legal protection of the preborn from the earliest moments of biological development. Following the late 2011 failure of the personhood measure in Mississippi, the language used within the Movement was dramatically changed in an attempt to address some of the concerns raised regarding implications for reproductive choice. Putting abortion to one side, this paper identifies why the personhood framework that is contemplated by the proposed changes does not eliminate the potential for restrictions on contraception and in vitro fertilization (IVF) that put the lives of these newly recognized persons at risk; nor should it if proponents intend to remain consistent with their position. The paper goes on to suggest what those restrictions might look like based on recent efforts being proposed at the state level and frameworks that have already been adopted in other countries.

Will JF. Beyond abortion: Why the Personhood Movement Implicates Reproductive Choice. Am J Law Med. 2013;39(573-616.

The spread of conscience clause legislation

Claire Marshall

Summary
The article presents information on a proliferation in conscience clause legislation to federal and state laws in the U.S. The move is stated to be pitting individual religious autonomy against the public interest, mainly in the areas of education and health care.

Marshall C. The spread of conscience clause legislation. Human Rights [Internet]. 2013 Jan; 39(2), 15-16.

Controversy, Contraception, and Conscience: Insurance Coverage Standards Under the Patient Protection and Affordable Care Act

Lara Cartwright-Smith, Sara Rosenbaum

Extract
In the end, although the ACA has made significant headway in expanding insurance coverage of contraception, the controversy surrounding religious and moral objections to contraception means that policy makers continue to struggle to ensure access to this important public health service while respecting religious freedom.

Cartwright-Smith L, Rosenbaum S. Controversy, Contraception, and Conscience: Insurance Coverage Standards Under the Patient Protection and Affordable Care Act. Pub Health Rep. 2012;127(September-October):541-545.

May Doctors Refuse Infertility Treatments t o Gay Patients?

Jacob M Appel

Extract
The controversy in Benitez vs NCWC stands at the nexus of two competing approaches to the issue of “conscience”exemptions. On the one hand, most states have statutes that shield medical students and physicians from having to perform procedures, such as abortion and sterilization, to which they object on religious or moral grounds.

Appel JM. May Doctors Refuse Infertility Treatments t o Gay Patients? Hastings Cent Rep. 2006;July-August:20-21.