Law Archives - Page 14 of 39 - Protection of Conscience Project Library

Maryland’s conscience clause: leaving a woman’s right to a health care provider’s choice

Maria Cirincione

Extract
Conclusion
. . . Currently, ambiguities in the Maryland statute allow too much flexibility for providers in emergency rooms to refuse to provide or even inform patients about emergency contraception. This kind of state sanctioned refusal serves as the kind of government obstacle the Supreme Court has forbidden in upholding a woman’s right to bodily privacy. The Maryland legislature should act to eliminate the ambiguities in Maryland’s conscience legislation and explicitly protect a woman’s right to access emergency contraception in Maryland emergency rooms. In order to do so, the Maryland legislature should adopt the medical community’s definition for abortion that excludes emergency contraception. The new Maryland conscience statute should also provide explicit protections to patients receiving emergency room care. Physicians should be required to inform patients of emergency contraception if treatment in each particular case is medically indicated. Finally, physicians should be required to treat patients that request access to emergency contraception or to refer them to another provider who is willing to administer treatment within the effective time period of emergency contraception. . .

Cirincione M. Maryland’s conscience clause: leaving a woman’s right to a health care provider’s choice. J Health Care Law & Pol. 2010;13(1):171-202.

Professional Conscientious Objection in Medicine with Attention to Referral

Thomas A Cavanaugh

Extract
What duties accompany conscientious objection? To sum up what follows: The obligations to the patient remain unchanged, but for the denial of the contested request.

Specifically, what do these obligations entail? First, following from the very meaning of professing—and to develop a point previously mooted—full disclosure imposes the obligation to promulgate to the relevant parties one’s conscientious objection. This includes one’s prospective and current patients, colleagues, employers, and relevant institutions, for example hospitals and insurance companies. . . .

Second, conscientious objector status obliges the relevant professional to explain her reasons for her objection to those patients who request further information. . . . the patient is due the offer of an explanation. This does not, however, amount to the professional’s having a right to pontificate concerning the relevant matter. Rather, the interested patient ought to receive some answer to the question as to why the professional objects. Certainly, not all patients will be interested to know why. Those who are not interested ought not to be treated as captive audiences; those who do want to know ought to receive a considerate and considered answer. . .

Third, conscientious objector status bears exclusively on the patient’s contested request; it does not relate to the other care the physician, nurse, or pharmacist provides for the patient. If a relationship exists with the patient . . . the physician, nurse, or pharmacist must provide care to which she does not object. . .

Fourth, conscientious objector status requires the continued maintenance of confidentiality, particularly with respect to the fact that the professional objects to something the patient requests. . . .the professional must strenuously and scrupulously protect the patient’s privacy specifically concerning the patient’s request and the practitioner’s conscientious objection.

Finally, as earlier noted, while conscientious objection does not require referral to a third party who will abide by the patient’s request, it does require transfer of relevant documents, returning a prescription, and, more generally, acts which, while they may result in the act to which one objects, do not require one to aim at that act.

Cavanaugh T. Professional Conscientious Objection in Medicine with Attention to Referral. Ave Maria Law Rev. 2011;9(1):190-206.

Living Together with Disagreement: Pluralism, the Secular, and the Fair Treatment of Beliefs in Canada Today

Iain T Benson

Abstract
The Supreme Court of Canada’s decision in Chamberlain,referred to above, in how it handled the definition of “secular” and pluralism as requiring the inclusion of religion and religious viewpoints, is a model for the law and the first serious consideration of a non-atheistic/agnostic (or secularistic) “secular” in Canada. It, and the TWU decision, provide the beginning outlines of an approach to both pluralism and the secular that will be superior to the preemptively non-religious and atheistic/agnostic understandings that preceded them. The decision also correctly describes the nature of pluralism as one that encourages a diversity of beliefs and that resists the co-option of “secular” society by totalistic conceptions of liberalism that exclude diversity.

These decisions ought to lead to a reconsideration of how we view law and policies in relation to all public aspects of society, including public education. Pluralism can be and needs to be re-conceptualized within existing legal norms and the Canadian historical tradition, so as to foster a richer conception of diversity and genuine tolerance with an appropriately communitarian focus. For pluralism to be pluralism, however, it is important to rescue it from a pseudo-liberalism that hides its totalistic claims.

Benson IT, Fielding A. Living Together with Disagreement: Pluralism, the Secular, and the Fair Treatment of Beliefs in Canada Today [Internet]. Camrose, Alberta: The Ronning Centre for the Study of Religion and Public Life; 2010: 1-48.

Liberalism Unbound: Towards a More Inclusive Public Sphere

A Response to Iain T. Benson, “Living Together with Disagreement:
Pluralism, the Secular and the Fair Treatment of Beliefs
in Canada Today”

Alex Fielding

Liberalism Unbound: Towards a More Inclusive Public Sphere

Abstract
This response will be divided into three segments. First, it will respond to Benson’s analysis of pluralism, liberalism, and the “secular”. Second, it will advocate for a return to John Stuart Mill’s harm principle as a better way of reconciling competing claims when equality rights and religious freedoms collide. Third, it will apply the harm principle to the contemporary issues of same-sex marriage and the religious objections of marriage commissioners. The central idea is that by moving away from the vague, all-encompassing language of “Charter values” to the harm principle, we create a more pluralistic public sphere that gives reasons for religious and ethnic minorities to reciprocate such tolerance and participate actively in civil society.

The physician’s right to conscientious objection: an evolving recognition in Europe

Tom Goffin

Abstract
Due to the growing number of medical treatments, physicians–who are also human beings with their own conscience and beliefs–are increasingly confronted with treatments that may conflict with their principles and convictions. Although several human rights documents recognize the freedom of conscience and belief, we could not locate the recognition of an explicit right to conscientious objection. Furthermore, a direct application of the right to freedom of thought, conscience and religion, as recognized by article 9 of the ECHR, does not include such a right due to the narrow interpretation of this right by the European Court of Human Rights. However, the Court seems to have taken steps away from this narrow interpretation in Pichon and Sajous v. France. Notwithstanding these steps, no general right to conscientious objection exists. Physicians therefore are dependent on a judgment if they refuse a certain treatment because of conscientious objections.

Goffin T. The physician’s right to conscientious objection: an evolving recognition in Europe. Med Law. 2010 Jun;29(2):227-37.

Crisis of Conscience: Pharmacist Refusal to Provide Health Care Services on Moral Grounds

Eileen P Kelly, Aimee Dars Ellis, Susan PS Rosenthal

Employee Responsibility and Rights Journal

Abstract
Advances in technology have resulted in medical procedures and practices that were unthought-of in previous generations. Embryonic stem cell research, abortifacients, birth control, and artificial insemination are just a few examples of these technological advances. While many individuals readily embrace such medical advances, others find them morally objectionable. A contentious national debate is now occurring over whether employee pharmacists have the right to refuse to fill legal prescriptions for emergency contraception because of conscientious objections. In the United States, existing public policy is somewhat muddled in both protecting and encroaching on the employee pharmacist’s right of refusal. This article discusses the legal and ethical nature of that controversy, as well as the clash of interests, rights and responsibilities between employers, employee pharmacists and customers from a U.S. perspective.

Kelly EP, Ellis AD, Rosenthal SP. Crisis of Conscience: Pharmacist Refusal to Provide Health Care Services on Moral Grounds. Employee Responsibilities and Rights J. 2011 May 22;23(1):37-54.

Practice against our beliefs

Colly A Tettelbach

Extract
The United States has embarked on a dangerous course. When the right of healthcare workers to refuse participation in certain procedures based on conscience is denied, we have started down the path of preparing rightminded, conscience-driven people to abandon ethical practice and in some situations to become killers. Anytime people are forced to act against what they believe to be right and coerced to do what they consider to be wrong, a very treacherous gulf has been crossed. When the right of conscience is removed from healthcare workers, we will have healthcare workers without conscience.

Tettelbach CA. Practice against our beliefs. J Christ Nurs. 2010;27(2):106-109.

Freedom of conscience. Biojuridical conflicts at multicultural societies

Marta Albert Márquez

Pub Med Abstract
The paper [in Spanish] analyzes the right of healthcare professionals to conscientious objection in multicultural societies. The ethical relativism characteristic of these societies abides with an apparently paradoxical reduction of the exercise of freedom of conscience. “Apparently” because, in the end, ethical relativism tends to adopt dogmatic attitudes. Special attention is paid to the situation of Spanish healthcare in relation to euthanasia and abortion. With regard to euthanasia, the “death with dignity” draft bill of Andalucía is considered. With regard to abortion, we will pay attention to the reform of the Penal Code in the context of a new regulation about “reproductive health” of women, which means the adoption of a system of time limits, and the characterization of abortion as a women’s right. It is concluded that freedom of conscience of healthcare professionals will probably be at risk if proposed legal policies don’t change.

Albert Márquez M. [Freedom of conscience. Biojuridical conflicts at multicultural societies]. Cuadernos de Bioetica : Revista Oficial de la Asociacion Espanola de Bioetica y Etica Medica. 2010 Jan-Apr;21(71):61-77. Spanish

Are there different spheres of conscience?

Erica J Sutton, Ross EG Upshur

Journal of Evaluation in Clinical Practice

Abstract
Interest in understanding the meaning of conscience and conscientious objection in medicine has recently emerged in the academic literature. We would like to contribute to this debate in four ways: (1) to underscore and challenge the existing hierarchy of conscientious objection in health care; (2) to highlight the importance of considering the lay public when discussing the role of conscientious objection in medicine; (3) to critique the numerous proposals put forth in favour of implementing review boards to assess whether appeals to conscience are justifiable, reasonable and sincere; and (4) to introduce the Universal Declaration of Human Rights and the Siracusa Principles into the dialogue around conscience and suggest that perhaps conscientious objection is a human right.

Sutton EJ, Upshur RE. Are there different spheres of conscience? J Eval Clin Pract. 2010;16(2):338-343.

(Thesis) Comparative Legal Analysis of Conscientious Objection in Health Care

Slavomíra Slovinská

Abstract
The purpose of this thesis is to demonstrate what would be an appropriate model of the regulation of conscientious objections in health care. These objections are regulated in many countries’ national legislation, however, some of them fail to provide safeguards which would secure proper balance between the two conflicting interests – the health care professional’s right to act in accordance with his conscience and individual’s right to access health care. Therefore, this thesis analyzes regulation of the conscientious objection in the legal systems of the USA, the UK and the Slovak Republic with respect to the appropriateness of such regulation and major differences which they include. The thesis suggests that the protection of conscientious objection in the USA can go too far and be too excessive, while the UK presents much more appropriate model of regulation of conscientious objection with certain limitations. Furthermore, it submits that regulation of conscientious objection in Slovakia consists in general but vague clause creating the possibilities for future controversies.The thesis also analyses different opinions on the acceptability of conscientious objection in health care and finally, it suggests conditions and limitations of conscientious objection that should be met in the regulation of national legislation in order to find appropriate balance between the competing interests of health care professionals and patient.

Slovinská S. (Thesis) Comparative Legal Analysis of Conscientious Objection in Health Care. Central European University, Budapest, Hungary. 2010 Mar 29.