Law Archives - Page 4 of 39 - Protection of Conscience Project Library

Conscientious objection to abortion, the law and its implementation in Victoria, Australia: perspectives of abortion service providers

Louise Anne Keogh, Lynn Gillam, Marie Bismark, Kathleen McNamee, Amy Webster, Christine Bayly, Danielle Newton

Abstract
Background: In Victoria, Australia, the law regulating abortion was reformed in 2008, and a clause (‘Section 8’) was introduced requiring doctors with a conscientious objection to abortion to refer women to another provider. This study reports the views of abortion experts on the operation of Section 8 of the Abortion Law Reform Act in Victoria.

Methods: Nineteen semi-structured qualitative interviews were conducted with purposively selected Victorian abortion experts in 2015. Interviews explored the impact of abortion law reform on service provision, including the understanding and implementation of Section 8. Interviews were transcribed verbatim and analysed thematically.

Results: The majority of participants described Section 8 as a mechanism to protect women’s right to abortion, rather than a mechanism to protect doctors’ rights. All agreed that most doctors would not let moral or religious beliefs impact on their patients, and yet all could detail negative experiences related to Section 8. The negative experiences arose because doctors had: directly contravened the law by not referring; attempted to make women feel guilty; attempted to delay women’s access; or claimed an objection for reasons other than conscience. Use or misuse of conscientious objection by Government telephone staff, pharmacists, institutions, and political groups was also reported.

Conclusion: Some doctors are not complying with Section 8, with adverse effects on access to care for some women. Further research is needed to inform strategies for improving compliance with the law in order to facilitate timely access to abortion services.

Keogh LA, Gillam L, Bismark M, McNamee K, Webster A, Bayly C, Newton D. Conscientious objection to abortion, the law and its implementation in Victoria, Australia: perspectives of abortion service providers. BMC Medical Ethics201920:11.

How the Canadian Medical Association found a third way to support all its members on assisted dying

Jeff Blackmer

British Medical Journal, BMJ — British Medical Journal

Extract
The CMA recognised that its policy needed to evolve: if the law were to change, the organisation would support all its members, regardless of their views, in deciding whether to participate in MAID. This was a watershed moment, enabling the association to lead national discussions and to give evidence before Canada’s Supreme Court. . . .The court referenced the CMA’s position to provide equal support for conscientious participation and conscientious objection, stating, “Nothing . . . would compel physicians to provide assistance in dying. The declaration simply renders the criminal prohibition invalid.”.

Blackmer J. How the Canadian Medical Association found a third way to support all its members on assisted dying. BMJ (Online). 2019;364.

The Challenges of Conscience in a World of Compromise

Amy J. Sepinwall

Abstract
The process of crafting and passing legislation might be thought to be the locus of compromise par excellence.1 Yet, where the law that results impinges upon moral or religious belief or practice, the issue of compromise arises anew, in both senses of the word: Individuals who oppose the law on moral or religious grounds believe that their political obedience will compromise them in a fundamental way. Their plea for an exemption from the objectionable legal requirement is, then, a bid for further compromise.2 Compromise in the first sense concerns an undercutting of the self, while compromise in the second sense involves a grant of concessions. Yet, unlike compromises that arise in the legislative process, or at least in some ideal version of it,3 the compromise involved in an exemption from a neutral law of general application involves neither an exchange of benefits nor the prospect of mutual benefit-two hallmarks of compromise in, say, political (and other) negotiations.4 There are several reasons to doubt the wisdom or fairness of the requested exemptions, then.

Sepinwall AJ. The Challenges of Conscience in a World of Compromise. In: Knight J, editor. Nomos LIX: Compromise. New York:NYU Press, 2018. pp. 220-247.

(Report) Sexual and reproductive health rights and the implication of conscientious objection

Ludovica Anedda, Lucy Arora, Luca Favero, Nathalie Meurens, Sophie Morel, Martha Schofield

European Union Report: Implications of Conscientious Objection

Abstract
This study was commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the FEMM Committee. It aims to provide a comparative overview of the situation in the European Union, with particular focus on six selected Member States, in terms of access to sexual and reproductive healthcare goods (such as medicines) and services (such as abortion and family planning), from both legal and practical perspectives. The study looks at the extent to which conscientious objection affects access to sexual and reproductive rights (SRHR). The study will contribute to formulating a clear framework for the improvement of access to sexual and reproductive healthcare goods and services in the EU

Anedda L, Arora L, Favero L, Meurens N, Morel S, Schofield M. (Report) Sexual and reproductive health rights and the implication of conscientious objection. Policy Department for Citizens’ Rights and Constitutional Affairs,
European Parliament. 2018.

On Avoiding Deep Dementia

Norman L Cantor

Abstract
Some people will confront Alzheimer’s with a measure of resignation, a determination to struggle against the progressive debilitation and to extract whatever comforts and benefits they can from their remaining existence. They are entitled to pursue that resolute path. For other people, like myself, protracted maintenance during progressive cognitive dysfunction and helplessness is an intolerably degrading prospect. The critical question for those of us seeking to avoid protracted dementia is how best to accomplish that objective. One strategy is to engineer one’s own death while still mentally competent to do so (even in the stage of mild dementia). If I were to use a preemptive strategy in the face of a dementia diagnosis, I would probably choose to stop eating and drinking, a process known as voluntarily stopping eating and drinking. An alternative tactic for avoiding prolonged dementia would be to allow oneself to decline into moderate dementia—thus losing capacity to perform self-deliverance or even to make serious medical decisions—but before getting to that point to provide advance instructions rejecting prospective life-sustaining medical interventions. These advance instructions would authorize palliative but not curative measures. My current personal instructions define the point of intolerable cognitive decline triggering medical nonintervention as “mental deterioration to a point when I can no longer read and understand written material such as a newspaper or financial records such as a checkbook.” These instructions dictate allowing my demise at a point of moderate dementia when I may not be perceptibly suffering, when I may still be getting some rudimentary satisfaction from my debilitated life, and when I no longer recall the preoccupation with personally intolerable indignity that motivated my instructions. Can I expect that my advance instructions will be implemented in those circumstances? Is it lawful, and is it moral for a surrogate decision-maker and associated caregivers to allow an uncomprehending, ostensibly content but demented individual to die? My analysis herein contends that it is not only lawful and moral but also legally required to implement clear, considered advance instructions even at a stage of moderate dementia.

Cantor NL. On Avoiding Deep Dementia. Hastings Cent. Rep. 2018 Aug 16;48(4):15-24.

What the Doctor Ordered: Balancing Religion and Patient Rights in U.S. Pharmacies

Rachel T Caudel

Extract
Conclusion
. . . A statute that requires pharmacies to select their own policies regarding contraceptives and sexual health medication, to publish that policy, and to be required to adhere to the stated policy, however, is a near perfect solution to the delicate balance of protected rights. With cooperation from physicians and compliance within the pharmacies, women will be able to access the pharmaceuticals prescribed to them without delay, hassle, misinformation, or shame. Women will be able to find a pharmacist who will allow them to exercise their choice to use or not to use contraceptives. Pharmacists, on the other hand, will more easily schedule their careers to line up with their moral and religious convictions. A pharmacist will easily be able to determine a pharmacy’s policy on sexual health medications and contraceptives and therefore more easily find employment with a pharmacy that shares his value system. An individualized sexual health medication policy, when accompanied by a directory program, policy publication and compliance supervision, is the best, and possibly only method of insuring all rights at stake are protected.

Caudel RT. What the Doctor Ordered: Balancing Religion and Patient Rights in U.S. Pharmacies. Ky Law J. 2018 Aug;97(3):521-539.

Seeking to square the circle: A sustainable conscientious objection in reproductive healthcare

Emmanuelle Bribosia, Isabelle Rorive

Abstract
While the right to abortion is not spelled out as such in the international or regional human rights treaties, recent developments strongly support the view that a right to safe and legal abortion is a woman’s human right. A sustainable model of conscientious objection in reproductive healthcare must take into account the human rights developments concerning induced abortion. For the past hundred years, conscientious objection has been used almost exclusively in the context of refusal to perform compulsory military service. There are major difficulties in trying to transpose the debate surrounding conscientious objection to the realm of reproductive health. The wider context of conscience claims raised after the legalisation of same-sex unions is even more disturbing. It shows the detrimental effect hat accommodation policies could have on the full operation of non-discrimination law. Recent supranational and national cases show that the recognition of conscientious objection in reproductive healthcare is hardly sustainable on the ground. A snowball effect seems inevitable. And even well-defined legal safeguards are failing. This leads to wide discriminatory treatment based on gender, territorial status, low social condition and ethnicity. This also leads to the failure to recognise the dignitary harm to women and the perpetuation of social prejudice and structural inequality which result from this approach. In other words, designing, implementing and monitoring a strictly regulated conscience clause in reproductive healthcare resembles an effort to square the circle. Something always falls by the wayside, and the ‘something’ is no less than women’s human rights.

Bribosia E, Rorive I. Seeking to square the circle: A sustainable conscientious objection in reproductive healthcare. In Chapter 15, Mancini S, Rosenfeld M, editors. The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality, Cambridge: University Press, 2018 (392-413).

The Right of Religious Hospitals to Refuse Physician-assisted Suicide

Barry W Bussey

Abstract
The Supreme Court of Canada’s decision to allow medical assistance in dying (MAiD) has created a crisis of conscience for religious hospitals that refuse MAiD based on religious beliefs and conscience. This paper argues that when the law is revised concerning fundamental human life issues (FHLI), such as assisted suicide, liberal democracies must tolerate religious communities and institutions that refuse to accept the law’s revision. This toleration for religious belief and practice is predicated on the idea that the religious practice at issue remains legal and forms part of the religious community’s moral framework to which the state remains neutral. A refusal to tolerate the religious position is a rejection of the collective wisdom of liberal democratic thought that has emphasized religious individual and, by extension, religious institutional freedom. The Christian hospital, having been around for millennia, forms a necessary part of civil society. Robert Putnam’s research on the importance of religion to civic society is used to make the argument that society as a whole benefits from the norm of reciprocity, (“I’ll do this for you now, with the expectation that you (or perhaps someone else) will return the favour”). As the state continues to allow the religious community to have “its” hospital, the community, as a whole, will continue to maintain a high level of trust toward the state. Radical positions from our historical norms require thoughtful reflection of their presuppositions. It would serve us well to maintain a humble appreciation of our cultural heritage even when we think we are right in our newfound positions on FHLI.

Bussey BW. The Right of Religious Hospitals to Refuse Physician-assisted Suicide. Supreme Court Law Review. 2018;189-223.

Access to aid-in-dying in the United States: Shifting the debate from rights to justice

Mara Buchbinder

Author Summary
Much of the literature on aid-in-dying (AID) has drawn heavily on rights-based ethical and legal frameworks that emphasize patients’ rights of self-determination in end-of-life decision-making. Less attention has focused on how terminally ill people actually experience such putative rights once they are legally authorized. This analytic essay draws on findings from the Vermont Study on Aid-in-Dying, an ethnographic study of the implementation of AID in Vermont (2015-2017). First, I show that terminally ill people can face a range of barriers to accessing AID in permissive jurisdictions, and that access to AID is mediated by various inequalities endemic to US health care, as well as some that are unique to AID. I then build on these findings to examine the utility of the concept of justice for public health scholarship on AID. By integrating empirical, ethical, and policy analysis, I reframe rights-based frameworks that emphasize the role of individual choice and decision-making at the end of life. In doing so, I draw attention to health care justice as a neglected issue in public health perspectives on AID.

Buchbinder M. Access to aid-in-dying in the United States: Shifting the debate from rights to justice. Am J Public Health. 2018;108(6):754-759.

Autonomy in Tension: Reproduction, Technology, and Justice

Louise P King, Rachel L Zacharias, Josephine Johnston

Abstract
Respect for autonomy is a central value in reproductive ethics, but it can be a challenge to fulfill and is sometimes an outright puzzle to understand. If a woman requests the transfer of two, three, or four embryos during fertility treatment, is that request truly autonomous, and do clinicians disrespect her if they question that decision or refuse to carry it out? Add a commitment to justice to the mix, and the challenge can become more complex still. Is it unfair for insurance policies to exclude from coverage the costs of giving fertility to those who lack it or restoring fertility in those who have lost it? What does “just reproduction” look like in the face of multifarious understandings of both justice and autonomy and in light of increasingly complex and costly reproductive technologies? In today’s dialogue about reproduction, medicine, and ethics in the United States, old ethical issues—such as whether women ought to be allowed to access pregnancy termination—are more contested than they have been in decades, while new technologies—like those used to edit the genes of human embryos—suggest that our species could face unprecedented questions about who should exist. As we considered the discussions accompanying these issues and contemplated a special report responding to them, we found ourselves consistently circling back to two ethical commitments: respect for autonomy and the pursuit of justice. As one of the nine essays in this collection asks, why should certain women receive help to establish a pregnancy while others are thrown in jail when they miscarry or their child is stillborn? Respect for autonomy is required where individuals have the ability to make fully informed and voluntary choices. Yet does respecting autonomy require acceding to all the choices of patients or consumers of medical care? We consider these and related questions in this special report from the Hastings Center Report..

King LP, Zacharias RL, Johnston J. Autonomy in Tension: Reproduction, Technology, and Justice. Hastings Cent Rep. 2017 Nov 24;47:S3.