Law Archives - Page 23 of 43 - Protection of Conscience Project Library

Prescription Ethics: Can States Protect Pharmacists Who Refuse to Dispense Contraceptive Prescriptions?

Maryam T Afif

Extract
Conclusion
Offering legal protection to pharmacists comes at too great a cost to women’s health and legal rights. The pill is a viable and effective method of birth control for many women and, as Congress has noted, it can be used to prevent other social, economic, and medical problems. The Supreme Court has clearly established that a state cannot interfere with a woman’s right to access contraceptives, including the pill. While pharmacists should be free to practice their religion, that practice cannot interfere with their professional duty to dispense valid prescriptions free of moral judgment. Furthermore, the vague wording in most conscience clause statutes does not restrict objections to those of a religious nature. A pharmacist can use any personal moral objection as an excuse not to dispense a prescription. The result of a pharmacist’s objection can be quite severe for the patient (an unintended pregnancy or health problems), and the duties imposed under tort law should apply. A pharmacist should not be able to escape the legal consequences of his or her actions. States that allow pharmacists to do so are clearly protecting the rights of a small segment of their citizens at the expense of others. If these statutes are challenged in court, it is likely that the statutes will be found to be unconstitutional. While this is a serious consequence, it is appropriate given the rights at stake.

Afif MT. Prescription Ethics: Can States Protect Pharmacists Who Refuse to Dispense Contraceptive Prescriptions? Pace Law Review. 2005;26(1):243-272.

The Celestial Fire of Conscience — Refusing to Deliver Medical Care

R Alta Charo

New England Journal of Medicine, NEJM — New England Journal of Medicine

Abstract
Apparently heeding George Washington’s call to “labor to keep alive in your breast that little spark of celestial fire called conscience,” physicians, nurses, and pharmacists are increasingly claiming a right to the autonomy not only to refuse to provide services they find objectionable, but even to refuse to refer patients to another provider and, more recently, to inform them of the existence of legal options for care.

Charo RA. The Celestial Fire of Conscience — Refusing to Deliver Medical Care. N Engl J Med.. 2005 Jun 16;352(24).

Conscience Clauses for Pharmacists: The Struggle to Balance Conscience Rights with the Rights of Patients and Institutions

Matthew White

Abstract
Conclusion
. . .The patchwork of current conscience protection for pharmacists indisputably fails its purpose-in almost all cases the current legislation is severely one-sided and out of date. Although such conscience protection admirably attempts to embody the purposes of the First Amendment, most of the actual and proposed legislation suffers from severe partisan myopia. Statutes purporting to offer absolute protection to patients, to employers, or to health care providers rather than striking a balance tend to prolong and enlarge conflict rather than resolve it. . .

Patients, pharmacists, and employers all have civil rights implicated in the delicate interactions that surround the use of oral contraception, and decisive action should be taken to enact statutes that protect the rights of each, rather than statutes that protect one group exclusively. Legislators should make a painstaking effort to craft new conscience legislation that protects the conscience rights of pharmacists without inserting the pharmacist between the patient and her doctor. Such legislation should also make some provision for employers that would be substantially burdened by an inability to conduct their business in the event of a bona fide conscience claim.

White M. Conscience Clauses for Pharmacists: The Struggle to Balance Conscience Rights with the Rights of Patients and Institutions. Wisc Law Rev. 2005;6(1611-1648.

Of Pills and Needles: Involuntary Medicating the Psychotic Inmate When Execution Looms

Julie Cantor

Extract
The coalescence of involuntarily administered antipsychotic medications and competency for execution created a novel and controversial issue that became the basis of Singleton’s final appeal. The Arkansas Supreme Court stated the question succinctly: May the State ”mandatorily medicate [Singleton] with antipsychotic drugs in order to keep him from being a danger to himself and others when a collateral effect of that medication is to render him competent to understand the nature and reason for his execution[?]” Or, as Singleton put it, “Am I too sane to live, or too insane to die?” The cynical view of that question is that Singleton was clever and manipulative. Like most people, he would do just about anything to forestall his death. The more charitable view is that Singleton found an Achilles heel in the execution process and physicians’ involvement with it, one that created what some physicians consider to be an intolerable dilemma.

Cantor J. Of Pills and Needles: Involuntary Medicating the Psychotic Inmate When Execution Looms. Indiana Health L Rev. 2005;2(1):119-172.

Unspeakably Cruel-Torture, Medical Ethics, and the Law

George J Annas

Extract
The Nazi doctors defended themselves primarily by arguing that they were engaged in necessary wartime medical research and were following the orders of their superiors. These defenses were rejected because they are at odds with the Nuremberg Principles, articulated a year earlier, at the conclusion of the multinational war crimes trial in 1946, that there are crimes against humanity (such as torture), that individuals can be held to be criminally responsible for committing them, and that obeying orders is no defense.

Annas GJ. Unspeakably Cruel-Torture, Medical Ethics, and the Law. N. Engl. J. Med.. 2005;352(20):2127-2132.

(Editorial) The sacred and the secular: the life and death of Terri Schiavo

CMAJ

Extract
. . . In medical and legal opinion, Terri Schiavo’s cognizance of her self and her life ended in 1990, when she suffered a cardiac arrhythmia and massive cerebral cortical encephalopathy that left her in a persistent vegetative state. Her facial expressions, along with a seemingly “normal” sleep–wake cycle, constituted but one dimension of the cruelty of this condition. . .

. . .More than one commentator has viewed the “right- to-life” fight to prolong Schiavo’s pitiable existence as an anti-abortion campaign “by other means.” . . .

. . . there seems little doubt that, in North America, ideology and religion have begun to seriously distort the type of consensus-building that is the proper business of democratic politics . . .

Where do physicians find themselves in such debates? Medicine is a secular and scientific profession that, for all that, must still contend with the sacred matters of birth, life and death. In practice, physicians must set aside their own beliefs in deference to the moral autonomy of each patient — or else transfer that patient’s care to someone who can meet this secular ethic. . .

. . .The emotionalism and rancour that swirled around the Schiavo case underscores a wider societal duty borne by the medical and scientific community. This is to remain alert to political and legislative tendencies that impose imprecise moral generalizations on the majority, at the expense of reason, scientific understanding and, not infrequently, compassion.

CMAJ. (Editorial) The sacred and the secular: the life and death of Terri Schiavo. Can. Med. Assoc. J.. 2005 Apr 26;172(9):1151.

Un aspect crucial mais délicat des libertés de conscience et de religion des articles 2 et 3 des Chartes canadienne et québécoise: l’objection de conscience

Henri Brun

Abstract
The Supreme Court of Canada, obiter, in the Big M Drug Mart Case, has spoken of the “Constitutional Exemption”. It is the possibility not to be bound to obey the neutral laws that conflict with one’s conscience or religion. It is what we call in French l’objection de conscience. The institution exists in Canadian and Québec Law as a part of the right to freedom of conscience or religion expressed in 2a) and 3 of the Canadian and Québec Charters of Rights. And it goes well beyond the right not to fight within the armed forces. The Supreme Court of Canada has actually delivered six judgments touching on the subject in 1985 and 1986. The conditions under which l’objection de conscience come into play are not so well known however. Does it cover matters of worship or only rules of morals ? Secular or only religious principles ? Personal or only group beliefs ? Do the existence of the rule, the sincerity of the objector and the reasonableness of the exemption have to be proved? Above all, what is the difference between a creed and an opinion ? The following article tries to formulate answers to these questions, with the help of current case-law.

Brun H. Un aspect crucial mais délicat des libertés de conscience et de religion des articles 2 et 3 des Chartes canadienne et québécoise: l’objection de conscience. Les Cahiers de Droit. 1987;28(1):185-205.

The Concealment of Religious Values in Judicial Decisionmaking

Scott C Idleman

Extract
Religious beliefs and values can play a significant and potentially necessary role in the judicial disposition of cases, particularly those in which the positive law is meaningfully underdeterminate. With some exceptions, however, the permissible role of such beliefs and values in various stages of the judicial process is not often appropriately addressed within public and even academic circles. To the contrary, the issue tends by most commentators to be either largely overlooked, perhaps due to its delicacy or complexity, or categorically disposed of pursuant to a debatable theory of public discourse or a distinctive reading of the Constitution’s religion clauses. The central thesis of this Essay is that the relationship between judging and religious influences, as a result of these and other circumstances, is one defined substantially by concealment, much of it unconscious, rather than by truly principled and effective regulation. The Essay’s purposes, accordingly, are to develop this thesis more fully; to examine its chief consequences, especially for the legitimacy of judicial decisionmaking; and, to the extent that these consequences are unfavorable, to suggest some modest corrective measures.

Idleman SC. The Concealment of Religious Values in Judicial Decisionmaking. Va Law Rev. 2005 Apr;91(2):515-534.

(News) Abortion payment

Barbara Sibbald

Extract
The New Brunswick government is refusing to pay for abortions performed at private clinics, despite renewed warnings from Ottawa. Federal Health Minister Ujjal Dosanjh told the province it is violating the Canada Health Act . . . New Brunswick medicare only pays for abortions up to 12 weeks, performed in hospitals with the approval of 2 physicians. About 600 women a year pay up to 750 for the procedure at the Morgentaler clinic.

Sibbald B. Abortion payment. Can Med Assoc J. 2005 Mar 1;172(5):624.

Service or Servitude: Reflections on Freedom of Conscience for Health Care Workers

Sean Murphy

Abstract
The authors suggestion that patients should be able to access morally controversial services without compromising health care workers’ freedom of conscience is most welcome, as is their acknowledgment that “other options exist” when pharmacists decline to fill prescriptions.

However, the conflicting interests of patients and health care providers may be accommodated but cannot be balanced because they concern fundamentally different goods. Neither the concept of autonomy nor an appeal to the “needs” of the patient help to resolve conflicts in these situations, while fiduciary obligations cannot necessarily be invoked because they are not governed by fixed rules, and there can be no obligation to participate in wrongdoing.

The fact that post-coital interceptives can cause the death of an early embryo is at the heart of the controversy over the drugs. The authors’ advocacy of mandatory referral follows from their belief this is not wrong. Those with different beliefs do not share their conclusions. Conscientious objection does not prevent patients from obtaining post-coital interceptives from other sources. As the exercise of freedom of speech does not force others to agree with the speaker, the exercise of freedom of conscience does not force others to agree with an objector. Concerns about access to legal services or products can be addressed by dialogue, prudent planning, and the exercise of tolerance, imagination and political will. A proportionate investment in freedom of conscience for health care workers is surely not an unreasonable expectation.

Murphy S. Service or Servitude: Reflections on Freedom of Conscience for Health Care Workers (2004 Dec 20) Protection of Conscience Project (website).