Law Archives - Page 7 of 39 - Protection of Conscience Project Library

Conscience and Complicity: Assessing Pleas for Religious Exemptions in Hobby Lobby’s Wake

Amy J Sepinwall

Abstract
In the paradigmatic case of conscientious objection, the objector claims that his religion forbids him from actively participating in a wrong (for example, by fighting in a war). In the religious challenges to the Affordable Care Act’s employer mandate, on the other hand, employers claim that their religious convictions forbid them from merely subsidizing insurance through which their employees might commit a wrong (for example, by using contraception). The understanding of complicity underpinning these challenges is vastly more expansive than the standard that legal doctrine or moral theory contemplates. Courts routinely reject claims of conscientious objection to taxes that fund military initiatives or to university fees that support abortion services. In Hobby Lobby, however, the Supreme Court took the corporate owners at their word: the mere fact that Hobby Lobby believed that it would be complicit, no matter how idiosyncratic its belief, sufficed to qualify it for an exemption. In this way, the Court made elements of an employee’s health-care package the “boss’s business” (to borrow from the nickname of the Democrats’ proposed bill to overturn Hobby Lobby).

Much of the critical reaction to Hobby Lobby focuses on the issue of corporate rights of religious freedom. Yet this issue is a red herring. The deeper concerns that Hobby Lobby raises—about whether employers may now refuse, on religious grounds, to subsidize other forms of health coverage (for example, blood transfusions or vaccinations) or to serve customers whose lifestyles they deplore (for example, gays and lesbians)—do not turn on the organizational form that the employer has adopted. Instead, the more significant issue goes to our understanding of complicity: When is it reasonable for an employer (for-profit or nonprofit, corporate or individual) to think itself complicit in the conduct of its employees or customers? And when is a reasonable claim of complicity compelling enough to warrant an accommodation, especially when that accommodation would impose costs on third parties?

Sepinwall AJ. Conscience and Complicity: Assessing Pleas for Religious Exemptions in Hobby Lobby’s Wake. U Chicago Law Rev. 2015 Fall; 82:1897-1980.

An argument for physician-assisted suicide and against euthanasia

Raphael Cohen-Almagor

Abstract
The article opens with the hypothesis that the default position that should guide healthcare providers when treating patients at the end-of-life is that patients opt for life. In the absence of an explicit request to die, we may assume that patients wish to continue living. Thus, the role of the medical profession is to provide patients with the best possible conditions for continued living. The article makes a case for physician-assisted suicide legislation. It examines the ‘quality-of-life’ argument, and the issue of the patient’s autonomy and competence. It is argued that (1) quality-of-life is a subjective concept. Only the patient can conclude for herself that her quality-of-life is so low to warrant ending it, and that (2) only competent patients may request ending their lives. Patients’ lives should not be actively terminated by the medical team without the explicit consent of patients. The article then probes the role of physicians at the end-of-life, arguing that medicine should strive to cater to the wishes of all patients, not only the majority of them. Physicians should not turn their backs to justified requests by their patients. Physicians are best equipped to come to the help of patients at all stages of their illness, including their end-of-life. At the same time, in ending life, the final control mechanism should be with the patient. Thus, physician-assisted suicide is preferred to euthanasia in order to lower the possibility of abuse and of ending the lives of patients without their consent and against their wishes. As matters of life and death are grave, they should be taken with utmost seriousness, requiring the instalment of ample checks against abuse and facilitating mechanisms designed to serve the patient’s best interests. The article concludes with 19 careful and detailed guidelines for physician-assisted suicide. These are necessary measures designed to ensure that the best interests of the patients are served as they wished.

Cohen-Almagor R. An argument for physician-assisted suicide and against euthanasia. Ethics Med Pub Health. 2015 Oct;1(4):431-441.

Multi-fetal Pregnancy Reduction in Assisted Reproductive Technologies: A License to Kill?

Siddharth Khanijou

Extract
Conclusion
The objective of this Article is not to make a case that multifetal pregnancy reduction should be banned. . . . The procreational autonomy bestowed by the Constitution cannot be extended to permit the unbridled, willful creation and destruction of fetuses. Autonomy does not grant society a license to absolute freedom from intervention in all matters regarding our reproductive capacity. . . .

Assisted reproductive technologies, like other medical technologies, do not exist in a vacuum. The potential economic and social harms that may result from irresponsible practice extend beyond the ART participants. . . . In an era where government silence equals acquiescence and where unregulated technology threatens to devalue humanity, political stalemate is not a valid excuse. Proactive federal oversight is central to cure the problems created over the past twenty- five years by the lack of regulation over ART.

Khanijou S. Multi-fetal Pregnancy Reduction in Assisted Reproductive Technologies: A License to Kill? DePaul J Health Care Law. 2005 Oct;8(2):403-430.

Fetal Tissue Fallout

R Alta Charo

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

Abstract
The duty of care is a fundamental principle of medicine that should be at the heart of the debate surrounding Planned Parenthood and fetal tissue research. And that duty includes taking advantage of avenues of hope for current and future patients.

Charo RA. Fetal Tissue Fallout. N Engl J Med. 2015 Sep 03;373(10):890-891. Available from:

Tasmania’s Reproductive Health (Access to Terminations) Act 2013: An analysis of conscientious objection to abortion and the “obligation to refer”

Ronli Sifris

Abstract
This article focuses on Tasmania’s Reproductive Health (Access to Terminations) Act 2013, which decriminalises abortion in that State. The article first provides an overview of the Tasmanian legislation, comparing it with Victoria’s Abortion Law Reform Act 2008. It then provides a more in-depth analysis of a doctor’s right to “conscientious objection” and the requirement in both Acts of an “obligation to refer”. The article concludes that ultimately, as a democratic society, it is important that both a woman’s right to terminate a pregnancy and a doctor’s right to freedom of conscience is respected. Where these rights conflict, as is the case when a doctor with a conscientious objection to abortion is confronted with a patient who seeks information about abortion, they must be balanced. The Victorian and Tasmanian Acts represent a considered and reasonable approach to balancing the rights at issue.

Sifris R. Tasmania’s Reproductive Health (Access to Terminations) Act 2013: An analysis of conscientious objection to abortion and the “obligation to refer”. J Law Med. 2015 Jul;22(4):900-914.

Unanimity on Death with Dignity — Legalizing Physician-Assisted Dying in Canada

Amir Attaran

Extract
In February 2015, Canada legalized physician-assisted dying — a first among countries with common-law systems, in which law is often developed by judges through case decisions and precedent. The Supreme Court of Canada issued the decision in Carter v. Canada, and its reasoning and implications for clinical practice bear examination.

Attaran A. Unanimity on Death with Dignity — Legalizing Physician-Assisted Dying in Canada. N Engl J Med. 2015;372(22):2080-2082.

Contraceptive Comstockery: Reasoning from Immorality to Illness in the Twenty-First Century

Priscilla J Smith

Abstract
This Article examines the use by anti-contraception advocates of the claims that “contraception harms women” and “contraception is abortion,” claims made most prominently in litigation challenging Obamacare’s contraceptive coverage requirement. See Burwell v. Hobby Lobby, 134 S. Ct. 2751 (2014). The Article uncovers the nineteenth-century roots of these arguments and the strategic reasoning behind their current revival, to reveal that these claims are part of a broad attack on contraception grounded in opposition to non-procreative sex. In Part II, the Article reviews nineteenth-century reasoning about contraceptives, and then in Part III, discusses the modern revival of this Comstock era mode of reasoning about contraception which connected immorality and illness. Today, however, considerable social acceptance of sex for pleasure (at least for some people in some circumstances) means that straightforward arguments against contraception based on its immorality do not resonate as successfully as they once did. Social conservatives have publicly acknowledged as much, expressing an anxiety about the position of religion as “belief” rather than “truth,” and about a rise in what they call “sexualityism.” As a result, modern opponents of contraception have intentionally attempted to mask outmoded and unpopular moral opposition to non-procreative sex by using scientific discourse, citing the best science “we can currently lay our hands on,” for support. The problem for anti-contraception advocates, as revealed in Parts IV and V, is that the appeal to science is a purely rhetorical move, and their claims are contradicted by the latest scientific evidence. The Article establishes the safety and benefits of hormonal contraceptives to women’s and children’s health. The Article also shows that the claim that five hormonal contraceptives are abortifacients is false. Four out of five do not interfere with implantation of a fertilized egg and so cannot be said to terminate a “pregnancy,” even as redefined by opponents as occurring upon fertilization. Opposition to these hormonal contraceptives is thus not truly based on the view that destruction of a fertilized egg is immoral and should be considered an abortion. Rather, the opposition goes much deeper, stemming from a general objection to all forms of contraception and the ability of women to have sex without accepting the possibility of pregnancy and motherhood. The Article concludes in Part VI with evidence of the benefits of increased access to the most effective forms of contraception. Anti-contraception advocates are deploying woman-protective health arguments to limit access to contraception using a strategy similar to that adopted to oppose abortion. Anti-contraception advocates have melded these arguments to contemporary anxieties about heterosexual women’s ability to survive on equal footing with men in today’s sexual and marital “marketplace” in order to stymie efforts to expand contraceptive access and to further restrict access where possible.

Smith PJ. Contraceptive Comstockery: Reasoning from Immorality to Illness in the Twenty-First Century. Conn Law Rev. 2015 May;47(4).

Political Justification through Democratic Participation: The Case for Conscientious Objection

Emanuela Ceva

Abstract
On a proceduralist account of democracy, collective decisions derive their justification-at least in part-from the qualities of the process through which they have been made. To fulfill its justificatory function, this process should ensure that citizens have an equal right to political participation as a respectful response to their equal status as agents capable of self-legislation. How should democratic participation be understood if it is to offer such a procedural justification for democratic decisions? I suggest that, in order to overcome the structural procedural disadvantages affecting the actual, effective opportunities that citizens who hold nonmainstream views have to exercise their right to political participation, the enhancement of such opportunities requires securing space for contestation. Against this background, I vindicate the (currently underestimated) role of conscientious objection as a form of political participation.

Ceva E. Political Justification through Democratic Participation: The Case for Conscientious Objection. Social Theory and Practice. 2015 Jan;41(1):26-50

The law and physician-assisted dying

Tom Koch

Canadian Medical Association Journal, CMAJ — Canadian Medical Association Journal

Extract
For most Canadians, the arguments that began on Oct. 14, 2014, at the Supreme Court in Ottawa are about medical aid in dying. But what is really at stake in Carter et al v Attorney General of Canada et al is Canadian law itself, the meaning of its guarantees, promises and injunctions.

Koch T. The law and physician-assisted dying. Can Med Assoc J. 2014 Nov 18;186(17):1336.

Abortion in Chile: The practice under a restrictive regime

Lidia Casas, Lieta Vivaldi

Abstract
This article examines, from a human rights perspective, the experience of women, and the practices of health care providers regarding abortion in Chile. Most abortions, as high as 100,000 a year, are obtained surreptitiously and clandestinely, and income and connections play a key role. The illegality of abortion correlates strongly with vulnerability, feelings of guilt and loneliness, fear of prosecution, physical and psychological harm, and social ostracism. Moreover, the absolute legal ban on abortion has a chilling effect on health care providers and endangers women’s lives and health. Although misoprostol use has significantly helped to prevent greater harm and enhance women’s agency, a ban on sales created a black market. Against this backdrop, feminists have taken action in aid of women. For instance, a feminist collective opened a telephone hotline, Linea Aborto Libre (Free Abortion Line), which has been crucial in informing women of the correct and safe use of misoprostol. Chile is at a crossroads. For the first time in 24 years, abortion law reform seems plausible, at least when the woman’s life or health is at risk and in cases of rape and fetal anomalies incompatible with life. The political scenario is unfolding as we write. Congressional approval does not mean automatic enactment of a new law; a constitutional challenge is highly likely and will have to be overcome.

Casas L, Vivaldi L. Abortion in Chile: The practice under a restrictive regime. Reprod Health Matters. 2014 Nov;22(44):70-81.