Law Archives - Page 8 of 39 - Protection of Conscience Project Library

Conscientious Objection and Civil Disobedience

Kimberley Brownlee

From the chapter introduction

The purpose of this chapter is to consider two types of dissent that are generally described as conscientious, namely, civil disobedience and conscientious objection, both of which raise pressing normative questions not only about the proper parameters of dissenters’ rights and duties within a reasonably good society, but also about both the scope of legitimate toleration of assertions of conscientiousness and the appropriate legal and political responses to conscientious disobedience. In what follows, I begin by outlining the conceptual territory of civil disobedience and conscientious objection. I then offer a qualified endorsement of the moral justifiability of these two practices before examining both the scope and legitimacy of their status as moral rights and their grounds for legal defensibility. Among other things, I challenge the dominant liberal position that, in relation to both moral rights and legal defenses, a more compelling case can be made on behalf of private conscientious objection than on behalf of civil disobedience.

Brownlee K. Conscientious Objection and Civil Disobedience. In: Marmor A editors. The Routledge Companion to the Philosophy of Law. 2012;527-539.

Striking a Balance: Conscientious Objection and Reproductive Health Care from the Colombian Perspective

Luisa Cabal, Monica Arango Olaya, Valentina Montoya Robledo

Abstract
Conscientious Objection or conscientious refusal (CO) in access to reproductive health care is at the center of current legal debates worldwide. In countries such as the US and the UK, constitutional dilemmas surrounding CO in the context of reproductive health services reveal inadequate policy frameworks for balancing CO rights with women’s rights to access contraception and abortion. The Colombian Constitutional Court’s holistic jurisprudence regarding CO standards has applied international human rights norms so as to not only protect women’s reproductive rights as fundamental rights, but to also introduce clear limits for the exercise of CO in health care settings. This paper reviews Latin American lines of regulation in Argentina, Uruguay, and Mexico City to argue that the Colombian Court’s jurisprudence offers a strong guidance for future comprehensive policy approaches that aim to effectively balance tensions between CO and women’s reproductive rights..

Cabal L, Olaya MA, Robledo VM. Striking a Balance: Conscientious Objection and Reproductive Health Care from the Colombian Perspective. Health Human Rights J. 2014;16(2):73-83.

Money, Sex, and Religion-The Supreme Court’s ACA Sequel

George J Annas, Theodore W Ruger, Jennifer Prah Ruger

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

Extract
Our incremental, fragmented, and incomplete health insurance system means that different Americans have different access to health care on the basis of their income, employment status, age, and sex. The decision in Hobby Lobby unravels only one more thread, perhaps, but it tugs on a quilt that is already inequitable and uneven. A central goal of the ACA was to repair some of this incremental fragmentation by universalizing certain basic health care entitlements. In ruling in favor of idiosyncratic religious claims over such universality, the Court has once again expressed its disagreement with this foundational health-policy goal.

Annas GJ, Ruger TW, Ruger JP. Money, Sex, and Religion-The Supreme Court’s ACA Sequel. N Engl J Med. 2014;371(9):862-865.

When Religious Freedom Clashes with Access to Care

I. Glenn Cohen, Holly Fernandez Lynch, Gregory D. Curfman

Extract
At the tail end of this year’s Supreme Court term, religious freedom came into sharp conflict with the government’s interest in providing affordable access to health care. In a consolidated opinion in Burwell v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Burwell (collectively known as Hobby Lobby) delivered on June 30, the Court sided with religious freedom, highlighting the limitations of our employment-based health insurance system.

Hobby Lobby centered on the contraceptives-coverage mandate, which derived from the Affordable Care Act (ACA) mandate that many employers offer insurance coverage of certain “essential” health benefits, including coverage of “preventive” services without patient copayments or deductibles.

Cohen IG, Lynch HF, Curfman GD. When Religious Freedom Clashes with Access to Care. N Engl J Med 2014; 371:596-599 August 14, 2014 DOI: 10.1056/NEJMp1407965

Prostitution, disability and prohibition

Frej Klem Thomsen

Abstract
Criminalisation of prostitution, and minority rights for disabled persons, are important contemporary political issues. The article examines their intersection by analysing the conditions and arguments for making a legal exception for disabled persons to a general prohibition against purchasing sexual services. It explores the badness of prostitution, focusing on and discussing the argument that prostitution harms prostitutes, considers forms of regulation and the arguments for and against with emphasis on a liberty-based objection to prohibition, and finally presents and analyses three arguments for a legal exception, based on sexual rights, beneficence, and luck egalitarianism, respectively. It concludes that although the general case for and against criminalisation is complicated there is a good case for a legal exception.

Thomsen FJ. Prostitution, disability and prohibition. J Med Ethics doi:10.1136/medethics-2014-102215

The Efficient Breach Theory: The Moral Objection

Tareq Al-Tawil

Abstract
This article discusses the moral objection to the efficient breach theory, specifically the objection that it is not based upon a moral obligation to perform a contract. The efficient breach theory endorses the immoral behaviour of breaching a promise whenever the consequences of breach are considered to be superior (in the sense that they are more efficient or better) to those of performance. It considers that contracts (namely, those promises in which legal rules and institutions are involved) are simply vehicles for achieving economic efficiency. The efficient breach theory has been challenged by a number of critics. It is the idea underlying promissory obligations that a promise excludes or ignores the ordinary grounds – for example, utilitarian grounds – that a promisor may bear in mind and consider in the course of making the decision about whether they should perform the promise. This characteristic of promises can be explained by saying that a promise creates an exclusionary reason for action. This article also addresses two crucial questions. First, why do promises create exclusionary reasons for action in the first place? Without answering this question, it would be difficult to argue that promises should be understood differently from the way the efficient breach theory understands them. Second, how do we decide when breaching a promise is or is not immoral? This question is significant because without such knowledge, it would be difficult to argue that the efficient breach theory endorses the immoral behaviour of promise-breaking once a better opportunity presents itself.

Al-Tawil T. The Efficient Breach Theory: The Moral Objection. Griffith Law Rev. 2011;20(2):449-481.

Clinicians’ Involvement in Capital Punishment – Constitutional Implications

Nadia N. Sawicki

Extract
If capital punishment is constitutional, as it has long been held to be, then it “necessarily follows that there must be a means of carrying it out.”1 So the Supreme Court concluded in Baze v. Rees, a 2008 challenge to Kentucky’s lethal-injection protocol . . .

Lethal injection, the primary execution method used in all death-penalty states, was adopted precisely because its sanitized, quasi-clinical procedures were intended to ensure humane deaths consistent with the Eighth Amendment. But experiences like Clayton Lockett’s . . .demonstrate the dearth of safeguards for ensuring that this goal is actually achieved. . . Nevertheless, states have demonstrated their willingness to continue with lethal injections, and most federal courts have allowed executions to proceed in the face of constitutional challenges. The time is therefore ripe for the medical and scientific communities to consider, once again, their role in this process.

Sawicki NN. Clinicians’ Involvement in Capital Punishment – Constitutional Implications. N Engl J Med 371;2 nejm.org july 10, 2014

Emergency Contraception, Institutional Conscience, and Pharmacy Practice

Robert F CarD, Carl G Williams

Abstract
“Emergency contraception” case law from the state of Washington is reviewed and analyzed. Important legal, social policy, and professional ethical questions are considered with focus on professional and institutional conscientious objection to participating in this therapy.

Card RF, Williams CG. Emergency Contraception, Institutional Conscience, and Pharmacy Practice. J Pharm Pract 2014 Apr;27(2):174-7. doi: 10.1177/0897190013515710

Reproductive Justice Begins with Contraceptive Access in the Philippines

Elisabeth S Smith

Abstract
Reproductive justice will exist in the Philippines when the lowest-income Filipino women have access to contraception. As long as women express a desire to use modern contraception but cannot access it, the Philippine government has not met its obligations. As the right to health is self-executing, Filipinos do not depend on the interest or goodwill of their government, but rather have enforceable claims to health care, including contraception. The government of Philippines should adhere to the Constitution, national laws, and ratified international agreements and fulfill the RH Act’s objectives to advance reproductive justice for all Filipinos.

Smith ES. Reproductive Justice Begins with Contraceptive Access in the Philippines. Pacific Rim Law Pol J. 2014;23(1):203-249.

Dignity, death, and dilemmas: A study of Washington hospices and physician-assisted death

Courtney S Campbell, Margaret A Black

Abstract
The legalization of physician-assisted death in states such as Washington and Oregon has presented defining ethical issues for hospice programs because up to 90% of terminally ill patients who use the state-regulated procedure to end their lives are enrolled in hospice care. The authors recently partnered with the Washington State Hospice and Palliative Care Organization to examine the policies developed by individual hospice programs on program and staff participation in the Washington Death with Dignity Act. This article sets a national and local context for the discussion of hospice involvement in physician-assisted death, summarizes the content of hospice policies in Washington State, and presents an analysis of these findings. The study reveals meaningful differences among hospice programs about the integrity and identity of hospice and hospice care, leading to different policies, values, understandings of the medical procedure, and caregiving practices. In particular, the authors found differences 1) in the language used by hospices to refer to the Washington statute that reflect differences among national organizations, 2) the values that hospice programs draw on to support their policies, 3) dilemmas created by requests by patients for hospice staff to be present at a patient’s death, and 4) five primary levels of noninvolvement and participation by hospice programs in requests from patients for physician-assisted death. This analysis concludes with a framework of questions for developing a comprehensive hospice policy on involvement in physician-assisted death and to assist national, state, local, and personal reflection.

Campbell CS, Black MA. Dignity, death, and dilemmas: A study of Washington hospices and physician-assisted death. J Pain Symptom Manage. 2014 Jan;47(1):137-153.