Law Archives - Page 21 of 39 - Protection of Conscience Project Library

Ethical misconduct by abuse of conscientious objection laws

Bernard M Dickens

Abstract
This paper addresses laws and practices urged by conservative religious organizations that invoke conscientious objection in order to deny patients access to lawful procedures. Many are reproductive health services, such as contraception, sterilization and abortion, on which women’s health depends. Religious institutions that historically served a mission to provide healthcare are now perverting this commitment in order to deny care. Physicians who followed their calling honourably in a spirit of self-sacrifice are being urged to sacrifice patients’ interests to promote their own, compromising their professional ethics by conflict of interest. The shield tolerant societies allowed to protect religious conscience is abused by religiously-influenced agencies that beat it into a sword to compel patients, particularly women, to comply with religious values they do not share. This is unethical unless accompanied by objectors’ duty of referral to non-objecting practitioners, and governmental responsibility to ensure supply of and patients’ access to such practitioners.

Dickens BM. Ethical misconduct by abuse of conscientious objection laws. Med Law. 2006 Sep;25(3):513-522.

Does Mission Matter?

Lawrence E Singer

Extract
It is apparent that Catholic health care is suffused with a religious purpose. Its creation is based upon Church interpretation of a duty to Jesus, and its facilities are required to adhere to formal prescriptions of appropriate canonical, ethical and moral behavior. As recently as twenty years ago, questions regarding a facility’s Catholicity and the implications of this calling would rarely have been asked. In part this was because of the highly visible presence of Sisters or Brothers in the facility, making the religious nature of the institution readily apparent to even the casual observer. Too, few Catholic institutions were part of health care systems, and those systems that existed were of a local or regional nature, likely well- known by the communities served.

Today, many Catholic health care facilities have joined together into larger (often multi-state) health care systems with less visible Sister presence and the development of sophisticated corporate management teams distant from day-to-day operations and local community involvement. Many of these systems enjoy significant market power. As discussed below, the heightened visibility of these organizations has led to very public questioning of institutional adherence to religious teaching (especially in the area of sterilizations and, to a lesser extent, abortion), posing a significant challenge to the Catholic mission. Other significant challenges to the mission have also arisen, as the law, the competitive environment, and even changes within the Church present their own hurdles to Catholic facilities. Section III discusses these issues, setting the stage in Part IV for a discussion of whether a religious mission is sustainable in a pluralistic society.

Singer LE. Does Mission Matter? Houston J Health Law Pol. 2006 Sep;6(2):347-377.

Foreword: The Role of Religion in Health Law and Policy

William J Winslade, Ronald A Carson

Extract
This symposium issue explores several continuing controversies at the intersection of Law, Ethics, Healthcare, Politics, Health Policy and Religion: abortion, contraception, the status of embryos, stem cell research, IVF, personal and professional autonomy, end- of-life decisions, and religiously based health care systems. The multiple values associated with each of these topics strain and threaten to usurp the effectiveness of our legal system to regulate them.

Winslade WJ, Carson RA. Foreword: The Role of Religion in Health Law and Policy. Houston Journal of Health Law & Policy. 2006 Sep;6(2):245-248.

(Correspondence) Infertility Treatments for Gay Patients?

Anthony Charuvastra

Extract
We are entering an era where medicine is becoming more like engineering. The distinction between “treatment” and “enhancement” blurs as we are ever better at tinkering with the body. . .

Medical scientists will be able to modify and control an ever-expanding range of human bodily functions, from drugs that slow down aging to drugs that alter basic aspects of mood, anxiety, and cognition. Someday soon, the conflict between a physician’s idea of how people ought to live and how those people want to live will occur in fields far removed from reproductive technology. . .

Charuvastra A. (Correspondence) Infertility Treatments for Gay Patients?. Hastings Cent Rep. 2006 Sep;36(5):6-7.

“Conscience Clauses” or “Unconscionable Clauses”: Personal Beliefs Versus Professional Responsibilities

Martha S Swartz

Yale Journal of Health Policy, Law and Ethics

Abstract
Conclusion
Ultimately, this Article proposes a new model for such “conscientious objections,” one that presumes the general obligation ‘of health care professionals, who hold monopolistic state licenses, to participate in requested medical care that is not contraindicated or illegal, notwithstanding their personal moral objections. This model is based on “the· premise that it “is the patient’s best interest (as determined by -the patient, but mediated by the health care professional’s medical judgment), not the health care professional’s personal interests, that should govern the professional relationship. This should be the standard taught in professional schools and promoted by professional associations. “Conscientious objections” should be permissible based on prevailing medical ethics; however, to the extent that they are based on the personal morals of the· health care professional, they should be actively discouraged.

Swartz MS. “Conscience Clauses” or “Unconscionable Clauses”: Personal Beliefs Versus Professional Responsibilities. Yale J Health Pol Law Ethics. 2006;6(2):269-359.

What is the relevance of women’s sexual and reproductive rights to the practising obstetrician/gynaecologist?

Dorothy Shaw, Anibal Faúndes

Best Practice and Research Clinical Obstetrics & Gynaecology

Abstract
Women’s sexual and reproductive rights are an integral part of daily practice for obstetricians/gynaecologists and the key to the survival and health of women around the world. Women’s sexual and reproductive health is often compromised because of infringements of their basic human rights, not the lack of medical knowledge. Understanding the relevance of respecting and promoting sexual and reproductive rights is critical for providing current standards of care, and includes access to information and care, confidentiality, informed consent and evidence-based practice. The violation of women’s rights in their daily lives through common problems such as gender-based violence and discrimination results in serious consequences for their health. Obstetricians/gynaecologists are natural advocates for women’s health, yet may be lacking in their understanding of relevant laws or the limits of conscientious objection. This chapter outlines the framework for sexual and reproductive rights, and explores its relevance to the practising clinician.

Shaw D, Faúndes A. What is the relevance of women’s sexual and reproductive rights to the practising obstetrician/gynaecologist? Best Practice and Research Clinical Obstetrics and Gynaecology. 2006 Jun;20(3):299-309.

Pharmacist Refusals: Dispensing (With) Religious Accommodation Under Title VII

Amy Berquist

Abstract
Conclusion
. . . The pharmaceutical industry will continue to create drugs to which some pharmacists object on religious grounds. Employers must anticipate that some pharmacists will object not only to birth control, but also to Ritalin, 226 Viagra for unmarried men, or drugs to treat AIDS; some pharmacists may even object on religious grounds to serving particular customers. The religious discrimination provisions of the Civil Rights Act allow most employers to dispense with the majority of possible religious accommodations for pharmacists who refuse to fill prescriptions on religious grounds. Those provisions are meaningless, however, if employers are reluctant to assert Title VII’s protections against accommodations imposing an undue hardship on the pharmacy’s business operations. As pharmacies negotiate the tensions between consumers demanding prompt access to prescription drugs, a tight labor market for pharmacists, pressure from certain religious groups to discourage the use of birth control, vocal national groups advocating expanded access to contraception, and their own economic bottom line, Title VII can serve either as an answer or as an excuse. Employers may use Title VII as a pretense to justify unnecessary accommodations for objecting pharmacists; pharmacies may attempt to use federal law to shield themselves from customer and activist criticism by asserting that they have no choice but to accommodate. On the other hand, pharmacies can utilize Title VII as a tool to define the outer limits of their pharmacist accommodation policies. A clear understanding of the parameters of Title VII’s religious accommodation requirements will help guide and monitor the behavior and legal justifications presented by employers, employees, and customers when pharmacists refuse to dispense certain drugs on religious grounds.

Berquist A. Pharmacist Refusals: Dispensing (With) Religious Accommodation Under Title VII. Minn Law Rev. 2006;90(4):1073-1106.

When an adult female seeks ritual genital alteration: Ethics, law, and the parameters of participation

Julie D Cantor

Abstract
Ritual genital cutting for women, a common practice in Africa and elsewhere around the world, remains dangerous and controversial. In recent years, a 14-year-old girl living in Sierra Leone exsanguinated and died following a ritualistic genital cutting. Hoping to avoid that fate, women with backgrounds that accept ritual genital cutting may, when they reach majority age, ask plastic surgeons to perform genital alterations for cultural reasons. Although plastic surgeons routinely perform cosmetic procedures, unique ethical and legal concerns arise when an adult female patient asks a surgeon to spare her the tribal elder’s knife and alter her genitalia according to tradition and custom. Misinformation and confusion about this issue exist. This article explores the ethical and legal issues relevant to this situation and explains how the thoughtful surgeon should proceed.

Cantor JD. When an adult female seeks ritual genital alteration: Ethics, law, and the parameters of participation. Plast Reconstr Surg. 2006 Apr 01;117(4):1158-1164.

Physician Participation in Executions: Care Giver or Executioner?

Peter A Clark

Abstract
The fear of many is that some physicians have been co-opted by the penal authorities and state legislatures in this country to believe that physician participation is a civic duty and one that is in the prisoner’s best interest. In reality, these physicians are being used as a means to an end. They are being used by certain states to medicalize executions in order to make them more palatable to the American public and to prevent capital punishment from being declared unconstitutional because it is “cruel and unusual punishment.” A basic tenet of the principle of respect for persons is that one may never use another person as a means to an end. Legislating that physicians must be present at executions uses these physicians as pawns, or means, in order to legitimize capital punishment. This not only violates the rights of these physicians but violates the basic ethical principles of the medical profession and distorts the physicians’ role in society.

Clark PA. Physician Participation in Executions: Care Giver or Executioner?. J Law Med Ethics. 2006 Spring;34(1)95-104.

An Essential Prescription: Why Pharmacist-Inclusive Conscience Clauses are Necessary

Brian P Knestout

Journal of Contemporary Health Law and Policy

Extract
Conclusion
. . . The only solution to this dilemma may be the solution that the APhA suggested, namely, to endorse a conscience clause, but simultaneously require pharmacists to refer a valid prescription to another service provider. Those members of the profession who bear the burden of this course of action are those who believe that a referral is equivalent to the act itself. However, such a view safeguards most of the ethical goals of pharmacists while simultaneously serving the public need for effective provision of legally prescribed drugs.

Knestout BP. An Essential Prescription: Why Pharmacist-Inclusive Conscience Clauses are Necessary. J Contemp Health Law Pol. 2006 Spring;22(2):349-382.