Law Archives - Page 3 of 39 - Protection of Conscience Project Library

(Book Review) The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality

Christopher Cowley

Susanna Mancini and Michel Rosenfeld (eds). The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality. Cambridge: Cambridge University Press, 2018, pp. 493. ISBN: 978-1107173309

Extract
This volume is based on a conference held at the Cardozo School of Law in ew York in 2015, and brings together American and European law academics to discuss the distinctive ways in which conscience claims have ‘spread’ in the public discourse over the last two or three decades. Conscientious objection used to be an individual matter for e.g. draftees and doctors, aimed at recusing oneself from complicity with evil, in contrast to civil disobedience, which was a larger collective movement aimed at changing public opinion and the law. These days, however, conscience seems to be in the news much more, mostly associated with organized religious conservative agendas – hence the title’s reference to a ‘war’ playing out in parallel to the efforts in and around a country’s legislature. Perhaps the most famous recent case of mobilized public conscience was that of the US Supreme Court case of Burwell u Hobby Lobby (2014), in which the owners of a company successfully challenged the legal requirement (under the 2010 Affordable Care Act) that the company fund contraception for its female employees. The owners’ objection was religious, and was framed in terms of their right to religious expression. . .

Cowley C. Book Review: The Conscience Wars; Rethinking the Balance between Religion, Identity, and Equality. New Bioethics. 2019 Sep; 25(3): 286-289, DOI:10.1080/20502877.2019.1647039

(Book Review) Opting Out: Conscience and Cooperation in a Pluralistic Society

Morten Magelssen

David Oderberg. Opting Out: Conscience and Cooperation in a Pluralistic Society. London: The Institute of Economic Affairs, 2018, pp. 136. ISBN:978-0-255-36761-5.

Extract
In this brief monograph, the philosopher David Oderberg argues that freedom of conscience and religion, as fundamental rights in a liberal democracy, need increased protection in legislation and from the courts. Conscientious objection – in which a professional refuses to perform specific tasks for moral or religious reasons – is especially relevant in healthcare. Oderberg draws most of his examples from this field (e.g. abortion, contraception, treatment-limiting decisions and euthanasia), but also discusses cases from other sectors, such as the bakers and florists who refused to sell goods in connection with gay weddings. . .

Magelssen M. Book Review: Opting Out. Conscience and Cooperation in a Pluralistic Society. New Bioethics 2019 Sep; 25(3): 283-286, DOI:10.1080/20502877.2019.1647038.

Physicians’ refusals of service on grounds of conscience

Lance K. Stell

Abstract
What is conscience, and when should we let it be our guide? Only when it threatens indictment for nonadherence to an ethically valid duty? How do we know when that is? Doesn’t conscience change? And shouldn’t we change it intentionally sometimes, for example, on the basis of an all-things-considered judgment? Is conscience subject to reason-guided amendment? Mightn’t it be immune to change based on a cost-benefit analysis? Isn’t that its deontic characteristic? Suppose we can’t help fearing conscience, should we be excused for knuckling under to it? Is conscience then a bully we can’t evade? When should society and the law respect physicians’ divergent consciences? Mustn’t physicians subordinate their interest in being on good terms with conscience to the fiduciary duty owed to patients? Isn’t that what fidelity to the goals of medicine requires? Whose medicine? Wouldn’t dogmatism about this eradicate physicians’ moral agency? This essay provides partial and tentative answers to these questions.

Stell LK. Physicians’ refusals of service on grounds of conscience. Perspect Biol Med. 2019;62(3):452-469.

Legislating the Right-to-Die with Dignity in a Confucian Society-Taiwan’s Patient Right to Autonomy Act

Chih-Hsiung Chen

Hastings International and Comparative Law Review

Abstract
In Confucian societies, people tend to avoid the discussion on death matters, let alone making advance directives to reject life-sustaining treatments at the end of life. Taiwan might be a pioneer in legislating the right-to-die with dignity among Confucian countries. As early as 2000, the Hospice Palliative Care Act was declared in Taiwan, which give terminally-ill patients the options to forgo life-sustaining treatments. Furthermore, in 2016, Taiwan passed the Patient Right to Autonomy Act to enhance patients’ choice at the end of life and expanded the coverage to certain types of non-terminally ill patients. On the other hand, end-of-life issues in Japan are regulated mainly through courts’ judgments and medical societies’ guidelines. Korea passed a law to legalize passive euthanasia, which became effective in 2018, but only contains limits to terminally-ill patients.

This paper is divided into three sections. First, this paper analyzes the sociocultural emphasis on family unity in East Asia and attitudes toward death in East Asian cultures, and then the methods adopted in Japan and South Korea of solving related disputes through the judiciary or legislation are explained. Second, the paper describes the legislative background of the aforementioned two laws in Taiwan, including futile medical care, the denial of citizen autonomy with respect to serious injury and death by criminal law theory, the unwillingness of the judiciary to intervene, and disputes encountered at medical sites. Subsequently, we explain the primary content of these two laws, including patients’ rights to self-determination, the judgment procedures of medical institutions, and the operation of advance directives. Finally, this paper analyzes inadequacies in the Patient Right to Autonomy Act, including a lack of penalties, insufficiencies in medical institutions’ scope of duty of disclosure, and the lack of a settlement mechanism for individuals who have not yet established advance directives.

Chen C-H, Kao H-H, Tseng W-T, Tai Y-A. Legislating the Right-to-Die with Dignity in a Confucian Society-Taiwan’s Patient Right to Autonomy Act. Hastings Int Comp Law Rev. 2019;42(2):485-508. Available from:

Medical Referral for Abortion and Freedom of Conscience in Australian Law

Joanne Howe, Suzanne Le Mire

Abstract
This article examines legislative changes related to abortion regulation in Australia that create obligations of medical referral on practitioners who have a conscientious objection to abortion. Despite a significant Australian history of accepting secularized conscience claims, particularly in the field of military conscription, the limitation of conscience claims about abortion can be traced to a failure to appreciate the significant secular arguments that can be made to support such claims. We draw on arguments of plurality and pragmatism as capable of providing a firm foundation for legislative protections of freedom of conscience in the case of medical referral for abortion. These justifications are not dependent on religious grounds, and therefore they have the potential to be relevant and persuasive in a secular society such as Australia. Acceptance of a pluralistic argument in favor of freedom of conscience is a powerful commitment to the creation of a society that values human autonomy and a diversity of opinion. It sits comfortably with the democratic values that are enshrined in the Australian political system and institutions. It avoids the potential damage to the individual that may be wrought when conscience is overridden by state compulsion.

Howe J, Le Mire S. Medical Referral for Abortion and Freedom of Conscience in Australian Law. J Law and Religion. 2019 Apr;34(1):85-112 DOI: https://doi.org/10.1017/jlr.2019.14 Published online by Cambridge University Press: 01 July 2019

(Thesis) The Legal Revolution Against the Accommodation of Religion: The Secular Age v. The Sexular Age

Barry W Bussey

Abstract
This is a study about the law’s accommodation of religious practice and the brewing revolution within the legal profession against that accommodation. The revolution is especially evident, though not exclusively so, in sexual equality claims vis-à-vis religion. Originally, the study asked, “Why has religion been given special status in the law?”and “Should that status continue?”As a result of intense, multiyear research, I have come to recognize that there is within the legal profession a strident movement to remove from the law the traditional accommodation of religion. To explain my findings, I have used the work of Thomas S. Kuhn1as a theoretical framework.

Keywords:

Bussey BW. (Thesis) The Legal Revolution Against the Accommodation of Religion: The Secular Age v. The Sexular Age. University of Leiden. 2019;. Available from: https://www.academia.edu/40452980/The_legal_revolution_against_the_accommodation_of_religion_the_secular_age_versus_the_sexular_age

The Market View on conscientious objection: Overvalued

Robert F Card

Abstract
Ancell and Sinnott-Armstrong argue that medical providers possess wide freedoms to determine the scope of their practice, and therefore, prohibiting almost any conscientious objections is a bad idea. They maintain that we could create an acceptable system on the whole which even grants accommodations to discriminatory refusals by healthcare professionals. Their argument is premised upon applying a free market mechanism to conscientious objections in medicine, yet I argue their Market View possesses a number of absurd and troubling implications. Furthermore, I demonstrate that the fundamental logic of their main argument is flawed. Thinkers who wish to address the issues raised in this debate in general or by discriminatory conscience objections in particular should avoid the Market View and instead envisage theories that assess the reasons underlying conscientious refusals in medicine.

Card RF. The Market View on conscientious objection: Overvalued. J Med Ethics 2019 Mar;45(3):168-172. doi: 10.1136/medethics-2018-105173

Victoria’s voluntary assisted dying law: clinical implementation as the next challenge

Ben P. White, Lindy Willmott, Eliana Close

Extract
The Voluntary Assisted Dying Act 2017 (Vic) (VAD Act) will become operational on 19 June, 2019. . . . While some have written on the scope of, and reaction to, the VAD legislation, there has been very little commentary on its implementation. Yet, important choices must be made about translating these laws into clinical practice. These choices have major implications for doctors and other health professionals (including those who choose not to facilitate VAD), patients, hospitals and other health providers. This article considers some key challenges in implementing Victoria’s VAD legislation.

White BP, Willmott L, Close E. Victoria’s voluntary assisted dying law: clinical implementation as the next challenge. Med J Australia. 2019 Mar;210(5):207-209.e1

Legal and ethical implications of defining an optimum means of achieving unconsciousness in assisted dying

S. Sinmyee V. J. Pandit J. M. Pascual A. Dahan T. Heidegger G. Kreienbühl D. A. Lubarsky J. J. Pandit

Author Summary
A decision by a society to sanction assisted dying in any form should logically go hand-in-hand with defining the acceptable method(s). Assisted dying is legal in several countries and we have reviewed the methods commonly used, contrasting these with an analysis of capital punishment in the USA. We expected that, since a common humane aim is to achieve unconsciousness at the point of death, which then occurs rapidly without pain or distress, there might be a single technique being used.

However, the considerable heterogeneity in methods suggests that an optimum method of achieving unconsciousness remains undefined. In voluntary assisted dying (in some US states and European countries), the common method to induce unconsciousness appears to be self-administered barbiturate ingestion, with death resulting slowly from asphyxia due to cardiorespiratory depression. Physician-administered injections (a combination of general anaesthetic and neuromuscular blockade) are an option in Dutch guidelines. Hypoxic methods involving helium rebreathing have also been reported.

The method of capital punishment (USA) resembles the Dutch injection technique, but specific drugs, doses and monitoring employed vary. However, for all these forms of assisted dying, there appears to be a relatively high incidence of vomiting (up to 10%), prolongation of death (up to 7 days), and re-awakening from coma (up to 4%), constituting failure of unconsciousness. This raises a concern that some deaths may be inhumane, and we have used lessons from the most recent studies of accidental awareness during anaesthesia to describe an optimal means that could better achieve unconsciousness. We found that the very act of defining an ‘optimum’ itself has important implications for ethics and the law.

Sinmyee S, Pandit VJ, Pascual JM, Dahan A, Heidegger T, Kreienbühl G, Lubarsky DA, Pandit JJ. Legal and ethical implications of defining an optimum means of achieving unconsciousness in assisted dying. Anaesthesia. 2019 May;74(5): 630-637.

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 et al.. Conscientious objection to abortion, the law and its implementation in Victoria, Australia: Perspectives of abortion service providers. BMC Medical Ethics. 2019 Jan 31;20(1).