Abstract This Article presents the first empirical study of state conscience laws that establish explicit procedural protections for medical providers who refuse to participate in providing reproductive health services, including abortion, sterilization, contraception, and emergency contraception.
Scholarship and public debate about law’s role in protecting health care providers’ conscience rights typically focus on who should be protected, what actions should be protected, and whether there should be any limitations on the exercise of conscience rights. This study, conducted in accordance with best methodological practices from the social sciences for policy surveillance and legal mapping, is the first to provide concrete data on the vital but unanswered question of how these laws actually operate–that is, the precise procedural mechanisms by which laws protect medical providers who decline to provide services that violate their deeply held conscientious beliefs.
This Article demonstrates that state laws vary dramatically in the types of protections they offer. States may immunize health care providers from a range of potential adverse consequences including civil liability, criminal prosecution, professional discipline, employment discrimination, discrimination in educational opportunities, and denial of public or private funding, among others. Of these, immunity from civil liability, or “civil immunity,” is by far the most common procedural protection. In a majority of states, civil immunity is absolute–providing no exceptions in cases of malpractice, denial of emergency treatment, or even patient death. In practice, these laws eliminate patients’ common law right to recover monetary damages when they suffer physical injury as a result of a health care provider’s conscience-based deviation from the standard of care.
While many scholars have examined the impact of conscience laws on patient access to medical care, there has been no comprehensive analysis of these laws’ impact on patients’ right to a tort law remedy when they are denied care. This Article not only raises awareness of the previously unrecognized breadth of protections established by U.S. conscience law, but also challenges basic assumptions about tort law’s ability to remedy harms suffered by victims of medical malpractice in reproductive health care contexts. These findings create an important opportunity for further policy discussion about the scope of health care conscience laws.
The US case brings to light concerns around conscientious objection at a time when a federal religious discrimination bill is being debated in Australia
Exract A woman has filed a lawsuit against a Thrifty White Pharmacy and a CVS Pharmacy in Minnesota in the US, alleging the two pharmacies illegally kept her from accessing emergency contraception.
Andrea Anderson, a 39-year-old mother of five, says she asked the pharmacist at her drugstore in Minnesota more than once why he couldn’t fill her prescription for emergency contraception, according to the Star Tribune.
“I then realised what was happening: he was refusing to fill my prescription for emergency contraception because he did not believe in it,” Ms Anderson said on Tuesday.
Extract We must return to our Pythagorean roots and not substitute a secular group conscience to replace individual conscience, and thereby protect the rights of all parties. My hope is that our specialty will uphold the right of individual clinicians to practise according to their consciences and we will continue to welcome Hippocratic clinicians into our ranks.
Abstract This study was commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the FEMM Committee. It aims to provide a comparative overview of the situation in the European Union, with particular focus on six selected Member States, in terms of access to sexual and reproductive healthcare goods (such as medicines) and services (such as abortion and family planning), from both legal and practical perspectives. The study looks at the extent to which conscientious objection affects access to sexual and reproductive rights (SRHR). The study will contribute to formulating a clear framework for the improvement of access to sexual and reproductive healthcare goods and services in the EU
Extract Conclusion . . . A statute that requires pharmacies to select their own policies regarding contraceptives and sexual health medication, to publish that policy, and to be required to adhere to the stated policy, however, is a near perfect solution to the delicate balance of protected rights. With cooperation from physicians and compliance within the pharmacies, women will be able to access the pharmaceuticals prescribed to them without delay, hassle, misinformation, or shame. Women will be able to find a pharmacist who will allow them to exercise their choice to use or not to use contraceptives. Pharmacists, on the other hand, will more easily schedule their careers to line up with their moral and religious convictions. A pharmacist will easily be able to determine a pharmacy’s policy on sexual health medications and contraceptives and therefore more easily find employment with a pharmacy that shares his value system. An individualized sexual health medication policy, when accompanied by a directory program, policy publication and compliance supervision, is the best, and possibly only method of insuring all rights at stake are protected.
Abstract Recent legal efforts to force pharmacists to distribute potentially abortifacient drugs constitute a violation of conscience. This campaign of coercion violates religious freedom, professional deontology, and the right to refuse even material cooperation in acts of grave evil.
Abstract The right to conscientious objection in the provision of healthcare is the subject of a lengthy, heated and controversial debate. Recently, a new dimension was added to this debate by the US Supreme Court’s decision in Burwell vs. Hobby Lobby et al. which effectively granted rights to freedom of conscience to private, for-profit corporations. In light of this paradigm shift, we examine one of the most contentious points within this debate, the impact of granting conscience exemptions to healthcare providers on the ability of women to enjoy their rights to reproductive autonomy. We argue that the exemptions demanded by objecting healthcare providers cannot be justified on the liberal, pluralist grounds on which they are based, and impose unjustifiable costs on both individual persons, and society as a whole. In doing so, we draw attention to a worrying trend in healthcare policy in Europe and the United States to undermine women’s rights to reproductive autonomy by prioritizing the rights of ideologically motivated service providers to an unjustifiably broad form of freedom of conscience.
George J Annas, Theodore W Ruger, Jennifer Prah Ruger
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.
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.
Extract Healthcare providers who cite conscientious objection as grounds for refusing to provide components of legal reproductive care highlight the tension between their right to exercise their conscience and women’s rights to receive needed care. There are also societal obligations and ramifications at stake, including the responsibility for negotiating balance between all of these competing interests. . .
. . . There are too many barriers to access to reproductive health- care. Conscience-based refusal of care may be one that we can successfully address.