Religious Freedom Archives - Page 7 of 9 - Protection of Conscience Project Library

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.

Institutional Conscience and Catholic Health Care

Grattan T Brown

Proceedings of the Sixteenth University Faculty for Life Conference — Proceedings of the University Faculty for Life

Abstract
Despite serious challenges to the identity of Catholic health institutions in the United States, both Church and society should continue to see them as privileged places of moral discernment. This discernment occurs in “institutional conscience,” namely, a dialogue among all those authorized to act on the institution’s behalf about institutional actions, for example, medical interventions. The institutional conscience of Catholic health institutions should be respected by society at large, leaving them free to practice Christian healing and to show the problems with certain practices that they reject, such as abortion, and to seek alternatives.

Brown GT. Institutional Conscience and Catholic Health Care. In: Koterski JW editors. Proceedings of the 16th University Faculty for Life Conference at Villanova University. 2006;413-422.

The Growing Abuse of Conscientious Objection

Rebecca J Cook, Bernard M Dickens

American Medical Association Journal of Ethics

Extract
Religious initiatives to propose, legislate, and enforce laws that protect denial of care or assistance to patients, (almost invariably women in need), and bar their right of access to lawful health services, are abuses of conscientious objection clauses that aggravate public divisiveness and bring unjustified criticism toward more mainstream religious beliefs. Physicians who abuse the right to conscientious objection and fail to refer patients to nonobjecting colleagues are not fulfilling their profession’s covenant with society.

Cook RJ, Dickens BM. The Growing Abuse of Conscientious Objection. Am Med Ass J Ethics. 2006 May;8(5):337-340.

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.

Conscience Clauses for Pharmacists: The Struggle to Balance Conscience Rights with the Rights of Patients and Institutions

Matthew White

Abstract
Conclusion
. . .The patchwork of current conscience protection for pharmacists indisputably fails its purpose-in almost all cases the current legislation is severely one-sided and out of date. Although such conscience protection admirably attempts to embody the purposes of the First Amendment, most of the actual and proposed legislation suffers from severe partisan myopia. Statutes purporting to offer absolute protection to patients, to employers, or to health care providers rather than striking a balance tend to prolong and enlarge conflict rather than resolve it. . .

Patients, pharmacists, and employers all have civil rights implicated in the delicate interactions that surround the use of oral contraception, and decisive action should be taken to enact statutes that protect the rights of each, rather than statutes that protect one group exclusively. Legislators should make a painstaking effort to craft new conscience legislation that protects the conscience rights of pharmacists without inserting the pharmacist between the patient and her doctor. Such legislation should also make some provision for employers that would be substantially burdened by an inability to conduct their business in the event of a bona fide conscience claim.

White M. Conscience Clauses for Pharmacists: The Struggle to Balance Conscience Rights with the Rights of Patients and Institutions. Wisc Law Rev. 2005;6(1611-1648.

Un aspect crucial mais délicat des libertés de conscience et de religion des articles 2 et 3 des Chartes canadienne et québécoise: l’objection de conscience

Henri Brun

Abstract
The Supreme Court of Canada, obiter, in the Big M Drug Mart Case, has spoken of the “Constitutional Exemption”. It is the possibility not to be bound to obey the neutral laws that conflict with one’s conscience or religion. It is what we call in French l’objection de conscience. The institution exists in Canadian and Québec Law as a part of the right to freedom of conscience or religion expressed in 2a) and 3 of the Canadian and Québec Charters of Rights. And it goes well beyond the right not to fight within the armed forces. The Supreme Court of Canada has actually delivered six judgments touching on the subject in 1985 and 1986. The conditions under which l’objection de conscience come into play are not so well known however. Does it cover matters of worship or only rules of morals ? Secular or only religious principles ? Personal or only group beliefs ? Do the existence of the rule, the sincerity of the objector and the reasonableness of the exemption have to be proved? Above all, what is the difference between a creed and an opinion ? The following article tries to formulate answers to these questions, with the help of current case-law.

Brun H. Un aspect crucial mais délicat des libertés de conscience et de religion des articles 2 et 3 des Chartes canadienne et québécoise: l’objection de conscience. Les Cahiers de Droit. 1987;28(1):185-205.

New Refusal Clauses Shatter Balance Between Provider ‘Conscience’, Patient Needs

Adam Sonfield

Extract
A series of attention-grabbing lawsuits and a crop of new legislation have spotlighted a long-gathering movement to vastly expand the scope of policies allowing health care providers, institutions and payers to refuse to participate in sexual and reproductive health services by claiming a moral or religious objection. In some cases, these radical new policies are intentionally designed to undermine, if not actually eliminate, the ability of governments at all levels, and even private businesses, to balance providers’ “conscience” rights with the ability of patients to exercise their own conscience and gain access to health care services that they want and need.

Sonfield A. New Refusal Clauses Shatter Balance Between Provider ‘Conscience’, Patient Needs. Guttmacher Rep Public Pol. 2004 August:1-3.

When Free Exercise Exemptions Undermine Religious Liberty and the Liberty of Conscience: A Case Study of the Catholic Hospital Conflict

Brietta R Clark

Extract
Conclusion
Using this framework, I propose a more protective principle for free exercise protection than currently exists, one that requires a heightened scrutiny of all laws that burden religious liberty, even neutral laws of general applicability. This review should examine carefully the need for the government law and the possibility of an exemption or accommodation that will not undermine the purpose of the law. However, I would not go as far as some states in providing almost absolute free exercise protection from government laws serving important government interests. Rather, the principle I advocate requires a balancing of interests tipped to favor laws protecting third parties’ from harm over religious claimants’ objections. The Catholic hospital conflict demonstrates how even under this more protective free exercise principle, the rule of law and the self–limiting principle of the liberty of conscience and religious liberty operate as justifiable limits on the scope of free exercise protection. The hospitals’ free exercise interests must be balanced against the potential harm to patients who cannot access necessary reproductive health care and information, which means that in many cases exemptions for religious hospitals will be denied.

Clark BR. When Free Exercise Exemptions Undermine Religious Liberty and the Liberty of Conscience: A Case Study of the Catholic Hospital Conflict. Oregon Law Review. 2003 Fall;82(3):625-694.

Moral Diversity Among Physicians and Conscientious Refusal of Care in the Provision of Abortion Services

Karen E Adams

Journal of the American Women's Medical Association — Journal of the American Women’s Medical Association

Abstract
Physicians are independent moral agents whose values, like those of nonphysicians, are shaped by personal experience, religious beliefs, family, and lifetime mentors. Most individuals are free to exercise their moral values in the ways that they see fit within the boundaries of legality. Physicians’ moral values take on special significance, however, when considering services patients may request but that contradict that physician’s moral beliefs, such as termination of pregnancy. In this article I analyze the competing obligations to self and to patient that a conscientiously objecting physician must consider when his or her personal morality affects his or her relationship with the patient. Despite each physician’s freedom to choose his or her mode of practice and which services to provide, a physician with a moral viewpoint that would prevent even counseling on certain options should consider practicing in an area of medicine in which the patient’s right to full disclosure of options and informed consent is not compromised by the physician’s personal moral stance.

Adams KE. Moral Diversity Among Physicians and Conscientious Refusal of Care in the Provision of Abortion Services. J American Med Women’s Ass (1972). 2003;58(4):223-226.

In Good Conscience: The Legal Trend to Include Prescription Contraceptives in Employer Insurance Plans and Catholic Charities’ “Conscience Clause” Objection

Kate Spota

Extract
This Note examines Petitioner’s constitutional argument in Catholic Charities v. Superior Court as applied to a California statute drafted with a narrowly drawn “conscience clause” exemption. First, this Note describes the background for Roman Catholic opposition to contraceptives, and contrasts the reasons behind women’s rights activists’ claim for equal access to contraception as a part of reproductive freedom. Second, this Note examines the preeminent cases decided by the U.S. Supreme Court, the U.S. Court of Appeals for the Ninth Circuit, and the California Supreme Court, as well as the relevant federal statutes and administrative decisions used by the California Court of Appeal in deciding Catholic Charities. Third, this Note describes in detail the arguments advanced by the Petitioner in Catholic Charities and the court’s resulting analysis. Concluding that the Court of Appeal of California correctly decided against the Petitioner in Catholic Charities, this Note examines the possible impacts of that decision on society’s view of women and on the Catholic health care system. Finally, this Note concludes that the California Supreme Court will affirm the appellate court’s decision and hold that the mandatory inclusion of prescription contraceptives in insurance plans, even for institutions whose religious beliefs are contrary to the mandate, does not violate the Free Exercise Clause or the Establishment Clause of the U.S. or California Constitutions.

Spota K. In Good Conscience: The Legal Trend to Include Prescription Contraceptives in Employer Insurance Plans and Catholic Charities’ “Conscience Clause” Objection. Cathol U Law Rev. 2003;52(4):1081-1113.