Religious Freedom Archives - Page 5 of 10 - Protection of Conscience Project Library

Article I, Section II: a poor “plan b” for Washington’s religious pharmacists

Noel E Horton

Abstract
In Stormans, Inc. v. Selecky, a group of Washington pharmacists contended their religious beliefs precluded them from dispensing the drug Plan B, a post-coital emergency contraceptive. They based their argument on rights conferred by the Free Exercise Clause of the First Amendment to the United States Constitution. A United States District Court found in the pharmacists’ favor and enjoined enforcement of rules issued by the Washington State Board of Pharmacy requiring pharmacies to deliver medications. The Ninth Circuit reversed, finding that the district court erroneously applied a heightened level of scrutiny to a neutral law of general applicability. Interestingly, the pharmacists did not bring a claim under the Washington State Constitution, a document that has been interpreted to confer greater protection for free exercise rights than the U.S. Constitution. This Comment argues that even under the Washington State Constitution’s heightened protection of free exercise, the pharmacists’ position in Stormans would ultimately fail. The Board’s rules protect public health and accommodate individual religious objections, thereby satisfying the Washington State Supreme Court’s strict scrutiny test.

Horton NE. Article I, Section II: a poor “plan b” for Washington’s religious pharmacists. Wash Law Rev. 2010 Nov;85(4):739-780.

A Most Fundamental Freedom of Choice: An International Review of Conscientious Objection to Elective Abortion

Erin Whitcomb

St. John's Journal of Legal Commentary — St. John’s Journal of Legal Commentary

Abstract
Conclusion
American President Thomas Jefferson once explained, “[t]he price of freedom is eternal vigilance.”210 He also warned, “It behooves every man who values liberty of conscience for himself, to resist invasions of it in the case of others.”211 As this Note demonstrates, even in constitutional democracies that have provided their people with broad, enumerated individual liberties, the threat of erosion of rights is ever-present. No rights, even those that seem most fundamental—like freedom of conscience—are immune. They must be avidly protected and defended. The individual choice guaranteed by statutory conscience protection demonstrates respect for the autonomy of health care providers, promotes the integrity of the medical profession,212 and protects the rights of healthcare professionals without compromising those of patients. Failure to protect individual conscience rights will be devastating to any democratic society.213

The absence of a statute compelling health care professionals’ participation in abortion is irrelevant to those in functionally equivalent circumstances, just as the cases of registered nurse Sister Charles in South Africa, American nurse Catherina Cenzon-DeCarlo, and the unnamed Canadian medical student remind us. Health care professionals who are discriminated against on the basis of their conscientious unwillingness to participate in elective abortion procedures must not be left without a remedy. South Africa and Canada should enact statutory conscience protection measures without delay. Similarly, the statutory and regulatory conscience protection established thus far in the United States must be vigilantly protected from erosion.

A matter of choice for one person should not result in a matter of compulsion for another, particularly where the matter is one of such significant moral or religious import. The “freedom to choose” so often associated with elective abortion must be extended to medical professionals who would choose to follow the dictates of their own consciences in abstaining from a practice, which, in their view, is hostile to the ethical obligations of the practice of medicine and violates the profound and inherent dignity of the human person.

Whitcomb E. A Most Fundamental Freedom of Choice: An International Review of Conscientious Objection to Elective Abortion. St. John’s J Legal Com. 2010;24(4):771-809.

Making Rules and Unmaking Choice: Federal Conscience Clauses, the Provider Conscience Regulation, and the War on Reproductive Freedom

Rachel White-Domain

Extract
Conclusion
This Comment analyzes the PCR, which is currently under review by the Obama Administration. As currently written, the PCR promises to have devastating effects on the healthcare system. . .

Commenters have predicted that the PCR will be used to discriminate against patients based on their sexual orientation. 196 And because reproductive healthcare remains so controversial in this country, women will be disproportionately disadvantaged by the PCR, which now allows almost all employees-not only the doctor, but potentially the nurse, the pharmacist, the pharmacist’s assistant, the receptionist, the ambulance driver, and the janitor-to have a say in whether she can access her chosen healthcare without interference.

The PCR brought the ongoing debate over conscience clauses into the national spotlight. . . .this Comment argues that any analysis of conscience clauses must recognize that what is at stake is access to healthcare services, and that reduction of healthcare access can be accomplished not only explicitly, for example through the explicit redefining of the term “abortion,” but also through “strategic ambiguity.” . . .

White-Domain R. Making Rules and Unmaking Choice: Federal Conscience Clauses, the Provider Conscience Regulation, and the War on Reproductive Freedom. DePaul Law Rev. 2010 Summer;59(4):1249-1281.

Living Together with Disagreement: Pluralism, the Secular, and the Fair Treatment of Beliefs in Canada Today

Iain T Benson

Abstract
The Supreme Court of Canada’s decision in Chamberlain,referred to above, in how it handled the definition of “secular” and pluralism as requiring the inclusion of religion and religious viewpoints, is a model for the law and the first serious consideration of a non-atheistic/agnostic (or secularistic) “secular” in Canada. It, and the TWU decision, provide the beginning outlines of an approach to both pluralism and the secular that will be superior to the preemptively non-religious and atheistic/agnostic understandings that preceded them. The decision also correctly describes the nature of pluralism as one that encourages a diversity of beliefs and that resists the co-option of “secular” society by totalistic conceptions of liberalism that exclude diversity.

These decisions ought to lead to a reconsideration of how we view law and policies in relation to all public aspects of society, including public education. Pluralism can be and needs to be re-conceptualized within existing legal norms and the Canadian historical tradition, so as to foster a richer conception of diversity and genuine tolerance with an appropriately communitarian focus. For pluralism to be pluralism, however, it is important to rescue it from a pseudo-liberalism that hides its totalistic claims.

Benson IT, Fielding A. Living Together with Disagreement: Pluralism, the Secular, and the Fair Treatment of Beliefs in Canada Today [Internet]. Camrose, Alberta: The Ronning Centre for the Study of Religion and Public Life; 2010: 1-48.

Liberalism Unbound: Towards a More Inclusive Public Sphere

A Response to Iain T. Benson, “Living Together with Disagreement:
Pluralism, the Secular and the Fair Treatment of Beliefs
in Canada Today”

Alex Fielding

Liberalism Unbound: Towards a More Inclusive Public Sphere

Abstract
This response will be divided into three segments. First, it will respond to Benson’s analysis of pluralism, liberalism, and the “secular”. Second, it will advocate for a return to John Stuart Mill’s harm principle as a better way of reconciling competing claims when equality rights and religious freedoms collide. Third, it will apply the harm principle to the contemporary issues of same-sex marriage and the religious objections of marriage commissioners. The central idea is that by moving away from the vague, all-encompassing language of “Charter values” to the harm principle, we create a more pluralistic public sphere that gives reasons for religious and ethnic minorities to reciprocate such tolerance and participate actively in civil society.

Religious Hospitals and Primary Care Physicians: Conflicts over Policies for Patient Care

Debra B Stulberg, Ryan E Lawrence, Jason Shattuck, Farr A Curlin

Abstract
BACKGROUND
Religiously affiliated hospitals provide nearly 20% of US beds, and many prohibit certain end-of-life and reproductive health treatments. Little is known about physician experiences in religious institutions.
OBJECTIVE
Assess primary care physicians’ experiences and beliefs regarding conflict with religious hospital policies for patient care.
DESIGN
Cross-sectional survey.
PARTICIPANTS
General internists, family physicians, and general practitioners from the AMA Masterfile.
MAIN MEASURES
In a questionnaire mailed in 2007, we asked physicians whether they had worked in a religiously affiliated hospital or practice, whether they had experienced conflict with the institution over religiously based patient care policies and how they believed physicians should respond to such conflicts. We used chi-square and multivariate logistic regression to examine associations between physicians’ demographic and religious characteristics and their responses.
KEY RESULTS
Of 879 eligible physicians, 446 (51%) responded. In analyses adjusting for survey design, 43% had worked in a religiously affiliated institution. Among these, 19% had experienced conflict over religiously based policies. Most physicians (86%) believed when clinical judgment conflicts with religious hospital policy, physicians should refer patients to another institution. Compared with physicians ages 26–29 years, older physicians were less likely to have experienced conflict with religiously based policies [odds ratio (95% confidence interval) compared with 30–34 years: 0.02 (0.00–0.11); 35–46 years: 0.07 (0.01–0.72); 47–60 years: 0.02 (0.00–0.10)]. Compared with those who never attend religious services, those who do attend were less likely to have experienced conflict [attend once a month or less: odds ratio 0.06 (0.01–0.29); attend twice a month or more: 0.22 (0.05–0.98)]. Respondents with no religious affiliation were more likely than others to believe doctors should disregard religiously based policies that conflict with clinical judgment (13% vs. 3%; p = 0.005).
Conclusions
Hospitals and policy-makers may need to balance the competing claims of physician autonomy and religiously based institutional policies.

Stulberg DB, Lawrence RE, Shattuck J, Curlin FA. Religious Hospitals and Primary Care Physicians: Conflicts over Policies for Patient Care. J Gen Intern Med. 2010;25(7):725-730. Available from:

Medical Conscience and the Policing of Parenthood

Richard F Storrow

William & Mary Journal of Women and the Law

Abstract
As state and local anti-discrimination provisions become more and more comprehensive, physicians who refuse to treat patients for reasons of sexual orientation or marital status are beginning to face legal liability. Increasingly, physicians are invoking codes of medical ethics alongside more familiar constitutional law claims in support of their claim to insulation from legal liability. This Article explores what medical ethics has to say about physicians who, for sincerely held religious reasons, refuse to treat patients for reasons of sexual orientation or marital status. The issue is explored through the lens of a case recently decided by the California Supreme Court in which infertility physicians refused to help a lesbian couple have a child with the aid of artificial insemination. Through a close examination of the provisions of medical ethics codes and the arguments based on those codes raised in the California case, this Article concludes that medical societies should not support carving out an exception from anti-discrimination laws for physicians who, for reasons of religious conscience, want to express their class-based biases in the clinic.

Storrow RF. Medical Conscience and the Policing of Parenthood. William & Mary J Women Law. 2010;16(2):369-393.

(Thesis) Triangulation of Rights, Balancing of Interests: Exploring the Tensions between Freedom of Conscience and Freedom of Religion in Comparative Constitutional Law

Dia Dabby

Abstract
Freedom of religion, often recognised as “first freedom” in numerous legal traditions, also reflects the different conceptions of the place of the individual and the collectivity in society. Our study will analyse the Canadian, American and European constitutional models of freedom of religion and conscience. In a first chapter, we will examine the theoretical conceptions of religion in the social sciences as well as from the perspectives of legal approaches in order to discern the manner in which religion is conceived and to better understand its various influences. In this way, we hope to enhance our understanding of both identity and to a greater extent, culture, both in and out of law. In the second and third chapters, we will attempt to characterise the relationship between freedom of conscience and freedom of religion in Canada, as well as identify unresolved issues. In the final chapter, we will observe how freedom of conscience has been interpreted in the American legal setting as well as in the European Union, by way of the European Court of Human Rights (ECtHR). We hypothesise that a better understanding of the relationship between the freedoms of conscience and religion can be arrived at by clarifying the theoretical conceptions of religion and conscience in comparative constitutional law.

Dabby D. (Thesis) Triangulation of Rights, Balancing of Interests: Exploring the Tensions between Freedom of Conscience and Freedom of Religion in Comparative Constitutional Law. University of Montreal. 2010.

Invoking conscientious objection in reproductive health care: evolving issues in Peru, Mexico and Chile

Lidia Casas

Abstract
As Latin American countries seek to guarantee sexual and reproductive health and rights, opponents of women’s rights and reproductive choice have become more strident in their opposition, and are increasingly claiming conscientious objection to providing these services. Conscientious objection must be seen in the context of the rights and interests at stake, including women’s health needs and right to self-determination. An analysis of law and policy on conscientious objection in Peru, Mexico and Chile shows that it is being used to erode women’s rights, especially where it is construed to have no limits, as in Peru. Conscientious objection must be distinguished from politically-motivated attempts to undermine the law; otherwise, the still fragile re-democratisation processes underway in Latin America may be placed at risk. True conscientious objection requires that a balance be struck between the rights of the objector and the health rights of patients, in this case women. Health care providers are entitled to their beliefs and to have those beliefs accommodated, but it is neither viable nor ethically acceptable for conscientious objectors to exercise this right without regard for the right to health care of others, or for policy and services to be rendered ineffectual because of individual objectors.

Keywords:

Casas L. Invoking conscientious objection in reproductive health care: evolving issues in Peru, Mexico and Chile. Reprod Health Matter. 2009 Nov;17(34):78-87.

Unethical Protection of Conscience: Defending the Powerful against the Weak

Bernard M Dickens

American Medical Association Journal of Ethics

Extract
In protecting and privileging health care professionals who withhold information that their patients depend upon, the provisions reduce health care professionals to the status of self-serving traders in an unequal market who may take advantage of those obliged or unwise enough to trust them and rely on their integrity. The provisions underscore the challenge that conscientious objection poses to health care professionalism [8]. To allow physicians to deny or frustrate a patient’s rights of conscience by enforcing their own through nonreferral, as the new regulations do, is unethical. It is ethically justifiable to be intolerant of religious or other fundamentalist intolerance.

Dickens BM. Unethical Protection of Conscience: Defending the Powerful against the Weak. Am Med Ass J Ethics. 2009;11(9):725-729.