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0 - Protection of Conscience Project Library
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Misperception and Misapplication of the First Amendment in the American Pluralistic System: Mergers between Catholic and Non-Catholic Healthcare Systems

Jason M Kellhofer

Journal of Law and Health
Journal of Law and Health

Extract
This note questions the wisdom of those who contend that Catholic health providers, to constitutionally qualify for government assistance or be permitted to merge with public entities, must be stripped of that which makes them most effective – their religious identity. The threat to sectarian healthcare has steadily been on the rise as can be seen in actions such as the American Public Health Association’s recent approval of a policy statement recommending more government oversight to preclude the dropping of reproductive services when Catholic and Non-Catholic hospitals merge. Section II explores why these mergers occur and why certain services are subsequently dropped. Section III applies a historical analysis to refute the argument that public and private are meant to remain separate. After establishing that pluralism has been and is presently the foundation of the American society and its healthcare, section IV evaluates whether the Establishment Clause or the Free Exercise Clause of the First Amendment is in danger of violation by mergers between Catholic and Non-Catholic hospitals. Finally, section V addresses the argument that Catholic healthcare mergers constructively deny women, most especially indigent women in rural areas, the right to reproductive services, namely abortion.


Kellhofer JM. Misperception and Misapplication of the First Amendment in the American Pluralistic System: Mergers between Catholic and Non-Catholic Healthcare Systems. J. Law Health. 2001-2002;16(1):103-104.

Exploring the Biological Contributions to Human Health: Does Sex Matter?

Institute of Medicine

Does Sex Matter?

Institute of Medicine (US) Committee on Understanding the Biology of Sex and Gender Differences, Theresa M. Wizemann, Mary-Lou Pardue, eds. Exploring the Biological Contributions to Human Health: Does Sex Matter? Washington, DC: The National Academies Press.
https://doi.org/10.17226/10028.

Abstract
One of the most compelling reasons for looking at what is known about the biology of sex differences is that there are striking differences in human disease that are not explained at this time.

Being male or female is an important basic human variable that affects health and illness throughout the life span. Differences in health and illness are influenced by individual genetic and physiological constitutions, as well as by an individual’s interaction with environmental and experiential factors. The incidence and severity of diseases vary between the sexes and may be related to differences in exposures, routes of entry and the processing of a foreign agent, and cellular responses. Although in many cases these sex differences can be traced to the direct or indirect effects of hormones associated with reproduction, differences cannot be solely attributed to hormones.

Therefore, sex should be considered when designing and analyzing studies in all areas and at all levels of biomedical and health-related research. The study of sex differences is evolving into a mature science. There is now sufficient knowledge of the biological basis of sex differences to validate the scientific study of sex differences and to allow the generation of hypotheses with regard to health. The next step is to move from the descriptive to the experimental phase and establish the conditions that must be in place to facilitate and encourage the scientific study of the mechanisms and origins of sex differences. Naturally occurring variations in sex differentiation can provide unique opportunities to obtain a better understanding of basic differences and similarities between and within the sexes.

Barriers to the advancement of knowledge about sex differences in health and illness exist and must be eliminated. Scientists conducting research on sex differences are confronted with an array of barriers to progress, including ethical, financial, sociological, and scientific factors.

The committee provides scientific evidence in support of the conclusions presented above and makes recommendations to advance the understanding of sex differences and their effects on health and illness.

The place for individual conscience

Frances Kissling

Journal of Medical Ethics
Journal of Medical Ethics

Abstract
From a liberationist, feminist, and Catholic point of view, this article attempts to understand the decision of abortion. . . . The paper offers solutions to end the ugliness of the abortion debate by suggesting that we would be able to progress further on the issue of abortion if we looked for the good in the opposing viewpoint. The article continues with a discussion of Catholics For a Free Choice’s position on abortion, and notes firstly that there is no firm position within the Catholic Church on when the fetus becomes a person; secondly that the principle of probablism in Roman Catholicism holds that where the church cannot speak definitively on a matter of fact (in this case, on the personhood of the fetus), the consciences of individual Catholics must be primary and respected, and thirdly that the absolute prohibition on abortion by the church is not infallible. In conclusion, only the woman herself can make the abortion decision.


Kissling F. The place for individual conscience. J Med Ethics. 2001 Oct;27(suppl II):ii24-ii27.

The High Cost of Merging With A Religiously-Controlled Hospital

Monica Sloboda

Berkeley Women's Law Journal
Berkeley Women’s Law Journal

Extract
Conclusion

The trend of hospital mergers between religious and non-religious hospitals may continue to threaten access to reproductive health services, especially for patients who already have limited access because they live in rural areas or have low incomes.l” However, as this essay suggests, there are several avenues that concerned citizens and activists can take to try to prevent the loss of these vital services.l ” The creativity and determination of those who commit themselves to ensuring that reproductive health services will continue to be available to all who desire them has resulted in several viable legal and practical methods of intervention. Although I believe it is important to respect the religious rights and beliefs of others. when the expression of these beliefs encroaches on patients’ rights to access basic health services, intervention is appropriate and necessary. I hope that public outcry, in the forms of legal and grassroots action, will persuade state actors, legislatures, hospital administrators, and clergy to properly acknowledge patients’ rights and participate in the creation of acceptable solutions to the financial problems that hospitals increasingly face. We need solutions that do not deny essential health services to any group of people.


Sloboda M. The High Cost of Merging With A Religiously-Controlled Hospital. Berkeley Women’s Law J. 2001 Sep;140-156.

Federatie Palliatieve Zorg Vlaanderen Pleit Voor Een Palliatieve Filter in de Euhanasie Procedure

(Flanders Palliative Care Federation Advocates A Palliative Filter in the Euthanasia Procedure)

Bert Broeckaert

Ethische Perspectieven
Ethische Perspectieven

Abstract
Op 20 maart 2001 werd het euthanasiewetsvoorstel van de meerderheidspartijen, samen met een wetsvoorstel over palliatieve zorg, goedgekeurd door de Verenigde Commissies voor Justitie en Sociale Aangelegenheden. Op initiatief van de Senaatsvoorzitter werd het euthanasiewetsvoorstel intussen doorgestuurd naar de Raad Van State, voor een spoedadvies. In zijn advies (2 juli 2001) stelt de Raad Van State uitdrukkelijk dat het euthanasiewetsvoorstel niet in strijd is met artikel 2 van het Europees Verdrag over de Rechten van de Mens (EVRM) en artikel 6 van het Internationaal Verdrag inzake Burgerlijke en Politieke Rechten (IVBPR), artikels die handelen over het door de wet beschermde recht op leven. Wat betreft het euthanasievoorstel beperkt de Raad van State zich tot detailkritiek.

In de bespreking van het wetsvoorstel over palliatieve zorg is de toon heel anders: hier toont de Raad Van State zich bijzonder kritisch. Vragen worden onder meer gesteld bij de vaagheid van de term palliatieve zorg, bij gecontroleerde sedatie en bij de federale bevoegdheid wat betreft de palliatieve zorg. Na het zomerreces is het nu (van 23 tot 25 oktober 2001) aan de plenaire vergadering van de Senaat om zich over het euthanasiewetsvoorstel uit te spreken.

Met de onderstaande tekst (26 september 2001) wil de Federatie Palliatieve Zorg Vlaanderen haar voorstel om in de euthanasieprocedure een palliatieve filter in te bouwen nogmaals onder de aandacht van de Senatoren brengen.

[Translation] On March 20, 2001, the euthanasia bill proposed by the majority parties, along with a bill on palliative care, was approved by the United Committees on Justice and Social Affairs. At the initiative of the Senate President, the euthanasia bill has now been forwarded to the Council of State for urgent advice. In its advice (July 2, 2001), the Council of State expressly states that the euthanasia bill does not conflict with Article 2 of the European Convention on Human Rights (ECHR) and Article 6 of the International Covenant on Civil and Political Rights ( ICCPR), articles dealing with the right to life protected by law. With regard to the euthanasia proposal, the Council of State restricts itself to detailed criticism.

In the discussion of the bill on palliative care, the tone is very different: the Council of State is particularly critical here. Questions are asked about the vagueness of the term palliative care, about controlled sedation and about the federal competence with regard to palliative care. After the summer recess, it is now (from 23 to 25 October 2001) up to the plenary session of the Senate to pronounce on the euthanasia bill.

With the text below (September 26, 2001), the Federation Palliative Care Flanders wants to bring its proposal to include a palliative filter in the euthanasia procedure once again to the attention of the Senators.

Broeckaert B. Federatie Palliatieve Zorg Vlaanderen Pleit Voor Een Palliatieve Filter in de Euhanasie Procedure (Flanders Palliative Care Federation Advocates A Palliative Filter in the Euthanasia Procedure). Ethische perspectieven. 2001;11(3):171-176.

Ethical issues in living organ donation: donor autonomy and beyond

Aaron Spital

Ethical issues in living organ donation: donor autonomy and beyond

Abstract
Despite nearly 50 years of experience with living kidney donation, ethical questions about this practice continue to haunt us today. In this editorial I will address two of them: (1) Given the possibility of limited understanding and coercion, how can we be sure that a person who offers to donate an organ is acting autonomously? and (2) Do people have a right to donate? The universal requirement for informed consent is the traditional method for ensuring that a person is acting autonomously. But, while obtaining fully informed consent is desirable, it may not always be achievable or necessary. When the recipient is very dear to the potential donor, the donor may base his decision primarily on care and concern rather than on a careful weighing of risks and benefits. I will argue that consent that emanates from such deep affection should be considered just as valid as consent that is fully informed. But consent is not enough. There is no absolute right to donate an organ. If there were such a right, then some physician would be obligated to remove an offered organ upon request, regardless of the risks involved. I do not believe that physicians have such an obligation. Physicians are moral agents who are responsible for their actions and for the welfare of their patients. Therefore, while the values and goals of the potential donor should be given great weight during the decision-making process, physicians may justifiably refuse to participate in living organ donation when they believe that the risks for the donor outweigh the benefits..


Spital A. Ethical issues in living organ donation: donor autonomy and beyond. Am J Kidney Dis. 2001 Jul;38(1):189-195.

Religious and philosophical exemptions from vaccination requirements and lessons learned from conscientious objectors from conscription

Daniel A Salmon, Andrew W Siegel

Public Health Reports
Public Health Reports

Journal Synopsis
All jurisdictions in the US require proof of vaccination for school entrance. Most states permit non-medical exemptions. Public health officials must balance the rights of individuals to choose whether or not to vaccinate their children with the individual and societal risks associated with choosing not to vaccinate (i.e., claiming an exemption). To assist the public health community in optimally reaching this balance, this analysis examines the constitutional basis of nonmedical exemptions and examines policies governing conscientious objection to conscription as a possible model. The jurisprudence that the US Supreme Court has developed in cases in which religious beliefs conflict with public or state interests suggests that mandatory immunization against dangerous diseases does not violate the First Amendment right to free exercise of religion. Accordingly, states do not have a constitutional obligation to enact religious exemptions. Applying the model of conscientious objectors to conscription suggests that if states choose to offer nonmedical exemptions, they may be able to optimally balance individual freedoms with public good by considering the sincerity of beliefs and requiring parents considering exemptions to attend individual educational counseling.


Salmon DA, Siegel AW. Religious and philosophical exemptions from vaccination requirements and lessons learned from conscientious objectors from conscription. Pub Health Rep. 2001 Jul-Aug;116(4):289-295.

(Correspondence) The abortion issue

Patrick G Coffey

Canadian Medical Association Journal, CMAJ
Canadian Medical Association Journal

Extract
Having read the well-written article by Laura Eggertson, I feel that her thrust (and that of Planned Parenthood, the Canadian Abortion Rights Action League, Health Minister Allan Rock, etc.) is that it is a scandal and surprise that a “medically necessary” operation — abortion — is not universally accepted like other procedures You do not hear most of the old debating arguments about abortion any more, but the one that will not go away concerns whether abortion is a medically necessary operation. . . .Abortion is both a moral and a medical issue, and we should not be surprised if people do not regard it as a necessary procedure in the same way they view other operations.


Coffey PG. (Correspondence) The abortion issue. Can Med Assoc J. 2001 Jul 10;165(1):14-15.

(Correspondence) The abortion issue

Will Johnston

Canadian Medical Association Journal, CMAJ
Canadian Medical Association Journal

Extract
Your homey analogy of abortion as a patchwork quilt — a warm, comforting and maternal object if ever there was one — furthers the dishonourable tradition of euphemizing the medicalized killing of small human beings. . . CMA members remain deeply divided on these issues. An even-handed editorial and reporting style would show respect for this diversity of opinion.


Johnston W. (Correspondence) The abortion issue. Can Med Assoc J. 2001 Jul 10;165(1):15.

Private Religious Hospitals: Limitations Upon Autonomous Moral Choices in Reproductive Medicine

William W Bassett

Journal of Contemporary Health Law and Policy
Journal of Contemporary Health Law and Policy

Extract
“Conscience clauses,” protecting the free exercise of religion in ethical decision-making by religiously affiliated hospitals, I believe, should continue to be absolute in reproductive medicine where the hospitals are clearly and unmistakably religious and patient choices of providers are free and fully informed. This conclusion is compelled by the free exercise clause of the First Amendment, as well as by the national interest in preserving and promoting diversity in the voluntary health care sector.


Bassett WW. Private Religious Hospitals: Limitations Upon Autonomous Moral Choices in Reproductive Medicine. J Contemp Health Law Policy. 2001;17:455-583.