Protection of Conscience Project Library

Reconciling principles and prescriptions: Do pharmacist refusal clauses strike the appropriate balance between pharmacists’ and patients’ rights?

Sarah Tomkowiak

Extract
Conclusion: When a woman and her physician decide that a prescription for contraception is in her best health interests, legal, professional, and ethical obligations should prevent a pharmacist from being able to effectively override that determination. The right of a pharmacist to abide by her moral or religious principles when faced with a prescription that goes against those principles is an important right to protect. However, this right should never be allowed to infringe on a patient’s right to access birth control, an equally important right that has significant implications for the majority of American women’s reproductive health. Pharmacist refusal clauses acknowledge pharmacists’ right to refuse at the expense of women’s right to access contraceptives, inappropriately reconciling these rights. Griswold v. Connecticut may be forty years old, but the issues debated before the Supreme Court then have risen anew today, this time behind the pharmacy counter. Following in the footsteps of the Griswold Court, we must now reaffirm that women have the right to make their own family planning decisions, including the decision to use contraception. Legislatures, pharmacy boards, pharmacies, pharmacists, and patients must work together to put the needs of patients back where they belong—as the first priority of the pharmacy profession.

Tomkowiak S. Reconciling principles and prescriptions: Do pharmacist refusal clauses strike the appropriate balance between pharmacists’ and patients’ rights? U Illinois L Rev 2007(4) 1329-1360

“If Your Hand Causes You to Sin. . .”: Florida’s Chemical Castration Statute Misses the Mark

Tanya Simpson

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Recomendations & Conclusion
The United States Supreme Court has identified “the two primary goals of probation—rehabilitation and protecting society from future violations.” Florida can and should redraft its chemical castration statute to comport with these policy goals, pass constitutional muster, and overcome implementation hurdles. In order to draft an effective statute, however, the legislature must acknowledge, as it has in the reports of both chambers, that treatment with MPA has only been shown to be an effective therapy for paraphiliacs when those paraphiliacs volunteer for the treatment, when the treatment is administered in conjunction with psychotherapy, and when certain other criteria are met. . .

Simpson T. “If Your Hand Causes You to Sin. . .”: Florida’s Chemical Castration Statute Misses the Mark. Florida State University Law Review. 2007 Summer;34(1221-1246.

Reasons and Healthcare Professionals’ Claims of Conscience (Conscientious Objection and Emergency Contraception)

Mark R Wicclair

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Robert Card (2007) argues against even a limited conscience based right to refuse to dispense emergency contraception (EC) on the grounds that there are no “reasonable or justified” reasons to support such claims of conscience. This line of argument raises an important question: To what extent is it appropriate to assess reasons in relation to healthcare professionals’ claims of conscience?

Wicclair MR. Reasons and Healthcare Professionals’ Claims of Conscience (Conscientious Objection and Emergency Contraception). Am J Bioeth. 2007;7(6):21-22.

Conscience in America: the slippery slope of mixing morality with medicine

Georgia Chudoba

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Conscience clauses in this country are becoming dangerously broad and over-inclusive. What was once a protection for physicians who objected to performing abortions is now a tool for religious activists to obstruct a patient’s right to contraceptives, sterilization, and any other medical procedure that they feel is “morally” wrong. The Legislature must place limits on these clauses to protect patients’ rights. At the onset of new medical research on stem cells and infertility treatments, it is crucial that Congress enact legislation that will protect patients’ rights to these treatments. There needs to be a balance between the doctor’s right of conscience and the patient’s right to treatment.

Chudoba G. Conscience in America: the slippery slope of mixing morality with medicine. Southwestern University Law Review. 2007;36(1):85-106.

The Freedom of Religion in Canada: Challenges and Opportunities

Iain T Benson

Abstract
The paper covers a wide scope in an attempt to examine, in the space available, some of the central cultural and constitutional facts that form the background to recent legal decisions that touch on “religious liberty” in Canada. Important, as well, are recent insights from political theorists, particularly those who examine the nature of liberalism. . . This Article will show that in the last decade the Canadian judicial system has heard a series of important cases in which principles were raised that give a truly Canadian perspective to the relationship between church and state, and the person and the community, in ways that are not developed elsewhere. These cases may provide useful grounding to the principles of accommodation of religion in the public sphere and inclusion of religion in the public sphere, and, further, may reduce the bifurcations that obscure issues where they should elucidate.

Benson IT. The Freedom of Religion in Canada: Challenges and Opportunities. Emory International Law Review. 2007;21(111)

Conscientious Objection the Morning After (Conscientious Objection and Emergency Contraception)

Carson Strong

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In summary, Card supports his view with weak arguments, makes an erroneous assumption about the state of scientific inquiry, and misrepresents the argument of his opponents. When these various errors are brought to light, it becomes clear that Card has not successfully defended his extreme view. . . . Everyone accepts that conscientious refusal conflicts with the patient’s interests. The question is whether this particular type of failure to meet the patient’s interests can ever be ethically justifiable. Simply pointing out that there is a conflict does not constitute an argument. If a limited right to conscientious refusal is consistent with being a professional, then professional organizations that acknowledge such a right are not acting contrary to the purposes and roles of such organizations. What is needed to support de Melo-Martin’s position is an argument that conscientious refusals never, or at least hardly ever, override a patient’s interests, and de Melo-Martin does not provide this.

Strong C. Conscientious Objection the Morning After (Conscientious Objection and Emergency Contraception). Am J Bioethcs. 2007;7(6):32-34.

Caution: Conscience is the Limb on Which Medical Ethics Sits (Conscientious Objection and Emergency Contraception)

Farr A Curlin

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Card (2007) does not merely claim that practitioners are obligated to provide EC; he argues that they are obligated to do so even if they have a conscientious objection. This last clause may seem harmless on the surface, but a closer look reveals that it effectively saws off the limb on which the first clause and all medical ethics sit. . . . A genuine conscientious objection, even if misinformed, is an expression of a commitment to acting morally, and . . . judgments of conscience need not be informed by explicitly religious ideas. Moreover, all ethical arguments are appeals to conscience. As such, acting conscientiously is the most fundamental of all moral obligations.

Curlin FA. Caution: Conscience is the Limb on Which Medical Ethics Sits (Conscientious Objection and Emergency Contraception). Am J Bioeth. 2007;7(6):30-31.

Pharmacists and the Social Contract (Conscientious Objection and Emergency Contraception)

Kenneth A Richman

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. . .pharmacists in the news who claim that emergency contraception causes abortion are acting impermissibly by basing their conscientious objection on false claims. . . My main point here, however, is drawn from a familiar concept of political philosophy — the idea of a social contract. . . Pharmacists benefit from a monopoly on the right to dispense prescription medications. This monopoly, like those offered to public utilities, comes with responsibilities that go beyond the usual duties of professionalism. Pharmacists have a duty to conform to the system which has invested in them and in which they have a vested interest. . .Card (2007) argues that the prima facie right to conscientious objection is defeated by the facts of this particular case. Applying the argument of the Crito to the role of pharmacists in the United States leads us to conclude that this prima facie right is defeated for the pharmacist in the professional role in all cases. What remains are the right to work for change and the right to opt out of the professional role entirely.

Richman KA. Pharmacists and the Social Contract. Am J Bioethics 2007 Jun 01, 7:6,15-16,DOI: 10.1080/15265160701347247

Gatekeeping and Personal Values: Misuses of Professional Roles (Conscientious Objection and Emergency Contraception)

D Micah Hester, Toby Schonfeld, Jean Amoura

Extract
. . .pharmacists and physicians who deny EC to women misuse their role as gatekeepers. This is because EC is safer than many over-the-counter (OTC) medications; therefore, its distribution does not require providers to exercise a particular skill or apply special knowledge. As a result,healthcare providers may appropriately act as advisors to women seeking EC, but may not use their role as gatekeepers as away of imposing their values on the women in their care. . . physicians and pharmacists who bar women from access to EC do so without professional cause. They misuse their role as gatekeeper, imposing personal values where professional ones should prevail.

Hester DM, Schonfeld T, Amoura J. Gatekeeping and Personal Values: Misuses of Professional Roles (Conscientious Objection and Emergency Contraception). Am J Med Ethics. 2007 Jun;7(6):27-8. doi: 10.1080/15265160701347361

Conscientious Objection? Yes, but make sure it’s genuine. (Conscientious Objection and Emergency Contraception)

Christopher Meyers, Robert D Woods

Extract
In our earlier essay (Meyers and Woods 1996, 118–119), and in alignment with Card’s (2007) analogy, we recommended a system similar to that used for exemption from military service, one that incorporates a review board for evaluating claims of genuine conscientious objection. Because different groups have different means for communicating that a belief is profoundly held, the review board should be structured to represent a diversity of racial, ethnic and religious beliefs and academic training. Furthermore, to reduce the potential power asymmetry between the review board and petitioners, it should also include a range of disciplines—medicine, nursing, mental health, social services, chaplaincy—and representatives from the community.

Meyers C, Woods RD. Conscientious Objection? Yes, but make sure it’s genuine. (Conscientious Objection and Emergency Contraception). Am J Bioeth. 2007;7(6):. Available from: