Louise Anne Keogh, Lynn Gillam, Marie Bismark, Kathleen McNamee, Amy Webster, Christine Bayly, Danielle Newton
Abstract| Background: In Victoria, Australia, the law regulating abortion was reformed in 2008, and a clause (‘Section 8’) was introduced requiring doctors with a conscientious objection to abortion to refer women to another provider. This study reports the views of abortion experts on the operation of Section 8 of the Abortion Law Reform Act in Victoria.
Methods: Nineteen semi-structured qualitative interviews were conducted with purposively selected Victorian abortion experts in 2015. Interviews explored the impact of abortion law reform on service provision, including the understanding and implementation of Section 8. Interviews were transcribed verbatim and analysed thematically.
Results: The majority of participants described Section 8 as a mechanism to protect women’s right to abortion, rather than a mechanism to protect doctors’ rights. All agreed that most doctors would not let moral or religious beliefs impact on their patients, and yet all could detail negative experiences related to Section 8. The negative experiences arose because doctors had: directly contravened the law by not referring; attempted to make women feel guilty; attempted to delay women’s access; or claimed an objection for reasons other than conscience. Use or misuse of conscientious objection by Government telephone staff, pharmacists, institutions, and political groups was also reported.
Conclusion: Some doctors are not complying with Section 8, with adverse effects on access to care for some women. Further research is needed to inform strategies for improving compliance with the law in order to facilitate timely access to abortion services.
Keogh LA, Gillam L, Bismark M, McNamee K, Webster A, Bayly C, Newton D. Conscientious objection to abortion, the law and its implementation in Victoria, Australia: perspectives of abortion service providers. BMC Medical Ethics201920:11.
On 13 March 2017, the House of Commons voted by 172 to 142 in favour of a second reading for the Reproductive Health (Access to Terminations) Bill. The bill, introduced by Diana Johnson MP, would decriminalise abortion until the end of the 24th week of pregnancy, meaning that abortion could be performed until the end of the 24th week of pregnancy without the need to satisfy any statutory grounds, or to obtain two doctors’ authorisation. Many campaigners see this bill as a first step toward the longer-term goal of fully decriminalising abortion. 
The prospect of decriminalisation raises a number of interesting and important issues, including an issue which has been neglected in the debates over decriminalisation so far, namely what any change in the law might mean for the right of health professionals to withdraw from participation in abortion on grounds of conscience, under section 4 of the Abortion Act 1967. . . .
Neal M. Abortion decriminalisation and statutory rights of conscience. the bmjopinion [Internet]. 2017 Mar 24.
Christian Munthe, Morten Ebbe Juul Nielsen
This article analyzes the idea of a legal right to conscientious refusal for healthcare professionals from a basic legal ethical standpoint, using refusal to perform tasks related to legal abortion (in cases of voluntary employment) as a case in point. The idea of a legal right to conscientious refusal is distinguished from ideas regarding moral rights or reasons related to conscientious refusal, and none of the latter are found to support the notion of a legal right. Reasons for allowing some sort of room for conscientious refusal for healthcare professionals based on the importance of cultural identity and the fostering of a critical atmosphere might provide some support, if no countervailing factors apply. One such factor is that a legal right to healthcare professionals’ conscientious refusal must comply with basic legal ethical tenets regarding the rule of law and equal treatment, and this requirement is found to create serious problems for those wishing to defend the idea under consideration. We conclude that the notion of a legal right to conscientious refusal for any profession is either fundamentally incompatible with elementary legal ethical requirements, or implausible because it undermines the functioning of a related professional sector (healthcare) or even of society as a whole.
Munthe C, Nielsen MEJ. The Legal Ethical Backbone of Conscientious Refusal. Cambridge Quarterly of Healthcare Ethics. Cambridge Quarterly of Healthcare Ethics. 2017 Jan; 26(1): 59-68. doi:10.1017/S0963180116000645
In February 2015, the Supreme Court of Canada unanimously ruled in Carter v. Canada (Attorney General) that the Canadian Charter of Rights
and Freedoms (the “Charter”) protects the right of every competent, consenting adult suffering from a grievous and irremediable medical condition to
choose death, assisted by a physician.1 The Court’s decision to quash the sections of the Criminal Code that criminalize physician-assisted dying is in
abeyance until June 2016.2
Trouble is, not many physicians seem willing to assist. In a survey of its members, the Canadian Medical Association found that, at best, only 29 per
cent would consider a patient’s request for medical aid in dying, while a staggering 63 per cent would refuse outright (and even more say they would refuse
if the patient were not terminally ill).3 Further, among that majority of doctors who would refuse, most also believe that the system should require
them to do nothing to help patients die—not even refer the patient to a more willing doctor.4 No doubt there are fissures within the profession — family doctors appear to be more willing to assist dying, and Christian doctors less willing — but overall, it is clear that a majority of Canadian doctors
polled refuse to participate in physician assisted dying.5
. . . This article argues that whether doctors do or do not have the right to refuse to treat patients on conscientious or religious grounds is neither a difficult nor a novel legal issue. Patients and doctors have clashed on this issue before, and when they have, tribunals and courts have overwhelmingly sided
with the patients over the doctors. . .
. . .Equality law therefore greatly limits, but does not wholly abolish, the ability of doctors to opt out of giving medical services. For example, while
a doctor clearly would be justified to opt out of physician-assisted dying if he or she lacks the clinical skills to administer it safely—equality law does
not override the standard of care and fiduciary duty owed to the patient—it is extremely doubtful that a suitably skilled doctor could opt out just because of his or her conscientious or religious objection to assisting death, and that is because doing so would discriminate against the patient.
Attaran A. The Limits of Conscientious and Religious Objectionto Physician-Assisted Dying after the Supreme Court’s Decision in Carter v. Canada. Health Law Can. 2016 Feb;36(3):86-98.
Mara Buchbinder, Dragana Lassiter, Rebecca Mercier, Amy Bryant, Anne Drapkin Lyerly
“It’s almost like putting salt in a wound, for this person who’s already made a very difficult decision,” suggested Meghan Patterson (an alias), a licensed obstetrician-gynecologist whom we interviewed in our qualitative study of the experiences of North Carolina abortion providers practicing under the state’s Woman’s Right to Know Act (House Bill 854; 2011). The act requires that women receive counseling with state-mandated information at least twenty-four hours prior to obtaining an abortion. After the law was passed, Patterson worked with clinic administrators, in consultation with a lawyer, to write a script to be used in the state-mandated counseling procedure. She and her colleagues took particular steps to mitigate the effects of what she described as HB 854’s “forced language” – such as referring to the “father of the child.” While HB 854 stipulated that patients must be informed of the medical risks associated with the particular abortion procedure as well as those of carrying the child to term, Patterson’s script made explicit the magnitude of comparative risks, emphasizing that the risks of carrying a pregnancy to term are substantially greater than the risks of an early-term abortion. She felt that these contextualization strategies helped to facilitate trust and rapport in a clinical care situation that proved relationally and morally challenging.
In this article, we take up and expand on this point by elucidating an empirically grounded approach to ethically justified care when health care providers face legal or institutional policy mandates that raise possible moral conflicts. Our approach builds on recent bioethics discourse addressing conscience in the practice of medicine. While the concept of conscience has broad philosophical underpinnings relating to moral judgment, agency, and discernments of right and wrong, debates in bioethics have tended to engage the concept primarily vis-à-vis rights of conscientious objection or refusal. Here, we suggest a broader frame for thinking about claims of conscience in health care. Our approach draws on the feminist bioethics and the ethics of care literatures to highlight how providers may be motivated by matters of conscience, including relational concerns, in the active provision of certain forms of care. What emerges are two possibilities: not only conscientious refusal to comply with a policy mandate but also conscientious compliance – working conscientiously within a mandate’s confines.
Buchbinder, M., Lassiter, D., Mercier, R., Bryant, A. and Lyerly, A. D. (2016), Reframing Conscientious Care: Providing Abortion Care When Law and Conscience Collide. Hastings Center Report, 46: 22–30. doi: 10.1002/hast.545
Jan Bollen,Rankie Ten Hoopen, Dirk Ysebaert, Walther van Mook, Ernst van Heurn
Organ donation after euthanasia has been performed more than 40 times in Belgium and the Netherlands together. Preliminary results of procedures that have been performed until now demonstrate that this leads to good medical results in the recipient of the organs. Several legal aspects could be changed to further facilitate the combination of organ donation and euthanasia. On the ethical side, several controversies remain, giving rise to an ongoing, but necessary and useful debate. Further experiences will clarify whether both procedures should be strictly separated and whether the dead donor rule should be strictly applied. Opinions still differ on whether the patient’s physician should address the possibility of organ donation after euthanasia, which laws should be adapted and which preparatory acts should be performed. These and other procedural issues potentially conflict with the patient’s request for organ donation or the circumstances in which euthanasia (without subsequent organ donation) traditionally occurs.
Bollen J, Ten Hoopen R, Ysebaert D, van Mook W, van Heurn E. Legal and ethical aspects of organ donation after euthanasia in Belgium and the Netherlands. J Med Ethics. 2016 Aug;42(8):486-9. doi: 10.1136/medethics-2015-102898. Epub 2016 Mar 24.
John Olusegun Adenitire
It is argued that the current policy of the British Medical Association (BMA) on conscientious objection is not aligned with recent human rights developments. These grant a right to conscientious objection to doctors in many more circumstances than the very few recognised by the BMA. However, this wide-ranging right may be overridden if the refusal to accommodate the conscientious objection is proportionate. It is shown that it is very likely that it is lawful to refuse to accommodate conscientious objections that would result in discrimination of protected groups. It is still uncertain, however, in what particular circumstances the objection may be lawfully refused, if it poses risks to the health and safety of patients. The BMA’s policy has not caught up with these human rights developments and ought to be changed.
Adenitire JO. The BMA’s guidance on conscientious objection may be contrary to human rights law. J Med Ethics 2017;43:260-263.
I. Glenn Cohen, Holly Fernandez Lynch, Gregory D. Curfman
At the tail end of this year’s Supreme Court term, religious freedom came into sharp conflict with the government’s interest in providing affordable access to health care. In a consolidated opinion in Burwell v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Burwell (collectively known as Hobby Lobby) delivered on June 30, the Court sided with religious freedom, highlighting the limitations of our employment-based health insurance system.
Hobby Lobby centered on the contraceptives-coverage mandate, which derived from the Affordable Care Act (ACA) mandate that many employers offer insurance coverage of certain “essential” health benefits, including coverage of “preventive” services without patient copayments or deductibles. The ACA authorized the Department of Health and Human Services (HHS) to define the scope of those preventive services, a task it delegated to the Institute of Medicine, whose list included all 20 contraceptive agents approved by the Food and Drug Administration. HHS articulated various justifications for the resulting mandate, including the fact that many Americans have difficulty affording contraceptives despite their widespread use and the goal of avoiding a disproportionate financial burden on women. Under the regulation, churches are exempt from covering contraception for their employees, and nonprofit religious organizations may apply for an “accommodation,” which shifts to their insurance companies (or other third parties) the responsibility for providing free access. However, HHS made no exception for for-profit, secular businesses with religious owners. . .
Cohen IG, Lynch HF, Curfman GD. When Religious Freedom Clashes with Access to Care. N Engl J Med 2014; 371:596-599 August 14, 2014 DOI: 10.1056/NEJMp1407965
Frej Klem Thomsen
Criminalisation of prostitution, and minority rights for disabled persons, are important contemporary political issues. The article examines their intersection by analysing the conditions and arguments for making a legal exception for disabled persons to a general prohibition against purchasing sexual services. It explores the badness of prostitution, focusing on and discussing the argument that prostitution harms prostitutes, considers forms of regulation and the arguments for and against with emphasis on a liberty-based objection to prohibition, and finally presents and analyses three arguments for a legal exception, based on sexual rights, beneficence, and luck egalitarianism, respectively. It concludes that although the general case for and against criminalisation is complicated there is a good case for a legal exception.
Thomsen FJ. Prostitution, disability and prohibition. J Med Ethics doi:10.1136/medethics-2014-102215
Nadia N. Sawicki
If capital punishment is constitutional, as it has long been held to be, then it “necessarily follows that there must be a means of carrying it out.”1 So the Supreme Court concluded in Baze v. Rees, a 2008 challenge to Kentucky’s lethal-injection protocol, in which the Court held that the means used by Kentucky did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Lethal injection procedures have changed significantly since 2008, and that fact coupled with Oklahoma’s recent botched lethal injection of Clayton Lockett, the latest in a long series of gruesome and error- ridden executions, has raised questions about whether current methods would pass constitutional muster if reviewed by the Supreme Court. Unfortunately, they probably would.
This likelihood may surprise members of the medical and scientific communities who oppose involvement by their professions in implementing the death penalty. Lethal injection, the primary execution method used in all death-penalty states, was adopted precisely because its sanitized, quasi-clinical procedures were intended to ensure humane deaths consistent with the Eighth Amendment. But experiences like Clayton Lockett’s, which result from prisons’ experimentation with untested drugs and reliance on personnel with unverifiable expertise, demonstrate the dearth of safeguards for ensuring that this goal is actually achieved. Some drug companies now refuse to distribute drugs used for executions, pharmacies are reluctant to participate unless their identities are shielded, and organized medicine has taken a stand against physicians’ involvement in capital punishment. Nevertheless, states have demonstrated their willingness to continue with lethal injections, and most federal courts have allowed executions to proceed in the face of constitutional challenges. The time is therefore ripe for the medical and scientific communities to consider, once again, their role in this process.
Sawicki NN. Clinicians’ Involvement in Capital Punishment – Constitutional Implications. N Engl J Med 371;2 nejm.org july 10, 2014