Abstract In Italy, Emergency Hormonal Contraception (EHC) is a prescription drug, available only in pharmacies. Evidence suggests that a number of doctors and pharmacists refuse to provide EHC, on grounds of conscience, although the exact frequency of this phenomenon is unknown. This creates a barrier to access to EHC for women, thus risking undermining their right to reproductive self-determination. In this article, we aim to offer a clearer empirical and theoretical understanding of the situation and to assess the force of doctors’ and pharmacists’ claims against providing EHC. Unlike standard discussions of the issue, we argue that the category of conscientious objection is not the most appropriate one for making sense of these claims, because they are not grounded in a conflict between two contrasting moral duties. The seemingly forced choice between protecting doctors’ and pharmacists’ professional self-determination and women’s reproductive self-determination could be prevented by distributing EHC without medical prescription and in a number of outlets (including supermarkets), thus relieving doctors and pharmacists from the legal duty to provide it.
Abstract In the medical setting, conscience legislation serves to protect health care professionals who refuse to provide certain procedures or services that would violate their consciences. The “Personhood Movement,” on the other hand, is characterized by advocates’ attempts to adopt legislation or constitutional amendments at the state and/or federal level that would extend the legal and moral protection associated with personhood to members of the human species at the earliest stages of biological development. The relationship between conscience legislation and the Personhood Movement may not be self-evident, but the connection becomes apparent when considering trends in conscience legislation. This is particularly true in the context of expanding legal protection to health care professionals who object to certain forms of birth control, such as emergency contraception (EC).
In a recent paper Professor Elizabeth Sepper noted that instead of protecting a health care provider’s conscience, a possible purpose behind broad conscience legislation is to “make abortions, family planning, and end-of-life care more difficult to obtain,” and that the true goal of such legislation is “hostility to reproductive health and patients’ interests.” Indeed, this essay will suggest that the adoption of a personhood framework could represent majoritarian approval of the very principles that cause certain people to conscientiously object to EC. While some have raised concerns that conscience legislation itself could lead to problems with access to EC (especially in rural communities), adoption of a personhood framework seems to pose a much greater risk. This essay describes the expansion of conscience legislation in the medical setting, which reflects a trend toward authorizing the refusal of a broader range of procedures and services by a broader range of health care professionals. It then draws a connection between Mississippi’s very expansive conscience legislation and the decision by a national organization, Personhood USA, to propose a personhood amendment to the Mississippi Constitution. A brief discussion of the relevant biology reveals the relationship between concepts of personhood and EC. This essay suggests that even if a personhood framework is not officially adopted, legislatures that favor the movement and the broad protection of conscience-based refusals may be less inclined to enact measures that protect a woman’s ability to obtain EC. This should be viewed as problematic given that many people, including physicians and pharmacists, may not have an accurate understanding of the reproductive biology associated with early human development and the operation of EC, which may lead such professionals to make conscientious objections based on clinically false information.
Abstract The right of conscientious objection to military service is the most startling of human rights. While human rights generally seek to protect individuals from state power, the right of conscientious objection radically alters the citizen-state relationship, subordinating a state’s decisions about national security to the beliefs of the individual citizen. In a world of nation-states jealous of their sovereignty, how did the human right of conscientious objection become an international legal doctrine? By answering that question, this Article both clarifies the legal pedigree of the human right of conscientious objection and sheds new light on the relationship between international human rights law and national sovereignty.
Abstract Since 1996, twenty-eight states have adopted legislation mandating insurance coverage of prescription contraceptives for women. Most of these policies include language that allows providers to opt out of the requirement because of religious or moral beliefs—conscience clause exemptions. There is striking variation in how these exemptions are defined. This article investigates the sources and consequences of ambiguous versus precise statutory language in conscience clauses. We find that some forms of political and institutional fragmentation (party polarization and gubernatorial appointment power) are correlated with the degree of policy specificity in state contraceptive mandates. This finding reinforces previous law and policy scholarship that has shown that greater fragmentation promotes ambiguous statutory language because broad wording acts as a vehicle for compromise when actors disagree. Interestingly, it is the more precisely worded statutes that have prompted court battles. We explain this with reference to the asymmetry of incentives and mobilizing costs between those disadvantaged by broad (primarily female employees) versus precisely worded statutes (primarily Catholic organizations). Our findings suggest that the impact of statutory ambiguity on court intervention is heavily contextualized by the resources and organization of affected stakeholders.
Abstract There are many instruments assessing the wellbeing of staff, but far from all have been psychometrically investigated. When evaluating supportive interventions directed toward nurse assistants in residential care, valid and reliable instruments are needed in order to detect possible changes. The aim of the study was to investigate validity in terms of data quality, construct validity, convergent and divergent validity and reliability in terms of the internal consistency and stability of the Job Satisfaction Questionnaire, the Psychosocial Aspects of Job Satisfaction, the Strain in Dementia Care Scale (SDCS), and the Stress of Conscience Questionnaire (SCQ) in a residential care context. The psychometric properties of the instruments were investigated in terms of data quality, construct validity, convergent and divergent validity and reliability, including test–retest reliability, in a residential care context with a sample consisting of nurse assistants (n = 114). The four instruments responded with different psychometric-related problems such as internal missing data, floor and ceiling effects, problems with construct validity and low test–retest reliability, especially when assessed on the item level. These problems were however reduced or disappeared completely when assessed for total and factor scores. From a psychometric perspective, the SDCS seemed to stand out as the best instrument. However, it should be modified in order to reduce floor effects on item level and thereby gain sensitivity. The Job Satisfaction Questionnaire seemed to have problems both with the construct validity and test–retest reliability. The final choice of instrument must, however, be made dependent on what one intends to measure.
Absract This article provides a brief introduction to the interplay between law and religion in the health care context. First, I address the extent to which the commitments of a faith tradition may be written into laws that bind all citizens, including those who do not share those commitments. Second, I discuss the law’s accommodation of the faith commitments of individual health care providers—hardly a static inquiry, as the degree of accommodation is increasingly contested. Third, I expand the discussion to include institutional health care providers, arguing that the legal system’s resistance to accommodating the morally distinct identities of institutional providers reflects a short-sighted view of the liberty of conscience. Finally, I offer some tentative thoughts about why these dynamics become even more complicated in the context of Islamic health care providers.
Abstract The recent confirmation of the constitutionality of the Obama administration’s Patient Protection and Affordable Care Act (PPACA) by the US Supreme Court has brought to the fore long-standing debates over individual liberty and religious freedom. Advocates of personal liberty are often critical, particularly in the USA, of public health measures which they deem to be overly restrictive of personal choice. In addition to the alleged restrictions of individual freedom of choice when it comes to the question of whether or not to purchase health insurance, opponents to the PPACA also argue that certain requirements of the Act violate the right to freedom of conscience by mandating support for services deemed immoral by religious groups. These issues continue the long running debate surrounding the demands of religious groups for special consideration in the realm of health care provision. In this paper I examine the requirements of the PPACA, and the impacts that religious, and other ideological, exemptions can have on public health, and argue that the exemptions provided for by the PPACA do not in fact impose unreasonable restrictions on religious freedom, but rather concede too much and in so doing endanger public health and some important individual liberties.
Conflict Between Public Health and Religious Liberty in the Patient Protection and Affordable Care Act
Peter West-Oram
Health Care Analysis
Abstract The recent confirmation of the constitutionality of the Obama administration’s Patient Protection and Affordable Care Act (PPACA) by the US Supreme Court has brought to the fore long-standing debates over individual liberty and religious freedom. Advocates of personal liberty are often critical, particularly in the USA, of public health measures which they deem to be overly restrictive of personal choice. In addition to the alleged restrictions of individual freedom of choice when it comes to the question of whether or not to purchase health insurance, opponents to the PPACA also argue that certain requirements of the Act violate the right to freedom of conscience by mandating support for services deemed immoral by religious groups. These issues continue the long running debate surrounding the demands of religious groups for special consideration in the realm of health care provision. In this paper I examine the requirements of the PPACA, and the impacts that religious, and other ideological, exemptions can have on public health, and argue that the exemptions provided for by the PPACA do not in fact impose unreasonable restrictions on religious freedom, but rather concede too much and in so doing endanger public health and some important individual liberties.
Abstract Introduction or background The public assumes that if euthanasia and assisted suicide were to be legalized they would be carried out by physicians. Sources of data In furthering critical analysis, we supplement the discourse in the ethics and palliative care literature with that from medical education and evolving jurisprudence. Areas of agreement Both proponents and opponents agree that the values of respect for human life and for individuals’ autonomy are relevant to the debate. Areas of controversy Advocates of euthanasia and assisted suicide give priority to the right to personal autonomy and avoid discussions of harmful impacts of these practices on medicine, law and society. Opponents give priority to respect for life and identify such harmful effects. These both require euthanasia to remain legally prohibited. Growing points Proposals are emerging that if society legalizes euthanasia it should not be mandated to physicians. Areas timely for developing research The impact of characterizing euthanasia as ‘medical treatment’ on physicians’ professional identity and on the institutions of medicine and law should be examined in jurisdictions where assisted suicide and euthanasia have been de-criminalized.
Extract It appears, at times, that health care and religion do not mix. Consider the sterilization and contraception coverage mandate under the Patient Protection and Affordable Care Act. The mandate requires nearly all employers and health insurers to cover as “essential health care services” certain sterilization procedures and contraceptives, including emergency contraceptives. Members of the Catholic, evangelical Christian, Mennonite, and Muslim faith communities say that the mandate places them “in the untenable position of having to choose between violating the law and violating their consciences.”
