Law Archives - Page 28 of 39 - Protection of Conscience Project Library

(Editorial) Abortion- a debate

J Smith

Extract
The wave of abortion-on-demand legislation sweeping the world has reached our shores. The first blows to the concept of the sanctity of human life are being dealt at a time when health care in South Africa is undergoing tremendous upheaval. This concept may be irreparably damaged if the present Abortion and Sterilisation Act of 1975 is changed. . . Health professionals should be guided in their decisions and proposals by health values and by scientific evidence. Unfortunately these are not the only prerequisites, since moral and religious considerations are always subconscious realities. Enormous moral and ethical pressures already confront those making decisions about the provision of medical and health care in developing countries. . . The ‘unwanted’ child . . .is therefore victimised, not because of his or her own shortcomings but because society attempts to solve its socio-economic and broader health problems through the sacrifice of its children. . . To avoid abortions, fertility regulation (family planning)should be aggressively propagated in South Africa with specific emphasis on female education and counselling regarding contraceptive information, services and supplies and sterilisation. Contraception saves the lives of thousands of women around the world owing to avoidance of unwanted pregnancies.

Smith J. (Editorial) Abortion- a debate. S Afr Med J. 1995;85(3):137-139.

A Clash at the Bedside: Patient Autonomy v. A Physician’s Professional Conscience

Judith F Daar

Extract
Conclusion
The plight of Helga Wanglie . . . focused attention on the issue of physician autonomy in the context of patient decision making. That case challenged the court, as well as our society, to consider whether a physician has an obligation to provide medical treatment he or she believes is inappropriate. . .The concept of a physician’s professional conscience will become increasingly relevant as the cost of health care rises to the point where our demands for care greatly outweigh our ability to pay for such care . . . to downplay the role a physician’s professional conscience plays in medical decision making, as both courts and policy makers traditionally have done, does not advance patient autonomy; instead, it causes doctors to be more conservative and withholding in the range of options they offer their patients. If patient autonomy is to have meaning, recognition must also be given to a physician’s moral autonomy. This Article suggests that when patients clash with their physicians over treatment choices, the principle of patient autonomy does not automatically require that the physician be forced to comply.

Daar JF. A Clash at the Bedside: Patient Autonomy v. A Physician’s Professional Conscience. Hastings Law J. 1993 Aug;44(6):1241-1289.

Conscientious objection and abortifacient drugs

D B Brushwood

Abstract
The legal right to assert a conscientious objection is reviewed, using as an example the dispensing of abortifacient drugs by pharmacists. The three areas of law that most significantly concern the right to assert a conscientious refusal are employment law, conscience clauses, and religious discrimination law. Each of these is reviewed, with descriptions of recent cases. It is concluded that employment law protects refusals that are consistent with public policy, but does not permit an employee’s personal policy to determine how a business will be run; that conscience clauses appear to provide protection for pharmacists who object to dispensing abortifacients, but that the precise meanings of critical words and phrases in some clauses need to be defined; and that even though laws of religious discrimination require that employers accommodate religious beliefs, they may not protect a pharmacist who objects to dispensing abortifacients if the accommodation becomes unreasonably burdensome.

Brushwood DB. Conscientious objection and abortifacient drugs. Clin Therapeutics. 1993 Jan-Feb;15(1):204-212.

Has the Time Come for Doctor Death: Should Physician-Assisted Suicide Be Legalized

Wendy N Weigand

Extract
The implications of legalizing euthanasia for the medical profession and the potential for abuses are very troubling. Before public policy or legislation is formulated, the ethical issues inherent in the practice of euthanasia must be critically examined. . . It is the author’s assertion that the legalization of assisted suicide and/or physician-aid-in-dying is not the proper course of action at this time. There are too many other options available to doctors, nurses, hospitals and other health care institutions which must be exercised to their fullest extent before any form of active euthanasia is legalized.

Weigand WN. Has the Time Come for Doctor Death: Should Physician-Assisted Suicide Be Legalized. J Law Health. 1993;7(2):321-350.

Female circumcision: When medical ethics confronts cultural values

Eike-Henner Kluge

Canadian Medical Association Journal, CMAJ — Canadian Medical Association Journal

Extract
Canadian physicians cannot consistently accept the principle of respect for people in the name of medical ethics, and then perform procedures they know to be medically inappropriate, harmful and demeaning only because they do not want to offend a misplaced cultural sensitivity.

Kluge E-H. Female circumcision: When medical ethics confronts cultural values. Can Med Assoc J. 1993 Jan 15;148(2):288-289.

Coercive Population Control Policies: An Illustration of the Need for a Conscientious Objector Provision for Asylum Seekers

E Tobin Shiers

Extract
Conclusion
When President Bush successfully thwarted passage of the Emergency Chinese Immigration Relief Act of 1989 and implemented his own order insisting upon “careful consideration” of victims who plead for political asylum because of coercive population control measures in their homelands, he unwittingly illustrated the need for a change in the statutory language. The Executive Order unwisely forces the issue of coercive population control policies into statutory language designed to protect victims of discrimination. Such manipulations would not be necessary if the Refugee Act of 1980 were amended to encompass the Handbook’s interpretation of the U.N. Protocol.

The interpretative guidelines to the U.N. Protocol, and derivatively
to the Convention, call for a “conscientious objector” exception to
military service. The grant of refugee status to individuals who prove
“valid reasons of conscience,” even reasons distinct from religious
claims, recognizes that fitting an individual within the protections of
the refugee definition requires a judgment on the means other nations
use to implement their policy ends, not just the ends themselves.
Rather than relying solely on the five narrow grounds for granting
asylum that were developed in response to the atrocities of World
War II, the U.N. Protocol, as interpreted by the Handbook, also
advocates protection for the individual persecuted by virtue of
mandatory participation in a military service with which he morally
disagrees. Because the debate regarding coercive population control
considers the legitimacy of means employed in achieving governmental
policy objectives, the logic of the conscientious objector exception
also applies to claims such as that of Chang.

Shiers ET. Coercive Population Control Policies: An Illustration of the Need for a Conscientious Objector Provision for Asylum Seekers. Va J Int Law. 1990;30(4):1007-1037.

Fetal rights: Supreme Court tosses ball back in Parliament’s court

Eike-Henner Kluge

Extract
The case is of interest to doctors, but not because it deals with midwifery and its legality in Canada – the Supreme Court decision is silent on that point. At issue was the status of the human fetus: Is a full-term human fetus that is partially born a person in the eyes of the criminal law? The court decided it is not. . . . The Supreme Court has decided this case on very narrow legal grounds and it has carefully avoided coming to grips with the issue of whether a fetus is a person in the eyes of the law. This is not surprising. On several occasions, such as cases involving Morgentaler5 and Daigle,6 the Supreme Court has made clear that the status of the fetus should not be resolved in court – the court is not prepared to do Parliament’s work.

Kluge E-H. Fetal rights: Supreme Court tosses ball back in Parliament’s court. Can Med Assoc J. 1991 May 01;144(9):1154-1155.

(News) Kill the bill, CMA tells Senate committee studying abortion law

Patrick Sullivan

Extract
A “chilling effect” brought about by federal abortion legislation may be the reason almost 1 in 10 physicians who had been performing abortions in Canada in 1989 stopped providing the service in 1990, a CMA survey indicates. . . . The data also confirm an earlier CMA estimate that 50 to 80 physicians have stopped performing abortions since Bill C-43 was tabled . . . . “The Canadian Medical Association is unequivocally opposed to Bill C-43,” she said, noting that the CMA was not alone . . .

Sullivan P. Kill the bill, CMA tells Senate committee studying abortion law. Can Med Assoc J. 1991;144(4):496, 499.

Euthanasia and related taboos

Eike-Henner Kluge

Extract
Like it or not, physicians are going to be reading a lot about euthanasia in the next few years. . . . Many physicians are more or less comfortable with the idea of withholding or withdrawing “medically useless” treatment. In other words, they accept passive euthanasia. . . . .If the medical profession thinks a physician might become responsible for a patient’s death through inaction, but without automatically bearing moral guilt, why does it insist that a physician who becomes responsible for the death of a patient through action automatically becomes morally guilty? . . . Medical ethics should never be decided by consensus or because of what is politically expedient. . .I am not making a plea for active euthanasia. I am suggesting that Canadian physicians should look at this issue honestly and openly.

Kluge E-H. Euthanasia and related taboos. Can Med Assoc J. 1991 Feb 01;144(3):359-360.

Justice minister tries to allay doctors’ fears about abortion bill

Patrick Sullivan

Extract
In a letter to Edulaw, a Calgary-based medicolegal newsletter, Kim Campbell says physicians have nothing to fear from Bill C-43, the federal abortion legislation that is currently before the Senate. . . In her letter to Edulaw, Campbell says “certain persons” opposed to the legislation are distorting its contents and potential impact in order to “cause fear on the part of medical practitioners”. She maintains that there are adequate safeguards in both the civil and criminal law “to prevent frivolous and malicious proceedings being brought against doctors”. . . In forming an opinion, says Campbell, physicians will be able to consider “such factors as rape, incest, genetic defects and socio-economic factors”.

Sullivan P. Justice minister tries to allay doctors’ fears about abortion bill. Can Med Assoc J. 1990;143(12):1220.