Clinicians’ Involvement in Capital Punishment – Constitutional Implications

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 july 10, 2014

The attack on Western religions by Western law

Re-framing pluralism, liberalism and diversity

Iain T. Benson*

International Journal for Religious Freedom


This paper discusses how law is increasingly being used to attack religious associations under the guise of “equality” advancement and “non-discrimination” restrictions. I explore two important insights: first that the concept of “transformation” has been distorted, to shelter approaches to law that fail to respect properly associational diversity. When misused, “transformation” seeks to change the moral viewpoints or religious beliefs of religious associations by force of law. Second, the paper discusses the expansion of law so that it becomes a threat to associations. The “goods of religion” and the “limits of law” need to be more widely recognized and understood both by religious communities and by those involved in law, politics and the media. These insights demonstrate how “equality activists” employ a rhetoric of “equality” to produce inequality, “diversity” to produce homogeneity and “non-discrimination” to discriminate against religious communities and religious beliefs. Several solutions for identifying these errors and resisting them are outlined in brief.

Benson IT. The attack on Western religions by Western law: Re-framing pluralism, liberalism and diversity. International Journal for Religious Freedom, Volume 6, Issue 1/2, 2013

Conscience Legislation, the Personhood Movement, and Access to Emergency Contraception

Jonathon F. Will

Faulkner Law Review

Introduction:  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).

Will JF. Conscience Legislation, the Personhood Movement, and Access to Emergency Contraception. 4 Faulkner Law Review  411 (2013)

An (Un)clear Conscience Clause: The Causes and Consequences of Statutory Ambiguity in State Contraceptive Mandates

Rachel VanSickle-Ward, Amanda Hollis-Brusky

Journal of Health Politics, Policy and Law

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.

Vansickle-Ward R, Hollis-Brusky A. An (Un)clear Conscience Clause: The Causes and Consequences of Statutory Ambiguity in State Contraceptive Mandates. J Health Polit Policy Law. 2013 May 3. [Epub ahead of print] PubMed PMID: 23645878. 

The uneasy (and changing) relationship of health care and religion in our legal system

Robert K. Vischer

Theoretical Medicine and Bioethics


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.

Vischer RK. The uneasy (and changing) relationship of health care and religion in our legal system. Theor Med Bioeth. 2013 Apr;34(2):161-70. doi: 10.1007/s11017-013-9248-2. PubMed PMID: 23546737

Book Review: Why Tolerate Relgion?

New book questions preferential treatment of religious liberty

University of Chicago News Office

Why Tolerate Religion?

Brian Leiter, Why Tolerate Religion? Princeton University Press, 2012, 192 pp. ISBN: 9780691153612

The Western democratic practice of singling out religious liberty for special treatment under the law is not in sync with the world we live in today, argues University of Chicago Law School professor Brian Leiter in his new book,Why Tolerate Religion?

All people, both religious and non-religious, maintain core beliefs about what they feel they absolutely must do— a category Leiter calls “claims of conscience.” In the book, Leiter, the Karl N. Llewellyn Professor of Jurisprudence, explores whether there are good reasons for the tendency to grant legal exemptions to religious claims of conscience while largely rejecting non-religious claims.

“The current status quo is predicated on a fundamental inequality,” Leiter said. For example, he says a boy might be permitted to carry a dagger to school as part of his Sikh religion, but the same dagger would not be allowed if it were part of a family tradition.

“Namely, your claim of conscience counts if it is based in religion,” Leiter said. “My claim of conscience doesn’t count if it is not based in religion. That, it seems to me, is a pernicious and indefensible inequality in the existing legal regime.”  Read more . . .

The spread of conscience clause legislation

Claire Marshall

Human Rights


The article presents information on a proliferation in conscience clause legislation to federal and state laws in the U.S. The move is stated to be pitting individual religious autonomy against the public interest, mainly in the areas of education and health care.

Marshall C. The spread of conscience clause legislation. Human Rights [Internet]. 2013 Jan; 39(2), 15-16.

Was It Science, Not Religion?

Maimon Schwarzschild

San Diego Law Review

Abstract: Does freedom of conscience, and perhaps freedom of thought generally, have religious roots? Ronald Beiner’s Three Versions of the Politics of Conscience: Hobbes, Spinoza, Locke traces the idea of conscience as a factor in Western political thought to ideas that crystallized in the seventeenth century. Beiner examines three leading seventeenth century thinkers – Hobbes, Spinoza, and Locke – to explore whether conscience, or rather the idea of freedom of conscience, was specially a religious imperative for these thinkers: whether their religious commitments or their respect for religious integrity underlay and motivated their ideas about freedom of conscience.

Schwarzschild M. Was It Science, Not Religion? 47 San Diego L. Rev. 1125 (2010).

Three Versions of the Politics of Conscience: Hobbes, Spinoza, Locke

Ronald Beiner

San Diego Law Review

Abstract: The organizers of this symposium have posed the question: is the idea of conscience fundamentally rooted in religious commitments? This question inevitably draws us back to the seventeenth century, for that is when the discourse of conscience ultimately originated. And when we consult the most important sources from that epoch, we get, I believe a clear answer to the question, although it may not be the answer that the organizers of the symposium anticipated when they conceived the theme of this gathering.

Beiner R. Three Versions of the Politics of Conscience: Hobbes, Spinoza, Locke. 47 San Diego L. Rev. 1107 (2010).

The First Amendment’s Religion Clauses: “Freedom of Conscience” Versus Institutional Accommodation

Michael J. White

San Diego Law Review

Abstract: The phrase “freedom of conscience” is, of course, not to be found in the United States Constitution: the First Amendment says only that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” However, it seems probable that one, then-contemporary Protestant conception of freedom of conscience was presupposed in these two clauses. Evidence for this conjecture can be found not only in the debate and proposals concerning the Bill of Rights of the United States Constitution but also in the frequently more expansive language of early state constitutions.

White MJ. The First Amendment’s Religion Clauses: “Freedom of Conscience” Versus Institutional Accommodation. 47 San Diego L. Rev. 1075 (2010).