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Protection of Conscience Project

www.consciencelaws.org

Service, not Servitude
Frequently Asked Questions

Q) What are protection of conscience laws?

A) Protection of conscience laws (PCL's) ensure that people cannot be forced to facilitate practices or procedures to which they object for reasons of conscience. These may include abortion, capital punishment, contraception, sterilization, artificial reproduction, euthanasia, assisted suicide, human experimentation, torture, etc. An adequate protection of conscience law should protect conscientious objectors from coercive hiring or employment practices, discrimination and other forms of punishment or pressure. It should also include protection from civil liability.

Q) What are "conscience clauses"?

A) Conscience clauses are usually less comprehensive than protection of conscience laws and afford varying degrees of protection for conscientious objectors. They may appear in statutes or in the policies of organizations or institutions.

Q) Why are protection of conscience laws and conscience clauses needed?

A) Protection of conscience laws and conscience clauses are needed because powerful interests are inclined to force health care workers and others to participate, directly or indirectly, in morally controversial procedures. Physicians, nurses, pharmacists and others have been denied employment, dismissed, or penalized because of objections to abortion, contraception or the morning-after pill (See Repression of Conscience). The same pressure will almost certainly be applied to force conscientious objectors to participate in reproductive technology, eugenic screening, and in euthanasia and assisted suicide, particularly where such things are legal or are tolerated.

Q)  Why should health care workers be able to impose their beliefs on patients?

A)  Those who refuse to do what they believe to be wrong are defending their own integrity, not "imposing beliefs."  This is well understood in other contexts.  For example: people who refuse to help others cheat, steal or commit adultery are not accused of "imposing their beliefs."

Q)  Why should health care workers be allowed to let their personal beliefs affect their work?

A)  All beliefs are personal, since one who believes something holds that belief "personally" or is personally committed to that belief.  Someone who refuses a bribe because he believes bribery is wrong is acting on his beliefs.  Health care workers who suggest some forms of treatment or care rather than others may also be acting on their beliefs.  It is normal for people to act on their beliefs, at the workplace or elsewhere.

Q)  What about acting on religious beliefs? 

A)  Beliefs -and believers - can be religious or non-religious.  For example: people may believe in the equality of all people for religious reasons, for for political, ideological, or philosophical reasons.  If one can reasonably act on a non-religious belief, one can reasonably act on a religious belief.  There is no reason - apart from anti-religious bigotry - to prevent people from acting on religious beliefs. [See There are No Secular Unbelievers.]

Q) What kinds of procedures are affected by protection of conscience laws?

A) That depends upon the wording of the law. A statute can be drafted broadly so that it can be applied to any kind of medical procedure. On the other hand, it can be written to include a class of procedures (all those affecting life, for example). Finally, a law can also identify specific procedures to which it is to apply. The Project website includes examples of different kinds of legislative drafting.

Q) Why different approaches to legislation?

A) Sometimes a law is drafted to respond to a particular need or concern. For example: many American laws were drawn up in direct response to the legalization of abortion by a U.S. Supreme Court ruling about abortion. Hence, many of these laws concern only abortion.

Similarly, concerns with a certain class of procedures (cloning and in vitro fertilization, euthanasia and assisted suicide) may generate a law that has narrower application.

The broadest approach, which does not restrict protection to specific procedures or classes of services, may result from a political and social ethos that is respectful of freedom of conscience in principle.  It may also reflect an awareness that laws that are procedure-specific are not sufficiently flexible to keep pace with changes in medical technology.

Finally, laws may be influenced by pragmatic judgement about the political support likely to be available for different kinds of legislation.

Q) Do protection of conscience laws make procedures like abortion or sterilization illegal?

A) No. PCLs prevent people from being forced to participate in medical procedures, but they do not make them illegal.

Q) But doesn't a protection of conscience law mean that the procedures are wrong?

A) No. Many states provide alternatives to active military service for conscientious objectors, but such policies have never been understood to mean that military service is immoral. Similarly, a protection of conscience law need have no impact on the dominant moral outlook concerning procedures to which some people object.

Q) Don't unions and professional associations protect their members already?

A) Unfortunately, their record in this respect indicates that they are unreliable. (See Repression of Conscience). Moreover, many people are not members of unions or professional associations.

Q) Well, maybe there was nothing in their collective agreements about this. Couldn't unions bargain for a conscience clause?

A) Yes. But, in the first place, many workers are not protected by collective agreements. More important, freedom of conscience is not merely an employee benefit. It should be considered an employee right, protected by legislation, lest unions actually bargain it away in exchange for more vacation pay, for example, or higher overtime rates.

Q) Our courts are already clogged. Won't PCLs cause more court cases?

A) They could result in some prosecutions at first. But they should prevent litigation and prosecution by discouraging coercive conduct. If problems arise, they are more likely to be settled without going to court if people can refer to a single law. And there should be fewer problems as time goes on and people learn their limits.

Q) Aren't PCLs a risk to health because they could interfere with access to some procedures?

A) This could only occur if large numbers of health care workers refused to participate.  In that case, it would be appropriate to re-examine the nature of the procedure. A re-examination might suggest, for example, that the procedure should be done only by medical specialists, or only in certain facilities, or by specialists outside traditional health care professions.

In fact, it is extremely unlikely that large numbers of health care workers would refuse to participate in morally non-controversial procedures that are actually beneficial for the patient.  That has not occurred in jurisdictions like the state of Illinois, U.S.A., which has a broadly worded protection of conscience statute. [See the Illinois Health Care Right of Conscience Act.]

Q) But what about access in rural areas? If the only doctor or nurse in town won't do a procedure, what then?

A) There are many medical services that cannot, for economic reasons, be routinely provided in rural areas, and even in small towns or cities. Such difficulties are usually resolved by visiting specialists or by sending the patient for treatment at a central location. What is done for reasons of economy could also be done for reasons of conscience - if conscience is valued as highly as economics.

Q) What if employers' conscientious judgement lead them to discriminate against applicants unwilling to participate in certain procedures? Will PCLs punish employers for following their consciences?

A) This kind of conflict can be prevented or resolved by identifying, in advance, the performance of certain procedures as a bona fide requirement of a position to be filled. PCLs can be drafted to allow for such eventualities; the Model Statute illustrates one way of doing this.

Q) Why has this become an issue now?

A) It has actually been an issue for many years. It was considered in the drafting of the abortion law in the United Kingdom in 1968, which includes a protection of conscience provision.  However, in recent years the issue of freedom of conscience in health care has come increasingly to the fore because of pressures from activists who make aggressive rights and exaggerated rights claims, and because of ethical problems generated by advancing medical technologies and the lobbies for euthanasia and assisted suicide.

Q) How do reproductive technologies, euthanasia and assisted suicide make this more important?

A) The reason usually advanced to justify coerced participation in sterilization, contraception, or abortion is that the health care worker's 'personal values' must give way to the choice made by the patient. The same reasoning is used to justify coerced participation in various kinds of reproductive technologies, in euthanasia and in assisted suicide.

Q)  Has someone actually suggested that objecting health care workers should have to participate in euthanasia and assisted suicide?

A)  Yes.  Two universities in Belgium joined the Flemish Association and General in 2003 in a statement asserting that physicians unwilling to provide euthanasis should help patients find someone willing to provide the service.  Since then, a panel of the Royal Society of Canada and a legislative committee in the province of Quebec, Canada have issued reports recommending legalization of assisted suicide/euthanasia, and compulsory referral by objecting physicians. [See Belgium: Mandatory Referral for Euthanasia]


 

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