Sean Murphy*

Introduction to protection of conscience legislation

The Project website offers examples of various approaches to drafting of protection of  conscience legislation under existing and proposed protection of conscience laws. In addition, the Project offers models of three different kinds of protection of  conscience legislation. 

General laws are to be preferred in principle because they provide the broadest and most flexible protection.  However, they usually provoke the strongest opposition, so they are the most difficult to pass.

Procedure-specific laws are inflexible (unresponsive to new technological developments generating ethical conflicts) and narrow (applying only to the specified procedures).  On the other hand, they are more likely to be politically viable, at least if enacted while the procedure in question is still understood to be morally controversial.

Format

Each Project model statute begins by setting out well-established and broadly accepted obligations of health care personnel to patients and employers and articulating what objectors must do when refusing to provide or facilitate services for reasons of conscience. 

This puts obligations to patients front and centre and makes clear that their needs will not be ignored. Concerned patients are not left wondering what will happen to them if their physicians decline to provide or facilitate a procedure for reasons of conscience.  The law explains — point-by-point — what patients can expect in such circumstances. This makes it more difficult to misrepresent the law, discourages scaremongering and facilitates an intelligent and compassionate explanation of the law by its supporters.

Essential elements

In all cases, a protection of conscience law should identify

• who is protected (individuals, collectives, institutions, occupations)
• what conduct cannot be compelled (providing/performing, facilitating, encouraging, etc.)

The models offered provide protection for all health care workers and institutions, not only against being forced to provide morally contested services, but against being compelled to participate in them by planning, facilitation, promotion, recommendation, counselling or education.

Three further elements are necessary:

• a distinction between providing information and providing a service
• articulation of the duty to prevent injury to patients in urgent circumstances
• limitation of liability

The Project model statutes

• distinguish between providing information necessary to enable informed medical decision-making (required) and providing or facilitating a morally contested procedure (not required);
•  affirm the duty of non-abandonment, describing what objectors must do if refusal may result in death or permanent serious injury;
• do not exclude liability, but limit it to cases in which a health care worker or institution fails or refuses to fulfil the obligations set out in the statute.