Submission to Department of Health and Human Services
(USA)
Re: Draft Regulation: Ensuring that Department of Health and Human Services
Funds Do Not Support Coercive or Discriminatory Policies or Practices In
Violation of Federal Law.
Full Text
Notes
1. Department of Health and Human Services, 45 CFR Part
88, RIN 0991-AB48,
Ensuring
that Department of Health and Human Services Funds Do Not Support Coercive or
Discriminatory Policies or Practices In Violation of Federal Law. Agency:
Office of the Secretary. Action: Proposed Rule, p. 10-11. Accessed
2008-09-24
2. American College of Obstetrics and Gynecology,
Committee on Ethics Opinion No. 385,
The Limits
of Conscientious Refusal in Reproductive Medicine Accessed
2008-09-24
3.
Submission of
the Ontario Human Rights Commission to the College of Physicians and Surgeons of
Ontario Regarding the draft policy, "Physicians and the Ontario Human Rights
Code." 15 August, 2008. Accessed 3008-08-31
4. "In an emergency in which referral is not
possible or might negatively affect a patient's physical or mental health,
providers have an obligation to provide medically indicated and requested care
regardless of the provider's personal moral objections." American College of
Obstetrics and Gynecology, Committee on Ethics Opinion No. 385,
The Limits
of Conscientious Refusal in Reproductive Medicine, p. 5, recommendation
5. Accessed 2008-09-24. In assessing the scope of this claim, it is
necessary to note that the statement fails to define key terms: "emergency,"
"health," "medically indicated," and "care." The statement is also notably broad
in its unqualified reference to anything that "might negatively affect" the
health of the patient.
5. Dr. James Robert Brown, a professor of science and
religion at the University of Toronto, said he agrees with prosecuting a doctor
with that sort of conflict. "Suppose someone (doctor) said, 'I'm uncomfortable
with (treating) a minority,' I'd say, 'So long scum'," said Brown.
Brown believes performing abortions and offering other forms of contraception
are necessary and if Dawson won't perform them, then, Brown added, 'Fine - just
resign from medicine and find another job."
"Religious beliefs are highly emotional - as is any belief that is effecting
your behaviour in society. You have no right letting your private beliefs effect
your public behaviour." Canning, Cheryl,
"Doctor's faith under scrutiny:Barrie
physician won't offer the pill, could lose his licence." The Barrie Examiner,
February 21, 2002.
6. Asoka ascended his father's throne in 269 BC.
Time-Life Books, TimeFrame 400 BC - AD 200: Empires Ascendant, p. 107-109
7. Joyner, James,
"Desmond Doss, Pacifist Medal of Honor Recipient, Dies at 87." Outside
the Beltway, 24 March, 2006; Carlfeldt, Tim,
"Medal of
Honor recipient Desmond Doss, 87, dies." Rome News-Tribune, 23 March,
2006. Accessed 2008-09-22
8. Center of Military History, United States Army,
Medal of Honor
Recipients, WWII, A-F Accessed 2008-09-22
9. Center of Military History, United States Army,
Medal of Honor
Recipients, WWII, A-F Accessed 2008-09-22
10. "Realizing the dangerous situation, Scrimger
organized the evacuation of the wounded to the rear, but one of his patients,
Captain H. F. McDonald, had a serious head wound. Any movement before he was
stabilized would likely kill him. Scrimger chose to stay behind. The shells fell
around them and then began to land on the farm. The slight, 5-foot-7-inch
doctor, who weighed only 148 pounds, shielded McDonald's prone body while he
worked over him. During the bombardment, the building was demolished and set on
fire, but both Scrimger and McDonald survived the whirling shrapnel and
exploding ammunition. Blinded by the smoke and heat of the fire, Scrimger pulled
the larger, unconscious infantry officer onto his back and staggered out of the
building. German infantry were advancing on the farm and the only escape was to
cross the moat to the rear. Lurching to safety with McDonald on his back,
Scrimger passed through the barrage, moving from shell hole to shell hole for
cover. Hiding in a nearby ditch throughout the rest of the day, they avoided the
enemy infantry. Captain McDonald later testified that each time the shells
exploded around them, "Captain Scrimger curled himself round my wounded head and
shoulder to protect me from the heavy shell fire, at obvious peril to his life.
He stayed with me all that time and by good luck was not hit."
Canadian War Museum,
Backgrounder: Francis Scrimger, V.C. Accessed 2008-09-05
11. Kingsmill, Suzanne, Francis Scrimger: Beyond
the Call of Duty. Hannah Institute for the History of Medicine, Dundurn
Press Ltd., 1991, p. 25. See also
"The greatest devotion to duty": Dr. Francis Scrimger and his Victoria Cross.
McCulloch, I. CMAJ. 1994 February 1; 150(3): 414-416.
Accessed 2008-09-04)
12. Benson, Iain T.,
"There are No Secular 'Unbelievers.'" Centrepoints 7, Vol. 4, No. 1, Spring 2000, P. 3.
13. Swenson, Scott,
"HHS Sec. Leavitt Blogs Again,
Avoids Contraception Again, Still Ignores Ab-Only." Reality Check, 12
August, 2008. Accessed 2008-09-24
14. Melling, Louise,
"Proposed Bush Regulation Jeopardizes Women's Health." Feministing
Community, 26 August, 2008. Accessed 2008-09-21
15. American College of Obstetrics and Gynecology,
Committee on Ethics Opinion No. 385,
The Limits
of Conscientious Refusal in Reproductive Medicine , p.3. Accessed
2008-09-24
16. Charo, R. Alta,
The Celestial
Fire of Conscience- Refusing to Deliver Medical Care. N Eng J Med
352:24, June 16, 2005 Accessed 2008-09-13
17. Lewis, C.S., "Bulverism: The Foundation of
Twentieth Century Thought" (1941). In Hooper, Walter (Ed.) C.S. Lewis- First
and Second Things. Willliam Collins & Sons: Glasgow, 1985, p.16
18. Lewis, C.S., "Bulverism: The Foundation of
Twentieth Century Thought" (1941). In Hooper, Walter (Ed) C.S. Lewis- First
and Second Things. Collins: Glasgow, 1985, p.17
19. For example: "The moral position of an
individual pharmacist, if it differs from the ethics of the profession, cannot
take precedence over that of the profession as a whole." College of Pharmacists
of British Columbia Bulletin, Ethics in Practice: Moral Conflicts in Pharmacy
Practice. March/April 2000, Vol. 25, No. 2, P. 5. For further information
about the bulletin and related issues, see
Project Report 2001-01, College of
Pharmacists of British Columbia: Conduct of the Ethics Advisory Committee, 26
March, 2001.
20. One critic outlines the extent of the
penetration of bioethics principlism, as defined in the American Belmont Report:
"Many colleges and universities already require a course in bioethics in order
to graduate, and most medical and nursing schools have incorporated it in their
curricula. Bioethics is even being taught now in the high schools. And what is
being taught as bioethics are the Belmont principles, or renditions of one or
more of these principles as defined in Belmont terms. Nods may be given to
'alternative' propositions here and there, but in the end it is the language of
principlism which sets the standards." Irving, Dianne N.,
What is "Bioethics"? (Quid est "Bioethics"?). Tenth Annual Conference:
Life and Learning X (in press)University Faculty For Life, Georgetown
University, Washington, V.C. Accessed 2008-09-11
21. American College of Obstetrics and Gynecology,
Committee on Ethics Opinion No. 385,
The Limits
of Conscientious Refusal in Reproductive Medicine , p.3. Accessed
2008-09-24
22. "Medical professionalism includes both the
relationship between a physician and a patient and a social contract between
physicians and society." Canadian Medical Association,
Policy: medical
professionalism.
(Update 2005) p. 1 (Accessed 2008-09-06)
"Professionalism is also the moral understanding among medical practitioners
that gives reality to the social contract between medicine and society. This
contract in return grants the medical profession a monopoly over the use of its
knowledge base, the right to considerable autonomy in practice and the privilege
of self-regulation." Canadian Stakeholders Coalition on Medical Professionalism,
quoted in Canadian Medical Association:
Medical Professionalism (Accessed 2008-09-06)
"Professionalism is the basis of medicine's contract with society." "Medical
Professionalism in the New Millennium: A Physician Charter." Annals of
Internal Medicine, 5 February 2002 | Volume 136 Issue 3 | Pages 243-246 (Accessed 2008-09-06)
"In Canada and the United States the social basis of the extraordinary grant of
occupational authority and independence to professionalized occupations such as
medicine and law has been a social contract between the profession and the
public. Professionalism is the moral understanding among professionals that
gives concrete reality to this social contract." Sullivan, William M.,
Medicine under threat: professionalism and professional identity. CMAJ,
March 7, 2000; 162 (5) (Accessed 2008-09-06) Similarly, Cruess,
Sylvia R. and Cruess, Richard L.,
Professionalism: a contract between
medicine and society. CMAJ 7 March 2000; 162 (5).
Accessed 2008-09-06
23. "We also exchanged, or rather subsumed, social
contract and morality into a single term, moral contract. It
seemed to us that the idea of a moral dimension to medicine was important. It
indicated something right and good in relation to the behaviours and actions of
a doctor. The ultimate expression of those behaviours and actions is perhaps
best summed up in the idea of a contract between the public and the profession -
a moral contract. A social contract, while a correct description of the mutual
agreement that exists between the public and profession, seemed too neutral a
term. We wanted to emphasise an ethical edge to that mutual agreement."
Doctors in Society: Medical Professionalism in a Changing World. Royal
College of Physicians Report of a Working Party (December, 2005), para. 2.15.
Accessed 2008-09-06
24. Latimer, Elizabeth J.,
Accidental
patient. A doctor takes a different view. Can Fam Physician. 2002
August; 48: 1295-1296.
Accessed 2008-09-06. James T.C,
The Patient-Physician Relationship: Covenant
or Contract? Mayo Clin Proc. 1996;71:917-918.
Accessed 2008-09-07
25. Honderich, Ted (Ed.) The Oxford Companion to
Philosophy (2nd Ed.) Oxford: Oxford University Press, 2005. p. 174
26.
Machinists v Street, 367 U.S. 740 (1961) Accessed 2008-09-23.
The case concerned the use of union dues to support political causes opposed by
individual union members. However, it is arguably worse to require a citizen "to
surrender any matters of conscience, belief, or expression" as a condition of
membership in a profession.
27. Laidlaw, Stuart,
"College of physicians
debates doctors' rights to refuse treatments." Toronto Star, 18
September, 2008. Accessed 2008-09-21
28. American College of Obstetrics and Gynecology,
Committee on Ethics Opinion No. 385,
The Limits
of Conscientious Refusal in Reproductive Medicine , p.2-3.
Accessed 2008-09-24
29. Cromwell, Oliver, "Declaration of the Lord
Lieutenant of Ireland." (January, 1649) Carlyle, Thomas, Oliver Cromwell's
Letters and Speeches, with elucidations. Boston: Estes and Lauriat, 1886,
Vol. I, Part 5, p. 18.
30. Cromwell, Oliver, "Declaration of the Lord
Lieutenant of Ireland." (January, 1649) Carlyle, Thomas, Oliver Cromwell's
Letters and Speeches, with elucidations. Boston: Estes and Lauriat, 1886,
Vol. I, Part 5, p. 18.
31.
Trinity Western University v. British Columbia
College of Teachers (2001) 1 SCR 772
32. Lee, Jenny,
"Official slams 'sex selection' blood test: Gender of fetus can be seen five weeks into pregnancy."
Vancouver Sun, 13 August, 2005.
(Accessed 2005-10-10)
33. Ramsay, Sarah,
"Controversy over UK surgeon who amputated
healthy limbs." The Lancet, Volume 355, Number 9202, 05 February
2000. Dr. Smith waived his fee and the patients paid for the surgery. (Accessed 2001-10-04)
34. Gawande, Atul,
When law and ethics collide -
Why physicians participate in executions. N Engl J Med 354;12 23 March,
2006, 1221-1229.
Accessed 2008-09-08
35. American Medical Association
Policy E-2.06: Capital Punishment (June, 1998)
(Accessed 2008-09-06)
36. Gawande, Atul,
When law and ethics collide -
Why physicians participate in executions. N Engl J Med 354;12 23 March,
2006, 1221-1229.
Accessed 2008-09-08
37. Curfman, Gregory D., Morrissey, Stephen, and
Drazen, Jeffrey M.,
Physicians and Execution.
N Engl J Med 358;4 ()
Accessed 2008-09-08
38. American College of Obstetrics and Gynecology,
Committee on Ethics Opinion No. 385,
The
Limits of Conscientious Refusal in Reproductive Medicine. Accessed
2008-09-24
39. Alter, Jonathon, "Time to Think About Torture." Newsweek,
5 November, 2001, p. 45.
40.
Maher's Story.
Accessed 2008-09-08
41. Commission of Inquiry into the Actions of Canadian
Officials in Relation to Maher Arar,
Report of the Events Relating to Maher
Arar: Analysis and Recommendations. (hereinafter, "Arar Inquiry: Analysis
and Recommendations") p. 9.
Accessed 2008-09-08
42.
Arar Inquiry: Analysis and
Recommendations, p. 35-36.
Accessed 2008-09-08
43.
Deputy Prime Minister Issues Terms of
Reference for the Public Inquiry into the Maher Arar Affair.
Accessed 2008-09-08
44. Re: briefing note for RCMP Commissioner
Zaccardelli: "Assistant Commissioner Proulx states [in the note] that the RCMP
can be considered complicit in Mr. El Maati's detention in Syria. However, Mr.
Proulx testified that it was the media and public who would consider the RCMP's
actions to be complicit. He did not personally believe that the RCMP was
complicit, nor was he referring to complicity in the criminal sense." Commission
of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar,
Report of the Events Relating to Maher Arar: Factual Background, Vol. 1,
(hereinafter "Arar Inquiry: Vol. I") p. 64.
Accessed 2008-09-08.
45. "The Ambassador did not consider that seeking the
fruits of the Syrian interrogation made Canada complicit in obtaining
information that might have been the product of torture. He reasoned that he did
not ask the Syrians to continue interrogating Mr. Arar so that Canada could
obtain information. Furthermore, the Ambassador did not have any evidence that
Mr. Arar was being tortured or held incommunicado.
Arar Inquiry: Vol. I,
p. 271.
Accessed 2008-09-08.
46. "Superintendent Killam was aware that Secretary
Powell had given Minister Graham the clear impression that the RCMP was
complicit in Mr. Arar's deportation. However, Superintendent Killam testified
that, even without making further inquiries in response to the media reports, he
was able to exclude the possibility that the allegation of complicity might be
true, because the allegation was inconsistent with the RCMP position."Arar Inquiry: Vol. I, p. 299.
Accessed 2008-09-08.
47. "Mr. Solomon prepared a draft memorandum for the
Minister . . .which dealt with the upcoming CSIS trip to Syria and
stated . . . "there are concerns as to whether a visit to Arar by Canadian
intelligence officials may make Canada appear complicit in his detention and
possible poor treatment by Syrian authorities."
Arar Inquiry: Vol. I, p.
309.
Accessed 2008-09-08.
"Mr. Livermore testified that the original statement about the reliability of
the confession and the possible complicity by Canada if CSIS was to meet with
Mr. Arar was "very much on the speculative side" and "it was anticipating
something that we later ironed out with CSIS, namely that they would not seek
access to Mr. Arar."
Arar Inquiry: Vol. I, p. 310.
Accessed 2008-09-08
48. ". . . the intervenors suggest that the
circumstances under which these individuals ended up in Syrian detention raise
troubling questions about whether Canadian officials were complicit in their
detention. The evidence of what happened to them could possibly show a pattern
of misconduct by Canadian officials." 770 Commission of Inquiry into the Actions
of Canadian Officials in Relation to Maher Arar,
Report of the Events Relating
to Maher Arar: Factual Background, Vol. II, p. 770.
Accessed 2008-09-08
49. "Canadian officials did not participate
or acquiesce in the American decisions to detain Mr. Arar and remove him to Syria.
I have thoroughly reviewed all of the evidence relating to events both before
and during Mr. Arar's detention in New York, and there is no evidence that any
Canadian authorities - the RCMP, CSIS or others - were complicit in those
decisions."
Arar Inquiry: Analysis and
Recommendations, p. 29.
Accessed 2008-09-08
"Although decisions to interact must be made on a case-by-case basis, they
should be made in a way that is politically accountable, and interactions should
be strictly controlled to guard against
Canadian complicity in human rights abuses or a perception that Canada condones
such abuses."
Arar Inquiry: Analysis and
Recommendations, p. 35.
Accessed 2008-09-08
"If it is determined that there is a credible risk that the Canadian
interactions would render Canada complicit in torture or create the perception
that Canada condones the use of torture, then
a decision should be made that no interaction is to take place."
Arar Inquiry: Analysis and
Recommendations, p. 199.
Accessed 2008-09-08
"Even if one were to accept that Canadian officials were somehow complicit in
those arrests, that would not change my conclusion, based on the evidence at the
Inquiry, that Canadian officials
did not participate or acquiesce in the American decision to send Mr. Arar to
Syria from the United States."
Arar Inquiry: Analysis and
Recommendations,
p. 271.
Accessed 2008-09-08
"Information should never be provided to a foreign country where there is a
credible risk that it will cause or contribute to the use of torture. Policies
should include specific directions aimed at eliminating any possible Canadian
complicity in torture, avoiding the risk of other human rights abuses and
ensuring accountability."
Arar Inquiry: Analysis and
Recommendations,p.
345.
Accessed 2008-09-08
"Clearly, the prohibition against torture in the Convention against Torture is
absolute. Canada should not inflict torture, nor should it be complicit in the
infliction of torture by others."
Arar Inquiry: Analysis and
Recommendations,
p. 346.
Accessed 2008-09-08
50. Smith, Graeme,
"From Canadian custody into cruel
hands." Globe and Mail, 23 April, 2007.
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51. Editorial,
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2007.
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52. "We will have to repent in this generation, not
merely for the hateful words and actions of the bad people, but for the
appalling silence of the good people."King, Martin Luther, Letter from Birmingham Jail,
16 April, 1963. Accessed
2005-08-02
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Mahatma, Statement before Mr. C. N. Broomfield, I. C. S., District and
Sessions Judge. Ahmedabad, 18 March, 1922.
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53. Editorial, "How complicit are doctors in the
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55. American Medical Association
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56. American Medical Association Policy E.2.067:
Torture.
Accessed 2008-09-08
57. Canadian Medical Association Policy resolution
BD80-03-99 - Treatment of prisoners. Status: Approved, 1979-Dec-08. Last
Reviewed, 2004-Feb-28: Still relevant.
58. See American College of Obstetrics and Gynecology,
Committee on Ethics Opinion No. 385,
The Limits
of Conscientious Refusal in Reproductive Medicine , p.5, recommendation
4. Accessed 2008-09-24
59. Elahi, Maryam and Kushner, Adam
"Doctors With 'Dirty Hands.'" Physicians for Human Rights Library.
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2003
60. Hartle, Anthony E.,
"Atrocities in war: dirty
hands and noncombatants - International Justice, War Crimes, and Terrorism: The
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61. A practical observation is that ethical
advice "falls squarely into the most contested domain of social and public
policy. Rawlsians and feminists; casuists and communitarians: all have their
divergent visions of what individuals should find life worth living for, or be
willing to live with. And these visions will not always coincide with the wishes
of the patient, much less the consensus of society." Shalit, Ruth,
"When we Were Philosopher Kings." The New Republic, April 28, 1997.
Smith, Wesley J.,
"Is Bioethics Ethical?" The Weekly Standard, 28 May, 2000.
62. Richard G. Frey, "The ethics of the search
for benefits: Animal experimentation in medicine," in Raanan Gillon (ed.),
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63. Bleich, Dr. J. David, "Euthanasia", in Judaism
and Healing: Halakhic Perspectives (1st Ed.), Ktav Publishing House, 1981, p.
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- Five Discussion Papers from the Jewish Perspective on Euthanasia. 13 April,
1994, Lubavitch Centre, Vancouver, B.C. (Ethics and Torah forum series)
American Medical Association Policy E.2.067:
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64. Maritain, Jacques (John J. Fitzgerald,
trans.) The Person and the Common Good. Notre Dame, Indiana: University
of Notre Dame Press, 2002, p. 36, 43, 46
65. King, Martin Luther, Sermon:
The Three Dimensions of a Complete Life. New Covenant Baptist Church,
Chicago, Illinois, 9 April 1967. Accessed 2005-08-02
66. King, Martin Luther, Sermon:
Rediscovering Lost Values. 2nd Baptist Church, Detroit 28 February,
1954. Accessed 2005-08-02
67. Charo, R. Alta,
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Fire of Conscience- Refusing to Deliver Medical Care. N Eng J Med
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68. Lewis, C.S., "Learning in War Time." In The
Weight of Glory and Other Addresses. Grand Rapids, Mich.: William B.
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69. Maritain, Jacques (John J. Fitzgerald, trans.)
The Person and the Common Good. Notre Dame, Indiana: University of Notre
Dame Press, 2002, p. 59; Maritain, Jacques (Doris C. Anson, trans.) The
Rights of Man and Natural Law. New York: Gordian Press, 1971, p. 3, 9
70. Maritain, Jacques (Doris C. Anson, trans.) The
Rights of Man and Natural Law. New York: Gordian Press, 1971, p. 3-4
71. Somerville, Margaret, Death Talk: The Case
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72. Maritain, Jacques (Doris C. Anson, trans.) The
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Rights of Man and Natural Law. New York: Gordian Press, 1971, p. 18
74. Maritain, Jacques (John J. Fitzgerald, trans.)
The Person and the Common Good. Notre Dame, Indiana: University of Notre
Dame Press, 2002, p. 71; Maritain, Jacques (Doris C. Anson, trans.) The
Rights of Man and Natural Law. New York: Gordian Press, 1971, p. 14
75. Maritain, Jacques (John J. Fitzgerald, trans.)
The Person and the Common Good. Notre Dame, Indiana: University of Notre
Dame Press, 2002, p. 73; Maritain, Jacques (Doris C. Anson, trans.) The
Rights of Man and Natural Law. New York: Gordian Press, 1971, p. 15-17, 76
76. Maritain, Jacques (Doris C. Anson, trans.) The
Rights of Man and Natural Law. New York: Gordian Press, 1971, p. 11
77. Maritain, Jacques (John J. Fitzgerald, trans.)
The Person and the Common Good. Notre Dame, Indiana: University of Notre
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78. Maritain, Jacques (Doris C. Anson, trans.) The
Rights of Man and Natural Law. New York: Gordian Press, 1971, p. 65
79. Maritain, Jacques (Doris C. Anson, trans.) The
Rights of Man and Natural Law. New York: Gordian Press, 1971, p. 45
80. Joad, C.E.M., Guide to the Philosophy of Morals
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R.
v. Morgentaler (1988)1 S.C.R 30 at p. 178. Accessed 2008-09-10
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82. Lewis, C.S., "The Humanitarian Theory of
Punishment." In Hooper, Walter (Ed.) C.S. Lewis: First and Second Things.
Glasgow: William Collins & Sons, 1985, p. 101
83. King, Martin Luther,
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84. Wojtyla, Karol, Love and Responsibility. San
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96. As enumerated: "(1) educate the public and health
care providers on the obligations imposed, and protections afforded, by federal
law; (2) work with State and local governments and other recipients of funds
from the Department to ensure compliance with the nondiscrimination requirements
embodied in the Church Amendments, PHS Act ยง 245, and the Weldon Amendment; (3)
when such compliance efforts prove unsuccessful, enforce these nondiscrimination
laws through the various Department mechanisms, to ensure that Department funds
do not support morally coercive or discriminatory practices or policies in
violation of federal law; and (4) otherwise take an active role in promoting
open communication within the healthcare industry, and between providers and
patients, fostering a more inclusive, tolerant environment in the health care
industry than may currently exist." Department of Health and Human Services, 45
CFR Part 88, RIN 0991-AB48,
Ensuring
that Department of Health and Human Services Funds Do Not Support Coercive or
Discriminatory Policies or Practices In Violation of Federal Law. Agency: Office
of the Secretary. Action: Proposed Rule, p. 10-11. Accessed
2008-09-24
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