Abstracts
(In alphabetical order)
Christopher Cowley, School of Philosophy, University College Dublin
Universal and selective conscientious objection
In the context of abortion provision in the UK, a doctor has a right to conscientious objection (CO) according to Section 4 of the Abortion Act 1967. In the context of Ireland, the right is governed by Section 22 of the Health (Regulation of Termination of Pregnancy) Act 2018. In the British case, the CO is normally assumed to be universal: the doctor objects to authorising, participating in or performing any abortion. Perhaps it is too early to tell, but it would seem the Irish Act is supposed to be interpreted in the same way.
However, what if a British or Irish doctor wants to object to some abortion requests but not others? Does that happen? If so, should it? And if it should, on what criteria? I call this the question of "selective CO".
I will examine the wording of the British and the Irish Acts to compare the conceptual possibility of selective CO. I will not enter the debate about abortion itself, and I will not enter the debate about the permissibility of universal CO.
Mary Donnelly, School of Law, University College Cork.
Most debate on conscience in healthcare provision -and not just in Ireland - concerns refusal to provide certain legally endorsed health services - most typically abortion (and in an end-of-life context euthanasia/assisted dying where this is lawful). These fit into what Stephen Smith describes as 'rule based' conscience issues (2015). The clinician operates on the basis of a neatly definable and generalizable rule - generally she is opposed to providing the care in question in all circumstances and there is no scope/need for exceptions. In contrast, in most end-of-life situations, conscience concerns are individualised (again borrowing from Smith). Issues of conscience will be specific to the circumstances arising; a clinician does not object to removing life sustaining treatment/providing treatments in all circumstances but only in the specific circumstances at stake.
Perhaps for this reason, the issue of conscience in end-of-life care has not been at the forefront of contemporary debate. For this reason, there is a good deal of uncertainty around both conceptualisation and negotiation of conscience issues (taking this term in its broadest sense) in this space. This paper asserts that for various reasons (though probably most significantly the impact of the Assisted Decision-Making (Capacity) Act 2015 when this comes into force) this space is likely to become more contested and challenging and that questions of conscience are likely to become more significant. Thus, understanding what is happening at present and thinking about how best this should be negotiated in the new legal context is important. This paper attempts to explore what happens in this space at present (although in this regard it is hampered by a lack of available data). It then identifies and provides a preliminary evaluation of several possible ways to address (what it proposes as) the changing context. These include more extensive recourse to the courts; and/or the development of clinical ethics committees and/or bioethics mediation. It will be argued that regardless of which option proves more appropriate, it is importance to provide a space within which conscience claims can be interrogated.Heike Felzmann, School of Philosophy, NUI Galway.
Ensuring access to abortion -- conscientious objection as public health obstacle?
One of the main reasons that the provision of a Conscientious Objection (CO) option to professionals has come under attack is the potential impact of CO on the provision of services. This is especially relevant with regard to the apparent widespread impact of CO on women's access to abortion services across the world. In this paper I will explore various solutions that have been proposed to address the challenges regarding the demand side for abortion services arising from CO and will highlight the values underpinning those proposals. However, even those positions that acknowledge the importance of ensuring access to services that are potentially subject to CO focus on the professional perspective and, outside of explicitly feminist contributions, rarely engage with the perspective of those seeking these services. I will argue that the privileging of the professional perspective and the resulting invisibility of the perspective of those looking for abortion services is a serious ethical shortcoming.
Katherine Furman, Department of Philosophy, University College Cork.
Value Transparency, Public Trust and Conscientious Objection
The 'value turn' in Philosophy of Science has made clear that the production and communication of the sciences is thoroughly value-laden. What is more, given that scientists are human agents, there is a sense that the values are unavoidable. There are concerns that when these value judgments are too opaque and/or suspicious, this can lead to public disillusionment with scientific practice. As such, there have been calls from philosophers for values to be made as transparent as possible, and for there to more points for public participation in value judgments.
Medical doctors, like scientists, are human agents who go into their work with values. Like in science, the values are unavoidable. And members of the public can become disillusioned with medical practice if the values are too opaque and/or suspicious. A good thing about consciousness objection is that it makes the values transparent, and this is preferential to values being surreptitiously brought into the process. However, conscientious objection still runs the risk of public disillusionment if it frustrates members of the publics' own value aims. I argue that that this is particularly true in Irish abortion case, where the 2018 referendum offered a very clear statement of public value on this matter.
Linda Hogan, School of Religion, Trinity College Dublin.
Conscientious Objection and the Ethical Responsibilities of the Doctor: Theological Perspectives
Conscientious objection in Irish healthcare has a particular character, in large part because of the formative impact and continuing influence of religion, specifically Catholicism. With the implementation of the 2018 Regulation of Termination of Pregnancy Act the question of the extent to which conscientious objection to abortion should be accommodated within the health services arises, both in relation to the individual doctor and in the context of institutions with a Catholic ethos. Within theological ethics there is a diversity of views on where and how the limits of accommodating religious or moral beliefs should be drawn, as well as significant differences among theologians regarding the ethical assessment of abortion itself. This paper discusses the primacy of conscience in theological ethics and considers how the issue of complicity in the perceived wrongdoing of another should be addressed, both at the individual and institutional levels.
Barry Lyons, School of Medicine, Trinity College Dublin
Silent morality and end-of-life decision-making
Conscientious Objection (CO) can be read as a form of articulated moral intransigence whereby the objector steadfastly refuses to perform, or participate in, certain acts that are deemed morally unacceptable, and such refusal is declared.
The harm attached to unrestricted CO relates to the prioritisation of physician personal morality over patient needs, desires or interests. However, CO is not the only instance in which this may occur, and thus this paper focuses on unarticulated (at least as far as the patient or public is concerned) moral perspectives that may impact upon the welfare of the patient.
In his account of "how law and ethics transformed medical decision making" Rothman claimed that "...the discretion that the profession once enjoyed has been increasingly circumscribed, with an almost bewildering number of parties and procedures participating in medical decision making". However, at least in the context of European medical practice, such a shift has not taken place, and significant discretionary power in respect of options communicated and actions undertaken remain with clinicians. This paper seeks to explore physician moral variability, and its potential significance, on end-of-life decision making in the Intensive Care Unit.
Joan McCarthy, School of Nursing and Midwifery, University College Cork.
Feminist Perspectives on the Scope of Conscientious Objection and Abortion Services
This paper poses the following question: What do feminist perspectives, grounded in the project of eliminating gender oppression in all its forms, add to standard bioethical perspectives on conscientious objection (CO) in relation to abortion? To address the question, I outline two feminist perspectives on the scope of CO: (1) a modernist view which requires that COs meet certain empirical, normative, and non-discriminatory standards; (2) a relational view which encourages healthcare professionals to scrutinize the demands of conscience in light of its embeddedness in social relations of oppression and privilege. I consider some of the implications of these perspectives for clinical practice, education, and research in Ireland.
Cliona McGovern, School of Medicine, University College Dublin.
Conscientious objection to end-of-life decision making: Does freedom of choice and patient autonomy have a limit?
A respect for patient autonomy is probably one of the most talked about principles in medical ethics and medical professionalism. A competent decision by an adult patient is also a cornerstone of medical law. To paraphrase Lord Donaldson (from 1992 in the Re: T case), "An adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment. This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent." Given that this tenet is generally accepted, is there then any limit to patient autonomy? Is it limited when the exercise of that autonomy causes harm to someone else or may harm the patient? I argue that when it comes to end of life actions in the medical environment, only the former the applies and, in general, not the later. I will discuss some case law from countries in the EU that deal with this matter.
Sheilagh McGuinness, School of Law, University of Bristol.
Abortion, conscience, and jurisdiction.
Conscientious objection to activities that are required by law has achieved a particular place in contemporary law and culture. Lawyers, political theorists, ethicists, and others have debated how we best negotiate the tensions that can exist between professional obligations and private beliefs. They have devised models that aim to accommodate difference and yet keep it bounded. Conscientious objection to provision of abortion care has been a particular focus of these discussions. In this article we draw on theoretical work on 'jurisdiction' to provide an account of what is embedded in claims to conscience and what the effects of such claims are. We focus specifically on refusals of abortion care although our concerns extend to the wider landscape and impact of claims. We argue that legitimating narratives on conscience and abortion seek to secure two seemingly contradictory positions. Thus these narratives seek to ground the morally ambivalent place of abortion in the medical imaginary whilst, at the same time, enabling a defence of abortion provision as an area of (largely) unfettered medical practice. We seek to dramatically reorient thinking by grounding the clause squarely in the politics of 'task areas', professional domains, market control, and claims of epistemological authority.
Andrea Mulligan, School of Law, Trinity College Dublin.
Constitutional Protection for Conscientious Objection in Ireland
The Irish Constitution was amended in May 2018 to remove constitutional protection for the right to life of the unborn, and allow for the lawful of termination of pregnancy. The Health (Regulation of Termination of Pregnancy) Act 2018 establishes, for the first time, a comprehensive regime for lawful abortion in Ireland, including a statutory right to conscientious objection. The purpose of this paper is to interrogate the extent of the constitutional protection for conscientious objection in abortion services, and to investigate the relationship between the statutory right and the underlying constitutional guarantee. The paper will consider in particular whether the right to conscientious objection can be invoked for non-religious reasons, as well as the important constitutional question as to whether the enabling provision that entitles the Legislature to regulate abortion (the new Article 40.3.3) also affords special deference to legislative decisions on the right to conscientious objection. The case of Doogan v Greater Glasgow and Clyde Health Board [2014] UKSC 68 will be used as a point of comparison throughout the paper, which will explore how a Doogan-type fact pattern might be explored in the Irish constitutional environment.Noirin Russell, Consultant in Obstetrics and Gynaecology, Cork University Maternity Hospital, and a Clinical Senior Lecturer, University College Cork.
Conscientious Provision of Abortion Care
Desmond Ryan, School of Law, Trinity College Dublin.
Conscientious Objection in Employment Law: Irish and International PerspectivesThis paper seeks to identify the legal framework concerning conscientious objection of employees under Irish law, considering how the various legal sources overlap and intersect.
It further seeks to consider broader international perspectives of direct relevance in Irish law, having regard to EU law and the European Convention on Human Rights, as well as drawing on comparative perspectives from the United Kingdom and Canada.
The legal relationship between conscientious objection and anti-discrimination law is considered, and reflections are offered on key recurring themes in case law and in academic accounts of the law on conscientious objection.