The Harmony Between Professional Conscience Rights and Patients’ Right of Access

32 Pages Posted: 4 Feb 2012 Last revised: 5 Mar 2012

See all articles by Matthew S. Bowman

Matthew S. Bowman

Alliance Defending Freedom

Christopher P. Schandevel

affiliation not provided to SSRN

Date Written: February 2, 2012

Abstract

“Access” is the new catchphrase for expanding privacy rights. This shift moves from seeking merely legalization, to demanding government assistance and the participation of private citizens. The trend can be seen across a spectrum of activities such as abortion, contraception, doctor-prescribed suicide, and reproductive technologies. Shifting from legalization to access, however, has precipitated a variety of disputes over the “right of conscience” of health professionals who don’t want to assist activities so defined under the right to privacy. Yet amidst this debate, advocates for and against the right of conscience tend to adopt some of the same, often unspoken, assumptions. Both sides tend to frame the debate as a conflict between the rights of the doctor — protecting her conscience — versus the right of the patient, to secure her access.

Upon closer examination, the assumption of conflict proves to be neither accurate nor internally consistent, but a false premise of the access position itself. This article will begin by examining the chief access arguments being used against conscience protections today: that the health professionals hold a monopoly so they are bound to offer abortion, that health professionals must defer their pro-life consciences to abortion’s legal status, and that health professionals must not impose their pro-life views. The article will conclude that, if access principles really flowed from a neutral concern for patient choices, they would require rather than strike down conscience protections. In many cases patients desire in their physicians the traditional Hippocratic values that unequivocally support human life and therefore oppose participating in activities such as abortion. The right of patients to access such physicians can only exist by guaranteeing the right of physicians to practice according to those values.

Keywords: conscience, law, abortion, health, doctor, rights, privacy, federal, access

Suggested Citation

Bowman, Matthew S. and Schandevel, Christopher P., The Harmony Between Professional Conscience Rights and Patients’ Right of Access (February 2, 2012). Available at SSRN: https://ssrn.com/abstract=1998363 or http://dx.doi.org/10.2139/ssrn.1998363

Matthew S. Bowman (Contact Author)

Alliance Defending Freedom ( email )

400 First Street NW
Suite 600
Washington, DC 20001
United States

HOME PAGE: http://www.alliancedefendingfreedom.org

Christopher P. Schandevel

affiliation not provided to SSRN ( email )

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