Impact case study database

The seminal US Supreme Court case of “Burwell v. Hobby Lobby” (2014) concerned the extent of protection for freedom of conscience among certain kinds of corporation that were required by the Affordable Health Care Act (“Obamacare”) to provide insurance cover for the purchase of contraceptives that were potential abortifacients for use by employees. The plaintiffs sought protection from state coercion in respect of their religious and ethical beliefs, arguing amongst other things that they were being required to co-operate with what they conscientiously believed to be wrong. In its majority judgment for the plaintiffs, the Court cited Oderberg’s 2004 article on the ethics of co-operation (E1), which set out general principles for assessing the ethics of cases involving forced co-operation. It is clear from the official summary of the case that Oderberg’s article influenced the judgment reached by the Court (E1).

It is unusual for a court – let alone the US Supreme Court – to cite a technical philosophical research article. The footnote in which Oderberg’s work was cited was described by an eminent legal scholar, Jeffrey Rosen in a book on the case, as “one of the most philosophically sophisticated footnotes I’ve seen in a Supreme Court decision recently” (E1). For the article to play a role in helping the Court reach its decision is, possibly, unique.

The US Supreme Court’s recognition of Oderberg’s research, and the messages from lawyers that followed, inspired Oderberg to develop his work on conscience and co-operation, with special reference to medicine. The first major output was Oderberg’s JME article (2017), which he complemented with a British Medical Journal blog post that was reposted by the Kenendy Institute of Ethics, one of the world’s leading ethics research centres.

A justice of the US Supreme Court read the JME article with great interest, asking several detailed questions about the theory of conscience and co-operation defended in the piece. Oderberg was able to give equally detailed responses. The judge said: “Your article has given me much to think about, and I am sure that it will be helpful if similar issues come before my court in the future”. It was evident that both the JME article and follow-up correspondence had an impact on the judge’s thinking, as had Oderberg’s original article cited in the “Hobby Lobby” case (E2).

Oderberg was invited by a leading UK think tank – the Institute for Economic Affairs (IEA) – to write a 30,000 word policy monograph on the topic, which was published in 2018 (output 4). In the monograph, Oderberg set out in detail sensible policy recommendations backed by legal and ethical analysis, in order to convince policymakers at the IEA of the importance of medical conscience (E3).

Having developed the policy recommendations, Oderberg streamlined them into a package to attract the interest of medical professionals and the wider public. This led to publication in early 2018 of his Declaration in Support of Consciencious Objection in Health Care (E4), a direct reply to the “Consensus Statement” opposing medical conscience published by fifteen academics in 2016. Oderberg’s purpose was twofold: (i) to give a voice to the many medical professionals and other concerned people who wanted publicly to show solidarity in support of medical conscience; (ii) to leverage the Declaration in his promotion of the issue with judges, politicians, and policy makers (see below concerning Canada).

The Declaration has attracted over 500 signatures from medical professionals in many fields, including surgeons, consultants, general practitioners, nurses and midwives, as well as concerned lay members of the public across the world. Signatories include one of the midwives in the famous Doogan case (UK Supreme Court 2014) in which two midwives lost their jobs, and their subsequent court case, for refusing on conscience grounds to manage an abortion ward in a Scottish hospital.

Since 2015 Oderberg had been following the fate of the Conscientious Objection (Medical Activities) Bill , introduced into the House of Lords as a private member’s bill. He identified an opportunity for his research to influence the content and direction of the proposed legislation, so he approached the sponsors to offer consultation on the process. Oderberg collaborated in several ways: composing a short speech for one of the peers; writing several memoranda for the nine peers supporting the Bill; advising on revisions to the draft; responding to objections from the Bill’s critics, including amendments tabled by its leading opponent (E5). Oderberg publicly explained many of the key points in a blog post for the Journal of Medical Ethics. The peers sponsoring the Bill were delighted with Oderberg’s expert assistance, using his points in the debate and persuaded by his suggestions for improvement to the language of the Bill (E5).

In 2018, Oderberg was invited to join the Advisory Board of the Protection of Conscience Project (PCP) in Canada – the leading policy and advisory body in Canada promoting conscience in health care. The director told him his “expertise, energy and dedication would be exceptionally valuable” (E8). Oderberg now advises the director regularly, across a range of projects. He helped the director to improve the “complainant worksheet” used by health care workers denied conscience protection, and persuaded the director to formulate an explicit policy on the role of co-operation in conscience cases. Oderberg also advised PCP in the revision of submissions to the Canadian Medical Association and World Medical Association on freedom of conscience, including emphasis on co-operation. He has also brought about significant improvements to the Model Statute on the freedom of conscience in health care – a seminal resource used by Canadian legislators to draft new legislation (E6).

Oderberg has been involved, both as adviser to PCP and as an independent consultant, on draft medical conscience legislation planned for the legislatures of Alberta and Ontario. He has worked closely on both draft bills, advising their promoters on how best to formulate the provisions. For example, text from the preamble to Oderberg’s Declaration (output 5) was included in the preamble to the Alberta bill, and other suggestions incorporated into the main text of the bill. The PCP’s Model Statue, on which Oderberg was a lead adviser, informed drafting of the Ontario bill. In particular, Oderberg’s research defending the importance of co-operation informed both bills.

Oderberg’s research has also influenced legislation in Europe. In 2018 he was commissioned by Nikolaus Copernicus University, Poland, to write two comprehensive reports on the legal status of freedom of medical conscience in Scandinavia and in the UK. The Polish social policy project was initiated by the Ministry of Justice, and the reports were published in 2019. Their stated purpose is to “educate Polish and foreign lawmakers, as well as public opinion about possible [legal] reforms” (E7). The MP promoting the Alberta legislation also used them to provide him with much needed information on other jurisdictions; Oderberg supplied his reports to the MP via his legislative consultant (E8).

Oderberg’s work promoting medical conscience extends to articles and interviews for mainstream media and has stimulated reaction from various sources. Oderberg publicised his Declaration with an article for The Conversation (4707 reads) which was reprinted in the popular ethics blog Mercatornet (for which Oderberg was also interviewed) and the news blog News Weekly. This led on to a piece in The Guardian (circulation 109,533). The Declaration was covered by articles in The National Review, America, First Things, and the leading bioethics blog Bioedge. Oderberg publicised his IEA monograph with an article for the new blog Freer UK, and both the Declaration and monograph with an article for The Daily Globe and an interview with cnsnews.com. He also gave an invited video lecture on Opting Out and conscience in medicine to lawyers and interested non-specialists at the Caroline Chisholm Library seminar in Melbourne, and a more specialist talk to nurses at the Royal College of Nursing.

Oderberg’s objective from the outset has been to promote and influence debate on conscience in medicine at an international level, focusing on those jurisdictions where he could have most effect. He has aimed his work at health care professionals, politicians, lawyers, judges and policy makers, and has supplemented this with material aimed at a wider audience in order to generate popular interest. Overall, his research in a sensitive and challenging aspect of health care – one that will only increase in prominence and urgency with the development of medical technology – has had a deep effect on supporting the idea of freedom of conscience in medicine. In particular, he has been a leading influencer of developments in law and policy in the UK, USA, and Canada.