Abstract This article explores how the contributions of the ethics of liberation can reconfigure business ethics, offering a pathway for managing change towards a more inclusive and transformative model. Traditionally aligned with the principles of capitalism and economic rationality, business ethics has often justified and legitimized corporate practices within the prevailing economic system, perpetuating inequalities and limiting transformative alternatives. Drawing on authors such as Dussel and Marcuse, this paper critiques this logic and advocates for an ethical framework that transcends mere monetary calculation and superficial corporate social responsibility. It proposes redefinition of the fundamental pillars of business ethics by incorporating perspectives that prioritize social justice and sustainability. From this perspective, the ethics of liberation provides critical tools for rethinking business practices, promoting a structural change that values life, equity, and the feasibility of a more just and solidaristic world.
Jan Dvorsky, Katarina Frajtova-Michalikova, Katarina Zvarikova
The paper aims to find disparities in the perception of sustainability-related criteria’s impact on the sustainability of the SMEs in the countries of the V4 based on gender. The case study was conducted on 1398 responses from owners or top managers in Visegrad Group countries (V4). The questionnaire contained 52 questions. Data collection was conducted by an external agency using the CAWI methodology. The statistical hypotheses were verified by applying structural equation modelling (SEM method). The empirical findings are important for many authors and researchers. The environmental aspect of entrepreneurship is the most important factor, having a strong positive impact on the sustainability of SMEs. This includes active involvement in environmental protection, environmental responsibility as a part of SME governance, and the perception of owners regarding the environment in firm management. Gender disparities are important in evaluating financial management, the level of digitalisation in a firm, human resource management, and business ethics, and their effect on the sustainability of SMEs.
Political institutions and public administration (General)
As a rule to shape culture executives would use traditional principles of management typical of companies of the 20th century, they build relations with a high distance of authority and leave no space for creativity, flexibility and independence of personnel. This type of culture is alien to employees, it does not meet today’s requirements and at the same time it hinders the development of the executive himself/herself. Present day challenges need both new technologies and innovation and transformation of corporate culture into flexible adaptive system, which proves management with an opportunity to interact with the team in a more effective way. The article researches characteristics of bureaucratic culture typical of today’s state and municipal enterprises. In the structure of corporate culture the author shows the role of artifacts, declared values basic ideas, business ethics and standardization level. Missions and values of state-owned companies were assessed and advantages and drawbacks of their corporate culture were shown. As a result of the research the author put forward a model of corporate culture elements appropriate for the present day state-owned company. This article will be useful for executives of state and municipal organizations, as well as specialists dealing with the development of corporate culture in the state sector.
Photo by Christian Wiediger on Unsplash
INTRODUCTION
Huge amounts of public data on the internet and the ease with which we regularly search it have resulted in the phenomenon called Patient-Targeted Googling (PTG). PTG occurs when a clinician conducts an online search for information about a patient through any search engine, internet database, or social media site. The practice has provoked ethical discussion and the creation of practical guidelines to ensure clinicians use PTG ethically. One common theme in PTG literature is privacy and confidentiality. However, given that the relevant information is publicly accessible, privacy and confidentiality may not be applicable or accurate. In health and medicine, correctly applying the concepts of privacy and confidentially is important because these terms have rigid legal definitions that are often confusing and misunderstood. By refraining from legitimizing claims that patients’ publicly accessible data is “private” information, we can avoid the risks of inappropriately applying privacy and confidentiality concepts and further muddying the waters.
l. Privacy and Confidentiality in PTG Literature
The literature on PTG consistently raises patient privacy and confidentiality concerns. For example, the article “Patient-targeted googling: The ethics of searching online for patient information” mentions the concept of privacy over a dozen times in its ethical and practical framework, designed for psychiatrists to use prior to engaging in a patient-targeted search.[1] A later work begins with a statement that “[m]any physicians would agree that seeking information about their patients via Google seems to be an invasion of privacy . . .” [2] Informal guidelines continue to address privacy and confidentiality when analyzing PTG and frame consent as necessary to respect patient privacy.[3]
Research articles reporting investigations of PTG also categorize privacy violations as a risk to privacy and dignity.[4] The AMA does not have a PTG ethics policy, but an article on the AMA website about PTG by a staff writer stated that “physicians have a fundamental ethical responsibility to respect patient privacy.”[5] Ethical and practical discussions of PTG often involve concerns for privacy and confidentiality. However, the information found in PTG searches is not private or confidential.
ll. The Information at Issue is Not Actually Private or Confidential
The information at issue in PTG is not hidden or secured from public view and is available to anyone conducting an internet search. Thus, it cannot be said to be private or confidential. Yet, privacy and confidentiality routinely come up in analyses of PTG. Perhaps this is because the information feels private. The thought of clinicians digging through the internet to find information about the patient feels like an invasion. They are trying to access information that the patient did not share with them in an unexpected way. People commonly associate privacy and confidentiality concepts with personal data access issues, so it is not surprising that privacy and confidentiality find their way into discussions on PTG.
While much of the literature focuses on privacy, some of the literature does acknowledge that this information is not really private or confidential. One article describes the patient experience as possibly a “perceived privacy” that stems from an assumption that clinicians will not conduct online searches for information about them just like they may assume “their psychiatrists would not eavesdrop on their conversations in restaurant.”[6] Another acknowledges that there is a difference between legal definitions of privacy and confidentiality and “the layperson’s notion.”[7] So, though looking up a patient’s Facebook profile does not legally violate the patient’s privacy, the patient may still consider it “private” in a layperson’s sense.
It is important for clinicians to be sensitive to actions that may feel violating to a patient. Clinicians should be aware that patients may consider PTG a breach of privacy. But literature geared towards ethics in clinical practice ought not confuse lay and legal definitions because doing so risks legitimizing an incorrect position. It is also not necessary to use privacy and confidentiality concepts to justify concerns and practice guidelines concerning PTG.
lll. PTG as a Potential Violation of the Clinician-Patient Relationship
A better way to frame PTG is as a potential violation of the trust and respect inherent in the clinician-patient relationship. Patients understand and respect the traditional ways clinicians gather information about them. Clinicians simply ask their patients directly for most types of information, especially personal information. When done with sensitivity and patient understanding that the information is relevant to the interaction, collecting personal information does not feel inappropriately invasive (even if the process may be uncomfortable). This is partially because the questioning occurs within the confines of the clinician-patient relationship.
Some information a clinician may discover in an online search can also be gathered by “legitimate” means (like by asking the patient). Yet, accessing this information via PTG can still violate the clinician-patient relationship. This shows that it is not the nature of the information that makes the clinician’s access feel like an invasion, but the method they use to gather it. If the information clinicians seek is clinically relevant, patients expect that the clinician will ask for it. During that conversation, patients can ask why and how the information is relevant to their health care. It is the act of gathering this information outside the accepted boundary of the clinician-patient relationship that makes PTG potentially violating.
The use of PTG to gather information that is not clinically relevant is also problematic. Without resorting to privacy claims, the ethical analysis should identify the nature of the problem more accurately. Patients accept that clinicians ask them personal questions to serve their best interests. Once clinicians step outside that boundary by asking patients for clinically irrelevant information out of some voyeuristic or inappropriate interest, they break the trust and respect inherent in the relationship. A clinician that purposefully seeks out clinically irrelevant information is doing something problematic because the exercise does not connect to the clinician’s professional duties and patient interests. When clinicians ask for clinically irrelevant information during a patient visit, the patient has the opportunity to evaluate the questioning and respond accordingly (perhaps responding to an inquiry that seems purely conversational or designed to relieve stress or not answering an invasive, irrelevant question). With PTG, patients cannot evaluate and respond to the clinician or the inquiry, as they are unlikely to know it is occurring. Patients are not necessarily concerned that their doctor knows where they went to brunch last Sunday. Patients are concerned that clinicians are purposefully seeking out information neither connected to their health nor covered by the clinician-patient relationship and are likely doing so to satisfy their own interests. If the purpose of PTG does not serve the patient’s interests, clinicians should not conduct the search.[8] Even if it does serve the patient’s interest, PTG may not be ethical.
The ethical significance does not hinge on whether the information is clinically relevant or not. What makes PTG potentially unethical is how it circumvents the methods of information gathering patients accept as appropriate in the clinician-patient relationship. Whether the information is or is not clinically relevant or in the patient’s best interests, the mode of collection is ethically problematic, nor addresses privacy.
lV. Accurately Applying Concepts of Privacy and Confidentiality is Important
Privacy and confidentiality are not accurate concepts to apply to PTG. This point about privacy and confidentiality is worth making, even if it does not change the way PTG should be approached in clinical practice. The concepts and legal definitions of privacy and confidentiality are extremely important in health and medicine. Thus, it is crucial that privacy not be misconstrued to protect publicly available information.
One of the most important (and often misunderstood) examples is the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule. This Rule protects only certain statutorily defined “individually identifiable health information” and “covered entities.”[9] Violation of the Privacy Rule is grounds for statutory penalties.[10] While there is room to criticize how well the Privacy Rule protects patients today, covered entities must follow it. The Privacy Rule remains an important component in protecting both patients and healthcare entities. Despite this, misunderstandings about HIPAA abound, even among clinicians.[11] It has even been reported that some inaccurately claim that PTG violates HIPAA .[12]
Other statutes also protect health data in a variety of ways. For example, the FTC Act creates an obligation to maintain appropriate security of health data and requires entities to keep promises they make about privacy.[13] The Health Breach Notification Rule contains notice requirements for data breaches involving certain health information.[14]
Additionally, the doctor-patient privilege protects confidential information from disclosure, and the exact confines of the privilege depend on the applicable statutes.[15] As these examples demonstrate, there are many different legal requirements that concern privacy and confidentiality in the health sphere. These varying legal definitions and requirements create grounds for sincere confusion, even without adding non-legal definitions or perceptions into the equation.
Apart from the rigid context of existing statutes and laws, discussions surrounding the ethics of data, privacy, and security are occurring, and privacy laws are undergoing a period of rapid change. While patients and health entities can be reasonably sure what protections apply to medical records created by providers, there is significant uncertainty about the increasing amounts of health-related information generated and shared in our digital world by various entities. While it is clear that information located through a Google search is public, the actual (and ideal) legal and moral status of much of this new information is less certain.
For example, a multitude of health-related apps are available to consumers, many of which collect information that would be a part of a medical record if collected by a clinician. Numerous wearable devices collect data on consumers’ heart rates, exercise patterns and sleep patterns. In-home smart devices can track when users are active and what they are doing in their homes. It is often difficult for consumers to understand whether data collected about them is private and confidential, whether it is shared with or sold to third parties, and whether any legal protections apply. People may waive their right to privacy without fully understanding what companies may do with the data. An important part of our social discourse on health, data security, and privacy involves how we treat or ought to treat that data and what protections we should afford to patients as consumers.
It can be difficult to determine which health data is truly private or confidential. In our collective effort to decide how to categorize and use data, it is important not to muddy the waters unnecessarily by applying concepts of privacy and confidentiality to data that definitely does not meet those criteria and simply is not private. This is especially true in the healthcare context when there is already confusion on what is private and confidential. Getting it wrong can result in legal consequences and significant patient harm.
CONCLUSION
Literature on PTG often references or applies the concepts of privacy and confidentiality. However, the information found through PTG is publicly accessible. While patients may perceive PTG as a breach of privacy, patient perception is not a reason for the literature to claim that publicly accessible information is also private. Instead, PTG is better conceptualized as a potential breach of the trust and respect inherent in the clinician-patient relationship. Privacy and confidentiality are incredibly important in health and medicine and often have strict legal definitions. Data security and privacy issues are becoming increasingly important as we undergo a digital health revolution. We should be careful to avoid confusing these conversations by applying concepts of privacy and confidentiality to public information.
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[1] Clinton, Brian K., et al. “Patient-Targeted Googling: The Ethics of Searching Online for Patient Information.” Harvard Review of Psychiatry, vol. 18, no. 2, 2010, pp. 103–112., https://doi.org/10.3109/10673221003683861.
[2] Baker, Maria J., et al. “Navigating the Google Blind Spot: An Emerging Need for Professional Guidelines to Address Patient-Targeted Googling.” Journal of General Internal Medicine, vol. 30, no. 1, 17 Sept. 2014, pp. 6–7., https://doi.org/10.1007/s11606-014-3030-7.
[3] Geppert, Cynthia. “To Google or Not to Google? Is ‘Patient-Targeted’ Googling Ethical?” Psychiatric Times, vol. 34, no. 1, Jan. 2017, pp. 1–4, https://www.psychiatrictimes.com/view/google-or-not-google-patient-targeted-googling-ethical.
[4] Chester, Aaron N., et al. “Patient-Targeted Googling and Social Media: A Cross-Sectional Study of Senior Medical Students.” BMC Medical Ethics, vol. 18, no. 1, 2017, https://doi.org/10.1186/s12910-017-0230-9.
[5] “Should Physicians Google Patients?” American Medical Association, 9 Mar. 2015, https://www.ama-assn.org/delivering-care/patient-support-advocacy/should-physicians-google-patients#:~:text=Although%20AMA%20has%20no%20ethics,responsibility%20to%20respect%20patient%20privacy.
[6] Clinton, “Patient-targeted googling: The ethics of searching online for patient information.”
[7] Lehavot, Keren, et al. “Ethical Considerations and Social Media: A Case of Suicidal Postings on Facebook.” Journal of Dual Diagnosis, vol. 8, no. 4, 2012, pp. 341–346., https://doi.org/10.1080/15504263.2012.718928.
[8] Clinton, B.K., “Patient-targeted googling: The ethics of searching online for patient information.” This paper provides an excellent framework for those interested in a deeper analysis of potential uses of PTG.
[9] 45 C.F.R. § 160.103.
[10] “Summary of the HIPAA Privacy Rule.” HHS.gov, Office for Civil Rights, U.S. Department of Health & Human Services, 26 July 2013, https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html#:~:text=The%20Privacy%20Rule%20protects%20all,health%20information%20(PHI).%22.
[11] Lo, Bernard, et al. “HIPAA and Patient Care: the Role for Professional Judgment.” JAMA, vol. 293, no. 14, 13 Apr. 2005, pp. 1766–1771., https://doi.org/10.1001/jama.293.14.1766.
[12] Geppert, “To Google or Not to Google? Is ‘Patient-Targeted’ Googling Ethical?”
[13] “Health Privacy.” Federal Trade Commission, https://www.ftc.gov/business-guidance/privacy-security/health-privacy.
[14] “Complying with FTC's Health Breach Notification Rule.” Federal Trade Commission, Jan. 2022, https://www.ftc.gov/business-guidance/resources/complying-ftcs-health-breach-notification-rule-0.
[15] “Doctor-Patient Privilege.” Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/wex/doctor-patient_privilege.
The aim of this study was to investigate the relationship between enterprise risk management (ERM) and company ethics, so as to understand the central role of risk management in improving company ethics. A 5-point Likert scale questionnaire was used to survey all 122 employees of an insurance organization. The level of ethics was measured by posing questions on the integrity, trustworthiness, and level of respect for top management, middle management, and non-management. The overall Cronbach’s alpha for the instrument measuring the level of ethics was 0.865, indicating that the instrument was highly reliable.The relationship between ERM controls and the level of ethics was determined using regression analysis, which produced a F value of 0.268 (p-value 0.607), which implied that there is no relationship between ERM controls and the level of ethics. It was also ascertained that ethics and compliance-related issues are not fully embraced by the organization. This implied that the insurance company is at a level of “nominal” risk management with uncoordinated, top-down risk management activities.Since ethics risk exposure resulting from poor corporate governance has been identified by the Institute of Risk Management as being a key contributor to many business failures in South Africa (and internationally), the exploratory findings can stimulate the leadership to institute polices to mitigate poor governance and risk as this will benefit all stakeholders.
BACKGROUND: Some pharmaceutical company sales representatives are using bribes to encourage increasing medication prescriptions. In 2012, GlaxoSmithKline paid $3 billion on a felony charge related to bribing doctors to prescribe the company's medications. Using Hunt and Vitell's general theory of marketing ethics, the purpose of this qualitative multiple case study was to explore strategies some sales managers in the pharmaceutical industry used to improve marketing training to reduce unethical sales representative behavior.
MATERIALS AND METHODS: Data were collected from company reports and documents provided by sales managers and semistructured interviews with five sales managers of different pharmaceutical companies in the northeast region of the United States. Data were analyzed using thematic analysis and Yin's 5-step process of compiling, disassembling, reassembling, interpreting, and concluding thematic data analysis.
RESULTS: Three themes emerged from data analysis: developing ethical standards, developing organizational policy, and implementing training and development programs. A key recommendation is that pharmaceutical sales managers identify ethical standards to inculcate in their business practices to achieve ethical marketing training that can result in sales representatives' ethical behavior. The implications for positive social change include the potential for sales managers to develop strategies to reduce unethical behavior in the pharmaceutical industry.
CONCLUSION: Reducing unethical behavior may lead to more trust between patients and physicians, improving patient satisfaction and promoting prosperity for the community through enhancing the quality of health care.
Special aspects of education, Public aspects of medicine
Em países com altos índices de desigualdade, como o Brasil, os preconceitos, que já prejudicam as vidas de pessoas com deficiência intelectual, tendem a se agravar, perpetuando um contexto social excludente e discriminatório. Esse texto promove a reflexão sobre as lutas por autonomia e liberdade dos deficientes intelectuais, à luz da bioética. Trata-se de um estudo teórico, ancorado nos referenciais vulnerabilidade, autonomia e dignidade. Constata-se a vulnerabilidade ampliada dos deficientes intelectuais em países marcados pela desigualdade social. Conclui-se que Estado, Família e Sociedade devem atuar com cautela, sem jamais limitar o exercício da autonomia de pessoas com deficiência intelectual, excluindo-as, quando deveriam protegê-las.
Medical philosophy. Medical ethics, Business ethics
This article aims to examine the impact of corporate social responsibility, trust, and sustainable business strategies on the diffusion of innovative solutions in renewable energy sources. In this context, the material from the edition of the reports of the Polish Agency for Enterprise Development on innovation in the renewable energy industry was analyzed. A survey was also conducted among enterprises from the SME sector on the creation of a business model taking into account the diffusion of innovation in the field of renewable energy sources. The SME sector consists of entities that usually do not have an extensive organizational structure or research and development teams. Nevertheless, in the current economic situation, it is required that they are highly competitive, including through implemented innovations. Conscious participation of SME entities in the process of diffusion of innovation may be a solution that brings innovative solutions closer. The author stated that social responsibility had a moderate impact on the diffusion of innovation in the field of renewable energy in the SME sector, as it contributed the most to building trust in uncertain energy sources. On the other hand, the study conducted by the author showed that greater experience in the field of social responsibility (the company has a CSR department, there is a person responsible for CSR in the company, the company has a CSR policy, the company has a Code of Ethics, social reports are prepared in the company) had a positive relationship with building trust and commitment to innovative activities related to renewable energy sources. Conscious participation of SME entities in the process of diffusion of innovation may be a solution that approximates innovative solutions.
Abstract This paper empirically examines whether competition (measured by using the new measure of competition, the Boone Indicator) moderates the relationship between Microfinance Institutions’ (MFIs) social and financial performances using data from 183 Indian MFIs over the period 2005–2014. The findings indicate that MFIs’ social and financial performances have a positive significant relationship. Moreover, the form of the relationship is both lead-lag and cotemporal. The Indian microfinance market was very competitive over the period 2005–2014. The empirical findings show that competition positively moderates the relationship between MFIs’ social and financial performances. More precisely, the empirical analysis provides evidence that the association between MFIs’ depth of outreach and operational self-sufficiency is conditional upon competition. These results suggest that in a competitive market, the more MFI deepen their depth of outreach, the higher contribution it has to their operational self-sufficiency.
Social responsibility of business, Business ethics
In Islam, ethics is a character as a form of self-development towards human relations with Allah SWT and human relations with fellow beings. This study aims to determine sharia business ethics among Muslim traders in the Leuwiliang market. Data collection methods are carried out using qualitative methods. This research informant numbered 25 people. This data was obtained from interviews with traders at the Leuwiliang market. The results of the study found that not all traders in Leuwiliang Market were aware of sharia business ethics, but from the answers they gave regarding maintaining product halal and how to maintain customer trust it could be said that they had at least implemented business ethics in sharia.
Most people, especially in South Asia and Sub-Saharan Africa, suffer and die from lack of food, shelter, and medical care, whereas other people in rich countries are extremely well-off. Because of the globalization process neither individuals nor governments can claim to be unaware of what is happening in the Third World. In this paper I defend the claim that, since we are living in a “global village”, we have greater moral responsibility for poverty. Thus, our moral responsibility is less limited than it usually seems to be. However, we do not have to be extremely impartial, which is recommended by utilitarianism (Garrett Hardin, Peter Singer), concentrating only on the consequences of action and its utility (agent-neutral evaluation). Yet, what we can include in our moral evaluation of poverty are human rights and an individual point of view, which are defended by Amartya Sen’s capability approach and Thomist framework (agent-relative evaluation).
This article analyses the origin and birth of the human right to a safe and healthy environment in order to allow everyone to live a dignified and quality life. It also analyses the essential content of sustainable development, which must always guide the development of environmental law to ensure a healthy environment for human present and future generations, and a sustainable economic growth that contributes to the development of equal opportunities for all people.
Medical philosophy. Medical ethics, Business ethics
Each year millions of nonhuman animals suffer in biomedical experiments for human health benefits. Clinical ethics demand that nonhuman animals are used in the development of pharmaceuticals and vaccines. Nonhuman animals are also used for fundamental biomedical research. Biomedical research that uses nonhuman animals is big business but the financial gains are generally occluded. This paper explores how such research generates profits and gains for those associated with the industry. Research establishments, scientists, laboratories, companies that sell nonhuman animal subjects, that supply equipment for the research, and corporations that market the resulting products are among those that benefit financially. Given the complex articulation of ethical codes, enormous corporate profits that are secured and personal returns that are made, the accepted moral legitimacy of such experiments is compromised. In order to address this, within the confines of the moral orthodoxy, more could to be done to ensure transparency and to extricate the vested financial interests from the human health benefits. But such a determination would not address the fundamental issues that should be at the heart of human actions in respect of the nonhuman animals who are used in experiments. The paper concludes with such an address by calling for an end to the denigration of nonhuman animals as experimental subjects who can be used as commodities for profit-maximisation and as tools in experiments for human health benefits, and the implementation of a more inclusive ethic that is informed by universal concern about the suffering of and compassion for all oppressed beings.
As the oral arguments in Hobby Lobby and Conestoga Wood Specialties v. Sebelius seem to attain a crescendo and stand at the threshold of a significant ruling by the Supreme Court of the United States, it is important to reflect tacitly on some of the major issues in the case. It seems the heart of the debate is the scion of religious freedoms, the evolving notion of corporations as persons, and the “mandate” in the Affordable Care Act requiring employers to provide health care. Critical to the debate is whether “corporations” can make a justifiable claim on religious exemptions in refusing health care coverage such as contraceptive services for employees. These issues seem to constitute the nitty-gritty of the oral arguments and the subsequent lawsuits. Surprisingly, an unprecedented number of amicus curiae have been filled attesting to the broader interest of the case and symptomatic impact on future policy, regardless of the Court’s ruling.
In the midst of these debates, it is expedient that we ponder on these questions: Are corporations persons? Could corporations claim religious exemption of the Affordable Care Act? Could employees claim “equal protection of the law” that mandates the provision of health care coverage including contraceptives and abortifacients, even if it is in stark contradiction to the employer’s religious ethos as persons? What are the major ethical issues in the debate? Are these issues of justice? To what extent do other ethical principles such as beneficence become applicable to the debate? Could the ruling cascade into a torsional strain about the free exercise of religious freedom or the exercise of individual autonomy?
Background to the Case
The cases are cited as Sebelius v. Hobby Lobby Stores, Inc. (No. 13-354) and Conestoga Wood Specialties Corp. v. Sebelius (No. 13-356), and the entire transcript of the oral arguments is available in PDF format here. Hobby Lobby is a privately owned corporation founded by David Green in 1972 that specializes in the retailing of arts and crafts. It has chains of stores dotted all over the United States with its headquarters in Oklahoma City. The founder is an evangelical Christian, and to that effect, stores are not open for business on Sundays in accordance with his religious beliefs. In 2012, Hobby filled a suit against the US stating inter alia that:
The Green family's religious beliefs forbid them from participating in, providing access to, paying for, training others to engage in, or otherwise supporting abortion-causing drugs and devices.
The Green family averred that the Affordable Care Act violates the Free Exercise Act of the First Amendment and the Religious Restoration Act of 1993 that unequivocally guaranteed religious beliefs and freedom. The case has eventually cascaded into legal quagmires reaching the Supreme Court of the United States.
Joining suit is Conestoga Wood Specialties Corp.from Pennsylvania. The company manufactures cabinets and ancillary wood products, and was founded by two Mennonite siblings, Samuel and Norman Hahn.In 2013theUnited States Court of Appeals of the Third Circuit ruled against them for refusing to provide health insurance for their employees that include contraception. The two cases have been consolidated for hearing at the Supreme Court, and this piece attempts to give an ethical expose on the debate.
Some Ethical Perspectives
One of the major ethical issues here oscillates around relativism. This is the belief that morality varies from person to person or from society to society. In this context, opponents to the law may argue that since their religious freedom is guaranteed under the law, employers should be granted religious exemptions under the law to preclude them from providing employees contraceptives coverage, even if the employees themselves do not subscribe to such religious beliefs. Employees may also demand that coverage be provided (assuming some of them want the contraceptive coverage). Would a refusal to provide coverage constitute an imposition of religious beliefs and values that they do not accept? Would that not violate employees’ religious views as well?
From a relativist perspective then, there are competing interests constituting some kind of internal conflict for plaintiffs, employees, and obviously the courts of law! Some call this the dictatorship of relativism. Some call for some kind of compromise or “common ground”. Should employers raise wages so that employees purchase their own health insurance as rhetorically noted by Justice Sotomayor when she suggested that “…they [employers] just pay a greater salary and let employees go on the exchange”. Could this seemingly pragmatic suggestion curtail the debate while arriving at some modicum of agreement and compromise?
Justice as Fairness: A Rawlsian Perspective
The concept of justice constitutes one of the major foci of the moral dictum of principlism in the United States, and the approach here is to take the debate through the ethical aperture of justice as espoused by John Rawls. As Rawls once noted, “justice is the first virtue of social institutions…”[1] Rawls envisaged a society in which both social institutions and individuals have a common goal of advancing each other’s interests. He further noted that each person has a claim to the same basic liberties that aligns with “liberties for all”. That is to say, individual liberties are intricately and tangentially intertwined with those of the larger society’s liberties. Individual and societal liberties are equal and important because “free and rational persons consent to further their own interests”! We see the symptomatic applicability of this principle in the current debate on Hobby Lobby v. Sebelius. The Affordable Care Act “mandates” the provision of health insurance coverage including contraceptive services for all through their employers, thus ensuring that each individual enjoys the liberty or the right of “health care”. After all, each person has the same equal and indefeasible rights and liberties, and society has the fiduciary obligation to protect and insulate these rights from interference. Based on this principle, it could be inferred that excluding some individuals from health coverage under the aegis of religious exemptions may constitute a travesty of justice in a society that trumps equal justice as fairness to all.[2] But can we say that “contraception” is health care per se? Did Rawls list and anticipate health care as basic right/liberty? The later assertion is accurate, at least in the sense that providing basic health care for each individual in society is in the interest of the larger society within the context of current laws and social institutions.
Furthermore, Rawls suggested in his “Second Principles” of justice that social and economic inequalities among other things should gear towards the protection and benefit of the “least disadvantaged members of society”.[3] The reality is that health care is linked with employment/economic institutions. Health care is also intricately linked with the Rawlsian dictum of opportunity for all. This is because diseases and health disparities can and does prevent individuals from work, thus contravening Rawls second principle.[4] The Affordable Care Act will guarantee fair, equal opportunity for each individual in society to leverage his/her economic potential.[5] Consequently, excluding or depriving an individual from some kindof health coverage may have some economic ramifications, such as compelling employees of Hobby Lobby and Conestoga Wood Specialties Corporation to purchase extra health insurance to cover their contraception needs.
In addition, Rawls argued in his moral principles that justice entails the capacity to both comprehend and apply “... and to act from the public conception which characterizes the fair terms of cooperation”. It has been presumed that many Americans seem to gravitate towards the provision of contraceptive services in all health care plans without exemptions. In a recent survey however, 44% of respondents are in favor of such provisions in comparison to 48% who favor exemptions for religious affiliated institutions from providing contraception coverage. The logical conclusion based on the public survey is that religious exemptions should be granted. If so, this puts the Hobby Lobby case in an ethical and legal conundrum. Yet, Hobby Lobby and Conestoga Woods Corp. are not religious affiliated institutions; they are registered and operate as corporations. This means that, theoretically and most probably, they cannot lay a fair justice claim to the religious exemption clause even though the founders may be overtly religious. As the Justices noted in the oral arguments, the Religious Freedom Restoration Act (RFRA) was passed in 1993 to grant not-for profit and religious affiliated institutions exemptions which is consistent with the separation of church and state.
Beneficence
We now turn our discourse to the concept of beneficence. In brief, the principle of beneficence impinges a kind of sine qua non obligation on persons to act for the benefit of others.[6] In other words, each person has a moral obligation to act in such a way as to balance benefits, risks and costs in a bid to ensure overall net result for all.[7]
What constitutes the benefits in this lawsuit? First, the plaintiffs have a fiduciary obligation towards their employees. They must provide wages and, in the context of these lawsuits, provide overall health care benefit, with the inclusion of contraceptive services, guaranteed under the Affordable Care Act. The employees also have the obligation to ensure that they comply with all the tenets of their obligation towards the plaintiffs. But the plaintiff may argue that they are already providing essential health benefits to their employees, with the exception of contraceptive services. Furthermore, according to their “religious values and beliefs”, contraceptives services, including the provision of abortifacients, may potentially cause abortion and deprive others of life in stark contradiction to their beliefs. Should these assertions not be considered seriously? Does contraceptive services cause harm rather than serve the purpose of beneficence in view of their religious values? The answer seems an obvious yes. But do the employees share these religious values and beliefs purportedly espoused by the plaintiffs? Are the employees bound to follow the tenets of the religious beliefs of the plaintiffs as Justice Kennedy poignantly pointed out:
But in…a way, the employees are in a position where the government, through its health care plans, is…under your view, is -- is allowing the employer to put the employee in a disadvantageous position. The employee may not agree with these religious… beliefs of the employer. Do the religious beliefs just trump? Is that the way it works?
Would these assertions not render the plaintiff’s argument a fallacy of presumption?
This leads us to the next element of beneficence: risk. The plaintiff may argue that the provision of birth control services may pose some existential risk to the “unborn” and innocent. And as noted in many of the amici curiae aligning with their religious beliefs, the use of contraceptives may tacitly lead to immorality. Again, the questions remain as to whose religious rights should trump; the employees, the plaintiffs, or none? It is suggested that not providing birth control for workers may lead to some substantial risks. For instance, suppose an individual needed urgent contraceptive medication in order to avoid becoming pregnant, but her lack of access to birth control pills causes her to get pregnant. Suppose further that she aborts the pregnancy. Would the process for the abortion pose more risk than the contraception within the context of beneficence? On the other hand, religious affiliated groups may also argue that abortifacients and abortion are intrinsically non-beneficent (harmful or evil). It seems like a discursive argument now to go back to the question of whether plaintiffs as secular entities qualify as persons protected by RFRA in exercise of their religious freedom. Indeed as the Justice Sotomayor rhetorical asked:
“How does a corporation exercise religion? I mean, I know how it speaks and we have, according to our jurisprudence, 200 years of corporations speaking in its own interests. But where are the cases that show that a corporation exercises religion?”[8]
Furthermore, “if corporations gain an exemption from having to provide birth-control services for their female employees, then the next complaint would be about vaccinations, blood transfusions, and a whole host of other medical and non-medical services that a company or its owners might find religiously objectionable”.[9] Would this not lead to a serious precedent that may put the larger society at risk? If granted this exemption, could this not chart a new frontier for abuse as Jay Michaelson noted, “In 1965, restaurateur and politician Lester Maddox said that to obey the 1964 Civil Rights Act, and allow African Americans to eat at his restaurant, would be ‘a sin against God.” It does look like the claim on religious exemptions for a secular corporation could potentially open Pandora’s Box for abuse based on historical precedents, making the argument a slippery slope.
Another element of the concept of beneficence is cost. It is very extant in the ACA that precluding health insurance coverage for employees has some consequences in the form of fines. Could these fines be less than the actual cost of covering contraception for the employees? Another way of looking at the issue of costs is from the perspectives of the beneficiaries of the ACA. How much do contraceptive services actually costs in the open market? Are these easily accessible and affordable? To what extent does this bring additional costs to them (suppose plaintiffs are granted exemptions)? Are there alternatives? Would these alternatives be less costly? Is it possible for arriving at a common ground such that plaintiffs could provide financial incentives to employees to buy their own health care coverage from the open market that includes contraceptives services (if they want it) according to their own conscience guided by the dynamics of the open market?
Some Preliminary Conclusions and Perspectives
This piece has analyzed and expatiated on the content of the oral debate as to whether plaintiffs have the right to claim religious exemptions in refusing to provide contraceptive coverage to employees. We have examined the debate through the nexus some ethical principles such as relativism, justice, and beneficence. While it is evident that the issue of religious freedom is at the fulcrum of the debate, this piece argues that the issues have serious ethical underpinnings as well. Each party to the debate has important claims to make. This piece has analyzed these debates through certain ethical principles that are of secular by nature. Undoubtedly, we cannot deny the fact that religious freedom is an important element in the oral arguments. As a sequel to this piece, we will look at the issues from some theological and legal perspectives.
Religious freedoms are justifiable claims within the context of American jurisprudence. As society is increasingly becoming religiously pluralistic, it seems obvious to suggest that this will lead to competing rights for religious claims as well. There will be differences in the quest for these claims in a bid to freely practice ones’ religion. As the laws have made it clear, religious affiliated and not-for profit groups can make such religious exemption claims. It does seem amorphous within the law that corporations operating for profits can make such claims. Even if they claim so, they do have a herculean task asserting their rights to claim religious exemptions while operating concurrently as secular corporations.
To the extent that legal history is anything to trust, it seems safe (and perhaps prudentially erudite) to say that despite the pendulum of the oral arguments swinging in the direction of religious claims, the final ruling of the Supreme Court of the United States remains supremely capricious. Only time will tell, and as we wait for this ruling, it is worth pondering on the basic ethical issues of justice and beneficence for all claimants in these lawsuits.
REFERENCES
[1] John Rawls, A Theory of Justice, (Harvard University Press, Massachusetts; 1971) p6
[2] It is worth noting that Rawls did not categorically list “health” as one of those rights or liberties of individuals and society! But the syllogism here is that currently, access to health care has been mandated by the laws of the United States.
[3] Rawls. ibid
[4] Norman Daniels Justice, Health, and Healthcare in American Journal of Bioethics, (December 7, 2010) p2-16
[5] Ibid
[6] Tom Beauchamp et al. Principles of Biomedical Ethics (Oxford University Press; London, 2009) p197
[7] Ibid
[8] www.supremecourt.gov/oral_arguments
[9] Ibid
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