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Conscience and Refusal

My recent column on conscientious refusal is not behind the firewall, but available to all. I ended the column by saying that the whole issue of conscience in a pluralistic society needs a lot more conceptual work. Leaving aside the pragmatic questions facing us now (what to do about the Bush regulations), there are hard theoretical questions to think about, which may have pragmatic implications down the road. Here is one that I'm puzzling about, which I also hinted at in the column.To what degree does making a claim of conscience in a pluralistic society involve a reciprocal obligation to respect other people's consciences on the same issue? If I claim protection as a pro-life doctor not to be interfered with in my decision not to perform abortions because I have concluded conscientiously that they count as homicide, to what degree to I owe respect to your decision as a pro-choice doctor to perform abortions because you have conscientiously concluded that they are not homicide? And if I say, "well, you have to respect my conscience because it's in line with the moral truth, but I don't have to respect yours, because, well, you're not in accordance with truth, and you're harming an innocent third party," to what degree has the ground shifted from respect for conscience to respect for truth?Joe K., this one's for you, too, by analogy: In the pre-Vatican II Church, the Church's position was that we ought to receive the protections of freedom of conscience in situations where Catholics were the minority, but seek to establish Catholicism in cases where we were in the majority. In the pre-Vatican II Church, conscience was not the trump--religious truth was. Catholics should receive the protections of conscience clauses when in the minority because, well, the Catholic religion was true. What about the consciences of non-Catholics when Catholics were in the majority? Not so much--error has no rights.But once we shift to protecting conscience, rather than truth, things change. J.C. Murray. Error has no rights, but the conscientious person grasping at truth, even erroneously, does. We now claim respect for own religious consciences, but also give respect to the religious consciences of others.But if we switch to the moral realm, this doesn't work as well. If you look at the pro-life movement, and the anti-gay-marriage movement, it's clear that their appeals to conscience are strategic. In power, ban abortion and gay marriage, out of power, claim conscience protections. Moral error has no rights.Now, this switch-off in stance stance is entirely understandable--people are fighting about what counts as the common good, and about the fate of innocent life. But it raises the question--is "respect for conscience" even the right framework to think through moral questions involving questions of justice? Or in the moral realm, unlike in the religious realm, are we always going to end up arguing about respect for truth?Any ideas?

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The Catholic framework of which you speak is completely unworkable in the United States. We give error rights. You might even say giving perceived error rights is foundational to the concepts that underlie the formation of the United States. As you well know, the Constitution establishes a framework by which each proponent of a separately defined truth is given equal protection from incursion by the state. Were the conscience clause or similar protections to proceed from a definition of moral truth, and accord greater protection to adherents based on the content of their beliefs, such state imposed rules would be utterly impermissible. In addition, the conscience clause as drafted does not just protect those who refuse to provide abortion, but it protects health care providers from discrimination based on their willingness to provide abortion services. This aspect of the clause seems to have been lost.

We give error rights-but not on everything--and not when it comes to violating the rights of third parties. At some point, in the U.S., enforcing a common morality trumps conscience. We don't allow Jehovah's witnesses to refuse blood transfusions to their kids. We don't respect radical animal rights advocates who decide that animals have human rights too --when they treat aggressors against animals in the same way that they treat aggressors against people We don't allow pro-life activists to kill in defense of the unborn, although they would be justified in doing so in the case of the born.So, when it comes to questions of justice, and our nation's common morality, what exactly IS the role of respect for conscience? I think the fight --on both sides- is about what the common morality IS--not about conscience.Your point about the regs is well taken--but it suggests that respect for conscience is a reciprocal obligation.

"At some point, in the U.S., enforcing a common morality trumps conscience. We dont allow Jehovahs witnesses to refuse blood transfusions to their kids. We dont respect radical animal rights advocates who decide that animals have human rights too when they treat aggressors against animals in the same way that they treat aggressors against people."The rules governing religiously based refusal to provide health care services to children are hardly as cut and dried as you suggest. I personally think that we should err on the side of providing lifesaving medical care until the individual is old enough to exercise their own conscience, but there are plenty of states that have adopted rules that provide parents with a far greater degree of discretion than I would. This is one of the thorniest issues in medical ethics, although, blessedly, it does not arise often.With regard to animal rights activists: we are not punishing their conscience but their actions as aggressors against third parties. Indeed, both your examples involve situations in which third parties are at risk of imminent harm. And this is one of the objections to the conscience rule -- that it did not do enough to balance the rights of third parties to be free of harm, including imminent harm, that could result from the refusal to act on the part of a professional whose normal responsibilities include a duty to treat, not refusal to treat.

Might I suggest looking at the experience of those Catholics who have claimed conscientious objection status regarding military service? I was honorably discharged from the U.S. Navy in 1976 after five years of active duty (four of them during the Vietnam war) after several visits to Nagasaki. I based my claim on my "crystallization of conscience" that came from deeper reflection on the solemn statement in Gaudium et Spes (n. 80), "Any act of war aimed indiscriminately at the destruction of entire cities or of extensive areas along with their populations is a crime against God and man himself. It merits unequivocal and unhesitating condemnation." I realized, upon reflecting on our nations demonstrated willingness, not once but twice (at Hiroshima and Nagasaki), that we were still willing to use what are now called weapons of mass destruction, and that I would be called on to be a participant in this "crime against God and man himself.One accusation made against me then, and since, was that in becoming a C.O. I was abdicating my responsibility as a citizen to "defend my country." (I have often asked those who challenge me on this how long and in what war they served in the military...). There are many forms of service, and I have dedicated my life since then to serving others in many forms. The point is well-taken, though.Military regulations allow for "absolute" conscientious objection -- objection to all wars -- but not "selective" objection; the current debate about conscientious objection among medical personnel would seem to be more about "selective" C.O., so I would agree with Cathleen; how do we draw distinctions about how far to go in this area? Where do we draw lines about rights and responsiblities to others?

Those are really good points. The military draws such a bright line, I suspect, because it would be impossible to effectively administer an army if you had to deal with selective refusal. However, there is a middle ground that works very well for EEOC conscience protection (employment discrimination), and that is where the employee provides the employer with advance warning and the employer is required to accommodate unless it would be unreasonably burdensome. So an ER department, for instance, might have to take an "absolutist" approach, but other types of providers could use the normal process of assignment to place people in situations where their conscience is protected. I think potential harm to third parties and disruption of the employer or harm to its mission are perfectly adequate standards by which to judge all claims of conscience, and it's been the law since 1965.

Another example: We restrict the freedom of speech of cigarette manufacturers, an act enacted, I believe, before the dangers of second-hand smoke were known, the rationale being that smoking is dangerous to your health. The Catholic position once was that being of any other religioun than ours was dangerous to your spiritual health, and governments in largely Catholic countries were considered to have also some care of the religious health of their citizens.If I had the time, I would like to trace the lineage of the adage, "Error has no rights." I do not believe that it can be found in medieval civil or canon law. Isaiah Berlin's famous essay on two notions of liberty, however, shows that it was invoked during the Enlightenment to defend the right of enlightened monarchs to make decisions in the name of reason and despite the opposition of the unenlightened, because "error has no rights." If this is the case, it would be another example of the Church's borrowing rather too much from its opponents by letting them set the agenda. Murray argued that the confessional Catholic state, considered to be a dogmatically required ideal for the 150 years before Vatican II, was modelled on the absolute monarchies of the ancien regime and differed markedly from medieval political realities.

Look, Barbara, I know the law on Jehovah's witnesses. The point was illustrative, not exhaustive. We protect conscientious belief--once you get into the realm of action, all bets are off. Action can even include expressions of belief. Worship God. yes. With peyote, not so much Well, under Employment Division v. Smith, a generally applicable, non-discriminatory law against drugs can mean no peyote. Now the state CAN make an exemption. It doesn't have to. But should it? The constitution doesn't answer that question.We protect conscientious belief. But what about actions based on conscientious belief? Any action has the potential to affect another person--directly or indirectly. So how do we think about this? More narrowly, the question of conscience comes up when we consider whether we should make an exception to a generally applicable law that we believe protects the common good. What are the criteria for that? In many cases, conscientious objection takes the form "I can't do X." "I'm an Amish person==I can't kill." The state looks, and says, well, we'll let you off the hook here. You're not trying to revolt. You're just, well, personally opposed to killing. It's nice. But it doesn't affect our choices." For the pro-life movement, and the anti-gay marriage movement, the claim is different. They are saying "NO one can do X." "We want conscience protections now, but only as a stop-gap measure. We want, ultimately, to make sure that NO one can do X." They don't want simply an exception to the law protecting the common good, they want to change the nation's understanding of what the common good requires.I guess I can see how both sides would find appeals to conscience kind of iffy. From the prolife perspective, can a culture warrior claim conscience protections? Or does the claim of protecting conscience already relativize the issue to a personal choice? From the pro-choice perspective, why should the government, which treats abortion as a constitutional right, protect the consciences of those who want to undo the right as soon as possible? If there's a great battle for the basic ethics of the nation going on, is there room for appeals to conscience on either side.After the civil war was won, we wouldn't recognize a private contract for slavery --even if the slave and the master consicnetiously decide this is a permsisible realtionship.

I don't think the debate about conscience is either wholly about conscience to the exclusion of truth, or wholly about truth to the exclusion of conscience. It's a blend, and it ultimately has to be a blend. Emphasis on one or the other is not attributable to mere strategic political motives (nor is it fair to single out movements that agree with the Church in that regard, while not mentioning movements whose goals oppose the Church's). Society cannot avoid adopting some truth norms, in partucular about who counts as a third party worthy of protection. But that doesn't mean conscience is not the issue at all--it is still, because there really is an element of medicine whereby providers are professionals not mechanical dispensers. In medicine there was never until recently a posture of moral neutrality. The entire history of advancement and integrity in western medicine is based on the truth claims do no harm and care not kill. We can say that the "consciencientious" decision to kill a baby should be no more protected than the conscientious decision to kill black people or to kill my rich uncle and receive his inheritance. This fact alone--that medicine has only minutes ago been coopted to kill and therefore threatening millenia of progress--is itself an argument to respect the conscience elements of medical ethics even more.The pre/post Vatican II analogy is awkward (and may be based on a false hermeneutic of discontinuity). Post Vatican II didn't negate the state's ability to prohibit actions that harm people, and pre Vatican II didn't force people to believe things.

Isn't the conscience claim of 'REFUSING TO MEET REQUEST x of someone' morally different from the conscience claim of 'DOING x TO someone'? I'd need to think more about this...but it my intuitive reaction would be that the latter is less open to the defense of conscience than the former. But maybe I need to get over my action/omission distinction here...

Some of the complexities of the issue are evident in the discussion at Fordham yesterday, reported today at NCR on line.It struck me that a conscience claim must be clearly defined in matters of health and safety -which is the basis of community living.I'd also like to raise the question of how exhaustively does one have to examine one's position before claiming a conscience exception to law?

Charles I think that distinction is generally helpful. There are some hypothetical exceptions to it. Imagine that the government created a eugenic caste system and banned the provision of medical care to some groups of poor people, and a poor person in one of those groups asked for medical care from an otherwise qualified provider. This could present a conscientious desire to act. But the hypothetical is rather far fetched. Abortion advocates would argue that a woman seeking dismemberment of her child is in that same situation, but that argument says more about them than it does about conscience, and again raises the question of whether the government is acting to include third parties in the family of human protection or instead to exclude them.

The old casuistry with regard to conscientious objection was that the benefit of the doubt should go to the law, and the burden of proof to the dissenter.Another point from J.C. Murray: He never liked putting the grounds for religious freedom in freedom of conscience, which he thought was in the US hopelessly compromised by American Protestant individualism. This was another respect in which at Vatican II he opposed the Europeans who he thought were "over-theologizing" what was for Murray a primarily juridical reality: freedom from coercion.

Cathy, I have to cut out, but I really don't understand the distinction you are making. I think that we grapple all the time with how to give conscience the most leeway we can and try hard to do so until it bumps up against harm to others, and it's not always easy to define what constitutes harm, or potential harm to others, and how the other's reasonable expectation factors into the analysis. I don't think the truth or content of one's beliefs has much of anything to do with the analysis.

I was thinking along the same lines as Charles (and like him I need to think about it more).It seems to me that there may be a difference betweena) allowing a conscientious omission of a requested action that is permitted (but not required)by lawandb) allowing the conscientious commission of an act that is specifically prohibited by the law

Charlie, the problem is that I am not sure what the principled reason for distinguishing between act and omission here is.First, one could say--we ought not force people to do what they don't want to do. The reasons for this are several: a) Compelling people to do things is a bad idea, because then they do it badly; b) Compelling people to do things they don't want to do is a bad idea, because then it is too much like involuntary servitude. So, for example, we don't allow for specific performance rather than damages in personal services cases. You hire Timberland to sing at your kid's confirmation, they don't sing--well, you can get damages, and maybe a negative injunction, but we don't make them sing. This principle isn't related to conscience--it's just related to compulsion.The compulsion argument has some weight in cases of coerced service. The true conscientious objection cases in the army, for example. They draft you. You have to go. You have to shoot and kill the enemy. But it has less weight in conscientious objection cases where there is no compulsion --they involve accommodation. An Amish conscientious objector would like nothing more than the army to say, "Well, if you don't want to kill, you can't stay in the army." But the problem is if you say to a prolife doctor, "If you don't want to kill, you can't stay on staff of the public hospital."

It seems to me that the *question* of conflicting consciences under the law can be clarified by seeing the Constitution is a metasystem which permits erronneous private systems (differing individiual consciences) so long as they do not involve violation of the a priori truths of the metasystem. (We know some are erroneous because they contradict each other.) The a priori truth of the metasystem is "we hold these truths to be self-evident that . . . life, liberty and the pursuit of happiness". Self-evident truths are a priori ones, true for all normal minds, (it is no accident that that is among the most famous and cherished sentences in the history of humanity.) (I'm not so sure that that truth is self-evident, but it is a given in the Constitution -- it is where all arguments about it must begin.) I might add that the very fact that the Consitution calls for a Supreme Court and juries *shows* that it is itself a metasystem requiring its own metaphorical conscience, its own judges of what is true and good (good being defined by the laws). In other words, citizens' consciences do not have absolute rights under the Constitution. The citizens' *lives* and *liberty* are *right to pursue happiness* do involve absolute rights. But their consciences do not because they are outside the Constitutional system, UNLESS their consciences agree with the Constitution's self-evident truths and their implications. (Dear Lord, but law is complex!) Note that the Constitution is NOT a thoroughly relativistic one. There are certain absolutes. (I"m ignoring all the semantic problems here, of course.)Now I'll go see what Plato's "Protagoras" ("Man is the measure of all things") has to say about the relationships between the good and the true. Also Thomas Nagel's "The Last Word", which I just happen to be reading and which at least touches on the fundamental questions

And specifically related to the issue of abortion:The right to abortion established by Roe v. Wade is specifically founded on the idea that this is such a sensitive and disputed issue that there ought to be room for people to act according to their conscience. Ignoring for the moment that this decision was made by a small group of unelected judges, let's assume that this expresses the moral consensus of our political community. In this instance it would seem reasonable that the right to refuse to participate in abortion should also be protected.Now imagine a scenario in which the moral consensus of the community shifted to recognize/establish rights for the unborn. In this instance a reasonable argument could be made that it is impermissible to violate the community standards regarding the definition of rights (in the same way we don't permit human sacrifice as a legitimate exercise of religious freedom).In essence what I am saying is that our primary concern should be about upholding the moral consensus about truth (not conscience in and of itself), but presently the moral consensus about abortion is that it is the sort of issue where consciences need to be respected. Were we to come to a new moral consensus that conclusively states that the unborn do not have full human rights, then it would not make sense to provide conscience protection to those who disagree with that judgment (analogous to how those who believe animals have equal rights as humans are treated now).

If I wish to procure X and X is legal, but the only place where I could legally get X is staffed by people who refuse to provide X on conscience grounds, and the government protects the right to make that refusal, does the government have any responsibility to see to it that X is made available? Obviously the answer is no for many hypothetical (and unlikely to be relevant) kinds of X such as animal products, etc. where one could reasonably say that the character of one's future life, and so the ability of one to influence the character of one's future through free choice, is not at stake as a result of the inability to procure X. But one can readily imagine a kind of X where access or lack of access to X will have a dramatic impact on one's future (most may be thinking X = abortion, but it could also be contraception and perhaps many other things).Thus, an additional element in this debate is whether or not government should take action to limit the possible consequences to third parties that result from refusals to provide X by appeal to conscience.Question: Would it be a violation of the free exercise of religion to require that pharmacists dispense all legal drugs without exception? It seems to me that the answer is no as one is not forced to be a pharmacist. This raises the all or nothing vs. selective appeal to conscience that was raised above. If one objects to contraception for reasons of conscience, one need not become a pharmacist. The same argument, to anticipate possible objections, would not apply to providing abortions as we regularly differentiate between many ways of licensing doctors. However, the purpose of a pharmacist is to dispense pharmaceuticals. This, at least, is how I see it. I would value reading other perspectives.

Prof. Kaveny,I see a difference between the Amish conscientious objector and the pro-life doctor. For the soldier, using and fascilitating violence (even up to the point of taking life) is the central requirement of their job. it is hard to make the same case with doctor's regarding abortion. The cases where abortion is truly called for as a medical matter and not simply as an elective procedure are so few that it is hard to make a case that it is essential aspect of caring for patients in the same way that the willingness to commit violence is essential for soldiers.

David, I think you're right. I think the question is what the requirements of medicine are. I like Leon Kass's stuff on that..On the act /omission. . . again. ..you're forced to go into the army. You're not forced to go into medicine. What the doctor wants is a) to refuse to perform abortions and b) to keep his job.If a vegan waiter applies to a job at Outback Steakhouse, and refuses to serve steaks. . . . could Outback fire her? Yes. So the argument has to be medicine ought not to be defined in a way that requires performing abortions.

It may be that a pluralistic society incorporates contradictions that ultimately cannot be resolved to everyone's satisfaction. When there was somewhat of a consensus about judeo-christian morality, those contradictions lived pretty much under the radar. Now that the j-c consensus has dissolved and the legal system reflects that, we face cultural and ethical chaos. It seems to me that the game is over.

I am beginning to think that the question isn't really about conscience at all--but about how appropriately to define the field of medicine.I hire you to be my gardener. You have a conscientious objection to pesticide. I can fire you. You won't do your job as I understand it..I hire you to be my bodyguard. You have a conscientious objection to violence. I can fire you. You won't do your job as I understand it. So the pro-life doctors are saying their position is different in two respects. 1) They don't understand the job in a way that includes performing abortions; and 2) no employer or payor ought to be able to define the job in a way that includes performing abortions.

And I continue to think that the claim of conscience has implications.If we protect conscience, we protect a conscientious judgment. That judgment can be expressed in a proposition:PLD (prolife doc) is saying. . . "You must respect my conscientious decision that my duty as a doctor, properly understood, prohibits me from performing an abortion."PCD (Prochoice doc) is saying. . You must respect my conscientious decision that in this case, my duty as a doctor requires me to perform the abortion."Why aren't the two claims, the two propositions, on the same level if all that counts is conscientious judgment?

Prof. Kaveny,I think you're right, but I'm trying to think of an example of another profession in which employers are forbidden to require their employees to perform certain tasks that some consider to be a legitimate part of the job.

I hire you to be my gardener. You have a conscientious objection to pesticide. I can fire you. You wont do your job as I understand it.Can't you just hire another gardener?

Can't you just get another job?I don't need two gardeners, I need one gardener who will do what I want. And that includes killing bugs. .

Cathy:I think that Bob Schwartz's comment at 11:12 am is extremely important, if perhaps a little off topic in this particular thread. What does the collapse of common norms portend? May I suggest that you grapple with it in another post one of these days? Thanks.

I don't think the suggestion that Christians can just get another job or shouldn't be in pharmacy is consistent with the Catholic view of the dignity of work, the just and family wage, rights of the worker, the community rather than individualistic situation of employment, and the practical and economic realities of the inability for people to be completely free to choose whatever profession they want.Also the concept of defining the scope of the job needs to be tailored to the context. It's one thing to say Planned Parenthood employees need to participate in abortions. It's another to say all medical professionals by definition need to participate. I don't think there's a bright line between these, because the problem with legalizing abortion is ultimately this, that it is treated as a good and medicine is in the business of providing goods. But in practice it is still important to make these distinctions.I agree with Cathleen that the question is how to define medicine. As I pointed out in another thread, the New England Journal of Medicine recently said, Qualms about abortion, sterilization, and birth control? Do not practice womens health. They claim to define medicine solely in terms of patient choice, trumping practioner integrity. But in doing so they lose both integrity and choice. They lose integrity because integrity has always been designed to protect patients. Show me a patient who wants to have a doctor who is willing to violate his conscience and his beliefs about his patient's best interests. And this is why they don't even honor choice, because nearly 88% percent of patients think it is important (and 63% think it very important) to be able to *choose* a doctor who shares their values. But the definition of medical ethics which says "don't want to kill the unborn, don't choose medicine," means in practice that all doctors share Planned Parenthood's values and no one else's. That denies patient choice on a much broader scale. Not coincidentally, it gives financial profit to Planned Parenthood (profit motive is important to include in this discussion just as it is with HMOs and big Pharm).

Kudos to you Cathy. You managed to get a thread going on this subject which has more reason than polemics. Can we bottle this approach. Somehow I think that your challeng to get people to think preempted the heat from ensuing. Reminds me about what Holden Caufield (that star of Catcher in the Rye) said: "When people don't know what you are talking about they will do anything you say." This is why slave owners objected to their slaves getting educated. But I digress. I get that a pro life doctor should not be forced to perform an abortion. I also get that a pro choice doctor should not be forced not to perform one. So is the problem that a pro life doctor has not been allowed to work at a hospital where abortions are not performed and that a pro choice doctor has not been allowed to work at a hospital where abortions are not allowed? My question is that your complete point or is there more. Just trying to get the question so I can appropriately devolve into a a rant. (smile)

Cathy, I think you are misstating the employment law when you say that you can just fire someone for conscience reasons outside of the field of medicine. In the pharmacy cases, where a pharmacist employee refuses to fill certain prescriptions on account of religious objections, there is a clear path for him to take to gain protection. You don't have to redefine medicine, you just have to figure out how much you are going to balance his right to exercise his conscience against his employer's right to run his business free and clear of his employees' coscientious objections. The EEOC won't dwell long on the vegan case because it would be virtually impossible for a steakhouse to accommodate a vegan employee without undue burden, especially since eating the food isn't part of the job description, just as it might be impossible for the ER of a small hospital to accommodate a nurse who won't counsel a rape victim on Plan B, and of course, no one is suggesting that taking Plan B is part of her job. Jason, I generally agree that telling people not to choose medicine would obviously be inappropriate, but nonetheless, telling them not to choose to work in an ER with a lot of rape cases may not be an undue burden. Or telling them not to work as a birth control counselor for a non-profit clinic that does nothing but that. A harder case would be working as a nurse anesthetist on an OB unit that performs second trimester abortions. In my view, we should try to accommodate those people as much as we possibly can (though you would be surprised how much dissension that can cause among other employees), but, let's say, an emergency case comes in in which a doctor has decided that he has to terminate the pregnancy to save the mother's life and you are the NA on the premises. In those situations, it's hard to see how we can honor conscience above all other considerations. I am not satisfied that this is a genuine problem that we need to redefine medicine or start carving out "consensus truth zones" in derogation of every known constitutional precept.

F.Y.I., regarding Doctors and Medical personel: http://members.tripod.com/nktiuro/hippocra.htm

Barbara, here's the thing. I'm not trying to figure out what the EEOC would do. I'm not trying, here, to figure out the law at all. I'm trying to back up a step--to ponder, to brainstorm.To be blunt: the issues I'm talking about here in this thread are moral, not legal --although they clearly would have legal implications down the road.The hypos, as I've indicated before, are meant to clarify a moral issue, not to do finely grained legal analysis I'm trying to back up and look at what's at stake, morally in these claims of conscience by using all the resources available to me--including analogies to the religious freedom argument in Catholic thought. I think there's a real conceptual issue here, and I'm trying to work it out. I understand that you don't like the question. Your objection is duly noted.

I think youre right, but Im trying to think of an example of another profession in which employers are forbidden to require their employees to perform certain tasks that some consider to be a legitimate part of the job.David,Here's an area where the fight is ongoing, although the site and the article itself have a right-wing slant that does not reflect my views. Still, it is very recent, and it points out a number of areas of conflict that I have read about in straight news stories.

Islam in America Part Eight: The WorkplaceMay 4, 2009Part Eight: The WorkplaceBy Kathy Shaidle RightSideNews Copyright 2009Last month, the longtime owner of a Chicago Dunkin' Donuts was forced to give up his franchise. The owner claimed his Muslim faith forbade him from handling pork, making it impossible for him to serve Dunkin' Donuts breakfast sandwiches.Dunkin' Donuts had willingly accommodated the owner's faith based restrictions over the course of their twenty-year partnership. But in 2002, the chain issued a sudden ultimatum: offer your customers every Dunkin' Donuts product -- or none at all. Seven years later, the fast food giant won the case, and the owner lost his store.Increasingly, large companies like Swift, UPS and McDonald's have been sued by Muslim employees demanding the right to wear religious garb, pray on company time and refuse to handle pork. These expensive legal battles do more than just raise prices for customers and drain company coffers. Employee morale suffers (and with it, productivity) as workers view each other with suspicion and resentment.

See http://www.rightsidenews.com/200905044642/homeland-security/islam-in-ame...

There is a difference between an employer who places restrictions on employees and employees who wish to redefine the terms of their employment based on conscience considerations. If I want to hire a gardener and I am opposed to chemical (non-natural) fertilizers or pesticides, then I can fire a gardener who proceeds to use such things on my garden. However, if I have no objections to such products and insist that my gardener use them, then I should be free to fire my gardener if she/he has conscience-based objections to using such products. Similarly, a Catholic hospital could insist that employees not provide abortions, but a hospital with no policy restricting abortions should be able to fire an employee who, all other relevant medical credentialing conditions being met, refuses to perform abortions.Jason Drakes says this violates various Catholic teachings on the dignity of work, etc. I would value further elaboration on this claim, as I have taught some relevant documents on matters like this and do not see the obvious argument. At the heart of such an argument would be some kind of claim that employees should be allowed to set the terms of their employment in ways that are not negotiated ahead of time.David Nickol's Dunkin' Donuts case seems correctly decided to me; although, I am not sure that DD headquarters made the correct choice in insisting on uniformity of products offered (I could see significant lost market if the franchise in question were located in a neighborhood with a large Muslim population). I just think they are not doing anything immoral by enforcing such a policy.

The law only *permits* abortions, it does not, as in China, *require* them. Neither does a woman have a right to demand an abortion at government expense. How then can requiring doctors to perform abortions (a means to somebody else's end( be justified? On what grounds? Not Roe v. Wade, which only permits them. The pro-choice argument, in other words, goes from a right to a possible abortion to a right to an actal one from a particular set of doctors -- those whose consciences forbit them.More generally: do we have a right to choose our doctors? In essence, that is what the pro-choice people are claiming -- that if there is no pro-choice doctor nearby a woman can force the close-by doctor to perform one,.

Ann,I think only a fringe portion of the pro-choice community would advocate that doctors be forced to perform abortions by those seeking one (This is my impression. I am quite open to being told that I am wrong about this by someone with more expertise). Rather, most seem to be arguing that, in the event that no one nearby is willing to perform one, then the government should create incentives that would make available doctors who are willing to do so. That is, they think that things like abortion and contraception are sufficiently significant life choices that they should somehow be made reasonably available to women.

Joe Petit --While you are probably right that most pro-choice folks would do not want to require doctors to act against their consciences, it is my understanding that many activists *do* insist that all doctors in hospitals that receive federal funds for any reason be required to provide them on request, even if the only available doctors have objections of conscience. If this becomes the law I can see many young people who would otherwise have chosen medicine choosing another career. I speak from some experience here. The college I taught at had q particularly large pre-med program and I knew many of those kids well.

P. S. And those young people would then not have a choice of professions.I think that Cathy's point that the issue might revolve around the question: what is the medical profession , that is, what is it to be a doctor?. Concerning this questions, I would ask: are elective procedures part of the profession? As is often noted, most abortions are not medically necessary. But this leaves the really hard cases -- what about abortions to save the life of the mother? And we are smack in the middle of a opposition between two persons with the right to live.

Thanks Cathy for an interesting and thoughtful discussion.In its Declaration on Religious Liberty (Dignitatis Humanae), Vatican II taught"It is through his conscience that man sees and recognizes the demands of the divine law. He is bound to follow this conscience faithfully in all his activity, so that he may come to God, who is his last end. Therefore he must not be forced to act contrary to his conscience. Nor must he be prevented from acting according to his conscience, especially in religious matters".It seems to me that we are required to extend this right to conscience to others and that this is actually part of loving our neighbours as we love ourselves. The crunch comes when the right to follow conscience clashes with the duty of society to protect others from genuine but incorrectly formed consciences.I think that the issue of whether or not abortion is medicine is an important and helpful distinction. With the exception of operations to save the live of a mother (which are not abortions in the Catholic tradition), abortions are not necessary for medical reasons but for social reasons.Therefore, it would seem that abortion is not properly a part of medicine but is an abuse of medicine for social ends, and so medical professionals are well within the bounds of medicine to refuse to perform abortions and so the state ought to protect this right.Even in the hard case Ann raises of operations necessary to save the mother's life, I think we should respect the right of conscience not to perform such operations and it would appear rare indeed if such conscience provisions would prevent a mother from obtaining a doctor prepared to operate.God Bless

I realize that in our current parlance every job is a "profession," but there's a classic distinction between being hired for X, and being a member of a profession which still lingers and would probably have some bearing on the exercise of conscience. Namely, that professions are traditionally self-regulating, and the principled duties of professionals are not presumed to be arising from without, but from within a community who practice the profession. Your employer doesn't quite have the same relationship to you if you are a doctor as if you are a gardener. Thus, the task of defining the medical profession belongs to the medical profession, not the market or the state, although these will enter into the factors which affect that profession's exercise and flourishing.

A Canadian report co-authored by philosopher Charles Taylor addresses similar issues and may be of interest.http://www.accommodements.qc.ca/documentation/rapports/rapport-final-int... report is a long one (300 pages). Chapter 7 advocates a framework of open rather than rigid secularism (pp 137-8) and the entire report stresses the need for reasonable accommodation outside the legal sphere. It argues that practitioners feel that legal intrusions may do more harm than good. Heres one example:Let us add that health professionals have lengthy experience of ethical questions related to their clinical work. Besides, it is in the hospitals that the first ethics committees appeared. For this reason, health-care personnel have longstanding experience of negotiations focusing on conflicts. Staff in health care establishments reject the idea of a framework law, dread over-regulation and want to maintain leeway that allows for adaptation and the search for compromises. Do we grant too many adjustments? This is not the feeling that predominates. One director felt that he had to caution against possible confusion of values and the improper assessment of priorities. He told us: To find a rat in a childs cradle in an insalubrious building is far more serious than the minor adaptations that we allow. (pp 90-91)

While you are probably right that most pro-choice folks would do not want to require doctors to act against their consciences, it is my understanding that many activists *do* insist that all doctors in hospitals that receive federal funds for any reason be required to provide them on request, even if the only available doctors have objections of conscience. If this becomes the law I can see many young people who would otherwise have chosen medicine choosing another career.Ann,Hold on!Psychiatrists, podiatrists, gastroenterologists, dermatologists, ophthalmologists, rheumatologists, urologists -- you get the idea -- are not going to be "forced" to perform abortions even by the most radical of pro-lifers. There is absolutely no reason for anyone to turn away from a medical career because of abortion, no matter what happens under the law.

Jason Drake quotes:"As I pointed out in another thread, the New England Journal of Medicine recently said, Qualms about abortion, sterilization, and birth control? Do not practice womens health.Which is precisely what is happening. Ask at a medical school. The number of students aiming at Ob Gyn is approaching zero. [Was there an author of the article?]. And there is a great truth in the maxim: "Error has no rights". I have yet - after years of considering the matter - to find a serious argument to the effect that abortion is a good. In what condition is our polity when the president refers to pregnancy as a punishment? May it not be suggested that killing babies is not a good moral practice for a polity? It may be easy; but it is not good.

Which is precisely what is happening. Ask at a medical school. The number of students aiming at Ob Gyn is approaching zero.Gabriel,According to Wikipedia, you are wrong. Could you cite your sources?

In the last few years, medical malpractice suits and skyrocketing insurance premiums have forced many American obstetricians and gynecologists to leave or limit their practice. From 2000 through 2004, American medical students were increasingly choosing not to specialize in obstetrics. This led to a critical shortage of obstetricians in some states and often, fewer health care options for women - although it did not lead to higher average salaries. However, beginning in 2004, increasing state legislation mandating tort reform combined with the ACGME's decision to limit resident work hours lead to a gradual resurgence in the number of medical students choosing OB/GYN as a specialty. In the medical residency match for 2007, only six spots in OB/GYN training programs remained vacant throughout the entire United States; a record low number, and one that puts OB/GYN on-par in terms of competitiveness with other surgical specialties.

I don't doubt that some medical students don't chose obstetrics/gynecology for moral reasons, for fear of being placed in a situation that they could not possibly in conscience carry out. But isn't it also true that insurance costs for ob/gyn doctors, at least in some parts of the country, are extremely high? And that this has been one reason for fewer students choosing this particular specialty?I am too far away from ethics/ moral theology courses and haven't kept up reading in the field, but I don't recall that a Catholic physician was prohibited from being involved in that terrible situation where it comes down to either the life of the mother or the child. The question of unintended but unavoidable consequences. But perhaps I have not understood some of the comments above. I am grateful for this post and the comments, and have learned a great deal from them.

The problem, as I see it, is largely not one of doctors who would refuse to perform abortions. It is of doctors who would not even discuss the option with a patient, and who would not refer a patient to another doctor if that patient felt abortion was her best choice. It is one thing to protect doctors from being required to perform abortions. It is quite another thing to grant doctors the right to withhold medical information from their patients.

David -- It is my understanding that some of the current pro-choice activists are pushing for a law that would force those who want to be ob/gyns to not-choose that specialty. Granted, the force involved would be a legal one, but a force nevertheless. Further, if such a law were passed, the current ob/gyns who object to abortion would be forced out of their specialty. My question is: why should one person's right to choose (an abortion) trump another person's right to choose (a specialty/profession)?Cathy suggests that the ultimate problem (legal problem, that is) is really a question of what the medical profession is. I say perhaps the problem might be *specifically* what the ob/gyn medical specialty is.Simply re-defining the meaning of "ob/gyn" to include performing abortions as a necessary part of that specialty can probably be done by fiat of the American Medical Association. But it would be a semantic solution to real legal and moral issues. I don't see any real advantage to such a "solution".

But Ann, where does the right to choose stop? Leave the law out of it entirely for a second and make it a matter of contract.1. I choose to apply to medical school. The medical school chooses not to take me because I won't do an abortion as part of training. Why does the medical school have to take me? Why doesn't it have a right to choose who it's going to enroll?2. A hospital is hiring. It wants someone who can do more rather than less. It wants to hire the doc who will do the abortion, not me. Why can't it choose to do so.3. A private organization of docs is issuing certification. It won't certify me because I won't/can't do certain things. Why can't it refuse to certify me? And why can't people take the AMA's judgment for sound judgment?Conscience clause protections --and nondiscrimination protections--interfere with contractual choice on one level to protect a choice on the part of the provider. I don't think it's just ob/gyn. We're going to have euthanasia and pharmacy issues too.

Cathleen,There is no MEDICAL requirement to do abortions. The perceived "need" to do abortions does not spring from medical necessity or sound medical practice. It springs from the misuse of medicine to seek solutions to perceived SOCIAL desires to "fix" unwanted pregnancies.An unwanted pregnancy is simply not a medical problem. It's a social problem and a human rights problem. It doesn't actually belong in the field of medicine at all.I'd argue that in your 3 cases, there is no right to object on medical grounds to any medical personnel refusing to do abortions.Because doing abortions is simply outside the field of proper medicine.I think the key here is clarity on what medicine is and what it isn't.God Bless

Conscience protections typically afford special exemptions rather than special license, and I think there's a reason for this. Society is less threatened by one's refusal to do what is legal -- and, within a certain context, perhaps also routine -- than by one's insistence on doing what is illegal. Most conscience protections also involve a person's unwillingness to do what he perceives as positively harmful to another person. The rest of the community may consider both the pacifist and the prolifer to be scrupulous, and even irresponsibly so, but they would rather indulge their scrupulosity than the unscrupulousness of someone who says he has a divine mandate to murder the bad guys. We usually treat our Thoreaus and our John Browns differently. The courts say conscience may allow me not to kill other human beings where the killing is legal and, according to the government, necessary. They don't say it allows me to kill in cases where killing is illegal, even if I claim to be killing because my conscience bids me to.

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