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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?

About the Author

Cathleen Kaveny is the Darald and Juliet Libby Professor in the Theology Department and Law School at Boston College.



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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.'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:

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.


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. 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.

If you assume that a woman has a right to an abortion, and if you assume that the government has a duty to provide them, how does it follow that *particular doctors* can be required to perform them or suffer severe personal loss, the lose their specialty? In other words, those who would require ob/gyns to perform abortions seem to be forcing their labor, and this, it seems to me, is at least first cousin to slavery. Put it this way: what is the difference between requiring a slave to attend to a sick master and requiring a doctor to perform an abortion?

Cathy --Perhaps a medical school should be allowed to choose its students and not admit anti-abortion student, and hospitals should be free to choose their staffs using their own criteria of competence, and private organizations other than the AMA should also be able to establish their criteria.But this also would apply to Catholic and other sorts of medical schools, hospitals and medical associations. Then the anti-abortion students would not be barred from their chosen specialty. Nor would they be pressured to do t be forced to do what they think is bad medicine (for the fetus!).What I object to without qualification is requiring anti-abortion ob/gyns to provide abortion services regardless of where they work, as some of the actives seem to want to require of them in all hospitals or the hospitals will lose federal funding.. Whether or not the government would be inclined to support those Catholic schools and hospitals is a practical problem. But since the government already supports such schools and hospitals, I suspect the government would continue to support them. For one thing, private medical schools and hospitals cost the government less money than comparable public ones.You're probably right about practicing pharmacy and euthanasia too. But I strongly suspect that many, many people will then choose Catholic hospitals to die in because they don't want to be "hurried off", as one gerontologist once expressed the possible problem to me. I expect being "hurried off" would be more common in more liberal hospitals, though perhaps I'm prejudiced about that.Thanks for this thread. It's making me really think.

Gabriel, the NEJM quote is from a recent editorial by Julie Cantor. Alta Charo also wrote something similar in NEJM recently.I agree with Cathleen that conscience rights interefere with a "right to contract." I think that is acceptable just as market regulations and other basic protections for workers are acceptable, and in this medical context it is even more acceptable because it has been the medical standard since Hippocrates. All but a radically individualistic libertarian view would consider the right to contract a trump for medical provider consicence, and as we know from our current financial collapse such a worldview is neither in accord with basic social justice nor smart economics, not to mention Catholic principles of an ordered society.

sorry, None but a radically individualistic libertarian view would consider the right to contract a trump for medical provider consicence . . .

Jason,I am not sure what you mean. Let's assume for the moment that regulations to coerce the performance of abortions by doctors with conscience based objections to doing so are so extreme that they are not going to happen. However, regarding the issue of contract, why is it an expression of extreme libertarianism to conclude that employers should be allowed to determine the responsibilities of their employees and if the conscience of an employee prevents her or him from meeting all of those responsibilities then the employer should be allowed to fire that employee? This same ability to establish responsibilities also allows an employer such a Catholic hospital to establish restrictions on what employees can do in the hospital.Are you suggesting something like the following: Suppose that when I start working for a hospital I am an atheist and I have no qualms about performing abortions at the hospital. Then, through the grace of God, I realize the error of my ways and covert to Catholicism. Now, I refuse to perform abortions. My employer then fires me, either immediately after I refuse to perform an abortion when I am told that I am no longer abiding by the terms of the contract I signed, or when my contract comes up for renewal, a rather frequent reality in most businesses. Are you arguing that the government should protect my ability to work at that hospital, as opposed to my having to find a hospital that would not require me to perform abortions?

I'm saying that it is libertarianism not Catholicism, and for goodness sake not liberal Catholicism, which thinks that the right to contract is a trump card for regulation of business towards a just social order. I would not expect to see arguments from a liberal Catholic blog against the minimum wage, labor unions, or federal controls on the market, on the basis of the violation of a "right of contract." There is a seemingly odd irony here. Liberal Catholics are place a high value on their application of the Church's broad social teaching, and even go so far as to say that liberal economic policy outweighs more specific abortion policy in voting for major candidates. Liberal Catholics can even be found here as mocking the floundering Republican base for seeking a more intense free market purity rather than a more moderate approach. So when a pro-life issue finally arises, an objective observer might expect liberal Catholics to approach it with insight from their own communitarian principles. To see them turn libertarian at that moment is strange and somewhat troubling. Liberal Catholics s are indignant when conservative Catholics accuse them of not really being pro-life, and this kind of turn doesn't help their argument. But if you want to know really why conservative Catholics are frustrated with liberal Catholics, it is because deep down conservative Catholics know that life issues can be better and more convincingly argued from liberal principles, those of welcoming and hospitality, of community and social good, of expanding the human family, of undying commitment to civil rights and preference for the vulnerable and passion against oppression and discrimination. All of these cry out for application to the unborn and against the act that pits mother against child, and in this case to protection of the pro-life worker and the dignity of her medical profession. Think of what could be done if the tremendous intellect and talent existing by the contributors to this blog were directed to applying their Catholic liberal principles to abortion issues. Think of what good could come from the reflections of people steeped in the social enclyicals applied to the pro-life worker. Think simply if their prophetic and outraged stance against torture was applied in equal fashion to abortion issues. It's tragic if it doesn't happen. It's more than disappointing if on those very issues they seem to become what they otherwise hate just to argue against the pro-life positions.

In my view, claims of conscience are not about truth. The commitment (unfortunately not by the Court) to protect Native Americans who ingest peyote as a part of a religious ceremony has nothing to do with the theological merits of their view. At the same time, I do not think the comparison of the doctor who is conscientiously obligated not to perform an abortion with the doctor who has conscientiously arrived at the conclusion that it is morally permissible to perform abortions is apt. The comparison is apt, if but only if, the latter doctor believes he or she is morally required to perform abortions. The same point applies to the same sex couple who want to get married. For the comparison mentioned by Kaveny to be apt, the couple would need to believe that their marriage was required as a matter of conscience. If the doctor or the couple do not feel obliged as a matter of conscience, they have no freedom of religion argument; if they do feel obliged, they do have a freedom of religion argument. Either way, of course, they have arguments based in due process and equal protection.

This is a nice point buried in too much surrounding text:"But if you want to know really why conservative Catholics are frustrated with liberal Catholics, it is because deep down conservative Catholics know that life issues can be better and more convincingly argued from liberal principles, those of welcoming and hospitality, of community and social good, of expanding the human family, of undying commitment to civil rights and preference for the vulnerable and passion against oppression and discrimination."I think, Jason, this is an important point, but that even in the context of other issues that liberal Catholics find important, the ability to impose social goods by draconian laws is extremely limited. What makes them social goods, as opposed to legally oppressive burdens, is that regulations are tailored to perceived externalities of largely commercial behavior, are as non-restrictive as possible, and genuine differences in *personal* opinion are respected. Even with civil rights, for instance, rules are much less onerous for small employers than large, and, of course, we would never try to impose civil rights legislation to try to regulate inherently personal activities such as choosing a roommate or a spouse. In such cases, we are, however imperfectly, defining a sphere of public and private interest and imposing regulation to make public activity fairer and more just. In the field of medicine, you have providers who are providing relatively personal and intimate services, but you also have patients who are receiving those services, and I would argue that neither has a complete trump card in matters of conscience, but that the provider, who is in a relative position of power, has a much higher obligation to ensure that exercising his or her conscience does not unduly impede the patient's access to services that are routinely provided in the ordinary course of care. That's why, traditionally, the provider's claims of conscience are somewhat subordinated in the transaction. He is in a much better position to mitigate the potential harm that would flow from the exercise of his conscience, and therefore has a much higher duty to take steps to avoid that harm. That's what makes some conscience claims of providers so disconcerting -- they are requesting a right to exercise their conscience in a manner that is indifferent to mitigating or avoiding harm to others. This starts to look more like imposing one's conscience on third parties, rather than merely exercising one's own conscience in living one's own life.

Barbara I don't think "traditionally, the providers claims of conscience are somewhat subordinated in the transaction." I think that since Hippocrates, in the ideal doctors operate under the do no harm principle which places ethical obigations above providing "goods and services." I don't even think a commercial description as a "transaction" is appropriate. Commercializing it also makes it seem like pro-life doctors don't talk to patients, but they do. The doctor is going to have an open conversation about ethics with the patient. He will ask, do you want a doctor who is willing to do something that he thinks harms you in violation of his own conscience? Patients will almost always say no--it's only in the Madison Avenue world of birth control marketing where patients clamor for doctors to be RU-486 dispensers. In fact, even in transactional terms, patients *want* doctors who share their values. But failing to respect conscience will drive out doctors with values that probably a majority of Americans hold. I know lots of people who would not go to an Ob/Gyn that does abortions, and pro-life/NFP only clinics are bursting with patients, they have to turn them away.

Jason, you are generalizing about facts and circumstances with zero support. This is wishful thinking not analysis.

Barabra just tell me what you want support for, and be sure that you will be required to provide parallel support for you own corresponding point, because I see no footnotes in your comment.

Steve, yes. Here's my struggle. Why I see them the same is related to the basic question here: What, exactly, are we protecting when we are protecting conscience? As far as I can see, we have a few possibilities. a. Freedom from coercion from being made to perform an act that is against one's conscientious judgment about what is required/prohibited in a particular case.. That's the model, in c.o. cases. The coercion is: making you join the army; and then, making you kill or go to jail. But that doesn't apply in most medical cases --There is no coercion. The c.o. wants nothing more than to walk away from the army. But the pro-life doctor doesn't WANT to walk away. She wants to a) work in medicine; and b) not perform abortions. She already HAS the choice that the CO wanted--not to go in the army. What she wants, in a way, is akin to a co wanting to join the army and not be forced to kill. She's, from the perspective of the medical profession, a "cafeteria doctor." So we're not strictly speaking, coercing her. No one is MAKING her go into medicine.Another way to put my response to you is, "Even it does not violate the conscience of a pro-choice doctor if she's made not to do an abortion (which I'm granting for the example, but not for all purposes), so what? It does not violate the conscience of a pro-life person if she's stopped from going into medicine --or into OB/GYN. And she has that choice.You're arguing for her to have, positively, an additional choice: to go into medicine, and to remain pro-life. So the argument goes to, well, "it's UNFAIR to make her choose between going into medicine and her prolife convictions." Well, WHY? People have to make hard choices all the time. The only compelling argument, it seems to me is that MEDICINE OUGHT NOT TO BE DEFINED IN A WAY THAT MANDATES KILLING. b. One could say that in protecting conscience, we protect a doctor's moral JUDGMENT about the morality of a particular practice, in general or in a particular case. The judgment is in the form of a proposition. a) Abortion --the intentional killing of an innocent human being--is always wrong. b) Abortion is not the intentional killing of a human being, it's the exercise of a woman's right to control her own body, and it's a decision to be made by a doctor and a patient on a case-by-case basis. So if we're protecting a conscientious JUDGMENT about the morality of abortion in a pluralistic society, it seems to me that both judgments are on the same level--unless, somehow, we decide that we are protecting truth rather than conscientious judgment about truth.c. In some cases, what is permissible may become mandatory. I think many pro-choice doctors believe that they are morally obligated to perform abortions in particular cases --as part of their care for their patients, and their whole lives, rather than their physical health.

Jason, it's your claim to know what "most patients really want" that makes your point untenable. First, how can you know? And second, what about the others who don't fall within the majority? Your resolution is, essentially, to deny the possibility of any real conflict between the two in the first instance, and go from there. If there were no conflict there would be no need to affirmatively exercise one's conscience because no one would ever ask a doctor to do anything that offended the doctor's conscience.

I agree with Cathleen that the issue is how to define medicine, but I don't agree with the suggestion that the pro-life doctor wants special cafeteria treatment different than the army person. It is simply a matter of changing what defines the status quo and the penalty. What if the penalty for not fighting was deportation? Would someone say no one is MAKING the pacifist continue to live in America? Rob Vischer makes a similar point, when Catholics were excluded from professions were they not really excluded because no one was MAKING them stay Catholic? Different penalties and requirements are by degree not kind. So there is no bright line to say that pro-life medical person is akin to wanting to join the army and not be forced to kill. Not being able to work at Planned Parenthood is different than not being able to work at a hospital is different than not being able to select a particular medical field is different than not being able to graduate medical school at all is different than not being allowed in any health related profession.

Barbara--that's an easy one. But please don't come back and say that this is not logical proof, because you still haven't given a footnote for things like "traditionally, the providers claims of conscience are somewhat subordinated in the transaction" and any of you claims at all. The fact is that we are both engaging in reason and persuasion, neither has laboratory proof for our positions, and neither has "zero support." It's tedious and distracting to argue about that, instead of to continue our point-counterpoint, which I found to be engaging because you were making interesting points.

sorry again--the Catholics excluded from profession point was from Thomas Berg not Rob Vischer.

What to do about the Bush regulations? How about speaking out in favor of them? Or has the intent been from the beginning, for some who profess to be Catholic, to overturn them?

BTW, there is a parallel discussion going on at Mirror of Justice. MOJ Blogger and Commonweal Contributor Rob Vischer has a book coming out in September on Conscience==so be sure to buy it!

The only compelling argument, it seems to me is that MEDICINE OUGHT NOT TO BE DEFINED IN A WAY THAT MANDATES KILLING.That would provide conscience protection for those not wanting to participate in abortion, but only if it is granted that abortion is killing. (Of course, it is killing something, but many would argue it is not the killing of a human being, which is what I think is meant here.) It would also not answer the question of how remote from the abortion a worker could be before However, that would not protect pharmacists from dispensing birth control devices. (It is argued by some that the pill is an abortifacient, and some other devices may be, too, but there are certainly birth control methods that are purely contraceptive.) It would also not protect surgeons who refuse to perform surgical sterilization, although current law does protect them. It seems to me there are a whole host of things that at least some Catholic medical workers might want refusal rights for, if they could get them, that would not involve direct or indirect killing.

CathleenI see your argument more clearly now (not your fault, you have been clear all along). But I do not agree that the issue is how one defines medicine or even that there is no coercion (though it is a term of art in this context and probably gets in the way of the analysis, since it does or does not assume a right to enter the profession). I think the question is whether the requirement to violate one's religion is an unconstitutional condition on the entry into or staying in a profession. So the question is not what is medicine (performing abortions is medicine). The question is whether performing abortions is or should be or can be a requirement of the profession for religious objectors. I would think the state should have a quite substantial justification to impose such a requirement and I do not think such a justification is available. If such a justification were available, the religious claimant should lose, and I would agree that making this determination requires some understanding of the needs of medicine and the profession in particular circumstances.

What to do about the Bush regulations? How about speaking out in favor of them? Or has the intent been from the beginning, for some who profess to be Catholic, to overturn them?Nancy,What makes you assume that the Bush regulations (the Provider Conscience Regulation) are worth supporting? Just because the title has the word conscience in it? They are bad regulations. Just because someone wants to protect the consciences of medical workers does not mean they support the Provider Conscience Regulation.

David, why are they bad regulations?F.Y.I.:

Until this all gets sorted out, what recourse does the patient have? For example, isn't a pregnant woman entitled to know what the policy of the hospital is or what the attending OB/GYN will and will not do if complications arise during pregnancy or delivery?In other words, shouldn't the patient have the right to know whether or not the patient, the doctor and the hospital are aligned on matters of conscience?

Yes. Steve. I'm trying to figure out what I think about the morality first, and then move on to legal issues, including con law issues.David-- All those are extremely hard issues. I'm trying to take the most persuasive case first. Then we get to the case-by-case stuff. Many Christians don't object to birth control between married people. Can a pharmacist demand to see a young woman's marriage license when she's buying birth control because he doesn't think unmarried women should be having sex? In my view, no. And I do think, Antonio, that doctors have to be upfront about their positions.

Ok, I agree that moral analysis can yield different conclusions than would be appropriate under the Constitution. (I think it is a moral requirement that all citizens be guaranteed health care, but I do not think our Constitution can fairly be read to require it). Nonetheless, in the end, I would be surprised if the right moral result and the right constitutional result should differ in this context.

Steve, I may have end of the year fried brain, but as I understand it, the Const. as currently interpreted doesn't require a state to make an exemption for faith based objections from a law of general applicability, right?It could do it--but it's not required to.So why would a general licensing requirement for obgyns that didn't exempt people from learning how to do an abortion (d & c) be unconstitutional?

You ask, "But where does the right to choose stop?"Legally or morally? It seems to me that so long as the law permits freedom of thought (and it does implicitly) there will be conflict of consciences. The only legal solution is to rely on the votes of the citizens and hope that they will chose directly or indirectly through their elected legislators what is genuinely fair. (Compare Rawls.) But if the Catholic Church is right, we have a moral duty to act according to our consciences, and sometimes this requires action as extreme as revolution.It also occurs to me that one of the difficulties of even discussing these problems is the paucity of vocabulary available to us. It seems to me that implicit in this discussion is the difference between "rights" in some sense and duties, but we have been cast the discussion in terms of "rights". The crux of the pro-life position is the view that one has a duty to not-to-choose killing innocents, while the crux of the "pro-choice" position is that sometimes one has a duty to choose such killing, and such an act is both a duty and a right.I think we need some additional words to handle these distinctions -- there are positive choices and choices-not-to-X. There are positive choices among alternatives, and there are duties (a morally required positive choice). We need more words -- all we have is "duty/obligation" for one of the possibilities.By the way, I'm convinced that one of the reasons the abortion issue is so difficult is because the arguments are loaded down with negative meanings, e.g., indirect, immaterial, anti-implantation, right-not-to-choose, conscientious objection, restriction, prohibition, trump . . . The list goes on and on. "We do not love negations best", said Duns Scotus. Too right. The double negatives are worse. And here's a politically important quadruple negative -- you do not have the right not-to-choose to prohibit abortions unconditionally. It's the fundamental principle of practical reason of the far right. Talk about fried brains! Defending that proposition demands sympathy, not invective.

CathleenYour brain is charging on all cylinders free of a distorting firepan. But I am and have been referring to how the Constitution should be interpreted, not how the Court interprets it. On that understanding, in this context, I do not think moral analysis and constitutional analysis should differ.

Cathy wrote:>>The only compelling argument, it seems to me is that MEDICINE OUGHT NOT TO BE DEFINED IN A WAY THAT MANDATES KILLING.I'd agree with that but I think it needs refinement as an argument that people outside the pro-life camp can find convincing.Firstly, I'd define abortion as the Church defines it. So that an operation necessary to save the life of the mother, even if it results in the death of the baby, is NOT an abortion. It's just an operation to save a mother's life (Obama would agree with us on that).Under this definition of abortion, we can see clearly that abortions are never MEDICALLY necessary because they address no medical need whatsoever. What abortions address is a perceived SOCIAL need (the baby being unwanted).As an abortion is never MEDICALLY necessary, I think the broader public, beyond the pro-life camp, ought to be able to see that medical personnel ought not be compelled to perform such an operation.Would this argument fly in the public square ? It's advantage is that is does not rely on seeing abortion as murder. It just relies on seeing that abortion is never MEDICALLY necessary ie that abortion is not properly part of medicine.Abortion is contrary to the Hippocratic oath (argument from medical tradition). The underlying problem here is that modern pro-abortion culture has sought to redefine medicine to misuse medicine to address perceived social ends. Those arguing for freedom of conscience not to abort are merely sticking with long standing medical tradition.God Bless

Chris, you're right--abortion has to be defined as intentional killing--not any and every interruption of the pregnancy. Germain Grisez (whose Anscombian based action theory I am largely in agreement with) have a good article justifying crainiotomy as a killing praeter intentionem if it's purpose is to save the life of the mother.The trouble with the "medically necessary" argument is that it could be used more broadly than I think it should. Anesthesia in delivery is not medically necessary. Lots of women do it cold turkey.

Steve, you're too kind. My own preference would have been that Yoder had still been the lead case in the free exercise area.

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? A couple of people early on made the obvious point that the two situations above are not analogous at all. Example: A says that he is a pacifist, and conscientiously objects to being drafted and sent to war. B says that he loves war and sees nothing wrong with it, ever, and that any restrictions on war amount to a restriction of his conscience, which is free from any scruples on that point.Isn't it obvious that giving in to B's conscience -- or LACK of conscience, rather -- is quite different from allowing A to follow his conscience?

"Isnt it obvious that giving in to Bs conscience or LACK of conscience, rather is quite different from allowing A to follow his conscience?"Hi, Stuart, your comment touches on something that this discussion has gotten me thinking about as well - the nature of conscience. If we're going to have "conscience protections", then don't we need more clarity around what "conscience" entails? As it's been used in this discussion, the term "conscience" seems to be short-hand for "bundle of personal preferences" - what economists used to refer to as "utils" or "utility".

Stuart, I explained why I thought it was the case ==theoretically, by focusing on what conscience protects. If we're protecting against coerced action, well that's one thing. But we're not actually making prolife doctors do abortions. We're limiting their employment option--saying they need to go into another area of medicine, or maybe not into medicine at all. Your war example is inapt. I think the whole analogy of pro-life conscientious objection to anti-war conscientious objection is invalid--no one's making anyone go into medicine.Second, how one conducts a war, and whether there's a war, is not a private matter. It's an act of government.By the way, I also have a practical worry. I don't see why the pro-choice movement, would want to give in on this without exacting something in return. It's trying to establish the proposition that abortion is a woman's right. Why would it give any quarter in the moral fight?Why couldn't the pro-choice people coherently say, "Hey. . . listen. . . abortion has been a constitutional right for nearly forty years. It's the law of the land. You don't like it, don't go into medicine. We don't protect people who conscientiously object to integration. Why should we protect you? We'll grandfather those who are already there, but not protect anyone else."

If we can grant that it is a matter of conscience for doctors to refuse to perform abortions because they believe abortion to be the taking of a human life, recognizing the pro-choice doctors rights of conscience does not seem to me to be merely a matter of saying they may perform abortions because they do not believe abortion is the taking of a human life. Rather, their right of conscience concerns the obligation they have to the good of their patients. This would be particularly the case, of course, in cases where the life or health of the mother is in danger, but also in cases of fetal anomalies, incest, and rape. A doctor who feels his patient may be physically harmed or may possibly die without an abortion does not perform the abortion merely because it is legal. The doctor performs it because he or she does not want to stand by and do nothing while a patient can be helped. That would be the element of conscience -- not merely to perform abortions because they are legal, but because (a) the doctor does not regard them as killing and (b) he or she regards them as medically necessary.

Cathy,I think that relief of pain and suffering has always been seen as very much a part of medicine.It might not be strictly necessary, but if we're going to go that far, then none of medicine is strictly necessary, is it ?Maybe there's a better term than "medically necessary"for what I'm trying to get at, which is really what is properly part of medicine and what isn't.Abortion is not properly part of medicine.God Bless

But were not actually making prolife doctors do abortions.Not now, but your post did begin by posing the question why we let doctors opt out of performing abortions. How about this analogy, then: A says that he is opposed to shooting anyone, ever. Question: can he work as a security guard in a facility that wants him to carry a gun? B says that his conscience doesn't mind shooting people. Question: can he claim a right of conscience to carry a gun around and occasionally shoot people? Those two questions just aren't the same. The first wants the right to refrain from conduct that he considers wrong. The second wants the right to affirmatively engage in conduct that other people consider wrong. But the second person isn't claiming a right of "conscience" at all . . . it's more like a "right to do something as to which I have no conscientious objection." We can't create a general right for people to do anything as to which their own conscience is clear, and there's no reason to think that a principle of conscientious objection would imply such a result.

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