As I’ve said before on BreakPoint, the Obama administration is planning to revoke the Bush-era “conscience clause” that protects health-care workers from having to perform procedures that violate their conscience—procedures like abortion.
A leading post-modern scholar, Professor Stanley Fish, defended Obama’s stance recently in the New York Times. Fish’s reasoning should disturb anyone who believes that human rights come from a higher source than government.
Fish’s argument relies on 17th-century English philosopher Thomas Hobbes. To Hobbes’s, “the Law is the public Conscience” and must take precedence over the judgments of an individual’s “private Conscience” so that government can maintain order.
Fish points out that the U.S. Supreme Court “has ruled that when the personal imperatives of one’s religion or morality lead to actions in violation of generally applicable laws—laws not promulgated that is, with the intention of affronting anyone’s conscience—the violations will not be allowed and will certainly not be celebrated.”
Well, that’s true to a point. But Fish is being disingenuous when he speaks of “laws not promulgated with the intention of affronting anyone’s conscience.” Of course laws aren’t passed deliberately to offend people, unless the lawmakers are deranged. But there are undeniably cases in which the law attempts to force decent people to act against their conscience in matters of justice and human rights.
Has Fish forgotten that this country used to have a law forcing the return of escaped slaves? Today, we rightly regard people who disobeyed that law as heroes. While the ownership and mistreatment of human beings may have been legal, it was immoral to the core.
It is also immoral for human beings to be involved in the deliberate taking of innocent human lives. As Professor J. Budziszewski notes, that is one of those things “we can’t not know.” And we know it because there is an authority higher than human government from which we derive our rights, and that authority has written His law on every human heart.
The principle is set forth in the Declaration of Independence, the cornerstone of American government: “we hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
When health-care professionals refuse to perform or assist in an abortion because it violates their conscience, they are obeying a Higher Authority and His laws—the laws to which He holds every human being.
This is a principle articulated by great saints like Augustine and Aquinas and at modern times by Martin Luther King, who, in his famous letter from a Birmingham jail, echoed Augustine: “An unjust law is no law at all.”
To argue that human law must always supersede conscience is an invitation to tyranny. The Bill of Rights is an acknowledgement that certain rights—like freedom of religion—are simply, or should be, beyond government’s reach.
Let’s hope—and pray—that the Obama administration will decide not to force medical professionals to choose between their consciences and their livelihood. For their sake, and for the sake of all of our own freedoms.
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