What’s Next for Conscience Rights

A court last week ruled that the state of Illinois cannot force pharmacists to sell the morning-after pill against their consciences. It was a important win for health professionals.

This rule was particularly iniquitous. In 2005, Illinois Governor Rod Blagojevich (now serving time in a federal jail for attempting to sell President Obama’s vacant Senate seat) issued an “emergency rule”. It decreed that pharmacies must fill prescriptions for drugs, including the morning-after pill. “No delays. No hassles. No lecture. Just fill the prescription,” was the Governor’s decree. It became a final administrative rule later that year.

This steamrolling of conscientious objection was brazenly undemocratic. The state legislature never voted on the controversial measure. It was imposed on pharmacists in an effort to shore up Blagojevich’s position in the polls.

The court’s decision was a great boost for freedom of conscience. But there should be no complacency. Within the medical profession itself, a campaign is being waged to make obsolete the very notion of conscientious objection. In the UK, it has openly been under attack for years. In 2006 Oxford bioethicist Julian Savulescu published a scathing critique in the UK’s leading medical journal, the BMJ. “When the duty is a true duty, conscientious objection is wrong and immoral. When there is a grave duty, it should be illegal. A doctors’ conscience has little place in the delivery of modern medical care.”

And now the gloves are off in the United States, as well. Only a week before the resolution of the Illinois dispute, the New England Journal of Medicinewhich describes itself as “the most widely read, cited, and influential general medical periodical in the world”, published an attack on conscientious objection to abortion. In a “Perspective” editorial, feminist bioethicist Lisa H. Harris, of the University of Michigan Ann Arbor, presented a scrambled view of conscience which could eventually undermine gains in cases like the Illinois pharmacists’ case.

Dr Harris — who performs abortions — laments the fact that the pro-life side of the US abortion debate has captured the moral high ground of conscience and conscientious objection. From her standpoint abortion doctors are brave souls who defy “stigma, marginalization within medicine, harassment, and threat of physical harm” to act in accordance with their consciences.

“the equation of conscience with non-provision of abortion contributes to the stigmatization of abortion providers. If physicians who offer abortion care don’t have a legitimate claim to act in ‘good conscience,’ like their counterparts who oppose abortion, the implication is that they act in ‘bad conscience’ or lack conscience altogether. This understanding reinforces images of abortion providers as morally bankrupt.”

Surely, Dr Harris contends, if there is a place for conscientious objectors, there must also be a place for conscientious providers. Goody two-shoes refusniks get all the applause as they frolic on the moral high ground. Is there no room for sincere, hard-working doctors who provide abortions?

She offers an example: in Georgia and Arizona abortions are banned after 22 and 20 weeks. However, there are no exemptions in the law for doctors who feel ethically obliged to perform abortions beyond these limits. This is unfair, she says. “Moral integrity can be injured as much by not performing an action required by one’s core beliefs as by performing an action that contradicts those beliefs.”

Not all abortion providers are saints. The name of Philadelphia doctor Kermit Gosnell springs to mind as a loathsome blot on Dr Harris’s hagiography. However, it’s impossible to deny that some abortion providers fervently believe that they are doing an honourable thing.

But is fervour enough? Since when are our decisions validated by the sheer strength of our core beliefs? What about women who provide genital mutilation for young girls? They, too, have strong convictions about the necessity and righteousness of their craft.

The idea of conscience as a strong, irrefutable and irrational feeling seems to be the conventional wisdom in the upper echelons of the medical fraternity. In 2007 the ethics committee of the American Congress of Obstetricians and Gynecologistsdissected conscientious objection in a position paper on “the limits of conscientious refusal in reproductive medicine”. It also defined conscience as a core belief:

“An appeal to conscience would express a sentiment such as “If I were to do ‘x,’ I could not live with myself/I would hate myself/I wouldn’t be able to sleep at night.” According to this definition, not to act in accordance with one’s conscience is to betray oneself—to risk personal wholeness or identity.”

There’s something in this, of course. Thomas More agonised over the loss of his personal integrity when he refused to support Henry VIII’s marriage. In his famous words, “I do nobody harm, I say none harm, I thinke none harm, but wish everybody good. And if this be not enough to keep a man alive, in good faith I long not to live.”

As a definition, though, it holds no water. Conscience would be nothing more than a warm and fuzzy feeling, even if it is packaged as “personal integrity”. But this is not what conscience is. Conscience is an assessment of whether my action agrees with a moral law. Conscience is a personal decision, but others can dispute whether that decision is correct because both are invoking the moral law. In other words, conscience can be the subject of a fruitful rational debate; core beliefs about personal wholeness cannot.

If we accept Dr Harris’s interpretation, we effectively have moral anarchy. George Tiller could plead conscientious objection if he were to do illegal late-term abortions and Scott Roeder could plead conscientious objection if he were to assassinate him. This simply won’t do. A world in which everyone is huddling together on the moral high ground is unworkable.

Amazingly, Dr Harris fails to see this. Her main concern is to restore the moral prestige of abortion doctors. “Failure to recognize that conscience compels abortion provision, just as it compels refusals to offer abortion care,” she writes, “renders ‘conscience’ an empty concept and leaves us all with no moral ground (high or low) on which to stand.”

Actually, her reasoning is topsy-turvy. How can two diametrically opposed claims be equally conscientious and equally deserving of respect? Our ethical currency will be devalued if every action has the same value. But she is on the money in asserting that conscience is on the road to become an “empty concept”.

The publication of this shoddily-reasoned editorial in the New England Journal of Medicine is a disturbing step in the debate over President Obama’s health care act. It suggests that a significant sector of America’s medical elite feels that conscience, and therefore conscientious objection, is philosophically incoherent.

There seems only one exit from this intellectual impasse. If moral questions cannot be settled through reasoned debate, they will have to be settled on arbitrary grounds by the power of the state. What shape this will take is impossible to predict. But if we accept this principle of moral nihilism we shall surely end up as prisoners in the foetid darkness of Mordor. In the eloquent words of someone who lived there, Hermann Göring, “I have no conscience. Hitler is my conscience.”

 

Michael Cook is editor of MercatorNet. 

Michael Cook

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Michael Cook likes bad puns, bushwalking and black coffee. He did a BA at Harvard University in the US where it was good for networking, but moved to Sydney where it wasn’t. He also did a PhD on an obscure corner of Australian literature. He has worked as a book editor and magazine editor and has published articles in magazines and newspapers in the US, the UK and Australia.

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  • JMC

    I think the thing I find most laughable, in both the abortion debate and the gay debate, is the fact that those who support/provide abortions and come out as gay are described as being “brave.” That may have been true twenty years ago; today, not so much. It’s the ones who come out and say publicly that they believe these things are wrong who are the brave ones now, as the modern sociopolitical climate works to undermine the arguments, and indeed, the very livelihoods of such individuals. (People can be, and have been, fired, and even blacklisted, for doing or saying anything even the slightest bit politically incorrect.)
    I’m not feeling the tolerance here.

  • http://twitter.com/Servant_Charity Servant of Charity

    Wow, relativism on display. Thank you for the analysis. It’s sad that this is what prestigious medical journals have come to. No question the “solution” our government has decided on is to deny everyone’s right to conscience, as President Obama’s appeal of the ruling granting Hercules Industries a reprieve from the HHS mandate proves. We definitely need to answer Pope Benedict’s call to arms against the dictatorship of relativism.
    John
    http://servantofcharity.blogspot.com/2012/09/tolerance-or-indifference.html

  • http://www.facebook.com/profile.php?id=100001299617319 Terry Carlino

    Where are the stunningly brilliant moral ethicists who support Natural Law? I know they exist. Why are they not publishing in these same journals? Has the system become so corrupt, that like in climate science, only those who agree with the left can get published?

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