For more than two millennia, physicians have sworn by the Hippocratic Oath not to engage or collude in practices like abortion, euthanasia, or assisted suicide. In the wake of the egregious violations of the Hippocratic ethic by Nazi physicians, the World Medical Association’s 1948 Physician’s Oath affirmed, “I will maintain the utmost respect for human life from the time of conception, even under threat.”11 The legally binding UN Declaration of Human Rights and the 1959 UN Declaration of the Rights of the Child affirm the rights of the child before as well as after birth.12
With astonishing speed, legal protections of children before birth have been swept away in both letter and spirit. UN officials have been attempting to pressure sovereign member states to establish abortion as a legal right.13
Far from resisting these threats, professional associations have revised the Hippocratic and other oaths to eliminate the prohibitions on killing—whether through abortion, euthanasia, or assisted suicide. Professional ethics codes once forbidding abortion and other life-terminating measures now come close to making direct or indirect participation in them a requirement of professional practice.14
In recent years, the threat to conscience rights has widened beyond abortion and the duties and rights of physicians, nurses, and pharmacists to areas in which social workers are more directly and routinely involved. Among these are counseling, psychotherapy, foster care, and adoption, where practitioners and agencies are expected to affirm same-sex sexual relations and, across the United States, same-sex “marriage,” as equivalent in moral status, social honor, and appropriateness as family environments for children, to conjugal relations between husband and wife.
One driver of these developments, Helen Alvaré argues,15 is the vigorous promotion by the federal government of a new moral orthodoxy, an ideology she terms “sexualityism” or “sexual expressionism.” Against what social science tells us about human happiness, “the government is promoting sexualityism—a commitment to uncommitted, unencumbered, inconsequential sex.”
The HHS mandate stands on this theory. In a world of easily available birth control and abortion, the only reason for a federal mandate for a “free” and universal supply is to send the sexualityism message. The White House has all but come out and said, “women of America, vote for the incumbent this presidential election year because he supports women’s equality and freedom, which he understands to include at the very least nonmarital and nonprocreative sexual expression.” Why else choose Sandra Fluke—an affluent, single, female law student, who demands a taxpayer-subsidized, 365-day supply of birth control as the price of female equality—as your spokeswoman?16
The HHS mandate requiring all employers, with narrow exceptions, to provide “insurance” coverage for abortifacients, contraceptives, and sterilization threatens the religious freedom of all Catholic and many other Christian employers.
In cases such as a small town built around a Catholic or Evangelical university that refuses, on grounds of conscience, to comply with the mandate, the very existence of the whole community is in jeopardy due to the fines imposed for noncompliance. This modern variant of Saint Benedict’s solution—building centers of Christian fidelity, learning, and devotion, tilling and keeping our own garden in the face of a culture of barbarism outside—would be foreclosed. Such communities face something more analogous to Henry VIII’s dissolution of English monasteries in the 1530s.
In general, either Catholic organizations will violate the Church’s authoritative teaching and effectively cease to be Catholic, or they will be closed down, sold off, or fined out of existence. As Cardinal George of Chicago put it, “a governmental administrative decision now mean[s] the end of institutions that have been built up over several generations from small donations, often from immigrants, and through the services of religious women and men, and others who wanted to be part of the church’s mission in healing and education.”17
One result of the stripping of these health and social-service programs from the Church would be to deprive Catholic social workers of even the possibility of practicing their profession in a Catholic context, that is, as part of the Church’s corporate response to the needs of the poor, sick, homeless, and oppressed—an organized activity and duty of the Church from the beginning. Again, these considerations apply also to other adherents of Judeo-Christian orthodoxy (in the broad sense distinguished by Robert George from the state-imposed secular-liberal orthodoxy18).
Conscience
Among the health and helping professions, social work stands out for its opposition to conscience exemptions for its own members. More than two-thirds of respondents in J. Sweifach’s study19 believed that laws protecting some health-care providers should not be extended to social workers. In contrast, and despite ongoing attacks on conscience exemptions within these professions, other fields give more weight to professional judgment and discretion in choosing whom to serve and how to serve them. The American Pharmacists Association recognizes an individual pharmacist’s right to conscientious refusal.20 The AMA’s Code of Medical Ethics states that “[a] physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve.”21 According to the American Nurses Association,22 nurses have a right to refuse to participate in a procedure, but the conscientious objection must apply to the procedure, not the patient. Lawyers also assert the right to refuse representation in cases they consider morally repugnant, though they seem not to have the right to exclude whole categories of clients, such as men in divorce cases.23
In social work, by contrast, the tendency is to address the conflict in ways similar to that of the Eastern Michigan counseling program—treat or exclude the practitioner. Tellingly, Sweifach cites the NASW code of ethics’ insistence on the social worker’s primary responsibility to promote the well-being of clients, as though the practitioner’s judgment of that matter were necessarily subordinate to the client’s: “Commentators explain that when clients’ behaviors and practices conflict with a social worker’s personal morals or religious beliefs, the social worker may be in need of peer support, supervision, or values clarification training to responsibly serve clients.”24 Conscience is thus reduced to “personal values,” and the professional as moral agent to a cipher.
In part, the failure of professional organizations like NASW to protect the conscience rights of their members is justified by an implicit rejection of the very concept of conscience as traditionally understood. In its place we find a contrast of public (or professional) and personal “values.” Here values have no intrinsic authority beyond being the subjective opinions of those who hold them. If this is so, then why should the personal opinions of a practitioner not be subordinated to those of the state that licenses and funds his or her professional work?
Much social-work literature on the subject frames issues of conscience in this way, as a conflict between personal and professional values. Sweifach gives several examples framing the issue of conscience and conscientious objection in those terms.25 For instance, N. Linzer suggests that “in conflicts between personal values and professional values, the professional is duty-bound to uphold professional values. Upholding professional values represents ethical action.”26 According to this view, it is ethical, in these circumstances, to act against your own conscience.
As Christian social workers come under increasing pressure to cooperate with what they consider evil, in the name of professional duty, the question of conscience becomes correspondingly more urgent. Statements from NASW, its executive director,27 and its Legal Defense Fund28 make it clear that their professional organization will not defend the conscience rights of members when policies they support are involved.
Opponents of conscience exemptions give little or no weight to the gravity of requiring someone either (a) to act against their conscience or (b) to leave their profession or be denied admission to it and hence to its schools. But the choice to act against your conscience can never be right; it is to choos
e to do what you believe to be wrong, and in the case of abortion, gravely wrong. For a Christian, it means putting your immortal soul in jeopardy; for a Catholic Christian, it means excommunicating yourself from your Church and its sacraments.
In its hotly disputed Opinion #385, “The Limits of Conscientious Refusal in Reproductive Medicine,” the Committee on Ethics of the American College of Obstetricians and Gynecologists takes the position that prolife physicians must refer patients seeking an abortion to other providers, must tell patients in advance of their views without explaining or arguing for them, and must, in emergency cases involving the patient’s physical or mental health, actually perform abortions. It treats conscience as but one value among others that can and should be overridden in the interest of other obligations. Not only the hospital or clinic, but also the individual physician, is called upon to override the physician’s conscience.
A prevalent idea of conscience, implicit in this opinion and most of the social-work literature, minimizes its claims by treating it as only one thing among others that the practitioner must take into account in deciding how to act. Conscience becomes a matter of personal values that must be left at the office door when duty calls. Professional duty trumps personal conscience.
But this account trivializes the very concept of conscience and renders it incoherent. It runs counter to the traditional understanding of the term, according to which conscience is the supreme and final arbiter for an individual’s actions precisely because it represents the agent’s best ethical judgment, all things considered. Here “all things” must include considerations of what the agency or the state or professional codes of ethics tell us our duty is. It could never be right to act against one’s own conscience. It is hard to see how a notion of conscience as one value among others from which a professional should choose could be other than incoherent. On what ethical basis could such a choice be made? What is to be counted after everything has been counted?
NOT ONLY HAS the Nietzschean term “values” become a rhetorical device for subjectivizing and relativizing moral discourse, but conscience itself has become “the ghostly inner voice telling an individual what he or she should or should not do.”29 Conceptualized as a faculty of the individual, conscience too readily becomes detached from judgments of practical reason about the right thing to do. Herbert McCabe draws the contrast with the older Catholic tradition: “Aquinas does use the word conscientia, but for him it is not a faculty or power which we exercise, nor a disposition of any power, nor an innate moral code, but simply the judgment that we may come to on a piece of our behavior in the light of various rational considerations.”30
Conscience in this view is not subjective opinion but involves knowledge and judgment, and is thus open to rational inquiry. It is not a conversation stopper, like the subjective preference for vanilla over chocolate ice cream. As Moreland explains, “A person is said, then, to act in accord with a good conscience with truthful knowledge, which, in turn, habituates one into the cardinal virtues of justice, temperance, fortitude, and especially prudence.”31 For Aquinas and the Catholic tradition, conscience—applying the general principles of practical reasonableness to specific circumstances—is closely linked to the classical virtues (above all prudence) acquired by experience and habituation.
We thus ought to follow our conscience not because it is a uniquely authoritative and correct autonomous inner voice, but because it is, all things considered, our best practical judgment of right action. It is a necessary but not sufficient condition of acting well. As Elizabeth Anscombe puts it in her justly renowned critique of “Modern Moral Philosophy,” “a man’s conscience may tell him to do the vilest things.”32
Karl Jaspers gave the example of a young German concentration-camp guard he met in a hospital at the end of World War II—the man’s conscience tortured him still because he let a Jewish boy escape instead of doing his duty of rounding him up and sending him to the gas chamber.33 Our conscience is our last defense against cooperating with evil in the name of duty, but conscience can itself be wrong and direct us to do evil. We must both follow our conscience in all matters and also form our conscience well by following reliable authorities and the advice and models of prudent persons. Anscombe—in unpublished notes for a lecture—argues the dilemma thus:
If you act against your conscience you are doing wrong because you are doing what you think wrong, i.e., you are willing to do wrong. And if you act in accordance with your conscience you are doing whatever is the wrong thing that your conscience allows, or failing to carry out the obligation that your conscience says is none.
There is a way out, but you have to know that you need one and it may take time. The way out is to find out that your conscience is a wrong one.34
We do wrong both when we act against our conscience and when we follow a badly formed conscience into evil actions or failures to act, thinking they are good or morally neutral. The wrong in the second case is not that we followed our conscience, but that we failed to form our conscience correctly. We are obliged, John Paul II writes in Veritatis Splendor (1993), both to inform our conscience and to follow it. We can be at fault at either stage.
Preferences and Obligations
Whether conscience is treated as one factor among several to be taken into consideration or as a subjective, nonrational inner guide or faculty, it appears reasonable to reject its claims in policy and law, even when a religious motivation is claimed. The logic is expressed, for example, by the late political philosopher Brian Barry, for whom conscientious objections based on religious belief are simply preferences.35 Barry asks why some, namely religious, preferences should be privileged in law or policy over others. Why should the state bend over backward to accommodate the preferences of a minority? Why should laws be crafted so that no one will ever be unnecessarily coerced into violating conscience?
Melissa Moschella summarizes the argument advanced by the editors of the New York Times and many others:
Opposition to the [HHS] mandate seems like an attempt to impose Catholic views about contraception on the rest of the society, or an unjustified request for special treatment. Why should a minority of Catholics . . . determine public policy for the entire country? Yes, the government could provide free access to contraceptives without conscripting employers to do it for them through their health plans, but why should we bend over backwards to adapt our policies to the religious or moral sensibilities of a minority?36
No one claims that the conscience of a given individual or group always trumps other considerations in policy making. A conscience, even one that is shaped by binding religious obligation, may be badly formed and contrary to moral truth, as when a religion requires its adherents to offer human sacrifice or kill nonbelievers. In those cases, the common good requires that such believers be coerced into violating their consciences.
But the moral integrity of persons is itself constitutive of the common good. Absent an absolute necessity to coerce the consciences of some in order to protect public order and the rights of others, the common good also requires respecting the claims of conscience.
The blurring of the distinction between preferences and obligations is one aspect of the trivialization of conscience. As Moschella argues:
There is a world of difference between a law that makes me do something I don’t want to do, and a law that makes me do something I have an obligation not to do. The former is an annoyance, the latter an assault on my moral integrity. I may not want to follow the speed limit, but that doesn’t give me a claim to be exempted from the law. On the other hand, if I believe that killing animals is morally wrong, no law should force me to serve meat in my business’s cafeteria, or give my employees gift certificates to a steakhouse, even if encouraging people to eat more high-protein foods would promote public health.37
Here we might add that there is also an important difference between my deciding whether or not to meet my religious obligation to attend Mass on Sundays or to have my son
s circumcised and the state’s compelling me to do or not to do so.
As Moschella argues, “laws that forbid individuals to act in accordance with the dictates of their consciences place a burden on those individuals that differs not only in degree, but in kind, from the sort of burden involved in forbidding someone to act in accordance with mere preferences, however strong.”38 Such laws distribute the burdens and social benefits of social cooperation unequally. A difference in kind of burden is imposed, not merely one of degree.
We may see this by looking at the notorious precedent created by Antiochus IV Epiphanes in the second century B.C. The tyrant required his Jewish subjects to eat pork and food sacrificed to idols and prohibited them from performing circumcisions. Those who refused to violate their consciences in this way “were to be broken on the wheel and killed.”39 The edict imposed a radically different burden on observant Jews than on others. It was a gratuitous act of forced submission, a brutal assertion of secular power against a people of faith. As Michael Stokes Paulsen puts it, the story remains “a remarkable two-thousand-year-old parable about tyranny and conscience, about cram-downs, accommodations, deception, and adherence to principle.”40 Like the HHS mandate, it was an unnecessary case of a government insisting “on vindicating its authority and overriding religious conscience for its own sake—purely for the symbolism of power prevailing over conscience.”
Redefining Religion
With the HHS mandate, the Obama administration reduces religious freedom to freedom of worship. The mandate promotes a false but prevalent idea of religion as a private and marginal activity, the practice of which involves only coreligionists. Thus the state takes it upon itself to redefine religion, and to do so in ways that exclude essential elements of Christianity and other universal religions.
Social Justice Isn't What You Think It Is Page 26
