The Public Argument of Conscientious Objection

[Note: This essay is a revised version of a paper presented at the conference Summons to Freedom: Virtue, Sacrifice, and the Common Good, held at the University of Notre Dame, November 12“14, 2009.]

Why do advocates of abortion and contraception find the conscientious objection of pharmacists and other medical professionals so intolerable? Recognizing a right to conscientious objection, some hospitals allow the shifting of work schedules and duties to respect conscience on a variety of issues. Nonetheless, the issue of conscience protection has helped throw the current health-care reform bills into serious doubt, illustrating once again that a society-wide debate about abortion . . . or contraception or euthanasia . . . will be settled by consciences first, with stable legislation following. The development of practical alternatives, again the work of consciences, will help resolve these debates. So why deny conscience protection to the health care professionals whose objection would motivate them to seek those alternatives? Better to reform our health care system by keeping those professionals within it.

The history of slavery and its abolition in the United States vividly illustrates a period during which the justice of a social practice was tirelessly debated, with the common recognition that a social conscience would form and either accept slavery as just or reject it as unjust and radically change social practice. As more and more people became convinced of the immorality of slavery, our society was able to address some of its evil effects and recognize more clearly why both slavery and the discrimination that remained after its abolition are unjust. Similarly, our current moral debates about certain health-care practices, especially those that kill human life, may eventually establish or abolish certain medical practices as just or unjust. A healthy debate may in time establish a sound public conscience about how to pursue important social goals without the destruction of human life.

In the current political climate, opponents of conscience protection in health care sometimes accuse objectors of seeking privileged exemption from the law, as if objectors want to be excused from a burden licitly imposed on all. This charge grossly misrepresents conscience. Definitions of conscience typically emphasize the individual’s judgment about himself, overlook the social dimension, and risk misrepresenting conscientious objection as self-serving. By contrast, consider the root idea of “conscience” in Greek thought, as deftly outlined by the philosopher Timothy Potts. To exercise one’s conscience originally meant “I know in common with . . . and bear witness” and applied to a person who knew another’s mind and testified for or against him in court. As a variation on this meaning, the concept of conscience came to describe an awareness of one’s own mind and a witness regarding one’s own actions. In conscience, one judges oneself as if one were another. The act of conscientious objection illustrates not only this self-critical aspect of conscience but also its social argument. Conscientious objection presumes the type of self-criticism that one could and should share with others for society’s own benefit. For example, a pharmacist’s refusal to fill a prescription for a contraceptive or abortifacient constitutes an act of self-criticism about the meaning of his action if he were to fill it. In justice, that pharmacist should consider how this self-criticism applies to other pharmacists. In doing so, he should consider not merely the inconvenience to those in disagreement but, more importantly, the moral effects on those in disagreement. A personal interest in self-criticism is not the same as self-interest, and a public argument related to this self-criticism is not necessarily an “imposition of one’s own values.”

When the members of a society carry on a serious debate, the activity of conscientious dialogue, the sharpening of individual consciences, and a relatively stable peaceful consensus all characterize that society’s common good. In an analysis of the common good in social encyclicals, Russell Hittinger shows that the common good has three interrelated sets of meanings. First, the common good can refer to goods realized in individuals and common to human beings, such as patient health and the experienced, well-formed consciences of medical professionals who are consistently able to imagine ethical and personal plans of patient care. Second, the common good can refer to common activities, such as professional work and the dialogue of consciences about how to provide care ethically. Third, the common good can refer to forms of communion, such as marriage, the patient-physician relationship, and a consensus among well-formed consciences that certain medical practices ultimately undermine human flourishing and therefore must be replaced with other practices. There is good evidence that current policy on conscience protection will stifle the serious ground-level debates required to promote these common goods. Early in 2009, the Department of Health and Human Services (HHS) proposed to rescind some existing conscience protection regarding abortion and accepted public comments on the proposal. Reading these public comments is instructive. Arguments against conscience protection lead to the conclusion that any medical professional with objections to abortion should simply leave medical practice. This view overlooks the fact that health-care professionals regularly note ethical problems about a variety of medical practices, argue convincingly for change, and contribute to the common good. At best, this view overlooks the fact that conscientious objection itself constitutes a moral argument in a society-wide debate. At worst, this point of view refuses to engage with any perspective and seeks to legislate away differences of opinion and conscience.

Commentators to the HHS also argued that allowing conscience protection would restrict access to the abortion procedure, causing undue burden to women seeking it. Commentators who made this argument, such as the Southwest Women’s Law Center, typically provided no data showing reduced access as the likely result. In fact, there probably are no data to prove this point. It is more likely that conscience protection will increase access because people may enter medical practice with less fear that their conscience will be violated, if not about abortion, then about another issue. Furthermore, denying conscience rights will force some professionals to abandon the profession. Patients will not be able to find medical professionals who share their moral convictions and benefit from their expertise in providing care according to those convictions. To illustrate this danger, consider the pregnant wife pressured to abort her child because her obstetrician does not accept or, practically speaking, even know another way of managing her risky pregnancy. Surely the common good requires consideration of these burdens as well as an open discussion of the morality of abortion and the justice of laws regulating it.

The contribution of conscience to the common good explains why conscientious objection is so intolerable to abortion advocates: It makes a public argument for the abolition of abortion and the discovery of alternatives, wherever possible. Objection generates public debate in which every side expects short-term compromises while complex questions are answered. It aims, however, at the formation of a social conscience sufficient to reject certain medical practices as inherently immoral and unfit for the common good. History offers encouraging as well as discouraging evidence for the formation of such a social conscience. Nevertheless, persons cannot morally “opt out” of expressing a conscience regarding the common good, whether or not their laws offer them protection in doing so.

Dr. Grattan Brown is an assistant professor of theology at Belmont Abbey College. His scholarly research has focused on issues of conscience in Catholic health care.