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Protection of Conscience Project

www.consciencelaws.org

Service, not Servitude
Background

"NO MORE CHRISTIAN DOCTORS"

Part 6: Avoiding authoritarian 'solutions'


The centrality of the human person

The definitions of "health" and "harm" are determined by underlying beliefs about the nature of the human person.1 There can be no agreement about what is beneficial or harmful for the patient without first agreeing upon that. A definition or belief about the human person is necessary to assess benefits and harms, and thus shapes the approach to every moral or ethical problem in medicine.

These beliefs may take scientific and medical information into account, but they are not and cannot be scientific, since questions about human personhood are beyond the scope of science.2 An underlying non-scientific 'belief system' thus inescapably informs the practice of all physicians, including their notions of "health" and "harm."

Explicit faith, hidden faith

When people cannot achieve a consensus about the morality of a procedure, it is frequently because they are operating from different beliefs about the nature of the human person. Disagreement is seldom about facts - the province of science - but about what to believe in light of them - the province of philosophy and religion. Such underlying beliefs are frequently unexamined. Hence, when a public and practical expression of a religious belief generates a conflict between a religious believer and a secularist, the conflict often arises because of a clash between the explicit faith of the religious believer and the hidden faith of the secularist.
In such situations, precisely because the faith-assumptions of the secularist are not explicit (and may not be recognized even by the secularist) , the controversy is often erroneously portrayed as a conflict between believers and non-believers: between religious belief and science ('real' facts): between religious belief and reason ('real' knowledge): or between religious belief and the secular (the 'real' world).

Forms of rationalism, scientific materialism and secularism that claim exclusive access to reality deny the capacity of conscience or religion to grasp what is real. The assumption here may be that reason (and perhaps only reason employing empirical science) is "the only valid way of human knowing, and, consequently, the only appropriate tool to explore non-scientific questions, such as profound ethical issues."3 Thus, conscience and religion are relegated to the purely subjective, personal sphere, because it is assumed that they produce "mere" belief, which must give way before "real" knowledge produced by forms of rational enquiry in which conscience and religion play no part.4

Such an outlook involves a truncated view of reality, for human dignity, justice, equality, courage, prudence, mercy, beneficence, non-maleficence, and love - to name but a few realities that most people acknowledge- are not amenable to the methods of empirical science nor adequately approached by means of reason alone.5

An understanding of any of these things involves belief. They may be religious beliefs held to be divinely revealed, the beliefs of principled moralists (whether religious, atheistic or agnostic) who derive them from various sources, or the beliefs of the indifferent, who absorb them from traditions they do not understand, or Facebook. But controversies on all such subjects arise from differences in belief, not conflicts between belief and scientific facts, or between superstition and knowledge, or between myth and reality.6

Impossible demands

Hence, the demand that physicians must not be allowed to act upon beliefs is unacceptable because it is impossible; one cannot act morally without reference to beliefs. Relevant here is a comment by Professor Margaret Somerville. "In ethics," she writes,"impossible goals are not neutral; they cause harm."7

The demand that physicians must not be allowed to act upon "personal" or "religious" beliefs heard with increasing frequency and stridency in public discourse - is equally unacceptable. The demand, framed in this way, with an emphasis on "personal" or "private" morality, is an attempt to discredit them precisely because theirs is a minority view. But this approach cuts both ways. The beliefs of many conscientious objectors, while certainly personal or private in one sense, are actually shared with tens of thousands, or even hundreds of thousands or hundreds of millions of people, living and dead, who form part of great religious, philosophical and moral traditions. If theirs is a 'private' morality, that of those who differ with them is not less so.

Avoiding authoritarian 'solutions'

Of greater interest in the present context are the sometimes explicit accusations that physicians who act on "personal" beliefs are narrow-minded, eccentric, and even selfish. Such allegations provide an additional reason for caution, for they too often reflect an attitude more appropriate to a totalitarian state than to a liberal democracy: that physicians have a duty to do what they believe to be wrong, that they must always set aside their own conscientious convictions in order to conform to the expectations of the patient, or the profession, or the state, the better to serve as an instrument to achieve ends chosen by others.

But Madame Justice Bertha Wilson, in R. v. Morgentaler, stressed that "an emphasis on individual conscience and individual judgment . . . lies at the heart of our democratic political tradition."8 She insisted that an individual must never be treated as a means to an end - especially an end chosen by someone else, or by the state. One of her reasons for striking down legal restrictions on abortion was that, through the law, the state was 'taking sides' on what is essentially a moral question that should be left to private judgement. She rejected the idea that the state should endorse and enforce "one conscientiously-held view at the expense of another," for that is "to deny freedom of conscience to some, to treat them as means to an end, to deprive them . . .of their 'essential humanity'."9

Crusaders in high places, joined now by handmaidens on Facebook, are demanding that physicians, as a matter of principle and even as a matter of law, can be compelled to do what they believe to be wrong, and that they can be punished if they do not. It is the position of the Project that this is a blasphemy against the human spirit. Applying to such demands the words of Alexander Solzhenitsyn, "To this putrefaction of soul, this spiritual enslavement, human beings who wish to be human cannot consent."10

Freedom of conscience inhealth care: distinctions and limits
This section of the paper draws from an extended discussion of the subject in Murphy S, Genuis S.J. Freedom of Conscience in Health Care: Distinctions and Limits. J Bioeth Inq. 2013 Oct; 10(3): 347-54

This does not, of course, dispose of the practical question of how freedom of conscience can be rationally and adequately accommodated in a society characterized by a plurality of moral and political viewpoints and conflicting demands. Ultimately, like the difficult compromise achieved by the Canadian Medical Association, this is a work in progress. Nonetheless, it is possible to propose some foundational principles that provide some guidance.

Perfective Freedom of Conscience

A traditional view holds that one who freely chooses a moral good - say, helping someone in need - perfects himself/herself to the extent that what is chosen is truly good and not just apparently so. A moral pluralist might say that the free choice of a desired good actualizes personal autonomy and thus contributes to an ultimate end described as self-fulfillment. The decision to pursue an apparent good in either case can be called an exercise of perfective freedom of conscience because it is potentially perfective of the human person.

Preservative Freedom of Conscience

On the other hand, one who refuses to participate in wrongdoing - refusing an invitation or pressure to steal, for example - preserves his own integrity, even though he does not achieve the kind of personal growth that might be possible by doing some positive good. A moral pluralist might hold that such a refusal preserves rather than develops personal autonomy. Thus, a decision to avoid an apparent evil can be described as an exercise of preservative freedom of conscience.

The problem of limits

It is generally agreed that the state may limit the exercise of freedom of conscience if it is objectively harmful, or if the limitation serves the common good. While there is disagreement about how to apply these principles, they are seen at work when the law refuses to countenance human sacrifice in religious worship or when it limits the practice of medicine to qualified professionals rather than faith healers.

Such limitations may interfere with some of the aspirations of citizens or their pursuit of moral perfection but are not necessarily inconsistent with democratic freedom or human dignity. Certainly, restrictions may go too far; they might fail to demonstrate sufficient understanding and respect for human freedom and dignity, even if they do not subvert them entirely. But no polity could long exist without restrictions of some sort on human acts, so some limitation of perfective freedom of conscience is not unexpected.

If the state can legitimately limit perfective freedom of conscience by preventing people from doing what they believe to be good, it does not follow that it is equally free to suppress preservative freedom of conscience by forcing them to do what they believe to be wrong. There is a significant difference between preventing someone from doing the good that he/she wishes to do and forcing him/her to do the evil that he/she abhors.

Protecting fundamental goods

By its nature, perfective freedom of conscience demands much more of society than preservative freedom of conscience. Limiting perfective freedom of conscience may prevent people from perfecting themselves, fulfilling their personal aspirations, or achieving some social goals. This may do them some wrong; that is why democratic regimes have been increasingly inclined to err on the side of freedom, demanding that restrictions on freedom of conscience must be demonstrably necessary, narrowly framed, and strictly construed. But if it does them some wrong, it does not necessarily do them an injury.

In contrast, to force people to do something they believe to be wrong is always an assault on their personal dignity and essential humanity, even if they are objectively in error; it is always harmful to the individual, and it always has negative implications for society. It is a policy fundamentally opposed to civic friendship, which grounds and sustains political community and provides the strongest motive for justice. It is inconsistent with the best traditions and aspirations of liberal democracy, since it instills attitudes more suited to totalitarian regimes than to the demands of responsible freedom.

This does not mean that no limit can ever be placed on preservative freedom of conscience. It does mean, however, that even the strict approach taken to limiting other fundamental rights and freedoms is not sufficiently refined to be safely applied to limit freedom of conscience in its preservative form. The stakes are far too high. Like the use of potentially deadly force, if the restriction of preservative freedom of conscience can be justified at all, it will only be as a last resort and only in the most exceptional circumstances.


Notes

1.  One must distinguish between human being and human person. In Canadian law, human being is defined by section 223 of the Criminal Code as a child who has "completely proceeded, in a living state, from the body of its mother". Canadian jurisprudence indicates that the term human person and human being (as defined in section 223) are synonymous. There are historical, legal and political reasons for this, but we are not, in the present context, concerned with law. The subject here is the relationship between science and philosophy.

2.   It is the province of science to determine when a human individual begins to be - that is, to exist. The existence of a human being is a purely biological matter. Standard texts on human embryology are clear on this point. However, science cannot determine what moral obligations are called forth by the existence of a human being. Equally important, while science can establish that a human being is in existence, it cannot determine that the individual is a human person. That is a philosophical question, and science is not competent to decide philosophical questions. Its correct and limited role is to provide factual data that philosophers and ethicists incorporate into their deliberations.

3.  Somerville M. "Why are they throwing brickbats at God?" MercatorNet (1 June, 2007) (Accessed 2007-07-05)

4.  As, for example suggested by John Rawls' "veil of ignorance". Rawls J. A Theory of Justice. Cambridge, Mass.: Harvard University Press, 1971

5.  "We have multiple ways of human knowing in addition to reason, all of which are essential to ethics. They include history (human memory) — this is beautifully encapsulated in aboriginal people's practice in making ethical decisions of looking back seven generations. Imagination and creativity — looking forward seven generations to try to assess the ethical acceptability of the impact of what we plan to do on future generations. Intuition — especially moral intuition. Common sense. Experiential knowledge — including what we can know, as the gym teachers tell us, by listening to our bodies. And "examined" emotions, to name just some." Somerville M. "Why are they throwing brickbats at God?" MercatorNet (1 June, 2007) (Accessed 2007-07-05).

6.  Which is not to say that questions of fact and distinctions between knowledge and belief are irrelevant in such disputes.

7.   Somerville M. "Why are they throwing brickbats at God?" MercatorNet (1 June, 2007) (Accessed 2007-07-05).

8.   R. v. Morgentaler (1988)1 S.C.R 30 (Supreme Court of Canada) (Accessed 2014-02-24)

9.  R. v. Morgentaler (1988)1 S.C.R 178-179 (Supreme Court of Canada) (Accessed 2014-02-24)

10.  Solzhenitsyn, Alexander, "As Breathing and Consciousness Return." In From Under the Rubble. Bantam Books (USA & Canada) 1976, p. 23

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