Should the Obama Conscience Rules Seek to Protect Persons or Provide
Ethics, Law and the Common Good
24 March, 2009
Reproduced with permission
The state is required to protect persons not just
from physical harm but from being forced to violate their limited but
definite freedom of conscience.
Two recent actions by President Obama throw into sharp relief a tension
between the role of the state as a protector of persons and the role of the
state as a provider of benefits. First, promising to restore the integrity
of science while seeking vast medical benefits for many, President Obama
repealed the restrictions set by President Bush on the use of federal funds
for embryonic stem cell research. Second, President Obama signaled his
intention to repeal a rule promulgated in the last days of the Bush
administration that codified previous law ensuring that no health care
providers at institutions receiving federal funds should be discriminated
against for refusing to participate in abortion or sterilization procedures.
In each case, the Bush provisions attempted to protect certain classes of
persons from actions that would appreciably harm them. In the case of
embryonic stem cell research, embryos themselves were protected-not as fully
as they would have been had all embryo-destructive research been forbidden,
of course, but still not insignificantly. At the same time, citizens who
object on strong moral and religious grounds to the killing of embryos were
also protected, for their tax dollars were not providing incentive for
further killing. But these protections were judged burdensome because they
prevented the provision of benefits to certain other classes of people: the
benefits to scientists of being able to pursue favored research, and the
benefits to citizens of potential medical treatments.
In the case of the conscience regulations, again the Bush provisions
attempted to protect a class of persons-medical and healthcare
professionals-from demands that would have implicated them in actions they
deemed wrong on moral and religious grounds. But the Obama administration
was concerned that some legal healthcare procedures would thereby become
unavailable, particularly in rural areas. Because these benefits were
threatened, steps have been taken to reverse the regulations.
In both cases, then, a protection was abandoned in order to make possible
the provision of certain benefits. But this reverses the order of priority
that should obtain between governmental ends.
This is not necessarily true of all easing of protections for the sake of
increased benefits. Property rights are protected, and owners have wide
latitude to dispose of their property as they see fit. Yet, for the sake of
widespread benefits and advantages to the common good, those protections can
be eased, as when the state appropriates private property, with appropriate
compensation, for the building of a system of public roads.
But two classes of protection deserve to take priority among the state's
ends. The first and absolute priority is the protection of all human beings
within the state's borders from violence and assault. Such protections are
clearly among the essential reasons for a state's very existence: that human
beings, left to their own individual devices, cannot adequately provide in
fair and coordinated ways for their own protection generates a need for a
state authority charged with the duty of protection. What must be noted is
that this obligation on the part of a just state extends to all human
beings; to discriminate on the basis of some other quality such as age or
quality of life is arbitrary and unfair.
By contrast, while welfare rights, and their provision by the state, are
justifiable across a limited range of cases (as
I have argued in Public Discourse previously) it is clearly not
a fundamental priority of the state to provide every possible benefit to all
persons. Many benefits, for example, are best pursued by citizens
themselves, and not by the state. But even among benefits that could be
provided by the state there are limits: not all benefits can be secured at
the same time-choosing some means foregoing others. Moreover, there are
limited resources, and choices must be made in favor of some rather than
other benefits. Finally, some benefits can be provided only at the cost of
failing to protect some human beings.
The state is not, therefore, committed to a willy-nilly provision of
every possible benefit to every human being, as it is committed to the
provision of protection against violence to every human being. This latter
commitment takes priority and may not be violated for the sake of the common
good. Nor is there is genuine "conflict of commitment" between the state's
purposes here, such that it may choose between one or the other. In this
respect, the Obama administration's clear commitment to the advance of
research that involves the destruction of embryonic human beings involves a
fundamental mis-ordering of political priorities.
Consider the other type of protection, the protection of conscience.
Here, the case is not quite the same as in the protection of persons against
I have noted in Public Discourse before, the right to freedom
of conscience is limited in important ways by the common good, namely, by
the need to protect the rights of others, public peace, and public morality.
Judgments that it would be permissible or even good to advertise
pornographic magazines on billboards in school zones can thus be overridden;
even judgments that it is obligatory to act in a particular way-to carry out
an honor killing, or to assault an abortionist-can (and should) be
But judgments of conscience that some particular act must never be done
stand in a special relationship to the state's duty to protect citizens;
such judgments represent the core of an agent's practical judgment as
regards what kind of person he or she should and should not be.
Protection of these sorts of judgments of conscience seems of a piece
with protection of persons against assault and violence for the following
reasons. First, such judgments go to the core of our identity and integrity
as human agents, just as our bodily integrity goes to the core of our
identity as human animals. Second, a consistent agent who has resolved that
something is simply not to be done, come what may, is thereby committed to
accepting the consequences of refusing to do that action rather than
capitulating to coercion. Such agents would accept even death over a choice
to act contrary to conscience, as the case of St. Thomas More makes clear.
And, just as they would refuse to violate conscience in the face of threat,
so would they refuse to accept any benefit rather than violate conscience.
Such considerations indicate that the protection of the integrity of
persons from threats to those judgments of conscience that are articulated
essentially in the negative-that I must not do such and such-has a claim to
being among the fundamental purposes of the state in a way that the
provision of benefits does not. It would, again, be a reversal of the
normative order of priorities to compel violations of conscience for the
sake of some otherwise foregone benefits.
But in at least some of the actions under consideration in the conscience
regulations, health care professionals with certain moral convictions simply
could not, consistent with those convictions, participate under any
circumstances in the actions in question. A doctor who genuinely believes
that abortion is an intentional killing of the innocent, and is always and
everywhere morally wrong, cannot, consistently with that judgment,
participate in an abortion procedure. Likewise, doctors who believe
sterilization to be a form of mutilation simply cannot participate in such
In these respects, then, were the new understanding of the conscience
regulations to involve any weakening of the protections for healthcare
professionals who refuse to participate in such procedures, they would
constitute a fundamental injustice; a failure to protect against threats to
the moral integrity of a large class of persons.
Yet this isn't the last word on the topic, for there are somewhat more
problematic cases involved as well, two of which are worth addressing here.
First, might it not be reasonable to require doctors who refuse to provide
certain services to refer patients to those who would provide them?
Second, can prescribing or dispensing contraceptives really be considered of
a piece with participating in abortion or sterilization?
In the absence of state requirements, it should seem obvious that for
someone morally opposed to abortion, referral of a patient to an abortion
provider is not much different from participating in the abortion itself.
Nor would anyone much respect a person in Nazi Germany who proclaimed an
unwillingness to participate in the execution of Jews but who provided
directions for those seeking to execute Jews. (The purpose of the analogy is
not to say that abortion is like the Holocaust but rather to make a point
about the requirements of integrity.) It might well be the case that, were
the state to command referrals, referring agents would only be materially
cooperating in the evil-that is, they might not intend the abortions, but
intend only to adhere to the law. Yet, many people will still judge such
material cooperation impermissible, and even for those who judged it
permissible, participation in the new regime of referrals would constitute a
considerable threat to their integrity over time.
These considerations suggest strongly that it is unjust for the state to
require such referrals. They involve damage against some people for the sake
of benefits for others, and not where instrumental goods such as property
are at stake, but where fundamental goods such as integrity are opposed to
what many consider to be no good at all. Moreover, since many agents will by
their own judgment be compelled to refuse to provide the referral, the
requirement would have the effect of driving them out of practice; and this
cannot possibly achieve the end sought by the state, namely, that in areas
with no other providers, certain otherwise legal procedures should be made
available. Fewer procedures will be made available, in fact, if doctors are
forced to abandon their practice for reasons of conscience.
What, then, of contraception? Similar considerations, it seems, apply.
First, to those morally opposed to contraception, it is wrong both to
prescribe and to refer. These constitute reasons for accommodation of such
agents even if, for some of those agents, a state requirement to prescribe,
or refer, or, in the case of pharmacists, to dispense, would mean that the
agent was now only materially cooperating. Such material cooperation might
nevertheless be wrong, in which case the agent would need to refuse; and
even if, in some cases, such material cooperation was permissible-in the
case of a pharmacist, for example, who was not responsible for the
prescription and who both knew that she would lose her job if she did not
fill the prescription, and that it would be filled anyway-the requirement
would constitute a considerable strain on the integrity of the healthcare
professional, a strain the state has no business imposing for the sake of
something that has contested moral legitimacy and goodness.
The state should exist primarily in the capacity of a protector of
persons-of their lives, clearly, and also of their liberty to shape their
lives as selves through time. The decisions regarding embryo-destructive
research and the repeal or revision of health care provider conscience
clauses seriously jeopardize the present administration's claims to be
fulfilling this fundamental task. And failure in this domain, much more than
failure in the provision of some limited set of benefits, constitutes a
terrible injustice against the persons for whose sake the state exists in
the first place.
Christopher O. Tollefsen is Professor of Philosophy at the University
of South Carolina and a fellow of the Witherspoon Institute. His latest
book, co-authored with Robert P. George, is
Embryo: A Defense of Human Life (Doubleday, 2008). Tollefsen sits on
the editorial board of
Copyright 2009 the Witherspoon Institute.
All rights reserved.