Longer than my usual post, by far, longer even than the conference paper of which this is an extended version.
DRAFT
Paul Adams
ABSTRACT
Many see abortion as a
matter of social justice, but differ on what "social justice" means.
The same is true of conscience. This paper analyzes the concepts of
conscience and social justice as they relate to each other and to social work
involvement in abortion decisions. It proposes that conscience and social
justice are necessary to each other and to good practice. Both need to be
understood in relational, not individualist-statist terms.
Introduction
No
provision in our Constitution ought to be dearer to man than that which
protects the rights of conscience against the enterprises of the civil
authority.
(Thomas
Jefferson to New London Methodists, 1809)
As
the gulf has grown in recent decades between the traditional Judeo-Christian
orthodoxy and the secular state in matters of life, death, sex, and marriage,
the question of conscience and conscience protections and exemptions in law has
become pressing.[2]
Livelihoods, careers, charitable organizations and activities, and whole
communities have been put at risk in the interest of imposing measures that
require many Christians and others to violate their consciences. Such coercion
of conscience by the state is sometimes justified in the name of social
justice.[3]
Unfortunately,
there is as much confusion about the concept of conscience as about that of
social justice. Conscience, rightly understood, is, no less than social
justice, inherently
relational, rooted in community, and directed beyond the self. It is moral
belief applied to conduct, conveys a claim to truth, implies accountability, is
a restraint on power, and is inseparable from personal integrity.[4]
As such, it is, like social justice, key to a healthy republic and civil society,
to expanding and protecting the rich associational life that occupies the
social space between individual and state. Some identify with social justice,
while some emphasize conscience, as if the two were in opposition. Both
perspectives frame issues in terms of the rights of individuals and the role of
the state, neglecting the intermediary groups and institutions of civil
society. One sees the world in individualistic terms, the other collectivist,
but both in relation to the state and each as opposed to the other. So, it
seems individualism stresses conscience at the expense of social justice and
collectivism does the reverse. On the contrary, rightly understood, conscience
and social justice illuminate and reinforce each other and both are necessary to
a democratic pluralist society.
1. Social Justice and Abortion
Though the term is seldom defined, social justice may be
approached in at least two main ways. In one, it is a desirable state
of affairs by comparison with which existing situations are deemed unjust
because they fall short of an ideal, whether of equality or nondiscrimination.
In the second sense, social justice is rooted in the tradition of justice, the
cardinal virtue that inclines people to give others their due. Justice as
virtue is the steady and lasting willingness to give to others what they are
entitled to. Social justice is a subvirtue of the virtue of justice, social in
two ways. It is the virtue, first, of working in association with others and,
second, of working together for the common good. It is social both in its form
and its aim.
The
first view is common – it is the only sense evident in social work’s official
literature, where the cardinal virtue of justice and indeed all mention of the
virtues are startlingly absent. Many critics, above all Hayek and recently
Patrick Burke, regard this, the prevailing view of social justice, as
incoherent, inherently unjust, and inclined to a state-centered and even
totalitarian view of society and social policy.[5]
The
second view sees social justice as a virtue to be understood, not in opposition
to the cardinal virtue of justice, but as an aspect or subvirtue of it. It is a
modern form of general justice or legal justice as understood in the classical
tradition of justice, the greatest of the moral virtues. This tradition of the virtues has been
central to ethics from Aristotle to Aquinas to the American Founders to current
scholars of virtue ethics. This understanding of justice and social justice has
been strikingly absent from the professional ethics of social work (which looks
instead to Kantian deontology shorn of the virtues) for more than fifty years. In
this paper, I look at the issue of abortion from both perspectives as each
informs our understanding of conscience, the state, and civil society.
In
the first sense, we may ask whether abortion is ever or could ever be just. As
an act, it involves the intentional termination of a human life, one with his
or her own DNA and principle of existence who, absent accident or deliberate killing,
will grow in time to become an infant, child, adolescent, and adult. Every one
of us is alive now because we went through that human developmental process
from unborn baby to adult. The denial of this simple and evident truth depends heavily on euphemism.
The act of abortion becomes in this discourse part of the
“full range” of “reproductive health care” or of meeting “reproductive health
needs,” although it is anti-reproductive, it is not (except in rare cases)
about health, it is seldom remotely definable as a medical need, and it
terminates care (and life) for one of the two patients involved. (In obstetrics
textbooks, traditionally, the physician is said to have two patients, the
mother and her unborn baby. Abortion by definition is never safe for one of
them.) This strategy of obscuring the reality of what is taking place through
bland medical metaphors and descriptions is endemic to the discourse of
abortion advocates, who talk of removing biological material or tissue rather
than causing the death of the tiniest and most vulnerable persons among us.
Indeed as Brennan (2008) shows, “much of the success of
the death culture depends upon the corruption of language in the form of
dehumanizing stereotypes imposed on the victims and euphemisms designed to
disguise what is done to them” (p.xv). The medical term “fetus,” is never used
when a mother is invited to see her baby’s ultrasound image or listen to her
heartbeat, only when abortion is under discussion. As philosopher John Finnis
(2010) recently argued, “The word ‘fetus’ is offensive, dehumanizing and
manipulative.”
Proponents of abortion rights say they are not
pro-abortion, but “pro-choice,” as if the taking of innocent human life were a
matter solely for the person responsible for the care of that life to decide.
It is as if I were to say that I am not pro-slavery but simply defend your
right to choose to buy and own slaves should you decide to do so. A law that
upheld that right would not be neutral or pro-choice, but pro-slavery. (On the
impossibility of state or legal neutrality in such grave moral matters, see
Sandel, 2009.)
If
we widen the lens to look at abortion as a social phenomenon and a matter of
social justice in the first sense, we see a distribution of the practice that
affects populations unequally. Most deaths by abortion are of girls, producing
in some countries an enormous discrepancy in live births and demographic
distortion that has justly been labeled gendercide.
In
addition to this discriminatory impact in terms of sex, we also find that the
practice falls disproportionately on certain racial and ethnic groups. To cite
just one well-known statistic, In
2012, there were more African-American babies killed by abortion (31,328) in
New York City than were born there (24,758), and the black children killed
comprised 42.4% of the total number of abortions in the city.[6] Similarly, “although whites
outnumber blacks in Mississippi by nearly 2-to-1, 71.67% of the babies aborted
in Mississippi are black, while 26.6% are white.”[7] Some African-American leaders
have described this racial disproportion as “black genocide.” There is a
similar disparity between classes, so that lives of unborn babies of poor
mothers disproportionately end in abortion.
There
is an argument made from this perspective of social justice to the effect that
abortion disproportionately benefits women who are poor and of color and that efforts to restrict abortion will have no
effect on underlying economic factors. Instead, argue Dehlendorf, Harris, and
Weitz, since such restrictions “will only result in more women experiencing
later abortions or having an unintended childbirth, they are likely to result
in worsening health disparities.”[8]
This
version of a public health approach raises questions about the relation of
dramatically increasing abortion rates, especially among poor women and those
of color, to the sexual revolution in all its aspects. I take this up below in relation to the
coercion of conscience as the new sexual and moral orthodoxy became the official
state ‘religion.’ Suffice it to say here that fruits of the sexual revolution –
unprecedented increases in nonmarital sex in all its forms, of cohabitation, nonmarital
births, paternal abandonment of women and children, divorce, contraception, and
abortion – are expressions of a profound cultural change that devastated poor
and minority families but cannot be reduced to economic causes. Contraception
and abortion have not limited these changes but facilitated them. With the
disappearance - first in poor African-American communities and then extending
across races and into the middle class - of the “shotgun marriage,” is one
expression of the delinking of sex and marriage and both from children. Marriage as an obligation and expectation for men who
father children outside it gave way to the ubiquity of cohabitation, abandonment, divorce,
and single parenthood in poor communities. Marriage was no longer the
institution that structured and stabilized relations between the sexes. Abortion increased dramatically, along
with universally available contraception, as it rendered pregnancy and
childbirth choices of the mother about how to use her body, and so implicitly, her
and not the father’s responsibility. Far from protecting women and their
children from the unwelcome results of sexual activity, abortion shifted the
economic terms of sex in favor of men, with deadly and devastating effects for
women and children.[9]
Looking
at abortion from the second social justice perspective shifts the focus from
the statistics of this miserable state of affairs to the moral collapse
underlying them. In the understanding of social justice proposed here, society
will not be just unless individuals are virtuous. Political and economic
structures in themselves cannot produce individual virtue. Nor can they provide
the love and support that humans, as naturally social, “reciprocally indebted”
“dependent rational animals,” need and for which the human heart longs.[10]
This is the claim of the whole of the central Christian tradition from
Augustine and Aquinas to the present. Its roots lie in the Christian
understanding of the human person, of human dignity as derived from our
creation in the image and likeness of God. It draws on the ancient Greek
understanding of the cardinal virtue of justice. In this classical
Aristotelian-Thomist tradition, justice is rooted in natural law and what is
objectively necessary for humans to flourish as they order their lives
together.
In
this tradition, justice and natural rights are, as Feser says:
[S]afeguards
of our ability to fulfill our moral obligations and realize our natural end. It
follows that anything which tends to frustrate our ability to fulfill those
obligations and realize those ends violates our rights and amounts to an
injustice.[11]
So justice is the cardinal virtue by which, as a matter of
habit and will, we give others what is due them. As Aquinas defines it,
following Aristotle and Cicero, justice is “the habit whereby an individual
renders to each one his due (ius) by a constant and habitual will.”[12]
If we frustrate the ability of another to fulfill her moral obligations –
say to worship God (which implies the right to religious freedom, as the
American Founders argued) or to preserve her life or that of her child – we
act unjustly.
How
do we get from this classical concept of the virtue of justice to social
justice as a virtue? Feser continues:
And
if that which frustrates this ability [to fulfill our moral obligations] is not
merely the actions of a particular individual or group of individuals, but
something inherent in the very structure of a society – in its legal code, its
cultural institutions, or the tenor of its public life – then what we have can
meaningfully be described as a social injustice. In particular, any society whose
legal framework fails to protect the lives of its weakest members, whose
popular culture is shot through and through with a spirit of contempt for and
ridicule of the demands of the natural law, or whose economic structure makes
it effectively impossible for a worker to support himself and his family with
his wages, is to that extent an unjust society, a socially unjust society.[13]
Social justice, then, can be defined as the virtue that inclines individuals to work
with others for the common good. It is justice in directing the virtues to
giving others their due, and social in a double sense.[14] First, it
aims at the common good rather than what is due another individual (as in the
commutative justice that inclines one to equitable exchanges between individuals).
Second, it involves joining with others to achieve a common purpose that
individuals cannot achieve on their own. In that sense, it is the virtue of
association, the virtue par excellence of civil society.
By this understanding, ours is a profoundly
unjust society, a socially unjust society, not least in that its “legal framework fails to protect the lives of its weakest
members.” This failure is not simply a matter of individual actions but inheres
in the very structure of society, in its legal framework, its sexual and social
mores, in what John Paul II called the “culture of death.”
[transition needed]: laws, professional bodies, etc. that coerce
citizens into violating their deepest convictions, that compel degrading
performance, thwart their meeting their moral obligations are socially
unjust. They harm moral integrity,
etc. (see below on harm of compelling violation of conscience)
Social
justice, in this sense, is not primarily about the claims of individuals on the
state, or the state’s enforcing transfers of resources from some individuals to
others. It is rather about how people work together in civil society, in the
space between individual and state, for the common good. When people organize
to end grave, dehumanizing evils like slavery, racism, anti-semitism, or
abortion or to transform the culture that sustains them, they exercise the
virtue of social justice. They develop and safeguard our
ability to fulfill our moral obligations and realize our natural end. They
stand in a proud and progressive tradition that opposed such evils and saw
resistance to them as a duty of conscience, even in the face of coercion from
the rich and powerful, even by means of the law and the courts, the whole
repressive apparatus of the state.
2. The Threat to Liberty of Conscience
“Have
progressives abandoned the liberty of conscience?” asks legal scholar Robert K.
Vischer.[15]
Noting actions of the American Civil Liberties Union to block conscience
protection regulations for health care providers from being implemented and
that other progressive groups that “trumpet their commitment to defending an
individual’s moral integrity against government incursions were curiously
silent” about rollbacks of those protections, Vischer observes:
We’ve come a long way from the times when ringing defenses
of conscience were provided by progressive heroes such as Jefferson, Thoreau,
and Gandhi. The former Democratic governor of Wisconsin justified his veto of a
conscience bill for health care providers on the ground that “you’re moving
into very dangerous precedent where doctors make moral decisions on what
medical care they provide.[16]
Among
those progressive associations that have switched in recent years from
defending conscience rights and protections to casually dismissing them, the
National Association of Social Workers (NASW) stands in the forefront.[17]
Indeed, no other profession gives shorter shrift to conscience or has so little
regard for the conscience rights and protections of its own members. The
threats to conscience and religious freedom confronting Christian social
workers and other health professionals have become more evident and pressing in the United States,
Canada and Europe in recent years. A flood of writing about the subject covers
everything from individual legal cases involving students, employees, and
businesses across the United States to the HHS mandate and the hundred plus
lawsuits against it.
Here
I will limit myself to developments most directly linked to social work and
related practice (such as counseling) and to the threat posed to conscience by
the very way in which the social work literature frames its discussion of
conscience exemptions and conscientious objection. My primary but not exclusive
focus will be on threats to liberty of conscience of individual practitioners
rather than, as in the case of the HHS mandate, their employers. I want to
suggest that the usual way of framing conscience issues in current debates, as
matters of individual rights enforced or limited by the state, is inadequate
and to propose a different, more complex, but far from new way to think about
the options and ethical obligations of professionals in contested areas, where
expanding state coercion of conscience conflicts most sharply with moral
conviction or religious faith.
Threats
Christians,
Jews and others in social work and related fields who adhere to the
Judeo-Christian tradition in matters of life, death, sex and marriage face
threats to conscience at every level. As George argues,[18]
the secular-liberal orthodoxy in these areas aims not at tolerance of religious
orthodoxy or pluralism, but to build a monopoly in the public square.
In
2009 Julea Ward was dismissed from her counseling program at Eastern Michigan
University after she sought to refer rather than treat a potential client who
was seeking counseling about a homosexual relationship. The university’s
insistence that Ward needed “remediation” to help her abandon her beliefs about
homosexual behavior and act against her conscience led to her dismissal from
the program and resulted in a series of university and judicial hearings and
appeals. In January 2012, the United States Court of Appeals of the Sixth
Circuit[19]
ruled in Ward’s favor and in June 2012, the Michigan House passed Bill 5040,
known as the Julea Ward Freedom of Conscience Act, prohibiting religious
discrimination against college students studying counseling, social work, or
psychology.
In
its review of ten social work education programs, the National Association of
Scholars found many examples of the coercion of student consciences,[20]
legitimated by a constrictive and unwarranted reading of the NASW Code of
Ethics. The cases involved requiring students to advocate and lobby for
positions to which they were opposed in principle and as a matter of
conscience. Again and again, we find students coerced into a morally degrading
performance that requires public avowal of belief contrary to their own
convictions, conscience, and faith.
The
issue of coercing the conscience of professionals in the health and helping
professions has come to the fore in recent years as a result of the discovery,
invention, or promulgation of new rights in matters of life and death, sex,
marriage, and family. Behaviors that were illegal or socially stigmatized for
millennia have been declared legal and become rights. This has
expanded the options for those who wish to engage in these behaviors. But what
is optional behavior for clients or patients rapidly becomes mandatory for
professionals in the form of participation or collusion in the newly permitted
behavior. An argument for tolerating certain behaviors has become a case for
intolerance – of those who refuse to be personally or professionally complicit
in them.[21]
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.”[22]
The legally binding United Nations 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.[23]
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.[24]
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. They have transformed their
own professional ethics from codes forbidding abortion and other
life-terminating measures to come close to making direct or indirect
participation in them a requirement of professional practice.[25]
In
recent years, the threat to conscience rights has widened beyond abortion and
the duties and conscience rights of physicians, nurses, and pharmacists to
areas in which social workers are more directly and routinely involved. Here I
focus on abortion because it is a key matter of conscience, involving as it
does the intentional taking of innocent human life and because, if the case for
conscience protection cannot be made in this case, it cannot be made anywhere.
I will argue that it is also a key matter of social justice, not only because
it disproportionately deprives of life the most vulnerable, girls, and
African-Americans, but also because it involves an attack on civil society, on
the structures that mediate between state and individual.
The attack on
religious liberty has become increasingly bold and blatant in recent years. The
HHS mandate requiring all employers, with narrow exceptions, to provide
“insurance” coverage of abortifacients (abortion pills), contraceptives, and
sterilization, threatens the religious freedom of all Catholic and many other
Christian employers and organizations. As I write, news is emerging that the
State of California is imposing, by regulatory fiat, the requirement that all
health insurance plans must provide coverage of elective abortion as part of
“basic health services,” a term it says it misinterpreted for 40 years.
Now California’s
Department of Managed Health Care “has ordered all insurance plans in the state
to immediately begin covering elective abortion. Not Plan B. Not
contraceptives. Elective surgical dismemberment abortion.”[26]
This mandate appears to be, as The
Federalist says, “in blatant violation of federal law that specifically
prohibits California from discriminating against health care plans on the basis
that they do not cover abortion.”[27] What is remarkable is
that the State went ahead anyway and that major insurers like Kaiser Permanente
are complying with it. How those progressives will respond who, like the Obama
administration, claimed to support religious freedom but not Hobby Lobby
-because it is a for-profit corporation, not a religious employer, and in any
case Plan B was, not, they claimed, an abortifacient anyway – remains, at the
time of writing, to be seen.
3. 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 Sweifach’s study[28]
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 the 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.[29]
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.”[30]
According to the American Nurses Association,[31]
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.[32]
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.” [33]
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 or
belittling 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 or foundation beyond being the
subjective opinions or beliefs of those who hold them. If this is so, then why
should the personal opinions (values) of a practitioner not be subordinated to
those of the state that licenses and funds the professional or institution?
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 from the literature as well as himself framing the issue of conscience
and conscientious objection in those terms.[34]
For example, Linzer (1999) 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.”[35]
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 urgent. Statements from NASW, its executive
director[36]
and its Legal Defense Fund,[37]
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 choose to do
what you believe to be wrong, and in the case of abortion, gravely wrong. For a
Christian, it means to put your immortal soul in jeopardy; for a Catholic
Christian, it means to excommunicate yourself from your Church and its
sacraments.
In
its hotly disputed Opinion #385, entitled “The Limits of Conscientious Refusal
in Reproductive Medicine,” the Committee on Ethics of the American College of
Obstetricians and Gynecologists takes the position that pro-life physicians
must refer patients seeking an abortion to other providers, must tell patients
in advance of their views though not explain or argue for them, and must in
emergency cases involving the patient’s physical or mental health, actually
perform abortions. It treats conscience as one value among others, which means
it can and should be overridden in the interest of other obligations that
outweigh it in a given circumstance. That is, 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, implied by 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. At least, as it is put in one formulation, 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. All things here 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.”[38]
When conscience is conceptualized as a faculty of the individual, its claims
too readily become detached from judgments of practical reason about the right
thing to do. 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.”[39]
Conscience
in this view is not subjective opinion, a matter of autobiography, 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.”[40]
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
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 Anscombe puts it in her justly renowned critique
of “Modern Moral Philosophy,” “a man’s conscience may tell him to do the vilest
things.”[41]
Karl
Jaspers gave the example of a young German concentration camp guard he met in
hospital at the end of WWII – 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.[42]
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. As
Anscombe – in unpublished notes for a lecture – explains the dilemma,
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.[43]
In
social work and other health and helping professions, 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, as John Paul II says
in Veritatis Splendor (1993), both to
inform our conscience and to follow it. We can be at fault at either stage.
4. Preferences
and Obligations
Whether
conscience is treated as one factor among several to be taken into
consideration or as a subjective, non-rational inner guide or faculty, it
appears reasonable in either case to reject or minimize its claims in policy
and law, even when a religious motivation is claimed. For the late political
philosopher Brian Barry, conscientious objections based on religious belief are
simply preferences.[44]
He asks why some, namely religious, preferences should be privileged in
law or policy over others. Why should the state bend over backwards to
accommodate the preferences of a minority? Why should laws be crafted so that
individuals and their associations will never be unnecessarily coerced into
violating their consciences?
As
Melissa Moschella summarizes the argument (that she proceeds to rebut) advanced
by the editors of The New York Times and
many others,
[O]pposition
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?[45]
No
one claims that the conscience of a given individual or group always trumps
other considerations in policymaking. 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 members 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 in much discussion on these issues. As
Moschella argues,
[T]here 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.[46]
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 have my sons 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.”[47]
Such laws distribute the burdens and social benefits of social cooperation
unequally. It is a difference in kind of burden 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 not to perform circumcisions. Those
who refused to violate their consciences in this way “were to be broken on the
wheel and killed.”[48]
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 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.”[49]
Like the HHS mandate, it was an unnecessary cram-down, a 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.”
Conscience’s
sources lie outside ourselves, in communities and families that form them. Its
claims are intersubjective and accessible in ways that personal preferences
(say, for vanilla over chocolate ice cream) are not.[50]
5. Redefining
Religion
An
important element of the current assault on religious freedom is the
administration’s effort to redefine the place of religion in public life by
reducing religious freedom to freedom of worship. The HHS mandate promotes a
false but prevalent idea of religion as a private and marginal activity, the
practice of which involves only co-religionists. 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 from their beginnings.
The mandate’s exemption covers only religious organizations that have a
religious function as defined by the state and that serve primarily
co-religionists.
From
this perspective, put bluntly by the British Equality and Human Rights
Commission Chief, Trevor Phillips, religious beliefs end “at the door of the
temple.” For Catholic Christianity, the duty to evangelize non-Christians and
to serve the poor, sick, homeless, prisoners, widows and orphans – both
Christians and non-Christians – is not an optional add-on to the free exercise
of religious faith. It has been a corporate, not just individual,
responsibility of the Church from the very beginnings.
Conscience and Duty
The
argument against conscience exemptions for health care and social service
professionals (physicians, nurses, social workers) is typically framed as a
conflict between an individual’s (or institution’s) right to decide what
services or treatment it will provide and patients’ rights to treatment, which
are said to imply a duty to treat.
The
client’s right to treatment, to a full range of services, may be linked to
professionals’ willingness to provide them, especially in rural areas. As the
chair of the ethics committee of the American College of Obstetrics and
Gynecology put it, the “reproductive health needs” of women should trump the
moral qualms of doctors.[51]
(Here I leave aside the tendentious way in which advocates of abortion,
contraception, and sterilization – where these are not medically indicated –
describe these interventions as part of “reproductive health care,” although
they are anti-reproductive, seldom have anything to do with the health of
either mother or child, and in the case of abortion involve by definition not
care but killing one of the patients.)
In
this discourse, the personal is contrasted with the professional, the idea
being that a professional has a duty to provide whatever services are legal and
demanded by clients. The conscience of the professional is invariably given
short shrift and subordinated to the supposed rights of the client to
treatment. I say “supposed” because it is not clear how the legal right to have
an abortion, for example, in itself gives anyone a legal right to demand its
provision, let alone legally obliging anyone else to carry it out or pay for
it. In a shift characteristic of contemporary rights discourse, a right to
freedom from state interference (a “right to privacy”) is transformed into a
claim on public provision.[52]
One
response to the conflict between conscience and the newly defined duties
supported by the new moral orthodoxy is to say fine, if you cannot in
conscience meet the expectations and duties of the profession, leave it or
choose a different line of work. This may indeed be the only option facing
conscientious individuals where no accommodation is made. Conscience also
trumps career.
Exclusion
from their professions of physicians, nurses, social workers, and pharmacists
who adhere to the traditional Judeo-Christian religious orthodoxy and the
closing down of institutions that respect life and adhere to Hippocratic ethics
has practical consequences. But my argument here against exclusion does not
depend on the empirical reality that religious professionals and institutions –
for example, Catholic and other Christian physicians, nurses, social workers,
and pharmacists as well as hospitals and clinics – play an important role in
the American health care system. Their exclusion would involve a tremendous
loss of talent, knowledge, skill, aptitude, and dedication for the healing
professions. It would also substantially reduce health care, child welfare, and
social services of all kinds and therefore the access of patients and clients
to such services. The argument here, rather, is that the coercion of conscience
of professional health care and social work providers is morally corrupting for
the profession concerned and its practitioners and damaging to civil society.
There
is a sharp difference between allowing and requiring the professional
participation of members. Mandating such practices pressures those members who
adhere to religious orthodoxy into morally degrading performances, professing
and acting on beliefs contrary to those they hold as a condition of entering or
remaining in their chosen profession. This is corrupting for the profession
that requires such violations of conscience and for those who submit to them.
The moral integrity of persons, and so of its associations and their members,
is itself constitutive of “human and community well-being,”[53]
the promotion of which social work claims as its purpose.
7. The
Moral Agency of the Practitioner
The
idea that if an action is legally permissible and demanded by a client, the
social worker (or other health professional) has the duty to provide or
participate in providing the requested service itself represents a fundamental
shift in the balance of rights and powers between professional and client. It
strips the professional of her full moral responsibility and reduces her to a
kind of machine or robot that delivers what the customer demands. The
professional’s right and duty to use her judgment about what is required or
indicated or morally permissible in the situation is stripped away in favor of
a kind of client “empowerment” that radically disempowers, even dehumanizes the
professional. The practitioner is reduced to a kind of vending machine, like
those increasingly found in college dormitories with the function of dispensing
contraceptives.
Opponents
of conscience clauses and exemptions sometimes pose the matter in terms of the
desire by professionals who are religious to impose their personal views or
morality on clients or patients. This is a misunderstanding. None of the case
for conscience exemptions has anything to do with imposing my will on the
client. Patients and clients have an uncontested moral right to informed
consent and informed refusal.
But
this is not the issue. The client may find abortion morally permissible and it
is certainly legally permissible at present in the United States. I respect the
client’s right under law to decide to have an abortion and will not condemn,
moralize, or argue with her.
My
right not to participate in what I believe is grave wrongdoing does not imply
or depend on a right to impose my belief on the client. “Conscientious
objection,” as Pellegrino says, “implies the physician’s right not to
participate in what she thinks morally wrong, even if the patient demands it.
It does not presume the right to impose her will or conception of the good on
the patient.”[54]
The
question whether someone’s right to engage in a behavior entails an obligation
on anyone else’s part to assist her in the process has important implications
for all professionals, but especially those supposed to be helping or healing
their clients. For any professional from any faith tradition or none, such a
legally mandated obligation is a serious threat to their conscience and as
such, to their humanity as moral agents. The issue, which applies to lawyers
and physicians no less than social workers, is only in part whether a
professional is obliged to treat or serve anyone who seeks her services.
Harpaz, discussing the 1997 ruling of the Massachusetts Commission Against
Discrimination (“MCAD”) that a woman lawyer could not refuse to represent men
in divorce actions under the state’s public accommodation statute, shows that
the issue of compelled service or representation is not simple or confined to
the health and helping professions.[55]
For
social workers, as for priests, it is common to serve clients whose behavior
the practitioner finds morally repugnant. The challenge to conscience arises
not from the requirement to serve – or not to discriminate against – a
particular kind of client, but from the expectation in certain cases that
practitioners will act against their own judgment and collude or participate in
what the practitioner determines is wrong or harmful, or simply because the
client demands it.
The
question is wrongly put in the form of whose conscience counts, the client’s or
the professional’s. No one can be bound by someone else’s conscience. The
professional remains a moral agent, not a robot or vending machine, and so is
responsible for following his or her own practical judgment about what is the
right thing to do, all things (including the client’s wishes) considered.
Licensing and Professionalism
Another
aspect of the opposition to conscience exemptions is a novel view of
professional licensing, one that further squeezes the scope of civil society,
the social space between individual and state. In this view licensing,
traditionally justified in terms of protecting the public by ensuring the
competence of practitioners, becomes a process whereby professionals are
transformed into public officials. If the state decides to recognize same-sex
marriage, then its public officials – for example, those who issue marriage
licenses – are bound to issue those licenses to whomever the state decides is
now qualified under its rules. Licensing of professionals, insofar as it
transforms the practitioner into a public official obliged to do the state’s
bidding, in effect becomes a process, not of safeguarding professional
discretion while protecting the public, but of deprofessionalization. Social workers,
among the least secure in their professional status, are to that very extent
less inclined to defend the scope and legitimacy of their own professional
judgment and discretion against tendencies to subordinate them to
bureaucratic-state or client demands.
There
is an analogous process through which the state, by providing most of the
funding of voluntary social service agencies like Catholic Charities, turns
them into agents of the state. Far from being a strength of civil society, of
an institutional pluralism that protects the structures that mediate between
state and individual, such agencies become vehicles for increasing the reach of
the state. Rather than allowing for alternative visions of the common good in
the associations that people with differing religious and moral commitments
build over generations, the state weakens civil society and becomes absolute
sovereign of all.
Social Justice, Civil Society, and the
State
The
coercion of Christian consciences, then, is a threat not only to individual
practitioners but also to the institutional pluralism that lies at the heart of
subsidiarity, social justice, and American democracy. From this perspective, it
is wrong to reduce matters of conscience to the state’s protection of
individual rights, whether of consumer against provider, or professional
against employer. Conscience is not simply a matter of individual rights or
individual autonomy vis-Ã -vis the state and civil society. It is inherently
relational.
This
case for the relational dimension of conscience, in contrast to an emphasis on
individualist rights talk and on the autonomous self, is persuasively made by
Vischer, who seeks to recapture the concept of conscience as shared knowledge.
He argues,
There is a
clear need to recapture the relational dimension of conscience – the notion
that the dictates of conscience are defined, articulated, and lived out in
relationship with others. Our consciences are shaped externally, our moral
convictions have sources, and our sense of self comes into relief through
interaction with others. By conveying my perception of reality’s normative
implications, my conscience makes truth claims that possess authority over
conduct – both my own and the conduct of those who share, or come to share, my
perception.[56]
This argument has at least two important
implications. First conscience is not simply an internal oracle, with only
biographical interest, like a preference in ice cream flavors. It implies
shared knowledge and truth claims about right action. And it binds those who
share that knowledge and accept those truth claims.
The
shaping of our consciences is a matter neither of individual nor state, but of
the subsidiary associational life that mediates between them, especially church
and family. These are sources of conscience formation, communities of
discernment, and venues for expression. “When the state closes down avenues by
which persons live out their core beliefs – and admittedly, some avenues must
be closed if peaceful coexistence is to be possible – there is a cost to the
continued vitality of conscience.”[57]
In
this respect, Catholic social teaching offers a sharp contrast to the Hobbesian
picture, in which “the sovereignty of Leviathan is absolute, so subsidiary
units of the social order – churches, groups, smaller units of government –
exist merely at the sufferance of the sovereign.”[58]
In
the current attack on religious freedom and conscience, we see the relentless
imposition of a new state orthodoxy and a growing intolerance of dissent on the
part of subsidiary associations – even, in Canada, imposing the new sexual
morality on the curricula of private religious schools and homeschooling
families.
The
issue of conscience, then, needs to be understood not only in terms of the
rights of individuals, who must look to the state for relief or protection, but
also and especially in terms of the scope for a rich associational life that
subsists in tension with both individual and state. A commitment to freedom of
conscience, properly understood, “should underlie our legal system’s reluctance
to restrict the independence of the myriad associations that make up the vast
space between person and state.”[59]
[1] This is an expanded version of the
paper delivered at the annual convention of the North American Association of
Christian Social Workers, Annapolis, MD, November 6-9, 2014. It draws
substantially on the chapter on conscience in the forthcoming book by Paul
Adams & Michael Novak, Social
Justice: What It Is, What It Isn’t.
[2] See
Robert P. George, The Clash of
Orthodoxies: Law, Religion, and Morality in Crisis (Wilmington, Del.: ISI
Books, 2002); and Conscience and Its
Enemies: Confronting the Dogmas of Liberal Secularism (Wilmington, Del.:
ISI Books, 2013).
[3] See,
for example, the blogsite Medicine and Social
Justice http://medicinesocialjustice.blogspot.com/2012/10/conscience-clauses-have-become.html.
[4] See
Stephen L. Darwall, The Second-Person
Standpoint: Morality, Respect, and Accountability (Cambridge, Mass.:
Harvard University Press, 2006); Joseph Ratzinger, On Conscience (San Francisco: Ignatius Press, 2007); Charles
Taylor, Sources of the Self
(Cambridge: Cambridge University Press, 1989); Robert K. Vischer, Conscience
and the Common Good: Reclaiming the Space Between Person and State (New York: Cambridge University
Press. 2009).
[5] Thomas Patrick Burke, Social Justice: Is It Just? London &
New York, Continuum Publishing Group, 2011.
[6]
City of New York City,
Department of Health and Mental Hygiene, Office of Vital Statistics, Summary of Vital Statistics 2012 City of New
York, Pregnancy Outcomes.
http://www.cnsnews.com/sites/default/files/documents/Pregnancy
Outcomes NYC Health 2012.pdf
[7] CNS News, February 25, 2014 (http://cnsnews.com/news/article/michael-w-chapman/mississippi-72-babies-aborted-are-black), citing CDC data at http://www.cdc.gov/reproductivehealth/data_stats/Abortion.htm
[8] C. Dehlendorf, L.H. Harris, &
T.A. Weitz, “Disparities
in abortion rates: a public health approach,” American Journal of Public Health, 103 (10), October 2013.
[9] See
George A. Akerlof, Janet L. Yellen, & Michael L. Katz, “An Analysis of
Out-of-Wedlock Childbearing in the United States, Quarterly Journal of
Economics, 111, n. 2 (May 1996): 277-317. George A. Akerlof, “Men Without
Children,” Economic Journal, Royal
Economic Society 108, n. 447 (March 1998): 287-309; Alexandra Killewald,
“Reconsiderations of the Fatherhood Premium: Marriage, Coresidence, Biology,
and Fathers’ Wages,” American
Sociological Review 78, n. 1 (February 2013): 96-116; Alexandra Killewald
and Margaret Gough, “Does Specialization Explain Marriage Penalties and
Premiums?”, American Sociological Review
78, n. 3 (June 2013): 477-502; and also Nicholas W. Townsend, The Package Deal: Marriage, Work, and
Fatherhood in Men’s Lives (Philadelphia: Temple University Press, 2002). See
also the resources and data supporting the video on The Economics of Sex, at
the Austin Institute for the Study of Family & Culture, http://www.austin-institute.org/wp-content/uploads/2014/02/V10-Resource-Guide.pdf.
[10] Alasdair MacIntyre, Dependent Rational Animals: Why Human Beings Need the Virtues
(Chicago: Open Court, 1999).
[11] Edward Feser, “Social Justice
Reconsidered: Austrian Economics and Catholic Social Teaching” (Hayek Memorial
Lecture delivered at the 2005 Austrian Scholars Conference, Auburn, Alabama),
accessed December 5, 2013: http://www.edwardfeser.com/unpublishedpapers/socialjustice.html.
[13] Feser, “Social Justice Reconsidered.”
[14] Paul Adams & Michael Novak, Social
Justice: What It Is, What It Isn’t (forthcoming); Michael Novak, “Defining
Social Justice,” First Things
(December 2000).
[15] Robert
K. Vischer, “The Progressive Case for Conscience Protection,” Public Discourse (March 9, 2011),
accessed March 18, 2014: http://www.thepublicdiscourse.com/2011/03/2915/.
[17] See,
for example, E. Clark, “Spring, and Danger, in the Air,” NASW News 57, n. 5 (May 2012); NASW Legal Defense Fund, Social Workers and Conscience Clauses
(Washington, D.C.: National Association of Social Workers, 2010).
[20]
National Association of Scholars, “The Scandal of Social Work Education”
(2007), accessed March 18, 2014: http://www.nas.org/articles/The_Scandal_of_Social_Work_Education.
[21] George
Cardinal Pell, “Intolerant Tolerance,” First
Things (August/September 2009), accessed March 18, 2014: http://www.firstthings.com/article/2009/08/intolerant-tolerance.
[22]
World Medical Association, Declaration of
Geneva Physician’s Oath (1948), accessed March 18, 2014: http://www.cirp.org/library/ethics/geneva/.
[24] P.A.
Tozzi, “Vatican Tells United Nations to Quit Pressuring Countries to Legalize
Abortion,” LifeNews (November
28, 2008), accessed March 18, 2014: http://www.lifenews.com/int1003.html.
[25]
American College of Obstetricians and Gynecologists [ACOG], “The Limits of
Conscientious Refusal in Reproductive Medicine,” ACOG Committee Opinion, n. 385
(November 2007); Christopher Kaczor, Thomas
Aquinas on Faith, Hope, and Love: Edited and Explained for Everyone (Ave
Maria, Fla.: Sapientia Press, 2008).
[26]
Casey Mattox,
California Orders Churches to Fund Abortions—Or Else,” The Federalist, October 22, 2014, http://thefederalist.com/2014/10/22/california-orders-churches-to-fund-abortions-or-else/
[27] Ibid.
[28] J.
Sweifach, “Conscientious Objection in Social Work: Rights vs.
Responsibilities,” Journal of Social Work
Values & Ethics 8, n. 2 (2011).
[29]
American Pharmacists Association, “Code of Ethics for Pharmacists” (1994),
accessed March 18, 2014: http://www.pharmacist.com/code-ethics.
[30]
American Medical Association, “Code of Medical Ethics” (2012), accessed March
18, 2014: http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics.page?.
[31]
American Nurses Association, “Code of Ethics for Nurses with Interpretive
Statements (Silver Spring, Md.: American Nurses Publishing, 2001), accessed
March 18, 2014: http://www.nursingworld.org/MainMenuCategories/EthicsStandards/CodeofEthicsforNurses/Code-of-Ethics.pdf.
[32] L.
Harpaz, “Compelled Lawyer Representation and the Free Speech Rights of
Attorneys,” Western New England Law
Review 20, n. 20 (1998): 49-72, accessed March 18, 2014: http://digitalcommons.law.wne.edu/cgi/viewcontent.cgi?article=1247&context=lawreview.
[35] N.
Linzer, Resolving Ethical Dilemmas in
Social Work Practice (Boston: Allyn & Bacon, 1999), 28.
[38] M. P.
Moreland, “Practical Reason and Subsidiarity: Response to Robert K. Vischer,
Conscience and the Common Good,” Journal
of Catholic Legal Studies 49, n. 2 (2011): 320, accessed March 18, 2014: http://www.stjohns.edu/academics/graduate/law/journals_activities/catholiclegalstudies/issue/49_2.
[39]
Herbert McCabe, “Aquinas on Good
Sense,” New Blackfriars 67, n. 798 (October 1986), quoted in Moreland,
“Practical Reason and Subsidiarity,” 322.
[41]
Elizabeth Anscombe, “Modern Moral Philosophy,” in Human Life, Action and Ethics: Essays by G. E. M. Anscombe, ed.
Mary Geach and Luke Gormally (Exeter, U.K.: Imprint Academic, 2005), 170.
[42] See M. Pakaluk and M. Cheffers, Accounting Ethics . . . and the Near Collapse of the World’s Financial
System (Sutton, Mass.: Allen David Press, 2011).
[44] See
Brian Barry, Culture and Equality: An
Egalitarian Critique of Multiculturalism (Cambridge, Mass.: Harvard
University Press, 2001).
[45]
Melissa Moschella, “Taking (Conscience) Rights Seriously,” Public Discourse
(June 11, 2012), accessed March 18, 2014: http://www.thepublicdiscourse.com/2012/06/5603/.
[49]
Michael Stokes Paulsen, “Obama’s Contraception Cram-down: The Pork Precedent,” Public
Discourse (February 21, 2012), accessed March 18, 2014: http://www.thepublicdiscourse.com/2012/02/4777/#sthash.gbY3yEUM.dpuf.
[50] Vischer, Conscience and the Common Good.
[51]
“Last-Minute Conscience Rule Grants Protection to Abortion Objectors,” Bioedge (January 2, 2009), accessed
March 18, 2014: http://www.bioedge.org/index.php/bioethics/bioethics_article/8433.
[52] See
Hadley Arkes, Natural Rights and the Right to Choose (Cambridge: Cambridge University
Press, 2002).
[54] Edmund
Pellegrino, The Philosophy of Medicine
Reborn: A Pellegrino Reader, ed. H. T. Engelhardt, Jr. and F. Jotterand
(Notre Dame, Ind.: University of Notre Dame Press, 2008), 299.
