Longer than my usual post, by far, longer even than the conference paper of which this is an extended version.
Conscience, Social Justice, and Abortion
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.
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. 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.
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. 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.
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. 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.” 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.”
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.
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. 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.
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.” 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.
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. 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. 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.
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. 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.
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, 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 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, 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.
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.” 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.
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.
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.
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.” 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.” 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.
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 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. 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.” According to the American Nurses Association, 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.
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.”  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. 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.” 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 and its Legal Defense Fund, 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.” 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.”
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.” 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.”
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. 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.
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. 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?
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.
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.” 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.” 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.” 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.
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. (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.
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,” 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.”
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.
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-à-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.
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.”
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.”
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.”
 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.
 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).
 See, for example, the blogsite Medicine and Social Justice http://medicinesocialjustice.blogspot.com/2012/10/conscience-clauses-have-become.html.
 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).
 Thomas Patrick Burke, Social Justice: Is It Just? London & New York, Continuum Publishing Group, 2011.
 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
 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
 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.
 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.
 Alasdair MacIntyre, Dependent Rational Animals: Why Human Beings Need the Virtues (Chicago: Open Court, 1999).
 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.
 Thomas Aquinas, Summa Theologiae II-II, q. 58, a. 1.
 Feser, “Social Justice Reconsidered.”
 Paul Adams & Michael Novak, Social Justice: What It Is, What It Isn’t (forthcoming); Michael Novak, “Defining Social Justice,” First Things (December 2000).
 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).
 George, The Clash of Orthodoxies.
 Ward v. Polite et al. See http://www.ca6.uscourts.gov/opinions.pdf/12a0024p-06.pdf.
 National Association of Scholars, “The Scandal of Social Work Education” (2007), accessed March 18, 2014: .
 George Cardinal Pell, “Intolerant Tolerance,” First Things (August/September 2009), accessed March 18, 2014: .
 World Medical Association, Declaration of Geneva Physician’s Oath (1948), accessed March 18, 2014: .
 R. Joseph, Human Rights and the Unborn Child (Boston: Martinus Nijhoff, 2009).
 P.A. Tozzi, “Vatican Tells United Nations to Quit Pressuring Countries to Legalize Abortion,” LifeNews (November 28, 2008), accessed March 18, 2014: .
 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).
 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/
 J. Sweifach, “Conscientious Objection in Social Work: Rights vs. Responsibilities,” Journal of Social Work Values & Ethics 8, n. 2 (2011).
 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?.
 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.
 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.
 Sweifach, “Conscientious Objection in Social Work.”
 N. Linzer, Resolving Ethical Dilemmas in Social Work Practice (Boston: Allyn & Bacon, 1999), 28.
 Clark, “Spring, and Danger, in the Air.”
 NASW Legal Defense Fund, “Social Workers and Conscience Clauses.”
 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.
 Herbert McCabe, “Aquinas on Good Sense,” New Blackfriars 67, n. 798 (October 1986), quoted in Moreland, “Practical Reason and Subsidiarity,” 322.
 Moreland, “Practical Reason and Subsidiarity,” 322.
 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.
 See M. Pakaluk and M. Cheffers, Accounting Ethics . . . and the Near Collapse of the World’s Financial System (Sutton, Mass.: Allen David Press, 2011).
 Elizabeth Anscombe, Human Life, Action and Ethics: Essays by G.E.M. Anscombe, 241.
 See Brian Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge, Mass.: Harvard University Press, 2001).
 Melissa Moschella, “Taking (Conscience) Rights Seriously,” Public Discourse (June 11, 2012), accessed March 18, 2014: .
 4 Maccabees 5:3.
 Michael Stokes Paulsen, “Obama’s Contraception Cram-down: The Pork Precedent,” Public Discourse (February 21, 2012), accessed March 18, 2014: .
 Vischer, Conscience and the Common Good.
 “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.
 See Hadley Arkes, Natural Rights and the Right to Choose (Cambridge: Cambridge University Press, 2002).
 Council on Social Work Education, “Educational Policy and Accreditation Standards.”
 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.
 Harpaz, “Compelled Lawyer Representation and the Free Speech Rights of Attorneys.”
 Robert K. Vischer, Conscience and the Common Good, 3.
 Ibid., 4.
 Moreland, “Practical Reason and Subsidiarity,” 325.
 Vischer, Conscience and the Common Good, 4.