Is the Conscience Respected?
An Overview by Carl Anderson
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NEW YORK, MARCH 17, 2007 (Zenit.org).- Here is a text by Carl Anderson, vice president of the John Paul II Institute for Studies on Marriage and the Family, regarding the respect for conscience in life issues.
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THE CHRISTIAN CONSCIENCE IN SUPPORT OF THE RIGHT TO LIFE
Respect for Conscience in Common Law Countries
Vice President, John Paul II Institute for Studies on Marriage and Family
Supreme Knight, Knight of Columbus
Pontifical Academy for Life XIII General Assembly February 24, 2007
St. Thomas More is recognized in our time as one of the great defenders of human dignity and the rights of human conscience. We are all familiar with the famous lines from "A Man for All Seasons" regarding the role of conscience: In his refusal to sign the oath, More says "what matters to me is not whether it's true or not but that I believe it to be true, or rather, not that I believe it to be true, but that I believe it."
St. Thomas More is also rightly regarded as the model Catholic government official when he says earlier in the play, "when statesmen forsake their own private conscience for the sake of their public duties … they lead their country by a short route to chaos."
And how simply, yet profoundly, he set the standard for all those of the Christian faith who serve in government when he said at the end, "Tell the King, I die the King's loyal servant, but God's first."
Perhaps we might do well to regard Thomas More as a sure guide for politicians, reminding them of his approach to government service. As "A Man for all Seasons" recounts More as saying of his work as chancellor of England, "I wish no man harm, I speak no man harm, I do no man harm and if this be not good enough then … "
We might also regard St. Thomas More as a patron of husbands and fathers. We may recall the way in which More is depicted at the end of his trial in "A Man for All Seasons." He declares to the court which has just condemned him that "It was not for the oath but because I would not consent to the marriage."
Everything we know about St. Thomas More tells us that he cared deeply for his family and that one of the reasons why he sought so desperately to avoid a confrontation with the king was to protect his family. Yet, finally, More was to sacrifice both his life and his family's security for a principle that gave an eternal meaning and an eternal unity to his family; that is, the sacramental nature of marriage.
Unquestionably, in agreeing to the dissolution of the king's marriage there was also an implicit acceding to the possible dissolution of any marriage. This was a point that could not have been lost on the chancellor of England and a lawyer of the brilliance of Thomas More. Thus, one of history's great statesman and men of conscience went to his death for a principled defense of the sacramental unity of marriage.
Having said this we should remember the observation of Clarence Miller, one of several editors of the "Complete Works of St. Thomas More." He enumerates what scholars give as the various "grounds for More's martyrdom: the integrity of the self as witnessed by an oath, the irreducible freedom of the individual conscience in the face of an authoritarian state, papal supremacy as a sign of the supra-national unity of Western Christendom, past and present."
Then Miller writes, "All of these are true as far as they go. But in the last analysis More did not die for any principle, or idea, or tradition, or even doctrine, but for a person, for Christ. As Bolt himself made More say in the play: "Well … finally … it isn't a matter of reason; finally it's a matter of love."
And so, I think it is entirely appropriate to remember St. Thomas More as we explore the richness of the encyclical "Evangelium Vitae" and its call to the Catholic people to build a culture of life and a civilization of love. We should begin with recognition that "Evangelium Vitae" rests, to a considerable extent, upon the foundation provided by John Paul II's great encyclical on the "Splendor of Truth" and the moral conscience.
"Veritatis Splendor" takes up the question of the obligations which truth imposes on Catholics in democratic societies. It observes that the demands of universal and unchanging moral laws may seem to contradict "the uniqueness and individuality of the person" and even "represent a threat to his freedom and dignity" (No. 85). The encyclical also admits that "in a widely de-Christianized culture, the criteria employed by believers themselves in making judgments and decisions often appear extraneous or even contrary to those of the Gospel" (No. 88).
But then John Paul II writes what could have come from the thought or, perhaps more accurately, from the spirituality of Thomas More. He states, "It is urgent to rediscover and to set forth once more the authentic reality of the Christian faith, which is not simply a set of propositions to be accepted with intellectual assent. Rather, faith is a lived knowledge of Christ, a living remembrance of his commandments, and a truth to be lived out. … It is an encounter, a dialogue, a communion of love and of life between the believer and Jesus Christ … (No. 88).
Or as More had put it, "finally it's a matter of love."
After so many years it is perhaps too easy to view the English Catholic martyrs of the 16th century as having a sort of determination or even a certain eagerness for their fate. But the following passage on the subject of martyrdom written by More while he was in the tower poignantly reveals something very different.
More wrote in "De Tristitia Christi" of the martyr's encounter with Christ who says this to his follower: "You are afraid, you are sad, you are stricken with weariness and dread of the torment with which you have been cruelly threatened. Trust me. I conquered the world, and yet I suffered immeasurably more from fear. I was sadder, more afflicted with weariness, more horrified at the prospect of such cruel suffering drawing eagerly nearer and nearer.
"Let the brave man have his high-spirited martyrs, let him rejoice in imitating of them. But you, my timorous and feeble little sheep, be content to have me alone as your shepherd, follow my leadership; if you do not trust yourself, place your trust in me. See, I am walking ahead of you along this fearful road."
Few in the Church have more poignantly depicted the call to holiness and spiritual perfection than More in this brief description of the "sequela Christi" to martyrdom.
But the ultimate lesson which More gives us is that for the Catholic, government service opens a horizon to a type of personal martyrdom. Certainly, this was the case in More's life and throughout much of the 16th century. It was equally true throughout much of the 20th century. And it is also true in the beginning of the third millennium as we increasingly face a new culture of death.
Politics which too often today has been the arena of personal self-promotion and egocentrism should be understood rather by the Catholic as a following of Christ which is open to martyrdom, if not of the bloody martyrdom suffered by More, than a martyrdom of career and reputation. To think otherwise is a disservice to the Catholic community and to be dishonest with one's self.
We might say that John Paul II has a similar vision of the Catholic's struggle in the face of an increasingly hostile culture when he wrote in "Evangelium Vitae" the following: "Faced with the countless grave threats to life present in the modern world, one could feel overwhelmed by sheer powerlessness: Good can never be powerful enough to triumph over evil!
"At such times the people of God, and this includes every believer, is called to profess with humility and courage faith in Jesus Christ, 'the Word of Life.' The gospel of life is not simply a reflection, however new and profound, on human life. Nor is it merely a commandment aimed at raising awareness and bringing about significant changes in society. Still less is it an illusory promise of a better future. The Gospel of Life is something concrete and personal, for it consists in the proclamation of the very person of Jesus" (No. 29).
Thus, what Thomas More had suggested was the sure hope of those suffering for the truth of the Catholic faith, John Paul II sees as the guiding star of Catholics in the pro-life movement.
We see also in the life of Thomas More the truth recognized by the Second Vatican Council when it observed in Gaudium et Spes that, "In the depths of his conscience man detects a law which he does not impose on himself, but which holds him to obedience" (No. 16).
In commenting on this reality of the moral life, John Paul II writes in "Veritatis Splendor" that this law "serve[s] to protect the personal dignity and inviolability of man, on whose face is reflected the splendor of God" (No. 90).
As John Paul II continues, this "splendor" of God "is confirmed in a particularly eloquent way by Christian martyrdom" (No. 90) which when "accepted as an affirmation of the inviolability of the moral order, bears splendid witness both to the holiness of God's law and to the inviolability of the personal dignity of man, created in God's image and likeness" (No. 92).
Thus, the martyr provides an invaluable and, one might even say, irreplaceable contribution to the good of society "by reawakening its moral sense" (No. 93). The moral sense to which the martyrdom of Thomas More pointed is stated precisely in "Veritatis Splendor": "Only by obedience to universal moral norms does man find full confirmation of his personal uniqueness and the possibility of authentic moral growth" (No. 96).
The seeming contradiction between individual freedom and the moral law is reconciled by the martyr with a beautiful transparency which reveals the integrity of the human conscience to society.
"Evangelium Vitae" suggests that the encounter between the Christian and society centers around several key "concepts" which go to the heart of the Catholic citizen's life in a pluralistic, democratic society. The Holy Father makes clear that what is at stake in the public debate regarding abortion and euthanasia, for example, is not simply a disagreement over "choices" within a pluralistic society, but is instead a grave threat to the very survival of democracy (Nos. 18-20).
It has become a tenet of popular culture that the Western liberal democratic ideal has now emerged triumphant in it great struggle with totalitarian ideologies. In his address to the United Nations, John Paul II stated, "we are witnessing an extraordinary global acceleration of that quest for freedom which is one of the great dynamics of human history."
However, for this pope, history does not represent some inevitable evolutionary process toward the realization of democracy. Instead, the present moment is "a turning point" which presents not only an opportunity to realize the "universal longing for freedom" but also an enormous threat to freedom. "Evangelium Vitae" (No. 18) points out that this threat to freedom consists in a great contradiction lurking at the center of democracy: abortion.
John Paul II begins his analysis of what he terms this "surprising contradiction" with a deeply pastoral appreciation of the "tragic situations of profound suffering" which can give rise to "decisions that go against life" (No. 18).
The Pope takes note of the "suffering, loneliness, [and] total lack of economic prospects, depression and anxiety about the future" which can influence decisions regarding abortion, euthanasia and suicide. He emphasizes that such circumstances can mitigate even to a notable degree subjective responsibility and the consequent culpability of those who make these choices which in themselves are evil."
The personal tragedies which lead to decisions concerning abortion, for example, do not represent the most profound threat to democracy, however. Such acts are called "tragic" precisely because we recognize them to be wrongful and we know that the actor has submitted in desperation to circumstances which he or she felt unable to overcome. These tragedies, in themselves, do not constitute a threat to the foundation of democratic society because their "tragic" character testifies to the objective evil of what is done.
Instead, John Paul II observes democratic society is imperiled by the insistence that such objectively disordered acts, however subjectively mitigated, must be transformed from crimes to "legitimate expressions of individual freedom … and protected as actual rights (No. 18).
It is this inversion of "wrong" actions into "right" actions that John Paul II insists constitutes "a direct threat to the entire culture of human rights" (No. 18). This inversion is a direct threat to the future of democracy because it establishes "a perverse idea of freedom" at the very heart of democracy.
John Paul II describes this disordered freedom as one which "carries the concept of subjectivity to an extreme" (No. 19). It is a concept of freedom which "exalts the isolated individual in an absolute way, and gives no place to solidarity, to openness to others and service of them" (No. 19). In short, this concept of freedom ultimately makes democratic communities impossible and destroys the foundation of democratic structures because it erodes public consensus regarding the common good.
"Evangelium Vitae" thus moves the engagement between the Catholic and contemporary society on questions of abortion and euthanasia to a more dramatic and profound level. Rights advocates often claim that a true regard for pluralism and democracy requires acceptance of abortion and euthanasia. They argue that the social divisiveness surrounding these issues can only be appropriately resolved by their "privatization" or "deregulation."
In response, John Paul II maintains that the concept of freedom implicit in abortion and euthanasia "rights" makes true respect for pluralism and enduring democratic structures impossible. He observes in "Evangelium Vitae" that such an accommodation is in reality an invitation for whole communities or classes of people to be "rejected, marginalized, uprooted and oppressed" (No. 18).
Thus, the abortion freedom, which presents itself as essential to the realization of human freedom, instead becomes the vehicle by which the rights of many are denied.
John Paul II traces the cause of this contradiction to the negation of authentic freedom -- when a concept of freedom is proposed which "no longer recognizes and respects its essential line with the truth" (No. 19). This separation of truth from freedom creates a culture in which "any reference to common values and to a truth absolutely binding on everyone is lost" (No. 20).
The inevitable consequence of this separation of freedom from truth is to institutionalize a destabilizing form of conflict in communities. As John Paul II writes, "If the promotion of the self is understood in terms of absolute autonomy, people inevitably reach the point of rejecting one another [and] society becomes a mass of individuals placed side by side, but without any mutual bonds" (No. 20). The impossibility of moral consensus within community ultimately makes impossible the common life of communities and the realization of the common good.
The separation of freedom from truth also has implications for the role of reason in public discourse. The greatest of these implications is the marginalization of reason as the foundation of society. Thus, "Evangelium Vitae" observes the community is increasingly unable to maintain itself "as a community in which the 'reasons of force' are replaced by the 'force of reason'" (No. 19). The result is that society is increasingly unable to achieve consensus on important moral questions.
Too often this cultural transformation is hidden when the abortion/euthanasia debate is seen as simply a contest between the freedom of the individual and the imposition of morality by the state. "Evangelium Vitae" re-focuses this discourse by opening up a more fundamental issue. The encyclical views the abortion debate as not primarily an argument over morality or even over the question of when human life begins or ends.
Instead, the most basic issue is a fundamental conflict over the nature and the dignity of the human person. In reformulating the discussion in this way, "Evangelium Vitae" underscores the fact that contemporary man, for the first time, finds his freedom unhinged not only from the truth of an objective, external moral order, but also from the moral truth of his own nature and dignity.
This distortion at the center of the human person has diminished the possibility of authentic human communion and community. It has left the human person increasingly defenseless to accelerating threats from the anti-life culture of nihilism and death.
This anti-life culture threatens not only the life of the human person; it threatens the life of the human conscience. Indeed, this anti-life society, in the name of freedom of choice, threatens human life precisely because it distorts and diminishes the human conscience. Thus, the encounter between the culture of life and the culture of death takes place primarily within the human conscience.
The culture of death has made Thomas More not just "a man for all seasons," but a "man for all Catholics." The culture of death challenges all of us to bear witness to the splendor of the Catholic conscience.
We should not be surprised that "Evangelium Vitae" calls for "a general mobilization of consciences and a united ethical effort to activate a great campaign in support of life" (No. 95). This mobilization of consciences in defense of life by "the people of life and the people for life" (No. 6) is at the center of the encyclical's vision of evangelization.
It is also the foundation of John Paul II's approach to social justice and the law. In this way, "Evangelium Vitae" provides an extraordinary response to the "demoralization" of conscience brought about by the widespread practice of abortion and euthanasia.
However, "Evangelium Vitae" was not the first time the Holy Father proposed such a role for conscience in the transformation of society. In reviewing the reasons for the collapse of Marxism throughout Eastern Europe, John Paul II wrote in "Centesimus Annus" that "the fundamental error of socialism is anthropological in nature," since socialism rejected "the concept of the person as the autonomous subject of moral decision" (No. 13).
"Centesimus Annus" makes clear the confrontation between the Church and any political order which systematically denies human rights must be focused within the conscience of each person. Like "Evangelium Vitae," this earlier encyclical asserts that the mission of the Church in confronting such a culture is "to increase the sensitivity of consciences" (No. 52).
"Centesimus Annus" observed that the collapse of communism behind the Iron Curtain occurred because "the consciences of workers have re-emerged in a demand for justice" (No. 26).
For example, in Poland in 1980, Father Jozef Tischner defined the Solidarity movement as inherently linked to a "human dignity that is based on the conscience of human beings." In a series of sermons given in Krakow to the leaders of Solidarity, Father Tischner explained that "the deepest solidarity is the solidarity of consciences."
The "solidarity of consciences." which "Centesimus Annus" understood was capable of bringing down the anti-life culture of Marxist totalitarianism, is now proposed in "Evangelium Vitae" as capable of bringing down the culture of death.
If, as it has been said, truth is the first victim of violence, then the culture of death is also, and inescapably, a culture at war with the truth. In fact, the culture of death can only continue in existence by hiding the truth regarding the nature and dignity of the human person. One of the most obvious falsehoods undergirding the culture of death is it refusal to recognize the humanity of the child before birth.
Supreme Court Justice Harry Blackmun gave legal standing to this masking of the truth when he wrote in Roe v. Wade -- the case which legalized abortion throughout pregnancy -- that "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus …"
When the culture of death is expressed in a legal system in this way it surrounds the citizen and his conscience with a social environment which separates him from the truth about who he is as a person. Thus, the legal acceptance of abortion destroys not only the child but, in some sense, every person.
Writing in 1978, Vaclav Havel provided a deep insight into this phenomena. In "The Power of the Powerless" Havel wrote, "The profound crisis of human identity brought on by living within a lie, a crisis which in turn makes such a life possible, certainly possesses a moral dimension as well; it appears, among other things, as a deep moral crisis in society.
"A person who has been seduced by the consumer value system, whose identity is dissolved in an amalgam of the accoutrements of mass civilization, and who has no roots in the order of being, no sense of responsibility for anything higher than his or her own personal survival, is a demoralized person. The system depends on this demoralization, deepens it, is in fact a projection of it into society."
The person described by Havel as one "seduced by the consumer value system": and one whose personality is "dissolved" into mass civilization does not exist only in Marxist societies. A similar process of "demoralizing" the human person is underway in the new culture of death within Western democracies.
Havel's response is worthy of deep reflection precisely because it was a response which sought to return to the politics of his native Czechoslovakia a sense of morality in order that people might once again "be able to live within the truth." The rehabilitation of the "demoralized" man requires precisely the rehabilitation of his conscience through the restoration of the relationship between freedom and truth.
Writing during the Second World War, Jacques Maritain explored the Christian foundations of democratic political structures. He found that in the Western democracies Christianity had not been able to supplant the secular conscience but that, instead, Christianity had been able to achieve what he termed the "evangelical inspiration" of the secular conscience.
In "Christianity and Democracy," Maritain concluded that "what has been gained for the secular conscience, if it does not veer to barbarism, is faith in the brotherhood of man, a sense of the social duty of compassion for mankind in the person of the weak and the suffering, the conviction that the political work par excellence is that of rendering common life better and more brotherly and of working so as to make of the structure of laws, institutions and customs of this life a house for brothers to live in."
In short, Maritain proposed that there was an "evangelical inspiration" of democratic principles which has made democracy possible. Reduced to its essential character, this Christian "inspiration" of democracy achieved a political consensus that "Machiavellianism and the politics of domination" were to be rejected. In their place was established the idea that "politics depends upon morality because its aim is the human good of the community."
Thus, Maritain saw a vital and irreplaceable role for the Christian to engage democratic society at all levels of the political process. But an "evangelically inspired" secular conscience is not the same as a Catholic conscience or even a Christian conscience.
The difficulty all too often today is that the Catholic politician possesses not a Catholic conscience, but a secular conscience with little or no evidence of any evangelical inspiration. How often do we hear a Catholic politician stating a political philosophy or guiding principles that reflect or move beyond those values Maritain concluded had been accomplished by the "evangelical inspiration" of the secular conscience? We must expect more from a Catholic politician than a secular conscience.
Yet, this obligation brings with it a dilemma. Joseph Cardinal Ratzinger described it when he asked, how is it possible "to allow faith to become effective as a political force without transforming it into yet another element of power?"
Cardinal Ratzinger also put the question in a slightly different way when he asked, "How can Christianity become a positive force for the political world without being turned into a political instrument and without on the other hand grabbing the political world for itself?"
To choose the wrong answer, of course, opens up the prospect of what Jacques Maritain so aptly described as "the pharisaically Christian state" -- the state which manipulates both faith and political power in order to preserve existing power structures.
The answer of "Evangelium Vitae" goes in an entirely different direction. It is a response which seeks to defend both the Christian and secular conscience. In doing so, it responds within the context articulated by the Second Vatican Council: "the civil authority must see to it that the equality of the citizens before the law, which is itself an element of the common good society, is never violated either openly or covertly for religious reasons and that there is no discrimination among citizens."
"Evangelium Vitae" embraced the democratic ideal and seeks to evangelize it through a community of believers transformed into a new "people of life and people for life." Thus, the encyclical attempts to rehabilitate the secular conscience in regard to the true principles of the democratic ideal.
What "Evangelium Vitae" brings to this discourse (Nos. 18-24) is a new awakening of moral sensitivity, the rehabilitation of the concept of freedom, and the presentation of the role and dignity of conscience. This threefold approach offers the only enduring opportunity for avoiding an unprecedented abuse of human rights of the weak, handicapped and defenseless now being foreshadowed by the culture of death.
This "inspiration" of the secular conscience is possible because, as John Paul II has observed, "there is a moral logic which is built into human life and which makes possible dialogue between individuals. … The universal moral law written on the human heart is precisely that kind of 'grammar.'"
But we must ask ourselves what is the language which speaks this "grammar"? It has been argued that the abortion "freedom means that women must be free to choose self or to choose selfishly. … There is no easy way to deny the powerful argument that a woman's equality in society must give her some irreducible rights unique to her biology, including the right to take the life within her life."
What is surprising here is not so much the ideological basis of the rhetoric of the abortion "freedom" but its explicit identification with the culture of death.
But this is not all. If the "right" to abortion may not be limited by the combined weight of an innocent human being's "right" to life and the state's interest in the protection of human life, how is it to be supposed that the "right" to abortion may be limited by a "right" of conscience?
In contrast to this view of freedom, "Evangelium Vitae" rejects any "notion of freedom which exalts the isolated individual in an absolute way" (No. 19). John Paul II's insistence that freedom must have an "essential link with the truth" is a claim that truth is linked first and foremost not with some external moral code, but with the true identity and the true dignity of the human person -- and this must include a recognition of the inviolability of conscience.
As John Paul II reminded us at the United Nations, "Reference to the truth about the human person is, in fact, the guarantor of freedom's future." It is only when the dignity of the human person is recognized and respected in the public order that it is possible for men and women to live not only in freedom but in truth.
Common law today is the basis for the legal systems of England and many other countries formerly under British rule including the United States, Canada and Australia, among others. England, the land of St. Thomas More, is also the birthplace of common law. Common law was originally derived from Natural Law and was seen as above and independent of the state. Many civil rights -- even those found in the U.S. Constitution -- are attributed at least in part to the common law system.
"Common law emphasizes assent rather than domination, the community rather than the state, moral authority rather than physical power." The system also recognized the value of precedent. However, as St. Thomas More discovered, even English common law -- the independent tradition of right and wrong within a community -- was unable to grant him an exclusion from taking the Oath of Supremacy based on conscience, nor did it save him from the block.
However, Thomas More held true to his beliefs -- and interestingly -- to common law as well. In his discourse on common law, William Blackstone, one of its most famous commentator's and a man to whom the foundational documents of the United States owe a great debt wrote: "Nay, if any human law should allow or enjoin us to commit it [an act contrary to divine or natural law], we are bound to transgress that human law, or else we must offend both the natural and the divine."
Thomas More certainly held fast to this principle, as "the king's good servant, but God's first," however, King Henry made no allowance for a man's conscience.
Thankfully, England and other common law countries grew more tolerant of conscience in the years that followed, but to this day there is no absolute standard in common law countries with reference to exemptions on behalf of conscience for medical or pharmacy personnel confronted with issues of conscience, and common law countries struggle to balance the rights of conscience with perceived "rights" to various medical procedures.
However, common law countries generally seem to be moving in the direction of accepting at least some conscience claims, though there are troubling exceptions. To follow their conscience, providers of health services have sometimes had to pursue legal action, however, in many cases the right to conscience seems to have prevailed in common law countries and thus, in many instances, doctors, other medical staff and pharmacists such countries can make successful moral objections to performing certain procedures such as abortions -- or dispensing certain drugs, such as so-called emergency contraception.
[I have limited this commentary to abortion and the dispensing of abortifacients since they are the most likely to cause grave moral concern among health care providers. Moreover, the apparent trend toward allowing conscience exceptions for health care providers in this area may well set a precedent in other (newer) areas of medicine fraught with ethical dilemmas].
The trend toward freedom of religion and conscience has been building over the past centuries. Certainly, the last hundred years have brought a greater tolerance of religious ideas in England, with restrictions on Catholic finally lifted in the early 19th century, and the United States has, since the late 18th century enshrined religious freedom as a preeminent right.
There is thus reason to hope that we may be moving toward a situation in which the precedent will be established that provides a greater understanding and accommodation of the conscience of the individual health care provider. However, there is not unanimity of opinion and contradictory decisions about the freedom of conscience in this area continue. "'This issue is the San Andreas Fault of our culture,' said Gene Rudd of the Christian Medical & Dental Associations. 'How we decide this is going to have a long-lasting impact on our society.'"
While many jurisdictions have moved to incorporate some element of a conscience exemption into the law, especially in the areas of abortion and contraception, the absolute right to such an exemption is not yet universally accepted -- and is the subject of widespread debate and lobbying by abortion advocates, who often seek to force those in the medical profession to perform immoral procedures.
Too common are opinions like that of philosophy professor Ken Kipnis: "If your religious orientation is such that you can't discharge your professional responsibilities, then you shouldn't take on those responsibilities in the first place […] You should find other work."
Fortunately the law has often been more generous to healthcare professionals. With respect to abortion, an early example of a conscience clause occurs in England. Section 4(1) of the Abortion Act of 1967, states: "No person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised (sic) by this Act to which he has conscientious objection […]."
While the burden of proof of the conscientious objection rests with the person making the claim, a statement under oath that the person indeed has such an objection "shall be sufficient evidence for the purpose of discharging the burden of proof."
"Section 4(1) of the 1967 Act … was not in the original bill, but was introduced in response to concerns that doctors would be under pressure to perform terminations against their beliefs. Interestingly, one amendment that didn't make the final act proposed that, "no person [shall be] … deprived of, or be disqualified from, any promotion or other advantages by reason of the fact that he has such conscientious objection."
So it would seem, the protection, while better than nothing, is limited.
Pharmacists in England also appear to enjoy the benefit of certain conscience exemptions. The Royal Pharmaceutical Society allows some freedom of conscience for pharmacists: "The Code of Ethics, Part 2A1(k) states "that before accepting employment pharmacists must disclose any factors which may affect their ability to provide services. Where pharmacists' religious beliefs or personal convictions prevent them from providing a service they must not condemn or criticise (sic) the patient and they or a member of staff must advise the patient of alternative sources for the service requested."
However, because the guidelines do stipulate that a pharmacist must "advise the patient of alternative sources for the service requested," pharmacists objecting to providing a particular prescription may find themselves in the awkward position of having to be if not actors, at least accomplices. Some have evidently refused to refer their patients, and the legal consequences of such actions are, as of now, unclear. In fact, the issue of referral has become a sticking point in many common law countries as health care professionals refuse to be involved in immoral treatment in any way.
It seems that many common law countries have followed England in allowing physicians and pharmacists to decline to dispense medical services that they find morally unacceptable -- at least under certain conditions.
In Canada, a 2002 article in the BC Catholic noted: "They remain anxious, but Canadian nurses seem to have their right to conscientious objection worked out, for the most part. The nurses' code of ethics and their collective agreements recognize their right to withdraw from giving care that offends their morality as long as the patients they tend are placed in others' care …
"However, a recent contract cancellation at B.C. Women's Hospital, as well as developments in other provinces, raises doubt as to whether nurses do in fact enjoy unfettered freedoms of conscience and religion."
The article cites several examples of nurses whose hospitals were forced to participate in abortions, though, in most of the cases, the results -- sometimes after years of struggle --favored those who held to their conscientious objection.
The Canadian Medical Association discourages any discrimination stating: "No discrimination should be directed against doctors who do not perform or assist at induced abortions. Respect for the right of personal decision in this area must be stressed, particularly for doctors training in obstetrics and gynecology, and anesthesia."
"Pharmacists across Canada have the right to refuse to sell the contraceptive as a 'matter of conscience' as long as they refer customers to someone who will," the Daily Herald Tribune in Grande Prairie, Alberta, reported earlier this year.
Both in Canada and in Australia, things seem to be improving for conscientious objectors. Many legal battles and debates over conscience were seen over the past 20-30 years, with a shift in favor of conscience as the norm.
Australia generally allows for conscience exclusions for doctors and pharmacies. For example, in 2002, along with passage of a liberal abortion law in Canberra, a conscientious objection amendment allowed doctors to opt out of the procedure. In many areas of the country including the Australian Capital Territory, South Australia, Tasmania and Victoria the law allows medical personnel to opt out of performing abortions.
The Age in Australia reported in 2003 that "[p]harmacists who are morally opposed to selling emergency contraception can refuse to dispense the drug but may leave themselves open to legal action." In 2004 CNS News reported that a pharmacist "who has moral objections is not obliged to supply a product, but is expected to refer the customer to an alternative source." The story went on to report that some pharmacists are refusing "to refer customers to other suppliers."
As recently as last year the debate continued in Australia: "Health Minister Tony Abbott believed individual pharmacists had the right to choose whether they supplied the morning-after pill. But the federal opposition maintained pharmacists were obliged to offer a full range of products, particularly in one-chemist towns."
There is some gray area, to be sure, but overall, the idea of a conscience-exemption for those morally opposed to procedures such as abortion seems to be making headway in Australia.
In the United States, both the federal government and many states have provided some conscience exemptions for doctors who are morally opposed to abortion: "The dispute over abortion access began almost as soon as the U.S. Supreme Court legalized the procedure in 1973. Six months later, Congress carved out exceptions for doctors and hospitals with moral objections to abortion. Forty-seven states passed similar laws. Louisiana's, one of the most restrictive in the nation, says no one should be forced to 'recommend or counsel' an abortion, either."
More recently, Congress took steps to protect health care workers whose consciences prevent them from performing abortions. The Weldon Amendment became Federal Law in 2004 and gave "federal protection for health care providers, including hospitals and insurers, who choose not to participate in abortion."
The amendment stated: "(1) None of the funds made available in this Act [the federal Health and Human Services appropriations bill for Fiscal Year 2005] may be made available to a federal agency or program, or to a state or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.
"(2) In this subsection, the term 'health care entity' includes an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan."
The amendment was not universally accepted. California' Attorney General Bill Lockyer quickly filed suit to block the Amendment from taking effect. [The case is still pending]. For pharmacists in the United States, the laws vary according to state.
As of Aug. 1 of this year: "Four states -- Arkansas, Georgia, Mississippi, and South Dakota -- have passed laws allowing a pharmacist to refuse to dispense 'emergency contraception' drugs.
"Illinois passed an emergency rule that requires a pharmacist to dispense FDA-approved contraception.
"Colorado, Florida, Maine, and Tennessee have broad refusal clauses that don't specifically reference pharmacists, while California pharmacists have a duty to dispense prescriptions and only can refuse when their employer approves the refusal and the patient can still access the prescription in a timely manner."
Unresolved and troublesome issues remain, however. While pharmacists and medical personnel can often have recourse to a conscience exclusion, hospitals -- including Catholic hospitals -- are increasingly under attack by laws requiring them to provide so-called emergency contraception to rape victims.
"Connecticut is part of a growing number of states that are considering or have passed legislation requiring hospitals to dispense Plan B or at least provide information about the emergency contraception to rape victims.
"According to advocacy groups, Massachusetts, California, New Jersey, New Mexico, New York, South Carolina and Washington require hospitals to dispense the drug. Catholic hospitals are not exempted from those laws, yet the laws in New Jersey and New York include provisions to appease the church that prevent the pill from being given if a woman is already pregnant.
"Similar bills are pending this session in 12 states, including Connecticut."
The Connecticut bill was defeated, but the trend toward forcing hospitals to provide unethical treatment is troubling. Also troubling is the fact that abortion can be made nearly mandatory for physicians in training, with career consequences if they opt out.
Such is already the case in New York City: "In July 2002 the 11 public hospitals in New York City imposed mandatory abortion training for all medical residents. Amid the bad news, an encouraging sign has been reported. Some 25% (or 38 of the approximately 150 doctors in residency training) have opted out of the abortion program, though doing so could compromise their medical careers."
Challenges to the conscience of a health care professional certainly continue in common law countries, and the current system of dealing with such issues in these countries is far from adequate, or uniform. The problems will only grow as new unethical procedures become seen as "the norm" by some and as a "right" by others.
A good overview of the situation in the United States, at least occurred in 2002 when the United States Conference of Catholic Bishops submitted a statement to Congress, which included the following: "While the principle of protection for conscience rights is widely acknowledged, its implementation has been far from perfect, creating a need for more comprehensive and forward-looking legislation. Most federal conscience protections apply only to specific federal programs or are tied to the receipt of federal funds (5).
"Their scope is limited by this fact, and by the narrow range of procedures covered. Though the majority of states acknowledge and protect rights of conscience, their laws suffer from similar inadequacies. Most of these laws are limited to abortion. Only a few states protect health care providers from being forced to perform sterilizations. Few existing laws protect the full range of individuals and institutions that may be involved in providing health care in our increasingly complex health care system.
"Many states do not protect the rights of conscience with respect to newly created technologies such as cloning or embryonic research, or even current misuses of older technology such as 'surrogate' motherhood. States have also not addressed the need to protect providers with respect to new threats to human life at the end of life, such as physician-assisted suicide and euthanasia.
"As noted by one commentator: 'As the range of medical technologies continues to expand ... the number of medical services involving potentially serious conflicts of conscience is certain to increase.'(6)
"Finally, with new organized threats to conscience on the horizon, it is especially important for states to expand and strengthen their existing protections now. These threats have become especially apparent in recent years in the fields of abortion and contraception, as reviewed below."
Common law countries certainly have much to do to develop more fully the ideal of a conscience clause for those in the medical field. However, the fact that in most common law countries some accommodation at least seems to be made for the conscience of those in the health care field provides hope. It may also provide a precedent upon which we can work to build a society that does not require any protector of life with moral objections to unethical medical procedures to actively participate in a culture of death.
It may seem that the discussion of the role of conscience of a Catholic politician and of a Catholic health care provider are two distinct, unrelated issues. However, if it is true that much of the difficulty for Catholic politicians concerns the failure to adequately form a Catholic conscience or to properly understand the implications of the demands of conscience on one's public responsibilities, then it is difficult to see how it will be possible in the future to fashion laws -- either by legislative or judicial action -- that respect the rights of a properly formed conscience.
Once again we are reminded of a scene from "A Man for All Seasons," this time of the conversation between More and his friend, the Duke of Norfolk. It is clear that More's stand on conscience is really incomprehensible to the duke since he asks More to join the other members of the nobility in agreeing to the demands of the king for the sake of friendship.
When More asks the duke whether after he has done what has been asked whether the duke will then follow More into hell for violating his conscience for friendship's sake, the duke complains of More's obstinacy. In short, how can we expect those who have failed to take due care of their own conscience to properly care for the consciences of others?
John Paul II has elevated the role of Catholics by insisting in "Veritatis Splendor" and "Evangelium Vitae" that any moral consensus within society must be one which recognizes the three fundamental principles of the culture of life.
The first is the incomparable value and dignity of every human being regardless of age, condition or race. This is especially true in the case of the poor, the weak and the defenseless. And this is also true for the dignity of the human conscience.
The second is that it is always a violation of human dignity to treat anyone as an instrument or means to an end. Instead, every person must be seen as good in himself or herself and never as an object to be manipulated.
The third principle is that the intentional killing of an innocent human being, whatever the circumstances and particularly in cases of abortion and euthanasia, can never be morally justified.
In these moral principles we can see that the Church's mission in building the culture of life is inseparable from the legacy of the Second Vatican Council. This is especially the case in regard to the teaching of the council on conscience, freedom and human dignity.
By insisting that the Catholic people must be "a people of life and for life" (No. 6), John Paul II has outlined the mission of the Catholic people in the conversion of culture. In this mission, "Evangelium Vitae" presents a blueprint for Catholic identity in the third millennium in which "the dignity of the person and the Gospel of life are a single and indivisible Gospel" (No. 2).
In becoming "a people of life and for life" Catholics will bear witness most truly to the truth, to conscience and to the possibility of building a culture of life. But "a people of life and a people for life" can only be so if it is at the same time "a community of consciences for life" or what John Paul II might have called "a great solidarity of consciences for life."
A Catholic people must have a Catholic conscience and that conscience, to be Catholic, must be for life.
1. Robert Bolt, "A Man for All Seasons" (New York: Random House, 1960), p. 91.
2. Ibid., p. 22.
3. "Complete Works of St. Thomas More", ed. Clarence Miller (New Haven: Yale University Press, 1976), vol. 14, pt. 2, p. 775.
4. Thomas More, "De Tristitia Christi", "Complete Works of St. Thomas More," ed. Clarence Miller (New Haven: Yale University Press, 1976) vol. 14, pt. 1, pp. 3-4.
5. F. Fukuyama, "The End of History and the Last Man" (The Free Press, New York 1992).
6. John Paul II, Address to the General Assembly of the United Nations, October 5, 1995; L'Osservatore Romano (English edition, October 11, 1995) p. 8.
7. John Paul II's recognition in No. 18 of the suffering and sense of hopelessness which often pervades these decisions against life and his sensitivity in No. 99 in discussing pastoral responses to women who have had abortions reflect the depth of commitment to "solidarity" which runs through the encyclical.
8. Carl Anderson, "'Evangelium Vitae' e cultura post-moderna" in Evangelium Vitae: Enciclica e Commenti (Libreria Editrice Vaticana, Citta del Vaticano 1995) also printed in L'Osservatore Romano 28 April 1995.
9. Jozef Tischner, "The Spirit of Solidarity" (Harper and Row Publishers, San Francisco 1984) p. 4.
10. Roe v. Wade, 410 U.S. 113 (1973).
11. Reprinted in Vaclav Havel, "Living in Truth" (Faber and Faber, London 1986), p. 62.
12. Ibid., p. 63.
13. Jacques Maritain, "Christianity and Democracy" (Ignatius Press, San Francisco 1986) (first edition French 1943).
14. Ibid., p. 46.
15. Ibid., pp. 42-43. Certainly not all of Maritain's contemporaries were as sanguine regarding the influence of Christianity in the modern democracies. For example, Christopher Dawson wrote in 1938, "It may, I think, even be argued that Communism in Russia, National Socialism in Germany, and Capitalism and Liberal Democracy in the Western countries are really three forms of the same thing, and that they are all moving by different but parallel paths to the same goal, which is the mechanization of human life and the complete subordination of the individual to the state and to the economic process. Of course, I do not mean to say that they are all absolutely equivalent, and that we have no right to prefer one to another." See, Christopher Dawson, "Religion and the Modern State" (Sheed and Ward, New York 1938), p. XV.
16. Joseph Ratzinger, "Church, Ecumenism and Politics: New Essays in Ecclesiology" (St. Paul Publications, New York 1988) (first edition German 1987), p. 173.
17. Ibid., p. 216.
18. Second Vatican Ecumenical Council, Declaration on Religious Liberty Dignitatis Humanae, 6 (1965).
19. Address to the General Assembly of the United Nations, October 5, 1995, op. cit.
20. Naomi Wolf, "Our Bodies, Our Souls", The New Republic, October 16, 1995, p. 33.
21. Address to the General Assembly of the United Nations, October 5, 1995, op. cit.
22. Robert Clinton, "God and Man in the Law: The Foundations of Anglo-American Constitutionalism." (Lawrence: Univ. of Kansas Press, 1997) 102-103.
23. James Stoner, Jr., "Common-Law Liberty: Rethinking American Constitutionalism." (Lawrence: Univ. of Kansas Press, 1999) 5.
24. Wayne House, "A Tale of Two Kingdoms: Can There be Peaceful Coexistence of Religion with the Secular State?" BYU Journal of Public Law. (vol. 13, 1999) 221.
25. Quoted in Wayne House, "A Tale of Two Kingdoms: Can There be Peaceful Coexistence of Religion with the Secular State?" BYU Journal of Public Law. (vol. 13, 1999) 235.
26. Rob Stein, A Medical Crisis of Conscience in The Washington Post July 16, 2006, A1, (online).
27. Feminist Majority Foundation, Feminist Daily Newswire Sept. 24, 2002
29. Abortion Act of 1967 quoted in www.consciencelaws.org/Conscience-laws-United-Kingdom/LawUK01.htm
31. Jacky Engel, Abortion Law Reform and Conscientious Objection in the United Kingdom in Nucleus October 2004. http://www.consciencelaws.org/Conscience-Archive/Documents/Abortion% 20Law%20Reform%20UK.html#13.
32. The Royal Pharmaceutical Society of Great Britain, Fitness to Practise and Legal Affairs Directorate: Fact Sheet: Thirteen, Employing a Locum/Working as a Locum. November 2005. http://www.rpsgb.org/pdfs/factsheet13.pdf
33. Terry Sanderson, Nothing for the Weekend, in The New Humanist. May 3, 2005
34. Greg Edwards, Accommodating Conscience in The BC Catholic, Oct. 2002
http://www.consciencelaws.org/Examining-Conscience-Background/ Abortion/ BackAbortion29.html
36. Pharmacists in Religious Community Balking at Plan B Pill in The Daily Herald Tribune, Jan. 31, 2006, p. 7. (Lexis)
37. David McLennan, It's not over say abortion adversaries Canberra Times. Aug. 24, 2002, C3. (Lexis)
39. Miranda Wood Morning-after Pill Available over the Counter in The Age Dec. 28, 2003
40. Patrick Goodenough, Objecting Pharmacists Refuse to Sell 'Morning-After-Pill' Cybercast News Service Jan. 6, 2004
41. Danielle Cronin, Morning After Pill Refused: 'Battleground' over Contraceptives Supply in Canberra Times. April 2, 2005 A9. (Lexis)
42. Bill Walsh, Wording Bolsters Foes of Abortion: Women in Senate are Ready to Fight It in Times Picayune Nov. 29, 2004, National 1, (Lexis).
45. States look at pharmacist 'conscience' laws regarding EC in DrugFormulary Review Aug. 1, 2006, (Lexis).
46. Susan Haigh, Connecticut Bishops Pursuing Stricter Interpretation of Abortion, Associated Press, March 12, 2006, (Lexis).