Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, April 16, 2008

Conscience and the Pro-Life Doctor

Last week Rick invited me to respond to a post by Christopher Kaczor at First Things about last year's opinion on the role of conscience in reproductive medicine from the American College of Obstetricians and Gynecologists.  I agree that the College's opinion is unduly one-sided, elevating patient autonomy as an absolute value.  My own work tries to focus more broadly on whether there is a functioning marketplace for contested goods and services.  The focus should be on access within the market, not on ensuring that every provider conforms to the party line.  Since most MoJ-ers will presumably share my skepticism toward the College's opinion, let me raise a couple of points of disagreement with Dr. Kaczor and with Fr. Araujo, who thoughtfully commented on the opinion as well.

Dr. Kaczor takes issue with the College's statement that “Although respect for conscience is a value, it is only a prima facie value, which means it can and should be overridden in the interest of other moral obligations that outweigh it in a given circumstance."  My question for Dr. Kaczor is, if the law must treat a claim of conscience as more than a "prima facie value," does that mean that the law should treat conscience as an absolute value?  If so, how could our legal system function with that understanding of conscience?  The Civil Rights Act, for example, is a clear example of the law running roughshod over dissenting claims of conscience.  If the law must retreat whenever conscience is invoked, the rule of law is going to encounter some serious obstacles.

Relatedly, Dr. Kaczor explains his disagreement with the College's opinion by analogizing to a soldier:

Consider someone volunteering for military service who receives all the benefits and responsibilities that come with the oath to obey superior officers. If a superior officer orders him to do something that he considers morally wrong, if we make use of the principles invoked by the ACOG, the soldier may only disobey the order if there are other soldiers available to carry that order out. Surely, however, the demands of conscience should not be gerrymandered by the availability of people who very well may be less enlightened and conscientious.

Is he suggesting that soldiers should have a right of conscience to disobey superiors' orders without suffering any discipline for that disobedience?  The closest I've gotten to military service is repeated viewings of Saving Private Ryan, but it seems that Dr. Kaczor's view challenges the premises of the chain of command.  It also illustrates a broader problem I have with many all-or-nothing defenses of a right to conscience.  The fact that the law does not grant me a right to obey my conscience without fear of reprisal does not mean that my conscience has been snuffed out.  It just means that I might have to pay a price for standing by my convictions.  A soldier is free to disobey the immoral orders of a superior, but he must be ready to defend that decision in a court martial.  Similarly, a obstetrician may refuse the directive to refer patients to an abortion provider, but he may need to count the cost of that refusal.  To be clear, I oppose requiring a referral under those circumstances, but the law's failure to provide a blanket shield to claims of conscience does not mean that conscience is inoperative.  Conscience is not costless.

And just a word in response to Fr. Araujo's criticism of the College's opinion.  He writes that:

The conscience that is being sacrificed here is not one that is subjectively determined (like the autonomy intrinsic to “reproductive health rights”) but one that is designed to advance an objectively determined moral order.

The problem is that the relevant authorities (here, the College) do not agree that abortion is inconsistent with an objectively determined moral order.  Now what?  My fear is that when we put so much weight on the "objective" nature of the conscience claims at issue, we have set the legal argument for recognizing conscience on a pretty shaky foundation.  For freedom of conscience to remain vital, it cannot rest on the demonstrable truth value of the claims for which conscience is invoked.  Many of the truths that matter most are not demonstrable, or are at least not demonstrable to the satisfaction of the relevant authorities.


Vischer, Rob | Permalink

TrackBack URL for this entry:


Listed below are links to weblogs that reference Conscience and the Pro-Life Doctor :