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.

Friday, April 11, 2008

The Conscience of the Pro-life Doctor (and others): Oxymorons?

I thank Rick for his April 9th posting on the contribution to the First Things web log recently authored by Chris Kaczor. While his invitation was primarily directed to Rob, I should like take this opportunity to offer a few thoughts on this matter of conscience that I have addressed in this web blog over the past several years. Should readers and contributors be interested in my past ruminations, they might click on my name under the categories menu and search for the word “conscience.”

The essence of the American College of Obstetricians and Gynecologists (ACOG) in its published Committee Opinion N. 385, at best, pays lip service to conscience. In reality, it sacrifices the conscience of physicians who choose not to associate themselves in any manner with abortion in the nominal “balancing” of interests. Ultimately, their balancing of interests protects without question or limitation “the safe, timely, and financially feasible access to reproductive health care that all women deserve.” The ACOG opinion, in essence, only protects abortion rights while it dismisses the vital right of conscience that confers several crucial protections: the first is to the doctor; the second is to the unborn child whose fate is eclipsed by the reproductive health “rights” of the mother. In short, there is, in fact, no meaningful balancing in spite of the ACOG’s assertion to the contrary.

Why is this so? Organizations such as the ACOG are able to convince the state (which is also the licensing authority of physicians) that the important exercise of conscience which will maximize the protection of human life is no more important than the exaggerated autonomy of persons who elect to terminate human life other than their own. 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 ACOG perspective relies on the shaky foundation of the infamous Casey decision that the personal liberty of reproductive health rights is premised on “the right to define one’s own concept of existence, of meaning of the universe, and the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” With tragic consequences, the ACOG opinion rests on questionable jurisprudence that threatens the lives of the unborn—the posterity of the human family.

If our society would approve of the doctor who, in the exercise of his conscience, refused to conduct some scientific experiment upon an unwilling subject that is encouraged or required by the law of the state, why would that same society disapprove of the doctor who, also in the exercise of conscience, refused to terminate a human life in its early stages? Put simply, the action of this society would be guided by subjective whim and caprice. It would, notwithstanding its democratic claims, be a totalitarian society. As Pope John Paul II said in his encyclical letter Evangelium Vitae, “the value of democracy stands or falls with the values which it embodies and promotes.” What values are being promoted by the ACOG “balancing” effort? Are the values advanced by ACOG truly consistent with the principle of the right to conscience? If some are prepared to cheer the physician depicted in the film “The Cider House Rules” who, in the exercise of his ether-molded “conscience,” would abort the babies of young, unwed mothers who came to him for “help,” why could they not also commend the physician who, in the exercise of her conscience, refuses to associate herself with such actions?

Perhaps because, as Dr. Edmund Pellegrino has cautioned, the first context offers an “immediate utopianism of a man-made heaven on earth” where there is nothing beyond the present moment. In his view, the approach of this utopianism determines the material society’s choices about what is permitted and what is not. In the context of abortion and reproductive health care, there are physicians willing to comply with the expectations for services to which other doctors object based on their formation of well-formed conscience that is objectively based. There is no need to coerce all physicians with state sanction (imprisonment, denial of licenses, or fines) to perform acts to which they object in good conscience, based not on “feeling” but on sound and reasoned views of rightness and wrongness. For those who may be interested in a more detailed explanation of my views on these issues, they may wish to read my recent article Conscience, Totalitarianism and the Positivist Mind just published in volume 77 of the Mississippi Law Journal (2008).    RJA sj


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