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, September 26, 2008

Response to Rob Vischer re conscience protection

Just a quick response to Rob's point that institutional autonomy argues against federal conscience protection for health care providers

(1) The reguation in question is not attempting to make new law, but only to better enforce existing law.

(2) I agree that institutional autonomy should be weighed in the balance. But in this case I think it outweighed by the following three considerations:

(a) We do not at present have a set of autonomous communities that have made delibrative judgements, but rather a set of legal and quasi legal vectors that are disrupting that autonomy. Unless i'm mistaken,  there are legally-empowered acrediting agencies insisting on the quashing of conscience; at least in New York City there is a law requiring all medical students to be trained in abortion. So the reg is a counter vector.

(b) To my knowledge, no institutions would be forced by these regs to act in violation their collective consciences. Indeed, federal law protects and secures institutional as well as individual conscience. It is true that some institutions may thus find it more difficult to do what their consciences permit (or occasionally perhaps require), but this does not wound their consciences as does forcing someone or some institution actively to facilitate evil. Note that the institutions are not required to follow the moral policies of the conscientious objectors. They can spend a little more time and money and work around them. So it's not as though the federal government were dictating what hospitals etc. may or may not provide or do.

(c) The swelling ground-level doctrine that the reg would combat is truly and deeply dangerous. It's not just that people's consciences are being overridden in extremis, like forcing a blood transfusion on an otherwise dying child over the parents' objection. Rather the argument is being commonly made that a health care provider must always facilitate what s/he considers evil without any showing at all of a pressing need on the part of the client or the institution. This turns human beings into mindless cogs in a machine.


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