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.

Saturday, February 27, 2010

More on conscience at BYU

A few other highlights from today's conscience conference at BYU (earlier posts here and here):

Wash U law/med prof Rebecca Dresser explained an "institutional" approach to conscience, asking institutions to take steps to minimize cases in which individual objections jeopardize health care.  As a self-identified "pro-choice liberal," she welcomes the conversation about conscience in health care because the concerns raised by objectors can help encourage society to think about and reflect on what we want to do (and do not want to do) in health care.  Right now it's a laissez faire approach in terms of new techology -- we aren't having serious moral conversations about where we're headed in areas like cognitive enhancement, and the type of concerns raised in the conscience debate can help create space for those conversations.

BYU law prof Cole Durham argued for an "integrationist view" of law under which conscientious objection is not a tolerated exception to the general rule, but part of the rule structure itself in light of the Constitution's protection of religious liberty.  Ave Maria law prof Richard Myers countered that the First Amendment does not supply much of a basis for conscience protection, and didn't supply one even before Employment Division v. Smith.  He also cautioned against a constitutional law approach to conscience (rather than a statutory approach), for fear that it could contribute to a trend toward privatized religion and a loss of public morality. 

BYU law prof Lynn Wardle argued that Roe v. Wade and Doe v. Bolton provide a foundation for a right to conscientious objection to participating in abortion, both because of the statutes at issue and because of the Court's focus on the privacy right that attaches to the doctor-patient reationship.

USF philosophy prof Tom Cavanaugh attempted to distinguish between "professional conscientious objection" (understood as accessible claims) and "religious conscientious objection" (understood as inaccessible claims), and between conscientious objection to a type of intervention (worthy of recognition) and conscientious objection to the patient requesting the intervention (not worthy of recognition).  I'm not sure he persuaded me of the workability of either distinction, but he had some thought-provoking suggestions for how to navigate the conflicts.

Other papers focused on practical resolutions to real-world conscience clashes.  My own contribution focused, not surprisingly, on the implications of conscience's relational dimension for health care.  I'll try to post the paper within a week or so.


Vischer, Rob | Permalink

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