As I write the word has not yet come down as to whether or not President Obama will revoke the “conscience clause” put in place by President Bush just before he left office. The clause, called the Provider Refusal Rule, allows health care providers to refuse to participate in procedures they find objectionable for moral or religious reasons.
It is called the “conscience clause” because it affirms the claims of conscience — one’s inner sense of what is right — against the competing claims of professional obligations. Mike Leavitt, Bush’s Secretary of Health and Human Services, said at the time of the rule’s introduction, “Doctors and other health providers should not be forced to choose between good professional standing and violating their conscience.” In good liberal fashion, Leavitt assumes two registers of judgment — public and private — and imagines a conflict between them. He himself would resolve the conflict in favor of the private judgment; others would insist that public norms trump and that conscience must yield; both parties would share the definition of conscience Leavitt assumes.
Were he alive, the English philosopher Thomas Hobbes would dissent, for he has another understanding of conscience altogether, one that casts quite a different light on this conflict. Hobbes begins with the etymology of “conscience” — conscire, to know in concert with another — and proceeds to a definition of conscience that turns the one we know upside down. Since conscience, correctly understood, refers to those occasions “when two or more men know of one and the same fact . . . which is as much to know it together,” it is a violation of conscience — of knowing together — to prefer their “secret thoughts” to what has been publicly established.
Hobbes is aware that others take conscience to be the name of the private arbiter of right and wrong, but he regards this as a corrupted usage invented by those who wished to elevate “their own . . . opinions” to the status of reliable knowledge and try to do so by giving “their opinions . . . that reverenced name of Conscience.”
Hobbes’s larger point — the point he is always making — is that if one gets to prefer one’s own internal judgments to the judgments of authorized external bodies (legislatures, courts, professional associations), the result will be the undermining of public order and the substitution of personal whim for general decorums: “. . . because the Law is the public Conscience . . . in such diversity as there is of private Consciences, which are but private opinions, the Commonwealth must needs be distracted, and no man dare to obey the Sovereign Power farther than it shall seem good in his own eyes.”
This elevation of private over public imperatives is what Leavitt and those on his side of the issue urge, and they urge it in the name of traditional American freedoms: “As citizens, we should all be concerned when freedoms that are enshrined in the constitution (e.g. freedom of conscience and religion) are blithely swept away” (Susan Martinuk, Calgary Herald).
But while these freedoms may be enshrined in the constitution, they have not fared so well when they have come in conflict with laws passed with an eye toward maintaining order and predictability. In a series of cases stretching from Reynolds v. United States (1878) to Employment Division v. Smith (1990), the Supreme Court has ruled that when the personal imperatives of one’s religion or morality lead to actions in violation of generally applicable laws — laws not promulgated with the intention of affronting anyone’s conscience — the violations will not be allowed and will certainly not be celebrated; for, says the court in Reynolds, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
It could be said that such language is too melodramatic for the current dispute, which does not involve disrupting the machinery of government, just the granting of exemptions from some professional obligations. What’s the big deal, for after all, “If a procedure is legal, a patient will still have the ability to access that service from a medical professional or institution that does not assert a conflict of conscience” (HHS News Release, August 21, 2008).
But should patients be asked to add to the problems they already have the problem of having to figure out (if they have the time) which providers will be willing to treat them? When a professional hangs out his shingle doesn’t he offer his services and skills to the public and not just to members of it who share his morality? Isn’t it a matter of conscience (in Hobbes’s sense) to abide by the rules that define the profession you’ve signed up for?
The force of these questions depends on assumptions the proponents of the conscience clause do not share, chiefly the assumption that obligations vary with different contexts and that one can (and should) relax the obligations of faith when one is not in church. This sequestering of religion in a private space is a cornerstone of enlightenment liberalism which only works as a political system if everyone agrees to comport himself or herself as a citizen and not as a sectarian, at least for the purposes of public transactions.
The conscience clause would permit people to opt out of that agreement, at least in certain circumstances. It appears that the pendulum is about to swing back in the other direction, but we can be sure that the story will have many more chapters.
Stanley Fish is the Davidson-Kahn Distinguished University Professor and a professor of law at Florida International University, in Miami, and dean emeritus of the College of Liberal Arts and Sciences at the University of Illinois at Chicago. He has also taught at the University of California at Berkeley, Johns Hopkins and Duke University. He is the author of 10 books. His new book on higher education, "Save the World On Your Own Time," has just been published.
From 1 to 25 of 322 Comments
I wonder if more could be drawn out about this problem using Kant’s “What is Enlightenment?”
It seems to me it gets closer to the distinction you are trying to make than Hobbes does.
Plus, I’d really like to read it.
jrc
— jrcA doctor’s “private” conscience really isn’t all that private. Particularly in the case of abortion, that “private” conscience is shared by a significant portion of the U.S. population. Perhaps one could consider it “private” in that the individual doctor faces off against the public on his or her own.
Do we really want to force doctors to do procedures that they consider immoral? Where do we draw the line? What if society decides euthanasia is appropriate?
— Jeffrey CollierI congratulate you on your scholarship, Dr. Fish, but I’m not sure what it adds to this discussion to introduce Hobbes’ rare perspective on the definition of ‘conscience’. Surely this debate will not center on reformulating the commonly understood meaning of that word.
A couple of points: One that you fail to mention is that this is an issue of inaction rather than action in regard to one’s religious beliefs. It is no crime (at the moment) to refuse to, for example, assist someone in obtaining an abortion, or to refuse to perform one. An active stance in that situation would be to attempt to deny someone access to that procedure through intimidation or force (which does happen). This is more closely analogous to the situation of conscientious objectors (those who object on the basis of ‘conscience’ - there’s that word again), who serve in the military but will not actively take part in harming enemy troops, though they also do not attempt to prevent those actions.
The second point is that for those physicians who refuse to perform certain procedures, the moral issues for them may be quite serious ones - in the case of abortion, their religion leads them to regard this as quite literally the taking of a life. This is no minor matter for them, and is from their perspective precise the position of military conscientious objectors.
Were this rule to be reversed, and physicians forced to perform any procedure which is currently legal in this country, it appears that a number of people who take the dictates of their religion seriously, including both Christians and Muslims, would be denied the oppportunity to practice medicine at all. I don’t see how that could in any way be considered consistent with a variety of policies that are currently in place in regard to religious freedom.
— Rich in AtlantaPresident Obama will revoke the “conscience” clause because he’s pro-abortion. By the way, there’s no honor in the University of Notre Dame’s granting Mr. Obama an honorary degree. Notre Dame, a Catholic institution, shouldn’t be honoring a proponent of abortion. Where’s Notre Dame’s conscience?
— Martin YanosekYour statement that the conscience clause permits people to opt out of the agreements of enlightenment liberalism makes no sense to me. I would have thought that one of the mainstays of enlightenment liberalism was the freedom of the individual not to be compelled to violate his or her own conscience. But maybe I’m confusing the enlightenment with Baptist polity. :-)
— Matt WIt is, of course, perverse to take up a profession that conflicts with one’s conscience in the first place. Pacifists should not volunteer for combat duty, nor should anyone who has deep-felt objections to blood transfusions become a doctor. But, by the same token, professionals have a right to object if the rules of their profession are changed so as to force them into activities they consider unethical.
This makes abortion a special case. The maxim ‘Do no harm’ is often cited as the basis of medical ethics, and many doctors consider that to perform an abortion is to do great harm to a human being - violating the basis of their profession. If they have been trained as doctors on the understanding that this is an acceptable position - that is, if as medical students they were told that no doctor can be required to perform an abortion, then to alter that rule is to take away from them the possibility of practicing their livelihood. This is why pharmacists in the UK are not required to dispense a “morning-after” pill if it violates their conscience.
— Ben MurphyFish and Hobbes miss the point of “conscientia” (Latin) or “syneidesis” (Greek). The point is not knowing with the community or the Hobbesian beast “Leviathan.” The point is knowing the Law as an expression of eternity, a law only imperfectly reflected in the laws of nations. By constricting the conscience to a fallible human construct, one not only adopts a corrupt anthropology, one endangers the very basis of liberal democracy as well as that core human right, religious liberty. Tamper with conscience and lose your freedom as a nation.
— Malcolm YarnellThe distinction Fish draws between private and public conscience is valid; however he seems to leave no place for private conscience. In that, he is wrong.
The practices of medicine and pharmacy are licensed and regulated by the state. The state has the power and right to determine the qualifications and obligations of licensed professionals.
Additionally, the state invests a great deal in the education of health care professionals and in providing a variety of facilities that make it possible for them to practice their profession.
A person who chooses to be a health care professional has an obligation to abide by the standards of care set by the state. If those standards violate the person’s conscience, then they have the opportunity, right and, probably, the personal obligation to withdraw from the practice of medicine or pharmacy.
One should be true to himself, and that sometimes means there is a price to be paid. However, those who wish to be members of regulated and, often, subsidized professions do not have have a right to choose the regulatory standards with which they will comply. They do have every right, as members of a profession or as members of the public, to promote policies that comply with their own ethical and professional views.
Of course, it would be a clear violation of First Amendment rights for the state to prohibit or curtail the promotion of views that would change state policy.
The point I make is neither “liberal” nor “conservative”. It will cut each way, depending upon the regulatory policies in place at the time.
HJBoitel.
— HJBoitelI think this issue of private interest and public interest is particularly important at this time. For a long time it seems that elected officials have been preferring private interests over public interest, or perhaps it has been that they have subscribed to an ideology which suggests that the public interest is best served by unfettered private interests. The easing of regulation in financial markets is only the most obvious example at the moment but the privatization of government services and the reduction of taxes for the rich are all consistent with this ideological bent. As the negative consequences of blind adherence to belief that private interests trump public interests becomes clearer, it is up to the voters to hold elected officials accountable and we need to see to it that they act in the public interest.
— Doug BNo one is forcing anyone to violate their conscience, in either sense. After all, unlike the conscientious objectors in the military, no one is drafted into the medical professions. It’s even possible to be in a medical profession without ever performing an abortion or handing out birth control. Urology, dermatology, and even midwifery come to mind.
— J. BroekmanThis battle over the issue of contraception involves the matter of private imperatives not only fighting public imperatives, but also other private imperatives that are diametrically opposed to the private imperatives posited by those proposing the “conscience clause”.
To the extent that the proponents of the so-called “conscience clause” wish to deny the rights of those who oppose their position on this issue, they have a defective conscience akin to the conscience of a six year old boy named Calvin, whose stuffed tiger (named, appropriately enough, Hobbes) is far more intelligent than he is.
The proponents of the “conscience clause” cannot be proven to have a conscience in fact, but can be proven to love to immolate stuffed tigers.
— TheoacmeDenial of medical care is not merely “inaction,” as a commenter above suggests.
One of the obvious analogies to make here is to civil disobedience, as in the civil rights movement or nonviolent anti-war protests. Civil disobedience involves violating the law, guided by the dictates of one’s conscience. However, a key difference is that the people who practiced civil disobedience to protest segregation, Vietnam, etc accepted that they would get arrested. That was part of the point. (This is exclusive of incidents where authorities set dogs on them or beat them, which was extra-judicial retaliation.)
People who want this conscience exception want to perform civil disobedience but they don’t want to suffer the consequences. In this case, they want to refuse legal medical procedures but avoid censure from the medical authorities (which plays the role that arrest and trial did in the civil rights movement). This to me is weak, and cheapens their oath, Hippocratic or otherwise.
— BenAs a strong supporter of abortion rights, I feel it is nevertheless important to point out that abortion is, essentially, the vast majority of the time, an elective procedure where nobody’s life is at risk (at least not in any medical sense of the word).
A physician who is employed by the government, or who takes tuition reimbursement from a state government in exchange for serving a rural or disadvantaged community, can be expected to serve society by performing abortions when society considers them medically appropriate. A physician in private practice enters into no such agreement.
Physicians must, however, be up front about their personal beliefs before counselling patients in a professional capacity.
— Adam StarkThe “conscience clause” was another infantile ridiculous Orwellian piece of nonsense pushed on by the inane Bush administration. This nonsense should be revoked and we should go back to acting like adults.
— mcastillo“I don’t see how that could in any way be considered consistent with a variety of policies that are currently in place in regard to religious freedom.”
Repealing the conscience clause does not prohibit those with religious objections to performing abortions from becoming doctors any more than housing laws prohibits those with religious objections to renting to interracial couples from becoming landlords.
Repealing the conscience clause does, however, put the burden of these religious beliefs on the believers themselves. Religious people are free to believe their religions constrain them from participating in abortions, but granting the legitimacy of such freedom does not entail the existence of any obligation in others to shoulder the costs of such belief. If an interracial couple wants to rent a house, why should they bear even minor inconveniences because the landlord has chosen a profession that creates inevitable conflict with his or her religious beliefs? So too with abortion and pharmacists who won’t dispense contraceptive pills.
The solution for those who would invoke the conscience clause is straightforward: follow your conscience as you must, but don’t expect that anyone–particularly those who don’t agree with your conscience–should do the hard work for you.
— ThomMartin Yanosek,
You can read about the current location of Notre Dame’s conscience at insightscoop.typepad.com .
— Charles E. FlynnA conscientious objector becomes one only in response to the draft. His conscience may dictate that he kill no man, draft or otherwise, but until he’s drafted, he’s simply against killing. Doctors become doctors through choice, not national service requirements, and therefore can opt out of any of the specialties that might represent a potential conflict with their personal conscience. The professional standards and legal mandates associated with his choice of specialty should be well understood before he enters that practice. If those mandates should change significantly over the course of his pracice, he may choose to redefine his specialty, or practice elsewhere. The not so comparable options for the conscientious objector are alternative service or flight .
— AcronzyIf conscience is the arbiter of what medical procedures to perform or what prescriptions to fill, then can a doctor or pharmacist in “good conscience” refer the patient to another provider who will do the procedure or a pharmacist that will fill the prescription for birth control or the morning-after pill? Isn’t a referral, or even returning a prescription, the moral equivalent of actually performing the abortion or filling the prescription?
— Sharon M.By the way, why do these things that so bother the conscience often have to do with women’s, not men’s, reproductive decisions?
I’m not sure that Hobbes’s notion of conscience actually helps to clarify the issue, given the controversy and disagreement surrounding the issue.
There is insight though: it is a rather dangerous precedent fo water down professional obligation. As a professional, a doctor is expected to act in the best interests of the patient, within the scope of the law and the patients wishes, and exercising their professional judgement within this scope. Anything less undermines the trust that patients can put in their physicians - patients are vulnerable and have no choice but to trust physicians to make clinical decisions in their own best interests. I don’t think there is any scope for physicians to make decisions on controversial moral issues based on their own personal beliefs: that is for the law, and for the patient.
One would hope that they are compatible, but in cases where the patient’s private views about their own treatment differ from the physicians, there needs to be a clear understanding that, as it is the patient’s health on the line, that freedom of conscience is something that is the domain of the patient, rather than the care provider.
Maybe Hobbes has some insight here: that a doctor’s conscience must extend to fulfiling the professional and social obligations expected of them.
Making a decision
— TimADr Fish makes an interesting point. By allowing ones personal sense of conscience to over ride the law of the land one could clain the right to not pay taxes or not to obey any laws of the land. If we are all arbitrators of what we can do in good conscience then we are in faqvor of anarchy. The truth is that we all have the right and even the duty to follow our own standards of behavior however we must be willing to face the legal consequences of these acts. Doctors who do not wish to perform certain proceedures they find objectionalble should choose a field of menicine that would most likely avoid those situations. If they choose to practice in an area that will probably force them to proform these proceedures it is thier own fault.
— HowardIf they don’t want to provide medical care they should find another profession.
— Johnny EThe status of conscientious objector has legal precedent in the concept of military service - a public obligation for which some object privately if there ever was one.
I suggest some analogous option for the medical profession in the context of abortion could be developed.
I admire Obama’s respect for the law of the land, and his drive to see that law enforced fairly and comprehensively without loopholes. He’s a constitutional lawyer to the bone.
Many doctors would abandon their practices faced with compulsory behavior that violates some of their deepest principles. I see no reason to elevate the public conscience above the private in all cases. We would never have become a nation if we were all Hobbesians. Respect for the individual conscience is in the DNA of the USA.
— Milton PeasleyAnyone who thinks religion can be sequestered to the private sphere, in the name of liberalism or whatever else, is grossly mistaken about the nature of any religion, be it Christianity or Islam, that posits a God who created and rules over all material world and history. Such attempt is sadly naive and will be ultimately unsuccessful.
— N. YuI find Hobbes construction of the concept of conscience to be supportive of the idea that morality, the public expression of conscience, to be nothing more than an opinion, in much the same way that Jefferson construted the idea that religion is simply a matter of opinion in the Virginia Statute for Religious Freedom.
Good stuff.
— Rick UmbaughIf I needed, say, some sort of embryonic stem cell therapy, even if I needed it very much, I don’t know that I would feel great confidence in the result if I received it from someone who expressed great moral revulsion to it. I would not be happy if the “law” compelled someone with this revulsion to remain silent and just do what was asked. I would not feel protected by that.
— William Haboush