Whose Freedom of Conscience?

madisonwHaving recently finished reading James Madison’s WRITINGS with the high value he puts on the conscience of the individual as versus the demands of the majority, I found Stanley Fish’s opinion piece Conscience vs. Conscience   from the 12 April 2009 NEW YORK TIMES to be both an interesting topic and important discussion.

Fish wrote about the so-called “conscience clause,” the Provider Refusal Rule, which “allows health care providers to refuse to participate in procedures they find objectionable for moral or religious reasons.”  I had previously written about this in my blog Freedom of Conscience and Health Care Workers and voiced support for allowing health care workers the opportunity to exercise their own consciences and refuse to do some procedures for moral or religious reasons.

Fish raises another level of concern which is worth considering: the freedom of the individual’s conscience as versus the right of a democratic society to decide that some procedures are health rights for all.

Citing the English philosopher Thomas Hobbes, Fish writes:

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.”

billrightsFish argues that the values of the Enlightenment which have served religious diverse cultures well is that individuals may believe what they want but when operating in the public domain the rule of law trumps personal beliefs.  He says this is a cornerstone of multicultural democracies.  It is also the complete compartmentalization of religion which is a hallmark of secularism. 

Referring to a U.S. court case from 1878 which has been upheld more recently by the courts, Fish writes that the courts have not viewed favorably actions taken by individuals which follow one’s religion but which are opposed to “generally applicable laws” because “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.”

In other words the court has defended the right of society to promulgate laws the promote the social order at the expense of individual beliefs.   The court thus defends “society” as a legitimate legal entity which also has “rights.”  Thus the courts do not accept the rights of the individual to be unlimited and inviolably sacrosanct.   There are legal and social limits to what any one individual can do even in the name of their conscience or religion.

The issue in regard to health care workers being allowed to exercise their own consciences and to refuse to participate in medical procedures which are legal could open a Pandora’s Box as these workers declare their conscientious objection to blood transfusions, organ donations, vasectomies, vaccinations, reproductive technologies, biracial or “illegitimate” babies, STD patients, AIDs patients or any other number of medical issues which have moral implications to some.

Will patients walk into health care facilities not knowing whether they will be given legal and available treatments because one or more workers have moral or conscientious objections to doing the medical procedures?  How will health facilities or the police for that matter monitor or enforce such rules? 

Though the Hippocratic Oath to do no harm is not always given nor always required, do health care professionals have any obligation to perform legal medical procedures which a patient requests or needs?  Whose conscience rules when there is a clash of consciences and cultures?  These are indeed the difficult questions an individualistic and diverse society has to wrestle with.

soldier_kevinAmerica has a conscientious objector right when it comes to military service which allows citizens to refuse to engage in actions that are morally reprehensible to them (see also my blog Soldiers of Conscience).  This has also been part of Christian tradition, but I do not think the Quran allows for conscientious objection to war.   So we do have precedence for allowing some to opt out of certain professions or “procedures” based on their own consciences.  How this can work in the complicated world of health care is perhaps not as clear.

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