Conscientious persons strive to preserve moral integrity. This requires that their external behavior be congruent with their conscience's internal dictates about what they take to be morally right and feel compelled to do. In our morally diverse world, conscientious persons may come into conflict with each other and with society's moral values. Except for the amoral sociopath, conflicts of conscience are a regular feature of the moral life, Even for extreme relativists, resolving these conflicts is a constant challenge.
Any society purporting to serve the good of its members is therefore obliged to protect the exercise of conscience and conscientious objection. However, this involves a serious dilemma for any pluralist, democratic, liberal, or constitutional state. On the one hand, such a society is committed to tolerance of religious diversity, freedom of individual choice, and "neutrality" with respect to religious belief. On the other hand, optimizing freedom of conscience for some individuals may often limit the legal rights, social entitlements, and moral beliefs of others.
This dilemma is most acute for health professionals who hold strong religious beliefs, some of which cannot be compromised in good conscience. Can conscience clauses protect Catholic and other religious health professionals' moral claims to freedom of the exercise of their conscience? To what extent can these legal measures secure rights of conscience in the face of a liberal, democratic, and secular society's commitments to moral relativism, personal freedom of choice, and an implicit social contract with its professionals? Is there some point at which religious believers are morally compelled not simply to refrain from participation, but to dissent in the public arena using the processes of a democratic society to change public policy? This Essay engages some of these issues in the specific case of Roman Catholic physicians whose religious beliefs are becoming progressively counter-cultural on the so-called "human life" issues. (1) Roman Catholic physicians serve as paradigm cases for all whose religious beliefs compel them to refuse to participate in certain acts, which are legal and even "required" in their societal roles. (2) Although this Essay focuses on physicians are the focus, the same issues confront nurses, social workers, allied health workers, and all others who serve any function in our health care system. Similarly, although end-of-life issues will be used to illustrate particular conflicts of conscience, similar conflicts arise in other dimensions of modern health care, such as contraception, abortion, various types of assisted reproduction, sterilization, stem cell research, and cloning. This Essay will discuss only the ethical dimensions of the conflicts while others at this conference with the requisite legal expertise will discuss the legal aspects of conscience clauses.
Good law should be based on good ethics; in other words, the rights and claims it protects should carry moral weight and justification. Yet, in resolving conflicts of conscience in secular societies the complexity of the legal issues reflects the complexity of the ethical issues. (3) Often they are extremely difficult to dissect. This is significant because once the ethical issues are expressed in law, the debate may be reduced to instrumental and procedural details that cannot resolve underlying moral sources of controversy.
For this reason, much more debate is required before conscience and exemption clauses can be applied in ethically defensible ways. The existence of a statutory protection does not assure the exercise of freedom of conscience. This Essay seeks to examine some of the ethical desiderata behind conscience clauses in the case of Roman Catholic physicians' conflicts of conscience. It does so under five headings: first, why conscientious objection is so important in our day; second, the moral grounding for freedom in the exercise of conscience; third, the components of the physician's conscience; fourth, specific conflicts of conscience for Catholics physicians and institutions; and fifth, competing models of conflict resolution.
I. WHY CONSCIENTIOUS OBJECTION IS A PROBLEM
Convictions about the right and wrong conduct, both as a professional and as a person, form the physician's conscience. Conscientious physicians have always had to protect each domain from the demands of tyrants, law, custom, and professional colleagues. Each era has had its own challenges to the physician's conscience. In our own time, profound changes in both the physician-patient relationship and society's construction of the ends of medicine, as well as the secularization of American society, have conspired to the physician's claim to freedom of conscience.
Most powerful perhaps is the shift in the locus of decision-making from the physician to the patient or her surrogate. Beginning in 1914, (4) extending through both the Karen Ann Quinlan cases (5) and related cases in the 1970s, (6) and the accompanying trend to micromanagement, the right to refuse care has rapidly metamorphosized into a right to demand and dictate the details of care. For some, the ends and goals of medicine are no longer defined solely by physicians, but by social convention or the demands of patients or their families. (7) On this view, the physician practices by virtue of a social contract, which grants her profession the privileges of freedom to practice in return for provision of those services that society requires or demands. What constitutes the practice of medicine is societally determined. In Oregon for example, assisting suicide is defined as a normal part of the physician practice, whereas it is forbidden in other states. (8)
These trends are exacerbated by the de-professionalization of medicine, which views health care as a commodity, and its delivery a matter of corporate enterprise, profit, and commercialization. (9) A managed care organization now monitors and controls physicians' decisions. (10) Corporate policy circumscribes the physician's judgments of conscience about the patients' welfare. Recent professional organizations are trying to recapture professional commitment, but it may not be possible given the fact that most physicians are now employees of corporate entities. (11)
In such a society, such profoundly religious issues as the morality of abortion, euthanasia, human cloning, and stem cell research are determined on grounds of utility, general consensus, or freedom of choice. In the secular philosophy, there is no other world beyond the immediate utopianism of a man-made heaven on earth. This vision determines secular society's decisions about what is permissible and what is not.
All of this is occurring against the recent historical experience of past and present totalitarian governments subverting the uses of medical knowledge to political and economic purposes. We need not recite again the way the Soviet Union distorted the Hippocratic Oath to make it serve the purposes of Communism, (12) the Nazi physicians' acquiescence in using their knowledge in the service of genocide, (13) or the participation of physicians as instruments of torture or terrorism by so many petty dictators and war lords. (14) The laws and social conventions of pathological societies justified all these violations of the ethics of medicine.
Today's societal context poses serious conflicts of conscience for all physicians, but especially for the religious physician. The teachings of the Roman Catholic Church on medical morals and human life issues go back half a millennium. (15) Its present positions on many crucial issues are distinctly and unapologetically ethically counter-cultural. (16) Many Jewish, Protestant, and Moslem physicians share some of the same beliefs and experience equivalent challenges to their moral integrity. Clearly, for all religiously oriented physicians the question must be addressed--is it possible to maintain moral integrity and remain an active physician in a secular world? Secularists ask the same question, but with different expectations about what would be a morally defensible response.
It was against the background of these changes in the climate of American medicine and its practice that conscience clauses made their appearance. In 1973, when the United States Supreme Court removed the prohibition against abortion, a medical procedure was legalized, which at that time and since, was morally repugnant to many physicians and the public. (17) In recognition of these objections, the United States Congress passed legislation that exempted physicians and others from participation. (18) Most of the states (19) and other countries (20) also enacted exemption legislation, which allowed those who objected to abortion and a variety of other procedures to refrain from participation.
Several decades later, individual states recognized patient's legal right to execute advance directives through a living will or a durable power of attorney for health. (21) The resulting statutes were designed to guarantee a patient's right to direct the manner and extent of end-of-life care when she had lost the capacity to make her own decisions to accept or refuse treatment.
The Americans with Disabilities Act reaffirmed this right and required hospitals to inquire on admission whether patients had executed an advance directive. (22) If they had, the hospital was bound to respect its requirements. (23) Similarly, in the case of abortion, Congress recognized that some physicians would have moral objections to participation, so they were exempt provided they transferred care to another physician. (24) In both cases, abortion and advance directives, the moral claim to freedom of conscience was given legal status in "conscience clauses."
II. MORAL FOUNDATION FOR CONSCIENTIOUS OBJECTION AND CONSCIENCE CLAUSES
Freedom of conscience, however, is a moral right. (25)...