Abstract
In this paper, I argue that distinctions between traditional and contemporary accounts of conscience protections, such as the account offered by Aulisio and Arora, fail. These accounts fail because they require an impoverished conception of our moral lives. This failure is due to unnoticed assumptions about the distinction between the traditional and contemporary articulations of conscience protection. My argument proceeds as follows: First, I highlight crucial assumptions in Aulisio and Arora’s argument. Next, I argue that respecting maximal play in values, though a fine goal in our liberal democratic society, raises a key issue in exactly the situations that matter in these cases. Finally, I argue that too much weight is given to a too narrow conception of values. There are differences between appeals to conscience that are appropriately categorized as traditional or contemporary, and a way to make sense of conscience in the contemporary medical landscape is needed. However, the normative implications drawn by Aulisio and Arora do not follow from this distinction without much further argument. I conclude that their paper is a helpful illustration the complexity of this issue and of a common view about conscience, but insofar as their view fails to account for the richness of our moral life, they fail to resolve the issue at hand.
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Notes
For the purposes of this paper, I use these terms interchangeably. I also do not take care to distinguish evil and possibly evil actions, evil acts, actions and omissions, and the like. The issue under consideration involves the connection between what a medical professional does or fails to do, as rooted in her scheme of values, and what course of treatment a patient is in need of or asks for given his scheme of values.
Their interpretation of such a society might be interpreted as Rawlsian, though the authors make no explicit appeal to the work of John Rawls.
For a full description of these cases, see Aulisio and Arora (2014). The most relevant passage reads: “In December, the ACLU brought a lawsuit against the United States Conference of Catholic Bishops (USCCB) on behalf of Tamesha Means alleging that physicians at Mercy Health Partners in Muskegon, Michigan failed to give Ms. Means accurate information regarding fetal viability or provide the standard of care when her water broke at 18 weeks, placing her health at serious risk, because they thought that doing so would violate the Catholic mission of the institution by potentially encouraging her to terminate the pregnancy. More recently, the Little Sisters of the Poor, a Roman Catholic religious order, won the extension of a Supreme Court injunction issued by Justice Sotomayer against their having to comply with the so-called “Birth Control Mandate” of the Affordable Care Act (ACA) while the case is pending before a federal appeals court. At issue is the Order’s objection to having to sign a form that, in the words of their lawyer, commits them to “authorizing and instructing their benefits administrator to provide contraceptives” in conflict with their Catholic mission” (p. 258, see this page for further context, argument, and citations).
This interpretation of liberty is fairly common. Consider, for example, the first principle of justice famously articulated by Rawls, “[E]ach person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others” (Rawls 1999, p. 53).
I do not have space to fully articulate an account of moral responsibility here or even a full explanation of contributions with evil, but thankfully the argument does not need such full articulations. All that is necessary is that accounts of moral responsibility are reasonably part of our moral life and might be held to be important to us, that is to say they are part of what we value.
If this is right so far, then accounts based on CA (VO) face a serious challenge for they cannot rule out (without further argument) claims like: I value x and if I were to perform (or fail to perform) y, this performance or failure would amount to my not being true to (or violating, or being a small pulling away from or…) x. x and y are connected in the right sort of way such that y, even if it has to do with another person, reflects me (or matters to me or transmits to me), given x, at least in cases where my conception of moral responsibility connects them up. I think we saw, given the earlier argument that x and y might be so connected and that arguments from consideration of CA (VO) do not given us enough resources to deny this claim.
One might construe this claim in a different manner, noting that it is possible to think of values in a very broad sense. If it is the case that values are understood as broad enough to include accounts of moral responsibility, I am happy to use the term. This use of values and my use of moral life appear to mean the same thing. I thank Tom McDonald for helpful discussion on this point.
Consistency is, of course, not the issue, but rather a positive feature of the view. It is what is made to be consistent which causes the problem.
One might claim that there are relevant differences between pharmacists and physicians, but I do not take up such concerns here. Additionally, one might claim that the physician or pharmacist could leave room for the patient’s values but not be required to assist in the achievement of those values. What is important here would be the avoidance of thwarting the values of the patient, which the physician or doctor might be rightly said not to be doing even if they fail to offer assistance. I thank Mark Cherry for helpful clarification on this point.
It should be noticed that we can say all of this without prescribing certain values or certain conceptions of responsibility to others. Also notice that we can say all of this without making particular value judgments about what the seeker of the filling of the prescription wishes to do.
References
Aulisio, M. P., & Arora, K. S. (2014). Speak no evil? Conscience and the duty to inform, refer or transfer care. Healthcare Ethics Committee Forum, 26(3), 257–266.
Rawls, J. (1999). A theory of justice. Revised edition. Cambridge, MA: Belknap Press of Harvard University Press.
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Pilkington, B.C. Do No Evil: Unnoticed Assumptions in Accounts of Conscience Protection. HEC Forum 28, 1–10 (2016). https://doi.org/10.1007/s10730-015-9274-8
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DOI: https://doi.org/10.1007/s10730-015-9274-8