Thursday 1 March 2012

Conscientious objection

                            Anyone who disagrees with current thinking should be trodden on....?

As widely reported, two Scottish midwives have lost their case in the Court of Session to avoid participating in the supervision of abortions. I'm not going to pretend to be a lawyer, so will leave comment on the legal correctness of the decision to barrister, Neil Addison:

“The case is yet another example of the way in which the UK Courts are interpreting s9 of the European Convention on Human Rights (Freedom of Religion) in the most limited and restrictive way possible. The courts have not hesitated to use the convention to protect murderous terrorists but have refused to use it protect two midwives who do not want to kill unborn children.”

“What is more surprising is the extremely restrictive interpretation the judge has put on the Conscientious Objection clause in s4 of the Abortion Act. As the judge has interpreted s4 believing Catholics,Muslims and others will never be able to take any form of supervisory or management role as midwives or nurses unless they are prepared to be complicit in the provision of abortions.”

“This decision is in stark contrast to recent decisions in the United States’ courts which have applied the American First Amendment to protect the conscience rights of pharmacists who refused to dispense the morning-after pill.”
(From Protect the Pope.)

Putting aside the legal issues and this specific case, what are the underlying moral principles involved? The philosopher, Hugh MacLachlan, rather dodges the point in today's Scotsman by focusing on the rather narrow question:   'Do we have, in all circumstances, a moral right to have nothing to do with the provision of abortions? Not exactly.'  Having, from a secular point of view (correctly) answered that we do not, he then concludes, '  If all nurses refused to do anything they felt related to abortions, women who required them would be deprived of abortions. People do not have a moral right to remain as nurses and persist in such refusal.' 

Up to a point, Lord Copper. Clearly, no one is suggesting that the mere thought that one might be partaking in an immoral action should be sufficient to abolish the normal contractual and social duties we have: at the least, there has to be some test of reasonableness involved. Moreover, there is no reason (beyond MacLachlan's implicit Kantianism) to introduce the test of universalizability: what would happen if all nurses refused... We are talking about the actions of a minority of nurses and the place of conscientious objection for minorities is already recognized in the Abortion Act and elsewhere.

What is lacking, both in MacLachlan's analysis and in the sort of combox debates I've regularly found myself involved in on similar cases is any sense of why conscientious objection is a good thing. In the absence of such reflection, the argument appears very simple. On the one hand, you have the general duties of a job and the inconvenience caused to others by conscientious objection. On the other hand, you have the hurt feelings of a couple of deluded believers in Sky Fairies. Not much of a contest.

Now putting aside, from the Catholic perspective, that you are asking two women to partake in murder, why should society, even when it disagrees with a particular moral position, and despite all the arguments against it,  facilitate conscientious objection? The general answer is given in John Stuart Mill's On Liberty: that society has an interest in the encouragement of individuality and conscientious reflection among its members.

Mill's most famous conclusion from this work, the Liberty or Harm Principle, is, in this sort of case, a rather better test than the universalizability test hinted at in MacLachlan's article:

That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. (On Liberty, ch1.)

Can someone's conscientious objection be accommodated without harming others? Sometimes the answer will be no -and then we have a different situation. But very often the answer will be yes, given a certain amount of good will and give and take.

However, more important than the Liberty Principle is the general view of the worth of individualism and the development of rational moral reflection within society. As Mill puts it:

The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental or spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.  (On Liberty, ch1.)

Clearly, this doesn't end the possibility of conflict arising from minorities demanding inconvenient or even harmful exemptions. Clearly, this doesn't end the question, for Catholics, of when participation in a socially accepted evil becomes so remote that one, in conscience, is able to continue. But until the general principle that it is good to let people act according to their own lights is recognized, brought into reflection on these issues, and the burden of proof placed on those who oppose conscientious objection in specific cases to show the harm that it would cause, the suspicion remains that what we are seeing is the onward march of 'the tyranny of the majority' that Mill warned against.

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