Which rights should prevail?

Joseph Meaney
December 7, 2013
Reproduced with Permission
Truth and Charity

Most agree that "might makes right" is a pathetic ethical standard with which to decide conflicting claims. Nonetheless, when conscience rights are the issue, this is frequently the approach that institutions and governments adopt.

An egregious example is the current Swedish governmental position that all medical personnel must be prepared to carry out any legal procedure they are ordered to perform. Conscientious objectors face legal sanctions and, in short order, dismissal from employment or even employability. The right to any form of professional conscientious objection is categorically denied to medical workers by the Swedish State. In France, a group of pharmacists who refused in conscience to dispense certain drugs (Morning After Pills) were taken to court and ultimately disbarred from exercising their profession. I could go on and on with similar real world examples.

How are such harsh measures justified by liberal democracies that self identify as protectors of an ever-expansive number of personal liberties? Ideological blindness and subverting the recognized hierarchy of human rights are the answer (See Msgr. Schooyan's book which examines this problem in detail: The Totalitarian Trends of Liberalism). Although usually not stated explicitly, some states/institutions value the basic human right not to be forced to violate one's conscience at a lower level than such rights as access to medical services or the right of autonomous choice of patients. The latter consideration is in some ways self-contradictory since the very same right to autonomy is being denied to the healthcare worker.

Many, intent on limiting conscience rights in the health sector, appeal to certain professional obligations and duties. They often use a "gate keeper" argument that medical professionals have been granted a legal monopoly over certain services/products in exchange for state-subsidized professional training. Now, health workers are required to make these services/products available to the general public with a high standard of safety. If a doctor refuses to perform an abortion, the monopolistic system can, in some circumstances, make it difficult or impossible for a woman to access the procedure elsewhere, unacceptably violating her rights, according to this view.

Less radical versions of this position would not require a medical professional to actively participate in a procedure they consider morally repulsive, but would force him/her to refer patients to another practitioner who is willing to provide it. How can such a "compromise" be reasonable and not destructive of the physician's moral integrity? It involves close material cooperation with what they consider to be gravely evil. Medical professionals who refuse to violate their consciences by giving referrals for procedures they oppose are following rock-solid principles. "I refuse to administer a deadly drug to patients in my care, and I further refuse to turn them over to agents who will do so." If it is wrong for a person to do something, then facilitating the very same evil action is also morally impermissible.

To decide if coercing medical professionals, or anyone else for that matter, to violate their consciences is ethically acceptable requires proof that some right or obligation "trumps" the negative right to conscience. This terminology is important since it is recognized that "negative" versions of rights are stronger than their "positive" formulations. For example, the right to life has a negative version, the right not to be killed, and a positive formulation, the right to be given food, water, shelter, etc. to ensure survival. The former is legally considered a more fundamental right.

The influential Czech jurist Karel Vasak divided human rights into "three generations" with a clear hierarchy. He ranked highest so-called first generation rights; negative rights in the civil and political arena. Second generation rights favor equality and are lower ranking positive rights. (An example would be equal access to healthcare.) Third generation rights are ill defined but are generally seen as even less important/enforceable as they go beyond recognized civil and social rights in such directions as self-determination, collective rights, preserving goods for "future generations," etc. The three generations classification corresponds loosely to the French governmental motto: "Liberté, égalité, fraternité" (Liberty, Equality, Fraternity). Conscience rights clearly fall into the first category of most fundamental first generation liberty rights.

The "International Covenant on Civil and Political Rights" adopted by the United Nations in 1966 makes a distinction between which human rights can be abrogated by governments during states of emergency and which cannot. Freedom of thought, conscience and religion, in their "negative" formulations, are on the shortlist of rights that may not be infringed upon even in extreme situations. At the same time, the "positive" freedom to manifest one's religion or beliefs can be limited to protect public safety, order, health, morals or the fundamental freedoms of others. Even a bedrock fundamental right like conscience can be curbed, especially in its positive manifestations, if a person claims in conscience a right to do something bizarre. Nevertheless, it is an immensely grave act to force someone to violate his/her conscience and requires proportionate justification. The numerous martyrs in history who died rather than betraying their beliefs gave eloquent testimony to the injustice of attacking conscience.

Medicine is a particularly sensitive area for the protection of conscience rights since it is generally acknowledged that doctors, in order to exercise their profession well, are required to have very high ethical standards. Repeatedly coercing doctors to violate their consciences leads progressively to massive corrosion of their characters until they are ethical wrecks indifferent to evil.

It is simply incredible that "reproductive rights" or "right to die" organizations are taken seriously when they advocate that medical professionals be violently stripped of their fundamental right of conscience in favor of such newly minted pseudo-rights as abortion or euthanasia. In general, Planned Parenthood and their ilk refrain from debating these points philosophically since they have no leg to stand on. Instead, they favor government mandates and the "might makes right" exercise of raw power. Freedoms for me and not for thee is a more apt slogan for these ideologues than "choice".