Cathy Kaveny comments (with a question for Robby) in the wake of the Robby-Chip to-and-fro

[Cathy writes:]

I read the interchange between Robby and Chip a couple of times, with an increasing sense of disquiet.  Finally, I realized it is because the discussion is running together two distinct situations, which seem to me to need separate arguments. To see how this is the case, focus on the central case of "conscientious objection"--in American law and perhaps in American political morality:  the military and the pacifist.

The conscientious objection situation comes up  in its core form because a) the military wants to draft the pacifist; and b) coerce him to do things he doesn't want to do: kill people.  It's not, after all, as if the pacifist is banging down the door of the local recruitment center, saying a) let me join the military ; and b) by the way, you oughtn't make me kill people.

So how does this transfer to the current situation in the medical realm (I'm assuming no laws on the books)?  It seems to me we need to distinguish between two situations. 

1.  People who are already in the medical profession.  These people, it seems to me, have a strong case on exemption from new requirements to act in a way that violates their morality based in a reliance interest.  They joined the profession knowing they wouldn't have act in a way that violated their conscience, the professional entrance requirements are long, expensive, and difficult.  It imposes a hardship on them forcing them to choose to give up their jobs --their livelihood-- in order to act with moral integrity.  They have a right to continue on the terms they joined the profession.

2.  People who are not already in the medical profession.  These people have no reliance interest. They haven't made the investment in their careers--they haven't spent the money, the time, and the training.  They can act according to their consciences and earn a livelihood by going into a different profession. They're still young.  What they want is to say a) let me join the medical profession; and b) don't make me violate my conscience by acting in a way that I consider killing. Prima facie, they are in exactly the same position as the pacifist who a) wants to to join the army; and b) who doesn' want to kill.

I think the case for allowing conscientious objection is very strong and self-evident in case 1.  But it's harder in case 2--and that's the key case. The argument needs to be made that they ought to be allowed to enter into a profession, some of whose requirements are inconsistent with their view of the requirements of moral norms.  Suppose a legislative body said, "Okay, we'll grandfather in all people who won't do abortions, etc., for fairness reasons.  But we're not going to let anyone else in who won't do the job as the job is defined."  What do you say to them.?

a.  You could say, "well, we're right on the merits--abortion is intentional killing of the innocent." The problem with doing that, of course, is that in this scenario, you've already lost that argument. They're making the law, and they don't agree.

b.  You could say, "well, we have a right to go into the medical profession and not do procedures to which we morally object."  But why?  We don't say that people have a right to become policemen if they won't fire a weapon.  We say, "don't become a policeman if you don't want to fire a weapon." 

c.  You could make an analogy to the Americans with Disabilities Act. You could say, "we have an objection to performing an act which is not an essential act of the job, and you should treat it like a moral disability--make reasonable accommodation."  This would get you coverage for the pharmacists, and most doctors--not OB/GYNS, probably. And people would have to admit their moral beliefs were a disability--that's a huge problem.

d.  You could make a holistic argument. The vision of health care that is provided by pro-life doctors and nurses is a a radical witness to mercy--to the value of all life, to the unconditional demand for care. Having such a witness in the system is a leaven--it's worth the price people might have to pay in inconvenience in getting some procedures, because of the way in which their values vividly focus on the importance of each human life in the system.  The majority doesn't see the witness as inevitably connected to refusal to perform those procedures--but the people themselves do, and that's what's important.  I myself think this is the way to go.

At any rate, I would love to hear Robby's arguments based on conscience that address my scenario 2.