I am sure that many readers of the Mirror of Justice would concur that a lot has been said on these pages concerning the question of conscience—both from Catholic and other perspectives—over the recent past. I have offered my occasional thoughts, and other contributors have as well. Having read the several addresses delivered at Notre Dame this past Sunday, in particular those of President Obama and Judge Noonan, I have concluded that a few more words are in order in light of what was said by these two individuals who spoke from their respective convictions.
At the outset, I think that it is important to keep in mind the distinction as to whether the subject of conscience is being addressed from a generic, secular perspective or one that is attuned to the development of Catholic legal theory. I am of the view that both perspectives have or can have a great deal in common, but since this is not a book or a scholarly law review essay, I haven’t the space here to elaborate fully the similarities and the differences. Having made this point, I would think that most would agree with my general contention. Both President Obama and Judge Noonan commented on conscience and its role in the res publicae, and what they had to say may sharpen rather than blunt what Catholic legal theory, or at least one version of it, has to propose on the topic.
President Obama offered just a few words on the matter. He said,
Let’s honor the conscience of those who disagree with abortion, and draft a sensible conscience clause, and make sure that all of our health care policies are grounded in clear ethics and sound science, as well as respect for the equality of women.
I ponder what he means by a “sensible conscience clause.” He offered no details at Notre Dame, but I hasten to add that his commencement address was not the forum in which to offer the particulars of what he meant. Nevertheless, I would very much like to know what he considers the necessary elements of his views on conscience protection, and I look forward with intense interest on the elaboration that he will probably offer in the future as the question of conscience continues to enter the public debate.
Judge Noonan offered considerably more. In what I hope is a careful and accurate editing of his address, here is what he said about conscience:
For half a century now, a great debate has gone on in this country about a matter touching the inviolability of human life in a mother’s womb, the rights of a woman with respect to her own body, the duties of doctors, the obligations of parents, and the role of government in a decision that is patently personal and significantly social.
The matter of this debate was too serious to be settled by pollsters and pundits; too delicate to be decided by physical force or by banners and slogans, pickets and placards; too basic for settlement to be based on a vote by judges. The matter was settled—so it seemed—thirty-six years ago. The settlement was still-born. Debate intensified. Debate is not now about to close. At its center are the claims of conflicting consciences.
By conscience, as you graduates of 2009 know, we apprehend what God asks of us and what the love of our neighbor requires. More than the voice of your mother, more than an emotional impulse, this mysterious, impalpable, imprescriptible, indestructible, and indispensable guide governs our moral life. Each one is different. You may suggest what my conscience should say, but you cannot tell me what my conscience must say.
That’s the rub when your moral vision is clear and the other fellow’s is cloudy. You become impatient, the more frustrated if the other fellow is a friend—an old friend or a potential friend. Why can’t he or she see it? To satisfy that frustration by shunning or denouncing your unseeing companion will accomplish little beyond expressing your own exasperation.
Help your cause by hurting your friends? No. What does work is prayer, patience, empathy, and the love that encircles the other person, a fellow creature attempting to do what he or she sees as right.
One friend [a reference, I believe, to Mary Ann Glendon] is not here today, whose absence I regret. By a lonely, courageous, and conscientious choice she declined the honor she deserved. I respect her decision. At the same time, I am here to confirm that all consciences are not the same; that we can recognize great goodness in our nation’s president without defending all of his multitudinous decisions; and that we can rejoice on this wholly happy occasion.
We can rejoice that we live in a country where dialogue, however difficult, is doable; where the resolution of our differences is done in peaceful ways; where our president is a man of conscience. We can rejoice with you, members of the Class of ‘09, as your voices join the dialogue and declare your own consciences on the urgent moral matters that will be settled only when they are settled right.
“Great is truth. It will prevail.” This scriptural text is inscribed on the Laetare Medal. Believing the Bible, sustained by this message taken from it, we can work together. Yes! We can work together, serenely secure in that trust that the truth will out.
I apologize for the lengthy quotation, but I think it essential to present what may have been Judge Noonan’s suggestion to President Obama regarding the contents of a “sensible conscience clause.” In my estimation, Judge Noonan was correct in saying that one person’s conscience cannot dictate what another’s should be. Thomas More made a similar observation almost five hundred years ago. In this regard, we can recall Louis Brandeis’s remark about the right to be left alone. The state has no business in interfering with a person’s conscience be it well-formed as I have discussed in previous postings or otherwise. This is not to say that a person who declares himself or herself Catholic can claim that one’s personal conscience is well-formed because of this right to be left alone. As the Judge himself stated, not all consciences are the same. In relation this point, Judge Noonan suggested that a person’s conscience should be in tune with something extending beyond the individual’s private thoughts when he stated that “we apprehend what God asks of us and what the love of our neighbor requires.” He concluded his address with a remark about the greatness of truth which he stated will ultimately prevail. But, what is the source of this truth, and what is its relation to conscience and what I have been attempting to argue regarding its proper formation?
Indeed, a part of conscience is a very private matter, for that is where each of us encounters the essential norms that are not of our own derivation but which we must nonetheless obey if we consider ourselves disciples of Jesus Christ and members of his body, the Church. Judge Noonan was on target when he pointed out that “conscience” is conscious of what God asks and what is due the neighbor. It is here, in conscience, where we who believe in God encounter God in the depth of our individual being. Often times the Church makes this point in her teachings on the natural moral law—the place where we encounter the law of God that is inscribed on our hearts. It is in this inner sanctuary where we find God’s law—God’s commandments engaging our individual being, permeating our essence, encountering us in the fabric of human existence. It is here where we engage and respond to the constant challenge of doing good and avoiding evil.
Conscience, for the Catholic, is not merely the act and response of how one feels about something that has a moral bearing. It is an exercise of reason—right reason where the individual as a disciple of Christ recognizes what is morally good and what is not and then chooses to do what is good and strives to avoid what is not. It is vital to understand that these elections are not purely autonomous but involve the engagement of the individual person with God speaking to the believer. I think it was Newman who said that conscience is God’s “messenger” or “herald.” Judge Noonan mentioned prayer and patience, and it is by prayer that we engage more deeply the message and the Messenger.
Conscience involves the exercise of personal dignity, but it does not stop there. It cannot, for inevitably it brings us in relation to God, to the world, and to our neighbor. Indeed, conscience must be sensible—as President Obama implied—but it cannot be what is convenient, what satisfies a group consensus, or what is necessary to achieve a political compromise. No, the “sensible” associated with conscience is much more. Inevitably, the “sense” associated with it must be inclined to the objective truth that I have previously addressed, and this Truth is God if we are discussing the conscience of the Christian. Otherwise, the Christian’s purported exercise of “conscience” is prone to be an application of subjectivity distant from God and what He asks.
As I mentioned in stating my agreement with Judge Noonan on this point, no person can dictate to another what his or her conscience should hold. However, what a person holds in conscience and how that conscience is formed do not guarantee that his or her conscience is well-formed. For the Catholic, one’s conscience is well-formed by the voice of God speaking to that person. And I believe that the way of testing this is to see whether the Catholic’s conscience is in tune with what God’s Church teaches.
It may be that I and some other members of the Mirror of Justice disagree on this. But for the Catholic’s conscience to be well-formed and for the moral judgments which he or she makes to be in accord with conscience’s proper formation, it is not self-revelation or self-opinion that is determinative, it is the encounter with the wisdom that God. God’s wisdom is available to us in prayer, in human interaction, and through the exercise of right reason. Again, I believe that Judge Noonan and I agree that no person can tell another what he or she must do in the exercise of conscience. But this means that that person’s exercise of the well-formed conscience is not based solely on personal autonomy. Otherwise the person’s conscience may be in error. This does mean that another person or the state can interfere with his or her “inner voice,” but by the same token it does not mean that this person’s inner voice is correct and without error. The person may have a civil right to believe the error, but the error itself does not. Coming back to the person who, in the exercise of his or her civil right, is in error does not mean that this individual’s view and the subsequent exercise of conscience are consistent with the wisdom of God. It is not the civil authority that makes this determination, but God.
Conscience is a sanctuary from other persons and the state. But it is not a sanctuary from God. It is the ground upon which we, as individuals, meet Him and decide how to respond to what God asks. Conscience may well be the greatest defense a person can have against what the civil authority unjustly demands, but it is not an excuse to exclude one’s self from the mandate of God and the wisdom He offers to us all.
RJA sj
Monday, May 18, 2009
Over at the Commonweal blog, in his "Notre Dame Reax Roundup", David Gibson writes, in response to this post of mine:
Rick Garnett at MOJ is disappointed in Judge Noonan:
I admire Judge Noonan immensely, but wish — on this particular occasion — he had been a bit more direct. For the careful listener, intimately familiar with Noonan’s work and American history, there were some powerful thoughts. I worry that the commencement audience, though, did not hear the challenge to President Obama’s unfortunate embrace of injustice that, in my view, Judge Noonan’s remarks contained.
He then seems to argue that common ground can’t occur without consideration that the unborn must be granted legal personhood–which seems to be a winner-take-all approach. But then he later seems to phrase the request that a legal approach to abortion be part of the package more modestly, and Obama has said he is open to that as well, esepcially on the state level, as is Justice Scalia et al.
So, I said (and was, I think, right to say) this:
At some point, it is inescapable: either the unborn child is a human being, and therefore entitled in justice to the protection of the laws, or (s)he is not. The possibilities for, and parameters of, "dialogue" are, it seems to me, closely connected to the answer given this question.
Is this a "winner take all" approach? Maybe, but not necessarily. Sure, the basic pro-life claim is that the unborn child is a human being and is therefore -- as a human being -- entitled to the protection of the laws. Any legal regime that refuses to extend this protection to unborn children -- that singles out one group of persons for exposure to private violence -- is an unjust one.
One can say this, though, while still acknowledging the reality that we live in a world of deep disagreement, and that this disagreement is not, this side of heaven, likely to disappear. One can say this and also agree to settle -- with sadness, I hope -- for "not quite all." The question I have for Gibson, though -- and for the President -- is what, exactly, the abortion-rights "side" is willing to concede, or to give up? To say, "join us in supporting increased social-welfare spending, which we would support in any event but which we are happy to admit might reduce the number of abortions" is not really to colloborate in a search for common ground. To say, "we win, but feel free to come along" is not to compromise.
I accept the fact that, in a non-Roe world, my pro-life position would not likely win out (though, as Judge Noonan said, eventually, the Truth will out.) However, I think Gibson fails to appreciate the fact that, without Roe, pro-life policies that I and healthy majorities do support could be enacted, and now -- because of Roe -- they cannot. It is Roe and Casey, not pro-lifers' "winner take all" approach, that prevents a political compromise, one that reflects the realities of pluralism and deep disagreement.
Gibson says that "Obama has said he is open to" having a "legal approach to abortion be part of the package", but I'm not sure that's right. It is true that the President has, from time to time, suggested that he might support the regulation of late-term abortions, but only if such regulation is hobbled by "health" exceptions that are so broad they swallow the rule. Has the President (either since or before he was elected) ever supported any *other* regulation of abortion (e.g., parental-notice, informed-consent, waiting periods, fetal-pain-awareness disclosure, etc.)? I do not mean this as a rhetorical question. If he has, I would like to know.
It seems to me that the suggested comparison between Justice Scalia's view and the President's does not work. Justice Scalia believes (correctly) that the Constitution does not preclude political communities from deciding whether (or not) they want to regulate abortion, and to what extent. President Obama believes that the range of permissible legislative action -- the size of the arena within which "compromise" and "dialogue" is possible -- is very, very small. And, he has made it quite clear that he will select judges and Justices with an eye toward maintaing the current constitutional regime, which disables the political process from working toward the kind of compromise that his "dialogue" talk purports to welcome.
It is clear that the President is willing to support policies that could have the effect of removing some of the incentives that lead some women to choose abortion. Fine. Is he also willing -- if he is genuinely open to "common ground" solutions, he should be -- to support policies that (to use Sunstein's word) "nudge" women to (what he believes to be?) the correct decision? And, is he willing to actually give something up, to concede something, to the pro-life side, by supporting laws that actually (even if not perfectly or entirely) give effect to the pro-life view that the unborn child is loved by God, has dignity, etc.?
To talk, as the President did at Notre Dame, as if one "respects" the other side, and welcomes their arguments -- indeed, he encouraged pro-life citizens to continue making their case -- while at the same time committing oneself to a legal regime that precludes these arguments from having any real-world policy effects is, it seems to me, a bit disingenuous. To welcome dialogue only when one is sure that one's conversation partner's views have no chance of actually being reflected in real-world policy is not really to welcome dialogue. It is just to strategically humor that partner.
New York Times, May 19, 2009
Kept From a Dying Partner’s Bedside, by TARA PARKER-POPE
When a loved one is in the hospital, you naturally want to be at the bedside. But what if the staff won’t allow it?
That’s what Janice Langbehn, a social worker in Lacey, Wash., says
she experienced when her partner of 18 years, Lisa Ponds, collapsed
with an aneurysm
during a Florida vacation and was taken to a Miami trauma center. She
died there, at age 39, as Ms. Langbehn tried in vain to persuade
hospital officials to let her visit, along with the couple’s adopted
children.
“I have this deep sense of failure for not being at Lisa’s bedside
when she died,” Ms. Langbehn said. “How I get over that I don’t know,
or if I ever do.”
The case, now the subject of a federal lawsuit in Florida, is being
watched by gay rights groups, which say same-sex partners often report
being excluded from a patient’s room because they aren’t “real” family
members.
And lawyers say the case could affect the way hospitals
treat all patients with nonmarital relationships, including older
people who choose not to marry, unmarried heterosexual couples and
single people who rely on the support of close friends rather than
relatives.
One point of contention in the lawsuit is whether a hospital has a
legal duty to its patients to always give visiting rights to their
designated family members and surrogates.
Robert Alonso, a spokesman for the public trust that runs the Miami
hospital, Jackson Memorial, said it typically did not comment on
pending litigation, but added that the hospital grants visitation if it
doesn’t interfere with other emergency care. “The primary legal point
is that the amount of visitation allowed in a trauma emergency room
should be decided by the surgeons and nurses treating the patients,” he
said.
A similar lawsuit is under way in Washington State, where Sharon
Reed says she was denied access to her partner of 17 years, Jo Ann
Ritchie, who was dying of liver failure. Although the hospital had
liberal visitation policies, a night nurse from an employment agency
insisted that Ms. Reed leave her partner’s room, the lawsuit says.
“One of the things her partner said to her was, ‘I’m afraid of
dying. Don’t leave me alone,’ ” said Judith A. Lonnquist, a lawyer for
Ms. Reed. “That’s why the suffering was so enormous — she felt as if
her partner was thinking she had betrayed her trust.”
In both cases, the couples had prepared for a medical emergency,
creating living wills, advanced directives and power-of-attorney
documents.
As recounted by Ms. Langbehn, the details of the Miami episode are
harrowing. It began in February 2007, when the family — including three
children, then ages 9, 11 and 13 — traveled there for a cruise. After
boarding the ship, Ms. Ponds collapsed while taking pictures of the
children playing basketball.
The children managed to help her back to the family’s room.
Fortunately, the ship was still docked, and an ambulance took Ms. Ponds
to the Ryder Trauma Center at Jackson Memorial. Ms. Langbehn and the
children followed in a taxi, arriving around 3:30 p.m.
Ms. Langbehn says that a hospital social worker informed her that
she was in an “antigay city and state” and that she would need a health
care proxy to get information. (The worker denies having made the
statement, Mr. Alonso said.) As the social worker turned to leave, Ms.
Langbehn stopped him. “I said: ‘Wait a minute. I have those health care
proxies,’ ” she said. She called a friend to fax the papers.
The medical chart shows that the documents arrived around 4:15 p.m.,
but nobody immediately spoke to Ms. Langbehn about Ms. Ponds’s
condition. During her eight-hour stay in the trauma unit waiting room,
Ms. Langbehn says, she had two brief encounters with doctors. Around
5:20 a doctor sought her consent for a “brain monitor” but offered no
update about the patient’s condition. Around 6:20, two doctors told her
there was no hope for a recovery.
Despite repeated requests to see her partner, Ms. Langbehn says she
was given just one five-minute visit, when a priest administered last
rites. She says she continued to plead with a hospital worker that the
children be allowed to see their mother, even showing the children’s
birth certificates.
“I said to the receptionist, ‘Look, they’re her kids,’ ” Ms.
Langbehn said. (Mr. Alonso, the hospital spokesman, says that except in
special circumstances, children under 14 are not allowed to visit in
the trauma unit.)
Ms. Langbehn says she was repeatedly told to keep waiting. Then, at
11:30 p.m., Ms. Ponds’s sister arrived at the unit. According to the
lawsuit, the hospital workers immediately told her that Ms. Ponds had
been moved an hour earlier to the intensive care unit and provided her
room number.
At midnight, Ms. Langbehn says, her exhausted children were finally
able to visit their unconscious mother. Ms. Ponds was declared
brain-dead at 10:45 that morning, and her heart, kidneys and liver were
donated to four patients.
In her lawsuit, Ms. Langbehn is being represented by Lambda Legal, a
gay rights group. “We want to send a message to hospitals,” said Beth
Littrell, a lawyer for the group. “If they don’t treat families as
such, if they don’t let patients define their own circle of intimacy
and give them the dignity and care to be with their loved ones in this
sort of crisis, then they will be held accountable.”
