Governor Jeb Bush adds his own perspective to our ongoing conversation on Catholics and conscience:
Whether it is the war in Iraq or the death penalty, Florida Gov. Jeb Bush says he is given "pause" when the policies he and his brother support run against the views of the Roman Catholic Church.
Bush, who converted to Catholicism to share the faith of his Mexican-born wife Columba, will lead the U.S. delegation to the inauguration of Pope Benedict on Sunday on behalf of President Bush.
"I get uneasy when the Vatican writes me letters when a death penalty case is about ready to take place in Florida. I'll be honest with you, that gives me pause. It makes me pray harder,'' Bush told reporters in Rome on Saturday.
"Even though it's the law of our land and I have a duty to uphold that law, when there is a conflict .. it does give me concern."
This passage raises several questions. Is Bush conceding that his policies are actually in conflict with Church teaching? If so, does he excuse his failure to seek to change those policies on the ground that he has "a duty to uphold the law?" If so, is there a meaningful difference between Jeb Bush and Mario Cuomo when it comes to their conception of a Catholic politician? (Cuomo, I believe, recounted how he agonized over the abortion question before defending his pro-choice position.)
Cornell law prof Steve Shiffrin has some good questions for me following my post on authority and conscience:
The new Pope has been interpreted to say (rightly or wrongly) that the failure to follow the church's lead on a number of issues is an indication of a sinfully formed conscience. I am curious what you think. Suppose a Catholic who disagrees after prayerful consideration of the church's position on say birth control, sexual orientation, divorce, mandatory celibacy, or the ordination of women. Suppose the Catholic feels a duty as a matter of conscience to speak out on these issues. Recognizing that the Catholic might be wrong on the merits, is it your position that the Catholic has a duty not to follow his or her subjective conscience (however carefully formed)? What should the same Catholic have done in the past when he or she disagreed with the Church's position on slavery, interest on loans, evolution, the purpose of sex in marriage (thus, previously ruling out the rhythm method), or religious liberty? My goal here is not to debate you on the issue. I am just curious about your position.
This leads me to a second question.You seem to suggest that Catholic legal theory can help to lead American Catholics away from their disagreements with the Vatican. What I like about the Mirror of Justice site is that it brings together people who bring quite different Catholic perspectives to the site. Your comment seems to suggest that Catholic legal theory is committed to the view that American Catholics are wrong. Have I misread you?
My earlier post may have left a mistaken impression, no doubt due to my own lack of clarity. When I denigrated the "purportedly ominpotent conscience," I did not mean to offer in its place a completely eviscerated conscience. Indeed, my own tendency is to want to elevate conscience above all else in matters of faith.
This inclination is no doubt due in part to the individualist strain of my evangelical upbringing. Even there, though, I learned that the operation of conscience has its limits. Since I was a young boy, for example, I've always struggled to reconcile the existence of Hell with a loving God. I still haven't been able to reach a satisfactory reconciliation, but in some ways I learned to push the question to the side, neither openly defying the religious authority (in the case of my upbringing, scriptural passages) nor pretending that my conscience simply reflects authority (I don't deny that I still struggle with the issue).
Now it's relatively easy for me to push the question of Hell to the sidelines of my faith journey (though it wasn't when I was a boy and the fear of Hell overwhelmed me); much more difficult would be the marginalization (much less subjugation) of my conscience when it defied religious authority on a question that is central to my existence, e.g., the issue of sexual orientation to a gay man or lesbian.
In the new First Things, George Cardinal Pell has an essay titled, "The Inconvenient Conscience," in which he writes that conscience:
is neither the apprehending of an alien law nor the devising of our own laws. Rather, conscience is the free acceptance of the objective moral law as the basis of all our choices. The formation of a Christian conscience is thus a dignifying and liberating experience; it does not mean a resentful submission to God's law but a free choosing of that law as our life's ideal.
And if a Catholic does not choose God's law as it is embodied in Church teaching, according to Cardinal Pell, "that should not be the end of the matter but the beginning of a process of conversion, education, and quite possibly repentance."
My reference to conscience as not being omnipotent signals the extent to which I agree with Cardinal Pell's understanding: if, as a Catholic, I dispute the Church's teaching on a given issue, I have much cause for reflection, prayer and conversation with other believers. But I'm not comfortable with the suggestion that the properly formed conscience is defined by its acceptance of Church teaching, as Cardinal Pell implies. Sometimes, the end result of sincere reflection, prayer, and conversation is continued disagreement. My inclination is to create as much space as possible for such conversations to continue within the Church without precluding the possibility that dissenters may actually turn out to function as agents of change. (The space should not be so endless as to create a vacuum; there's no point in having a conversation about whether Jesus is the son of God, to take an easy example.)
As for Professor Shiffrin's question about MoJ's stance toward American Catholics, I think it's important that we help elucidate connections between the Gospel and our real-world environment, particularly connections that run along our legal and political cultures, challenging each other to reflect more deeply on what it means to follow Christ in the modern world. More often than not, this effort will be directed toward encouraging Catholics to recognize the wisdom of Church teaching on a range of issues that are given short shrift in the current climate (notably war, materialism, and poverty, not just sexuality). At other times, though, Catholic legal theorists may challenge the Church to recognize overlooked or potentially misconstrued implications of the Gospel. (That was the point of my earlier post on John Courtney Murray.)
Again, I'm new to Catholicism, and thus have little life experience in the context of a religious community that takes hierarchical authority seriously. (In my experience, when conscience runs up against religious authority, we start a new church.) I'm anxious to get the views of other folks.
Is it possible that the conversation at Mirror of Justice requires less education to be understood than the average Reader's Digest article? That's what this measure suggests. This can't be right; if it is, that's really baddisgraceful opprobrious.
Rob
UPDATE: As I suspected, the figure cited by Professor Bainbridge seems a bit off. When I ran our blog through the site, we come out operating at a twelfth-grade (rather than seventh-grade) level (just above Volokh, by the way). A key trait of the Catholic legal theory project, I suppose, is to make it widely accessible, but I was getting a bit uncomfortable that our discussions require no more nuance than this sort of thing.
A new CNN poll finds that three-quarters of American Catholics are more likely to follow their own consciences on difficult moral questions than the teachings of Pope Benedict XVI. From my perspective, this underscores the importance of the Catholic legal theory project, which is geared not so much to buttress the institutional authority of the Church, but to engage the prevailing legal and political cultures with the foundational premises of Christianity. Along with the broader impetus of Catholic social thought, Catholic legal theory is perfectly situated to shape the conscience -- even the purportedly omnipotent conscience.
I appreciate Tom's tough questions about my thoughts on the freedom of conscience movement as it pertains to pharmacists. Our exchange boils down to the question, Is the moral agency of pharmacists best pursued as an individual right or as an associational interest? Tom lays out a perfectly reasonable case for the former understanding, so let me make a few points in favor of the latter.
First, waging the "culture wars" in the language of individual rights is, in my view, dangerous (but sometimes unavoidable, I admit), and should be undertaken only as needed. To the extent that we frame significant contests over values in terms that presume that the only relevant bulwarks against oppression are rights-bearing, atomistic individuals, we relegate intermediate bodies to the sidelines.
Second, Tom's concern about the potential for meaningful identity-shaping behavior in a rapidly concentrating market is a valid one, but an individualist approach to conscience only exacerbates the problem. If pharmacies are faced with a legal system in which they are 1) forced to allow pharmacists to exercise moral agency; or 2) forced to forbid pharmacists from exercising moral agency, there is no capacity to stake out any unique institutional identity on the issue, much less a countercultural one. If, by contrast, the power is given to pharmacies themselves, wouldn't there at least be the potential for the cultivation of a mediating role? If one pharmacy required its pharmacists to dispense the morning-after pill and one did not, consumers (and pharmacists themselves) might start utilizing those distinctions in forming their preferences.
Third, Pharmacists for Life is, as Tom suggests, a group that mediates between an individual and the surrounding society. But its mediating function is of the thinnest sort. Rights-based advocacy produces an array of member-funded organizations, but generally the only involvement required is financial. If civil society consisted only of groups modeled after AARP, for example, rather than the local senior citizens center, we'd all be worse off. Instead of concentrating on one-shot lobbying pushes in state legislatures (as I assume they do, though I'm not very familiar with the group), Pharmacists for Life's mediating function would be much more robust if they operated as a support group to equip members to thrive as conscientious professionals in a vibrant, but occasionally unwelcoming, marketplace. A conversation premised on individual rights is geared toward legislative or judicial action; a healthy civil society (subsidiarity in particular) demands that our conversations also be geared toward winning the hearts and minds of our neighbors.
Fourth, in response to Tom's point about Medicare/Medicaid "conscience" provisions, when government funding is involved, I believe that the government has a role in shaping marketplace norms. So if the government wants to condition funding on institutions' acceptance of health care professionals' moral agency, I'm not as worried about that as I am about a blanket enshrinement of moral agency as individual right. The key is for the government to participate as a market actor, communicating its own norms and ideals, not as a trump on the market through the top-down imposition of a fixed set of norms and ideals. In the health care context, I realize that this is a very difficult distinction to maintain given that government funding is an inescapable and market-defining reality. I'm still wrestling with that one.
To be clear, if my only two choices are a world in which all pharmacists are legally required to provide all legal pharmaceutical products and one in which individual pharmacists are shielded from state and employer interference with their morality-driven decisions on which pharmaceutical products to provide, I'll choose the latter without hesitation. But those two choices are not the only viable alternatives. (And if they are, then civil society is in more trouble than we thought.)
The notion of pharmacists-as-moral-agents has been taking a hit in the media recently. Ellen Goodman writes that:
The pharmacist who refuses emergency contraception is not just following his moral code, he's trumping the moral beliefs of the doctor and the patient. "If you open the door to this, I don't see any place to draw a line," says Anita Allen, law professor at the University of Pennsylvania and author of "The New Ethics." If the pharmacist is officially sanctioned as the moral arbiter of the drugstore, does he then ask the customer whether the pills are for cramps or contraception? If he's parsing his conscience with each prescription, can he ask if the morning-after pill is for carelessness or rape? For that matter, can his conscience be the guide to second-guessing Ritalin as well as Viagra?
How much further do we want to expand the reach of the individual conscience? Does the person at the checkout counter have an equal right to refuse to sell condoms? Does the bus driver have a right to refuse to let off customers in front of a Planned Parenthood clinic?
A clarification might help dispel some of Goodman's concerns. I do not favor efforts to shield individual pharmacists from all professional repercussions of their decision-making. Rather, I support efforts to protect pharmacists and their employers from state requirements that pharmacists ignore moral considerations in their professional conduct. A robust civil society demands that associations be given space to create and maintain identities that diverge from -- and even defy -- the surrounding society's norms. (I've explored this idea more fully in an article posted on the right: The Good, the Bad, and the Ugly: Rethinking the Value of Associations.) If Walgreen's wants to create an environment in which: 1) none of its pharmacists are allowed to dispense the morning-after pill; 2) all of its pharmacists are required to dispense the morning-after pill; or 3) its pharmacists are given discretion to follow their own moral convictions in deciding whether to dispense the morning-after pill, the company should be empowered to make that choice. The choice should not be trumped by the top-down imposition of collective norms, nor hijacked by the conscience of an individual pharmacist. If a pharmacist refuses to dispense the morning-after pill, she can be fired, but she shouldn't be brought up before a state agency for discipline.
With this understanding, Goodman's parade of horribles falls flat. If Walgreen's chooses to tolerate a pharmacist who dispenses drugs based on personal facts about the customer, so be it. If Walgreen's chooses to tolerate a cashier who refuses to sell condoms, so be it. Customers can boycott, picket, etc., but they should not be able to invoke the identity-squelching trump of state power. (The argument applies even more powerfully, in my view, to the mom & pop pharmacy down the street.)
Dahlia Lithick takes on a slightly different angle, making the seemingly reasonable proposition that:
Where the burden can either fall on a pharmacist (who knows in advance of her own moral reservations and is in a position to provide a patient with suitable alternatives) or on an unknowing patient (who may well be pregnant, frantic, poor, and short on time), the burden must properly fall on the pharmacist. Patients cannot have their expectations of timely, professional service undermined by unanticipated bursts of conscientious objection. . . .
These solutions don't force individual pharmacists to undermine their personal religious views. They do place high costs on the drugstores, which would now need to implement fixes such as posted warnings, agreements with other pharmacies, and the hiring of extra pharmacists, even if they can ill afford it. If an individual service provider wants to reserve the right to deny services, they should be free to do so, and if a drugstore wants to employ such a person, they should also do so. But these celebrations of religious conscience should happen at their own cost and never at the expense of citizens requiring services.
My response to Lithwick's proposal is grounded in the distinction between positive and negative liberty. Throughout this debate, the fact that the state may not obstruct one's access to a product or service is equated with a norm that the state must ensure access to that product or service. If value pluralism means anything, we should be very careful when we allow negative liberties to give rise to positive liberties. Could women who want to use the morning-after pill be inconvenienced if a pharmacy allows its pharmacists to refuse to provide it? Certainly, but that's an understandable outcome of seeking a highly controversial product in a free market. Putting the burden on non-state actors to ensure that individual consumers are not inconvenienced in their pursuit of such products replaces the mediating structures of civil society with a one-size-fits-all consumerist conception of organizational identity.
Finally, Dan Markel at the new (and excellent) PrawfsBlawg asks the important question:
Why should conscience be given special protection? If you want to be in a particular business, then you have to realize that business is subject to certain state regulations ensuring equal access. Just as Denny's shouldn't fail to serve blacks, drug stores shouldn't deny medicine to some people when it is available to other people, when the relevant neutral criteria (ie, a prescription) link the two classes of people.
I could simply argue that racial equality has become deeply entrenched enough to merit its top-down imposition, even at the expense of associational identity, but of course that wasn't the case at the time of the civil rights statutes' enactment. Or I could try and distinguish the substance of the two norms: I think race discrimination is bad and should be stamped out, while I'm not sure that universal access to all legal pharmaceutical products is a good thing, especially as technology brings the pharmacist into more morally controversial arenas, notably reproduction and end of life. But that essentially is a punt, for if I care about a robust civil society, my inclination is to let the marketplace of ideas work it out, not to have my favored norms enshrined as collectively imposed judgment. For the time being, I'll try and carve out a distinction between anti-discrimination laws, which ensure full participation in the civil society, and access to all pharmaceutical products, which embodies a particular norm contested by participants in civil society. (I anticipate the response, that access to reproductive care is essential to women's participation in civil society. I don't completely agree with that, but acknowledge it's a tough point for my case, especially if I'm averse to enshrining collective moral judgments.)
As you can tell, I'm working through these issues myself. It's an important area, and it's going to get more important. I'm open to other perspectives and reactions.
The movement to empower pharmacists to take moral responsibility for their professional conduct has run into an obstacle in Illinois. The governor has ordered all pharmacies offering contraceptives to dispense them promptly to customers, and has filed administrative charges against the downtown Chicago drug store where a pharmacist refused to dispense the morning-after pill. Apparently Planned Parenthood's protest rally worked.
MoJ readers may be interested in a new paper posted on SSRN by Florida State law prof Lois Shepard entitled, In Respect of People Living in a Permanent Vegetative State -- And Allowing Them to Die. Here (thanks to Larry Solum) is the abstract:
This article considers the controversy surrounding the removal of Terri Schiavo's feeding tube and argues for a new approach in determining treatment decisions for people in a permanent vegetative state. Examination of the duty to respect living people as persons rather than as objects reveals that people in a permanent vegetative state are particularly vulnerable under our current statutory and case law to being kept alive only in service to the interests of others. The article proposes that we replace the current legal presumption in favor of continued life support with a presumption to discontinue it for those in a permanent vegetative state and that judicial or quasi-judicial review be brought to bear on decisions in favor of continued life support, particularly tube feeding.
I have not read the article, but the suggestion that a non-instrumental approach to human life requires a legal presumption in favor of death certainly grabs one's attention.
What I find most striking about Stanford's warning to students regarding religion is that this may be one of the last remaining areas in which universities feel comfortable acting in loco parentis. In other areas (sex and substance abuse, in particular), the college student is presumed to be a fully formed, independent actor, needing no boundaries or guidance. (For some insight, read Mary Ann Glendon's review of Tom Wolfe's I Am Charlotte Simmons or this Christianity Today column.)
