The comments on the recent post regarding the so-called conscience rule being voided in court generated the comments the topic always does. What follows is a relatively short, general post to frame the issues as clearly as possible. Admittedly, when a post is titled “When Law and Ethics Converge,” perhaps I shouldn’t have to explicate with a post focusing on the difference between law and ethics. I strongly believe that conscience clauses undermine the law, and are unethical, as you will see.
Law and Ethics are not the buddies people think they are, or wish they were. If you look around Ethics Alarms, you see why. Ethics, as the process by which we decide and learn what is good and right conduct, evolves with time and experience. A predictable cut of a society’s ethics are always going to be a matter of intense debate. Ethics are self-enforcing, for the most part and by nature, because being ethical should make us feel good. Once an authority or power starts demanding conduct and enforcing conformity, we are mostly out of the realm of ethics and into morality, where conduct is dictated by a central overseer that, if it is to have genuine authority, must be voluntarily accepted by those subject to its power.
Society cannot function on ethics alone. Without laws, chaos and anarchy result. Because chaos and anarchy are bad for everyone, no individual who has accepted the social compact may decide which laws he or she will follow and which he or she will defy—at least, not without paying a price, which is society’s punishment. In ethical terms, this is a utilitarian calculation: we accept laws that individually we may find repugnant, because allowing citizens to pick and choose which laws they will obey as a matter of “conscience” doesn’t work and has never worked. Ethics pays attention to history.
Thus it is ethical to obey the law, and unethical not to, even if good arguments can be made that particular laws are themselves unethical. This is where civil disobedience comes in: if a citizen chooses to violate a law on a the basis of that citizen’s conscience or principle, the citizen also has to accept the legal consequences of doing so as an obligation of citizenship.
This point is always followed by reference to a citizen’s duty when a government and society have installed laws that are unconscionable and unethical absolutely. It is the anomaly where the Ethics Incompleteness Principle becomes relevant. In such a perverted system, the usual rules don’t work, and applying them as if there is no difference between a tax code and a policy of genocide guarantees absurd results.
There are hundreds, maybe thousands, of complex ethics debates embedded in the topic of law vs. ethics, and this is one of them: I believe the Nuremberg trials were themselves unethical precisely because they were based on the fiction that defying unjust laws in Nazi Germany was no different from defying unjust laws anywhere else. When an entire system is corrupted, the usual ways to address bad and unjust laws are useless. Mere civil disobedience is futile, indeed suicidal. Fortunately we know that ethical systems work better than unethical systems, and a completely unethical system like Nazi Germany eventually proves the importance of ethics by self-destructing.
I’m an ethicist and a lawyer, and there is a necessary tension between those roles. One reason I left the field of criminal law was that I found criminal law practice, one either the defense side or with the prosecution, ethically incoherent. Ethics needs to guide the law, and the laws should be based on ethics, but individuals cannot be permitted to use their ethics, or a separate morality (law is essentially a government-dictated morality) to rationalize disobeying a society’s laws and avoiding the statutory penalty for doing so.
The conscience argument for a pharmacist not filling a prescription for birth control pills or a nurse refusing to assist in a hospital abortion renders the concept of law incoherent. In principle, these arguments are no more valid than the claims that illegal immigrants shouldn’t be prosecuted, or the President Trump should be impeached for being unethical when no laws are involved. The end result is chaos. If a foreign national really, really wants a better life for his family, then we shouldn’t treat the family as the law breakers they are when they sneak into the U.S.. If we really, really believe the President of the United States is a scumbag who never should have been elected, then we should pretend that firing an official who deserved to be fired is an “obstruction of justice,” and that his using the same implied quid pro quo techniques with foreign nations that every other President has used for motives valid and questionable is an election law violation. I reject both approaches as intellectually dishonest and societally ruinous. Law is ethics, ethics is law, when we we find it soothing and convenient, and no two people will agree when and how we decide which and when. Then teh door has been opened for individual bias to infects the critical process of deciding which results are more important in a utilitarian calculation.
When we agree to live in a society, we delegate those balancing decisions to the society’s government, law-makers, and finally, the law. If individuals can opt in and out of society’s decisions about the law at their personal whim, however conscience-driven, then society breaks down.
45 thoughts on “Thoughts Upon Reading The Comments To The Recent “Conscience Clause” Post”
so why limit this principle to pharmacists and nurses?
Why not truck drivers?
I have commented before on this.
Excellent point, which makes jack’s argument clear that enforcing conscience clauses will lead to chaos: If there is to a conscience clause, then it should apply across the board. If Muslims can opt out of delivering alcohol or ham because of religious beliefs, than pharmacists shouldn’t have to violate their conscience by being forced to sell contraception and nurses shouldn’t be forced to participate in elective abortions. The case of the Muslim delivery guys will only lead to that kind of confusion in the law. Where is society going to draw the line? Delivering Beer, though a legal commodity in commerce, is not necessarily a constitutionally protected activity. Abortion, presently constitutionally protected as a fundamental right, can’t be denied by a conscience clause because the state/government has a compelling state interest in providing safe, legal abortions. These two conflicting positions will have to decided by the SCOTUS.
Except that a murder — if one accepts the definition — is substantially different from any other category such as transportation of liquor.
A person of strong values might still relent and make the cake for the gay wedding; transport the alcohol; hand the woman her contraceptive … but to participate in a murder: a radically different category.
“When we agree to live in a society” is a cop out. Very few people actually choose where they end up, we aren’t shown a magazine of societies at age five and pick one. There is no opt out. This is the same load of bollocks as “Social Contracts”. They don’t exist. No one agrees to them. The options are adherence, punishment, or suicide.
Terms like this, I think, are lazy shortcuts and an appeal to authority. Following what has been deemed the social contact might be most advantageous to everyone involved, but that isn’t a given, and it deserves more thought and discussion than a dismissive “you signed up for it”.
Why should truck drivers be allowed to refuse to transport alcohol?
They shouldn’t. Same reasoning.
Why should they be forced to?
You sign up to drive a truck, you sign up to carry whatever is required. OR, say you won’t carry certain items, and see if the company agrees. Why should bars be forced to serve blacks, gays, women, or conservatives?
Well… At least we’re both consistent.
Because the Obama Administration’s EEOC placed a higher value on Muslims’ religious objections to alcohol than it to Christians’ beliefs that abortion and contraception are immoral. QED.
No, see, I think THAT is a copout. When you accept the benefits of living in a society, the obligations become mutual. You have accepted the deal through your parents, or other adult, and when you are an adult, you make a choice by continuing the arrangement. Sure, it’s a convention of civilization.
By the way, I forgot to tell you that your epic comment yesterday was a COTD.
First off: Thank you.
But to your point, and mine… There you go again: “When you accept the benefits of living in a society”
The only people who make that choice are immigrants. The vast majority of us are born into a system we had no control over, and end up having no control over. Pretending that that is voluntary is asinine.
Where is the point in someone’s life that they make that decision, and what are their choices? No. It’s not true, it’s a conversation ending device that doesn’t really say anything.
I agree. A similar one is: taxes are the price we pay for civilization. That is true, but all it does is justify ANY tax you want to come up with. It is a platitude with no nuance.
The same is true of “when we agree to live in a society.” On its face, it justifies pretty much any societal practice. And, the problem is that we don’t always agree. I don’t like the federal health care system and have recently argued with people on Facebook about Warren’s Medicare for all and how that might eliminate MY private insurance.
They think universal single payer is one of the parts of the agreement for living in our society. I don’t agree that that is part of the agreement. And, it often happens that what they think is the agreement almost always means less liberty for me and more power for the government. My agreement, however, means more freedom for them; they don’t like that.
Exactly. Let’s say the Democrats get the mother of all supermajorities and completely repeal the second amendment, and then the new Secretary of State; Beto McFurry gets his newly gathered jackbooted thugs to go door to door and confiscate everything from your AR-15 down to the last cap gun or unfortunately chewed pop tart… Is that a price of living in the society we “chose” to live in? Is there no room for decent? Social Contracts you know. You chose it, you know.
Oh for the love of…. “Dissent”, not decent. Although, I’m not sure if that’s a Freudian slip, a godawful autocorrect, or me just oopsing.
Particularly when we’re discussing changing laws and social mores. It’s one thing to maintain that if you want to be a hitman, and you have a problem with killing people, then don’t take the job as a hitman. Easy. But when a doctor goes through 15 years of medical school, hundreds of thousands of dollars in debt, joins a practice, works his way up through residency, becomes a respected physician in the field with 30 years of experience… and then ‘society’ browbeats the politicians to require doctors to be willing to kill, then the argument “well, now the law says you have to cut a throat when you’re asked to. If you have a problem with that, you should have thought of that before you became a doctor. I hear car salesmen make decent money these days!” That doesn’t make a ton of sense, either.
The Second Amendment can be repealed. If you accept that an amendment can be instituted, and also repealed, if it were repealed it would be a democratic choice. You would be obliged to submit.
And begin political work to reinstate it. Or, begin work to disassociate yourself from the (corrupt) democratic state that chose repeal.
But talking about the repeal of the Second Amendment is a waste of time and thought. It won’t happen. We might as well argue about what we should do if the national language is declared to be Swedish.
I think I might disagree with you. But note that I was speaking to a larger point. It is really your point: that the laws of the land must be respected; that the laws are concretized ethics; that the laws change and evolve as people change and evolve.
Let me put it this way: there are people who desire to repeal it. In time that number could grow. If at that point they chose, through ‘democratic processes’ to repeal it, you and all opposed to it would — here I refer to your basic argument — have to submit.
If it was repealed, at any point in time, there would be those who would not submit and would hide their weapons. They might also begin to agitate and organize politically and — it has happened before in this world and it will happen again — secede politically.
While I agree that it is a waste of time to think about repeal — either for it or against it — right now, the developing and advancing political and social conflicts that will advance, and will lead to greater conflict, must be thought about now.
My theory is that what we see now is just a beginning.
And society, by its power to make law, made conscience clauses.
The law, at presents, does not require pharmacies to fire pharmacists who refuse to provide contraception, nor require delivery companies to fire truck drivers who refuse to deliver alcohol.
The law does, however, require that such businesses provide reasonable accommodations.
So then it is unethical for businesses to disobey conscience clauses?
Don’t we have some choice regarding living in a place with laws we like or don’t like? For example, it is understandable that when one trash talks the U.S. someone may respond (like author Ken Hamblin) with “go pick a better country.” If you hate that abortion is legal, go where it’s against the law. If you hate delivering booze, go drive trucks elsewhere. Yes your family and friends may miss you but at least you have your integrity.
Personally I abhor abortion, however I reluctantly understand that for now we have to have it (if only to further prevent infanticide and more women dying from abortion complications). I could move to another country where it’s not allowed, but then I may have to contend with other laws that may be difficult or even threatening to my family and personhood.
The confusion for me is regarding medical laws related to altering children’s bodies before they have a chance to fully develop mentally and physically. I believe this issue will grow in prominence and laws may be changed but the topic is new and aspects are still unregulated. It seems wrong to make surgeons who were trained to alter adults cosmetically and children only by necessity, engage in operations on youth who may change their minds later (detransitioners). Lawsuits may make the difference eventually.
What we do as citizens when something new pops up like this is debate, advocate, and contact those who influence such laws. And then I suppose, we continue to plead our case when something unethical or even immoral becomes law, while accepting that membership in a given country includes contending with its imperfections and messiness around what’s legal or illegal.
America- She may be a hot mess but she’s the best hot mess in the world and that’s certainly why I stay here.
It is the Julie Principle, to be sure… but for all her flaws, America is the best thing running.
Mrs. Q wrote:
Similarly to you, but extended into a different domain, I have been influenced by those who react to and against their being molded by invisible agents whom they never meet and see. That is of course what Bernays described as an essential element in our democratic [sic] societies. That our ideas and views are influenced by people we never confront and who do their work ‘invisibly’.
So, I would draw a comparison: the invasion of a young body by the will of some other person, with some other defined intent and one that does not necessarily have to do with that person’s good, can be compared to the kind of power that a private institution has, and uses, in order to mold opinion or even general mores, in order to be better able to affects its will and intention.
In this regard I was influenced by The Marketing of Evil which critiques, in strong but rational terms, those processes through which youth is corrupted (it is a big part of his viewpoint that the youth are cynically manipulated).
Speaking of invisible agents, “Doctor” Bernays Torches of Freedom campaign was an interesting way to get that generation of feminists to participate in destroying their own health in the name of empowerment. Seems some things haven’t really changed.
In Europe mostly, and among certain factions of the Dissident Right, there is a general recognition — grounded in some good reasoning in my opinion — that liberalism, or the perversion of liberalism I have called Hyper-Liberalism, leads to social and civilizational rot. People who think in those terms tend — like Spengler and P. Bucannan — to have pessimistic views of the present. So naturally, they seek ideas in political philosophy with which and through which to confront the liberal tradition or the decaying outcome of excessive liberalism.
I would suggest that you are implying that this is not only possible but necessary, at times, and that it could be a good. So, you also seem to be saying that the terms of the social contract are in constant motion, and they seem to be. Jack’s entire ethical theory and practice is based in the notion of the evolution of ethical standards. Nothing is given, nothing is established, and certainly there is no metaphysical order that establishes rules or ground rules of any sort. The individual, in his and her society, has to grapple with ethical issues and can, technically, rewrite them totally. What I mean is that it follows from the evolutionary ethical theory that it could all be rewritten.
I actually think that both of you, while not exactly ‘incorrect’, could be said not to be properly grounded. Because in an essential sense we are the products of the work of hundreds of preceding generations, and those generations have worked with basic materials. In the Occident those are Greco-Christian.
[I notice that no one of you seems to have much grounding in *that* nor much understanding of what *that* is, but you are not to be blamed exactly because you are of course moderns and it is normal and natural not so much to negate what made you, but simply to have become unaware of it. (This is not said in any way as *insult* because it is a simple observation about the way things are, and what they have become, and are becoming. My theory being that when we lose our metaphysical anchors, we begin to lose everything we value — and *value* itself. We begin to devolve. You cannot be blamed for it, yet you participate in it (as we all do).]
Being the product of the work of so many generations means that assent (as in a Grammar of Assent) given by people who responded to the currents and the traditions they were born into and worked with. That does of course involve the notion that certain events — I would say metaphysical events — have *put things in motion* which have grown and prospered. What we most value and what we see as a value has come from that to us, and less I think than something we chose.
It is true that a given individual could not be said — from one perspective in any case — to have chosen his or her incarnation, but then you are really speaking from an extremely limited perspective if you examine it more closer. You have no idea at all if and how a *soul* might assent to birth in specific circumstances; you have no idea about the, say, *affinity of souls* and you have no idea how it happens that a culture and a civilization builds itself by the participation of those that assent, as they grow and integrate, into the society they incarnate in.
I do agree that much more thought needs to go into this but that of course means much more penetrating thought on our essential existential conditions and what those require.
A minor correction: the D&D reference isn’t accurate. Evil aligned characters were labeled as “Evil”. Chaotic alignment is an alternative to a “Lawful” alignment, and the two alternatives essentially denote whether the character adheres to some authority’s set of rules or whether they are more inclined to go their own way. Hence, you can have a character who is aligned “chaotic-good”/”chaotic-evil” or “lawful-good”/”lawful-evil”, where a chaotic-good character would be someone who does not give much regard to a society’s or government’s rules, but instead is driven to pursue his own ends in his own way, with those ends and ways tending to be good. Most comic-book superheroes, who work outside the law and society’s rules, would probably be considered chaotic good.
Thanks. I was already a lawyer before I started playing D&D. And, of course, superheroes in the real world would be criminals.
I just cut the reference. A distraction.
Getting more nitpicky here, but the Good-Evil axis was a later addition and is possibly the worst part of the alignment system as a whole – it’s given us decades of arguments about objective morality. At the start, D&D drew from Michael Moorcock, where the cosmic forces of the universe were Law and Chaos, with Law implicitly the “good” side.
“understanding is a three edged sword”
(Yes, i am in season 3 of Babylon 5 DVDs)
Law versus Chaos can represent excesses on both ends of the spectrum. Ethics and morals are needed for either to be effective way of running things.
Just bringing the thread back into the realm of Ethics.
The problem here is that without these conscience clauses, we as a society are hanging a sign across the figurative door of the medical profession that faithful members of certain religious (Catholicism, evangelical Christianity) “need not apply.”
So we want to legitimize religious discrimination?
This is the same problem that advocate of LGBT “equality” seem to duck – or when they are pressed into honesty, they openly admit that certain religions whose views clash with the LGBT agenda are to face discrimination, See Beto O’Rourke for a recent example.
Now we do have a conflict – one with the First Amendment.
Interesting point. The legal field, at least, tries to walk a fine line. They make it unethical for attorneys to belong to discriminatory organizations (they use a lot more words than I am using to get the point across), but they exempt religious organizations from that prohibition.
In other words, the KKK is a no-no, but the Catholic Church is okay. This is presumably to avoid the very sort of problem you raise.
Of course, on a related matter, there was that recent case about a judge being questioned about his membership in the Knights of Columbus:
Speaking of health care workers 200 protested Melania Trump who went to promote the cuddling program for opiod addicted babies.
I’m sure all 200 of those health care workers that carried signs “babies in cages dont get hugs” or “we care why dont you” will jump at the chance to help perform fetal terminations.
You are absolutely right. Ethics should constrain us from doing wrong and the laws just codify most but not all. Still, if your hatred of something blinds you do much that you risk causing great harm both ethics and the law fail.
I don’t think this is true as stated, Jack. The conscience objection is rooted in the First Amendment. What creates discord is a compulsion by the law to overcome a right granted by superior law. You can’t just look at conscience as an every-day objection, because it isn’t — it is a major component of our social compact.
Now, I’d agree that in the cases you describe, the law as currently interpreted does not allow a “conscience veto” of it — the objectors’ ethical decisions are, as you point out, to either subjugate their conscience to the law, or to find employment elsewhere, since there is no federal law providing punishment for not dispensing birth control or refusing to assist in an abortion. There are, however, employment consequences for both. They can always sue, and try to get the Court to weigh in if they are fired.
I don’t think that argument holds up either because a) illegal immigrants have no legal or ethical support in US law like the conscientious objectors do, and b) because the Constitution explicitly sets forth the conditions of impeachment, and unethical conduct isn’t one of them — there is no support in the Constitution or in the law for impeaching an unethical president who doesn’t break the law. Conscientious objectors have at least the First Amendment to appeal to, which renders their claims at least defensible, unlike the others you mentioned.
I think this is right, although we have yet to resolve the specific conflict of the conscientious objectors, which is their First Amendment rights as burdened by law. Right now, First Amendment on the freedom of religion is somewhat incoherent with respect to its support for conscientious objectors of things like abortifacients, birth control, and actual abortions, especially given recent decisions.
But as you say, we have to define to what extent the law can be used to compel the devout to perform services that fly in the face of their faith. We’ve already seen many such objections overcome, as in Employment Division vs. Smith and Reynolds v. United States, but many have also been sustained.
What I think is missing here is the reality that we have two laws in conflict, not just a bunch of random devout people intent on disobeying laws they disagree with. The extents of the conflict, and where the First Amendment overcomes lesser law, or vice versa, is still a work in progress.
About two minutes searching on Bing also led to a number of links for online pharmacies. AARP has a mail-order pharmacy I used for medication when I was in college. So does Carefirst.
If someone has insurance, they can probably have an inline pharmacy. There is also https://www.healthwarehouse.com/ – a legit online pharmacy for sales in all 50 states and DC.
There are outlets people can use to get prescriptions. Do we really need to hold a gun to the head of pharmacists who object to stocking Plan B?
No, I would think not.
As I say below, it’s all about how much a government mandate is at stake. If the government says a pharmacy must provide birth control pills or go out of business, I’d suggest there’s a pretty major First Amendment burden implicated by such a case.
It is all about control, just like forcing a baker to make YOUR cake YOUR way… when there is another bakery across the street.
Glenn, isn’t that the same “First Amendment” argument we herad for Kaepernick supporters? And isn’t the rebuttal the same: you have no First Amendment rights in the workplace.
In a purely non-government-related employment capacity, for sure. But hospitals receive federal money, and that can make a difference. The more the government is involved in an enterprise, the more First Amendment concerns can impact it.
So the more the government gets into mandating behavior like birth control and abortion, the more the First Amendment becomes a concern. The further removed from that, the less, and it’s hard to imagine a more remote concern than NFL football from government mandates impacting First Amendment concerns.
This is true.
The first Amendment does not restrict private employers.
Of course, it does restrict the state from requiring private employers to restrain speech.
Argh. I should’ve read more carefully and reworded this as follows:
What creates discord is a compulsion by the law to overcome a right
grantedcodified by superior law
A little off topic, but I rarely come up with scoops. I come with a peace offering:
I still don’t understand how this is an argument. Within a private work place, if you refuse to perform a service your employer advertises, your employer reserves the right to terminate your employment. It’s that cut and dry.
Simultaneously, government cannot force a work place to provide a service.
These principles aren’t in competition with each other. Where a worker works for a company that provides abortions and then refuses on conscience grounds, the employer should be free to terminate employment. Where a government compels an organization to provide abortions or other services against their consciences, the organization should be protected.
I mean, if we’re going to claim that abortions and contraceptives are somehow some sort of protected right because of penumbras or something, then dammit, I expect the government to compel EVERY SINGLE STORE THAT CAN, to ensure there are guns immediately available for purchase (that includes you Dick’s), because that’s an actual right that can actually be found in the constitution.
But wait, they seem to be free to say what goods and services they provide to the market — like literally every other industry in the market place (and rightly so). The medical industry is no different.
And comparisons to “refusing services to Jew or homosexuals” is about the most facile analogy I’ve seen.
It’s too easy, there will be businesses that offer abortions and there will be business that don’t include abortion in their services…much like there are places that provide knee replacements and places that don’t.
But Michael, when pharmacists withhold birth control pills from an unmarried women, that’s exactly like refusing services to a Jew or Homosexual. As, obviously, refusing to sell a condom to a gay man. It’s different treatment based on group status. Pure prejudice.
You are moving the goalposts. How does the issue of a hospital or pharmacy making it clear that they don’t carry certain drugs or perform certain procedures FOR ANYONE relate to the issue at hand? The conscience clauses prohibit workplaces from forcing employees to give customers the goods or services health facilities DO provide. A two-doctor free is still free to not perform abortions. A Drug Store is still free to refuse to dispense birth control pills, unless another laws mandates that they must.