The Right to Freedom of Conscience
A recent post from Terry Bellamak, new president of the Abortion Law Rights Association of New Zealand (ALRANZ), questions why health professionals such as doctors and nurses should be legally able to use the claim of freedom of conscience in refusing to provide contraceptive or abortion advice or services. (http://wp.me/x1XY6w-z1, 14 Sep 2015). Bellamak likens this to the case of Kim Davis, county clerk of Rowan County in Kentucky, who was recently gaoled for refusing to issue licences for same-sex marriages. She fails to see why these two apparently similar cases should have such different outcomes; imprisonment in one case and privileged protection in the other.
There seem to be a number of flaws in Bellamak’s argument. I will examine three of these. The first is that a legal challenge on these grounds has already been laid and dismissed. The second is that the role of health professionals differs significantly from that of a county clerk. Finally, many historical examples show us the great evils that can arise when the grounds of freedom of conscience are overridden.
In 2009 the Medical Council of New Zealand sent out a draft statement entitled ‘Beliefs and Medical Practice’, touching especially on the area of reproductive health service provision. A group of health professionals known as the New Zealand Health Professionals Alliance Incorporated (NZHPA) applied to the High Court for a juridical review of this statement on the grounds that it contravened S174 of the Health Professionals Competence Act 2003.
Justice MacKenzie found in favour of the NZHPA, ruling that where a practitioner held a conscience objection in these areas he or she was not required to formally refer their patient onto another practitioner who would either provide or facilitate the service – it was required only that they inform their client that such a service could be obtained from another health provider or a family planning clinic. The Medical Council of New Zealand decided not to appeal this ruling and withdrew its statement. When commenting on this decision, the NZPHA stated that its members should not be compelled to do things that they believed to be ethically wrong, clinically inappropriate or against a patient’s best interests.
This last statement leads to consideration of the status and role of health professionals. In her argument Bellamak refers to health professionals as ‘providers of a service’. This is redolent of a mind-set common in the United States where the doctor/patient relationship is viewed as being more like that of a salesperson/customer or petrol pump attendant/car-driver. The nexus is a financial and individual contract. Underlying this vision is a significant philosophical shift, marked by a move from a sense of the common good (the well-being of the entire society) to individual rights and involving the deconstruction of social bonds to the lowest common denominator of financial contract and obligation.
Bellamak glides over this critical distinction by reducing all conscience objections to ‘moral’ grounds, thereby insinuating a basis of religious belief, whereas the more neutral term ‘ethical’ can cover religious, personal or social considerations. An excellent example of this is seen in the debates over euthanasia in the British House of Lords and in Canada in the course of which a number of health professionals, avowedly agnostic or even atheistic, objected to euthanasia solely on the grounds of deleterious social and medical consequences. Closer to home, a further example is the 1977 longitudinal study of 1265 children born in Christchurch conducted by Professor David Fergusson who pointed to later psychological difficulties faced by women who had undergone abortions in their youth. It is data such as this which can and should inform health professionals who wish to embrace a wider vison of the role and responsibility of their profession rather than adopt the individualised and contractual stance referred to above.
The stance I am advocating for is not novel. We see it in the famous speech by Edmund Burke to the electors of Bristol in November 1774. Burke, after acknowledging that an MP must have the highest regard for the views of his constituents, looking out for their interest with the greatest of diligence, then notes: “But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive… from the law or constitution. They are a trust from Providence, for the abuse of which he is deeply answerable.” He then goes on to speak of the role of Parliament in terms which could be aptly applied to the medical profession; “… Parliament is a deliberative assembly of one nation, with one interest, that of the whole, where not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole.” (The Founders’ Constitution, volume 1, chapter 13, document 7.)
The importance of this stance is well borne out in history. Sometimes laws are passed which seem to meet the needs of the time and the approval of the populace. Such were the racial purity laws enacted by the Nazi government in Germany in the 1930’s, one result of which was the Shoah, the slaughter of six million Jews in slave and concentration camps. What is most frightening about these laws is that they were endorsed as scientific and sound by the leading professors of biology in German universities; theories of eugenics were embraced at every level of society. In passing, it is interesting to note that Margaret Sanger, one of the heroes of the women’s reproductive rights movement, was a leading member of the American Eugenics Society, frequently berating the Catholic Church for opposing eugenic legislation and ideology. One presumes that ALRANZ has completely stepped away from such advocacy on the basis of an ethical judgment, reinforced by scientific findings.
In summarising this reflection I would argue that the model of professional care embraced by the president of ALRANZ is strongly influenced by individualistic and commercial elements that reduce health professionals to mere service providers and too easily overlook the common good of the wider society. Such an understanding also ignores the lesson of history that suppression of the rights of individual conscience can so easily walk hand in hand with oppressive policies born of the social and political bias of a particular age … Stand up Archibald Baxter, Franz Jagerstatter, Mahatma Ghandi, Martin Luther King, Nelson Mandela and innumerable others.
In the words of Dietrich Bonhoeffer: “Conscience comes from a depth which lies beyond a person’s own will and reason and it makes itself heard as the call of human existence to unity with itself.”
Rev Dr Neil Vaney is a Marist priest who taught in the field of moral theology at Good Shepherd College in Auckland and is presently vicar-provincial for the Order, living and working in Wellington.