NATIONAL ASSOCIATION OF CATHOLIC FAMILIES
Pontifical Academy for Life
I. THE CHRISTIAN CONSCIENCE IN SUPPORT OF THE RIGHT TO LIFE
Carl A. Anderson Vice President, John Paul II Institute for Studies on Marriage and Family Supreme Knight, Knight of Columbus Pontifical Academy for Life XIII General Assembly February 24, 2007 St. Thomas More is recognized in our time as one of the great defenders of human dignity and the rights of human conscience. We are all familiar with the famous lines from A Man for All Seasons regarding the role of conscience: in his refusal to sign the Oath, More says "what matters to me is not whether it's true or not but that I believe it to be true, or rather, not that I believe it to be true, but that I believe it."1 St. Thomas More is also rightly regarded as the model Catholic government official when he says earlier in the play, "when statesmen forsake their own private conscience for the sake of their public duties they lead their country by a short route to chaos."2 And how simply, yet profoundly, he set the standard for all those of the Christian faith who serve in government when he said at the end, "Tell the King, I die the King's loyal servant, but God's first." Perhaps we might do well to regard Thomas More as a sure guide for politicians, reminding them of his approach to government service.
As A Man for all Seasons recounts More as saying of his work as Chancellor of England, "I wish no man harm, I speak no man harm, I do no man harm and if this be not good enough then ." We might also regard St. Thomas More as a patron of husbands and fathers. We may recall the way in which More is depicted at the end of his trial in A Man for All 2 Seasons. He declares to the court which has just condemned him that "It was not for the Oath but because I would not consent to the marriage ." Everything we know about St. Thomas More tells us that he cared deeply for his family and that one of the reasons why he sought so desperately to avoid a confrontation with the King was to protect his family. Yet, finally, More was to sacrifice both his life and his family's security for a principle that gave an eternal meaning and an eternal unity to his family; that is, the sacramental nature of marriage. Unquestionably, in agreeing to the dissolution of the king's marriage there was also an implicit acceding to the possible dissolution of any marriage.
This was a point that could not have been lost on the Chancellor of England and a lawyer of the brilliance of Thomas More. Thus, one of history's great statesman and men of conscience went to his death for a principled defense of the sacramental unity of marriage. Having said this we should remember the observation of Clarence Miller, one of several editors of the Complete Works of St. Thomas More. He enumerates what scholars give as the various "grounds for More's martyrdom: the integrity of the self as witnessed by an oath, the irreducible freedom of the individual conscience in the face of an authoritarian state, papal supremacy as a sign of the supra-national unity of Western Christendom, past and present." Then Miller writes, "All of these are true as far as they go. But in the last analysis More did not die for any principle, or idea, or tradition, or even doctrine, but for a person, for Christ. As Bolt himself make More say in the play: "Well finally it isn't a matter of reason; finally it's a matter of love."3 And so, I think it is entirely appropriate to remember St. Thomas More as we explore the richness of the encyclical Evangelium Vitae and its call to the Catholic 3 people to build a culture of life and a civilization of love. We should begin with recognition that Evangelium Vitae rests, to a considerable extent, upon the foundation provided by John Paul II's great encyclical on the "Splendor of Truth" and the moral conscience. Veritatis Splendor takes up the question of the obligations which truth imposes on Catholics in democratic societies.
It observes that the demands of universal and unchanging moral laws may seem to contradict "the uniqueness and individuality of the person" and even "represent a threat to his freedom and dignity" (no. 85). The encyclical also admits that "in a widely de-Christianized culture, the criteria employed by believers themselves in making judgments and decisions often appear extraneous or even contrary to those of the Gospel" (no. 88). But then John Paul II writes what could have come from the thought or, perhaps more accurately, from the spirituality of Thomas More. He states, "It is urgent to rediscover and to set forth once more the authentic reality of the Christian faith, which is not simply a set of propositions to be accepted with intellectual assent. Rather, faith is a lived knowledge of Christ, a living remembrance of his commandments, and a truth to be lived out It is an encounter, a dialogue, a communion of love and of life between the believer and Jesus Christ (no. 88). Or as More had put it, "finally it's a matter of love." After so many years it is perhaps too easy to view the English Catholic martyrs of the sixteenth century as having a sort of determination or even a certain eagerness for their fate. But the following passage on the subject of martyrdom written by More while 4 he was in the Tower poignantly reveals something very different.
More wrote in De Tristitia Christi of the martyr's encounter with Christ who says this to his follower: "You are afraid, you are sad, you are stricken with weariness and dread of the torment with which you have been cruelly threatened. Trust me. I conquered the world, and yet I suffered immeasurably more from fear. I was sadder, more afflicted with weariness, more horrified at the prospect of such cruel suffering drawing eagerly nearer and nearer. Let the brave man have his high-spirited martyrs, let him rejoice in imitating of them. But you, my timorous and feeble little sheep, be content to have me alone as your shepherd, follow my leadership; if you do not trust yourself, place your trust in me. See, I am walking ahead of you along this fearful road."
4 Few in the Church have more poignantly depicted the call to holiness and spiritual perfection than More in this brief description of the sequela Christi to martyrdom. But the ultimate lesson which More gives us is that for the Catholic, government service opens a horizon to a type of personal martyrdom. Certainly, this was the case in More's life and throughout much of the 16th century. It was equally true throughout much of the 20th century. And it is also true in the beginning of the Third Millennium as we increasingly face a new culture of death. Politics which too often today has been the arena of personal self-promotion and egocentrism should be understood rather by the Catholic as a following of Christ which is open to martyrdom, if not of the bloody martyrdom suffered by More, than a martyrdom of career and reputation. To think otherwise is a disservice to the Catholic community and to be dishonest with one's self.
5 We might say that John Paul II has a similar vision of the Catholic's struggle in the face of an increasingly hostile culture when he wrote in Evangelium Vitae the following: Faced with the countless grave threats to life present in the modern world, one could feel overwhelmed by sheer powerlessness: good can never be powerful enough to triumph over evil! At such times the People of God, and this includes every believer, is called to profess with humility and courage faith in Jesus Christ, "the Word of Life." The Gospel of Life is not simply a reflection, however new and profound, on human life. Nor is it merely a commandment aimed at raising awareness and bringing about significant changes in society. Still less is it an illusory promise of a better future. The Gospel of Life is something concrete and personal, for it consists in the proclamation of the very person of Jesus" (no. 29).
Thus, what Thomas More had suggested was the sure hope of those suffering for the truth of the Catholic faith, John Paul II sees as the guiding star of Catholics in the prolife movement. We see also in the life of Thomas More the truth recognized by the Second Vatican Council when it observed in Gaudium et Spes that, "In the depths of his conscience man detects a law which he does not impose on himself, but which holds him to obedience" (no. 16). In commenting on this reality of the moral life, John Paul II writes in Veritatis Splendor that this law "serve[s] to protect the personal dignity and inviolability of man, on whose face is reflected the splendor of God" (no. 90). 6 As John Paul II continues, this "splendor" of God "is confirmed in a particularly eloquent way by Christian martyrdom" (no. 90) which when "accepted as an affirmation of the inviolability of the moral order, bears splendid witness both to the holiness of God's law and to the inviolability of the personal dignity of man, created in God's image and likeness" (no. 92). Thus, the martyr provides an invaluable and, one might even say, irreplaceable contribution to the good of society "by reawakening its moral sense" (no. 93). The moral sense to which the martyrdom of Thomas More pointed is stated precisely in Veritatis Splendor: "Only by obedience to universal moral norms does man find full confirmation of his personal uniqueness and the possibility of authentic moral growth" (no. 96). The seeming contradiction between individual freedom and the moral law is reconciled by the martyr with a beautiful transparency which reveals the integrity of the human conscience to society. Evangelium Vitae suggests that the encounter between the Christian and society centers around several key "concepts" which go to the heart of the Catholic citizen's life in a pluralistic, democratic society.
The Holy Father makes clear that what is at stake in the public debate regarding abortion and euthanasia, for example, is not simply a disagreement over "choices" within a pluralistic society, but is instead a grave threat to the very survival of democracy (nos. 18-20). It has become a tenet of popular culture that the Western liberal democratic ideal has now emerged triumphant in it great struggle with totalitarian ideologies.5 In his address to the United Nations, John Paul II stated, "we are witnessing an extraordinary 7 global acceleration of that quest for freedom which is one of the great dynamics of human history."
6 However, for this pope, history does not represent some inevitable evolutionary process toward the realization of democracy. Instead, the present moment is "a turningpoint" which presents not only an opportunity to realize the "universal longing for freedom" but also an enormous threat to freedom. Evangelium Vitae (no. 18) points out that this threat to freedom consists in a great contradiction lurking at the center of democracy: abortion. John Paul II begins his analysis of what he terms this "surprising contradiction' with a deeply pastoral appreciation of the "tragic situations of profound suffering" which can give rise to "decisions that go against life" (no. 18). The Pope takes note of the "suffering, loneliness, [and] total lack of economic prospects, depression and anxiety about the future" which can influence decisions regarding abortion, euthanasia and suicide. He emphasizes that such circumstances can mitigate even to a notable degree subjective responsibility and the consequent culpability of those who make these choices which in themselves are evil."
7 The personal tragedies which lead to decisions concerning abortion, for example, do not represent the most profound threat to democracy, however. Such acts are called "tragic" precisely because we recognize them to be wrongful and we know that the actor has submitted in desperation to circumstances which he or she felt unable to overcome. These tragedies, in themselves, do not constitute a threat to the foundation of democratic society because their "tragic" character testifies to the objective evil of what is done.
8 Instead, John Paul II observes democratic society is imperiled by the insistence that such objectively disordered acts, however subjectively mitigated, must be transformed from crimes to "legitimate expressions of individual freedom and protected as actual rights (no. 18). It is this inversion of "wrong" actions into "right" actions that John Paul II insists constitutes "a direct threat to the entire culture of human rights" (no. 18). This inversion is a direct threat to the future of democracy because it establishes "a perverse idea of freedom" at the very heart of democracy. John Paul II describes this disordered freedom as one which "carries the concept of subjectivity to an extreme" (no. 19). It is a concept of freedom which "exalts the isolated individual in an absolute way, and gives no place to solidarity, to openness to others and service of them" (no. 19). In short, this concept of freedom ultimately makes democratic communities impossible and destroys the foundation of democratic structures because it erodes public consensus regarding the common good. Evangelium Vitae thus moves the engagement between the Catholic and contemporary society on questions of abortion and euthanasia to a more dramatic and profound level. Rights advocates often claim that a true regard for pluralism and democracy requires acceptance of abortion and euthanasia. They argue that the social divisiveness surrounding these issues can only be appropriately resolved by their "privatization" or "deregulation". In response, John Paul II maintains that the concept of freedom implicit in abortion and euthanasia "rights" makes true respect for pluralism and enduring democratic structures impossible. He observes in Evangelium Vitae that such an accommodation is in reality an invitation for whole communities or classes of people to 9 be "rejected, marginalized, uprooted and oppressed" (no. 18). Thus, the abortion freedom, which presents itself as essential to the realization of human freedom, instead becomes the vehicle by which the rights of many are denied. John Paul II traces the cause of this contradiction to the negation of authentic freedom-when a concept of freedom is proposed which "no longer recognizes and respects its essential line with the truth" (no. 19). This separation of truth from freedom creates a culture in which "any reference to common values and to a truth absolutely binding on everyone is lost" (no. 20)
The inevitable consequence of this separation of freedom from truth is to institutionalize a destabilizing form of conflict in communities. As John Paul II writes, "If the promotion of the self is understood in terms of absolute autonomy, people inevitably reach the point of rejecting one another [and] society becomes a mass of individuals placed side by side, but without any mutual bonds" (no. 20). The impossibility of moral consensus within community ultimately makes impossible the common life of communities and the realization of the common good. The separation of freedom from truth also has implications for the role of reason in public discourse. The greatest of these implications is the marginalization of reason as the foundation of society. Thus, Evangelium Vitae observes the community is increasingly unable to maintain itself "as a community in which the 'reasons of force' are replaced by the 'force of reason'" (no. 19). The result is that society is increasingly unable to achieve consensus on important moral questions. Too often this cultural transformation is hidden when the abortion/euthanasia debate is seen as simply a contest between the freedom of the individual and the 10 imposition of morality by the State. Evangelium Vitae re-focuses this discourse by opening up a more fundamental issue. The encyclical views the abortion debate as not primarily an argument over morality or even over the question of when human life begins or ends. Instead, the most basic issue is a fundamental conflict over the nature and the dignity of the human person. In reformulating the discussion in this way, Evangelium Vitae underscores the fact that contemporary man, for the first time, finds his freedom unhinged not only from the truth of an objective, external moral order, but also from the moral truth of his own nature and dignity.
This distortion at the center of the human person has diminished the possibility of authentic human communion and community. It has left the human person increasingly defenseless to accelerating threats from the anti-life culture of nihilism and death.8 This anti-life culture threatens not only the life of the human person; it threatens the life of the human conscience. Indeed, this anti-life society, in the name of freedom of choice, threatens human life precisely because it distorts and diminishes the human conscience. Thus, the encounter between the culture of life and the culture of death takes place primarily within the human conscience. The culture of death has made Thomas More not just "a man for all seasons", but a "man for all Catholics." The culture of death challenges all of us to bear witness to the splendor of the Catholic conscience. We should not be surprised that Evangelium Vitae calls for "a general mobilization of consciences and a united ethical effort to activate a great campaign in support of life" (no. 95). This mobilization of consciences in defense of life by "the 11 people of life and the people for life" (no. 6) is at the center of the encyclical's vision of evangelization. It is also the foundation of John Paul II's approach to social justice and the law. In this way, Evangelium Vitae provides an extraordinary response to the "demoralization" of conscience brought about by the widespread practice of abortion and euthanasia. However, Evangelium Vitae was not the first time the Holy Father proposed such a role for conscience in the transformation of society. In reviewing the reasons for the collapse of Marxism throughout Eastern Europe, John Paul II wrote in Centesimus Annus that "the fundamental error of socialism is anthropological in nature," since socialism rejected "the concept of the person as the autonomous subject of moral decision" (no. 13).
Centesimus Annus makes clear the the confrontation between the Church and any political order which systematically denies human rights must be focused within the conscience of each person. Like Evangelium Vitae, this earlier encyclical asserts that the mission of the Church in confronting such a culture is "to increase the sensitivity of consciences" (no. 52). Centesimus Annus observed that the collapse of communism behind the Iron Curtain occurred because "the consciences of workers have re-emerged in a demand for justice" (no. 26). For example, in Poland in 1980, Fr. Jozef Tischner defined the Solidarity movement as inherently linked to a "human dignity that is based on the conscience of human beings." In a series of sermons given in Krakow to the leaders of Solidarity, Fr. Tischner explained that "the deepest solidarity is the solidarity of consciences."9 12 The "solidarity of consciences." which Centesimus Annus understood was capable of bringing down the anti-life culture of Marxist totalitarianism, is now proposed in Evangelium Vitae as capable of bringing down the culture of death. If, as it has been said, truth is the first victim of violence, then the culture of death is also, and inescapably, a culture at war with the truth. In fact, the culture of death can only continue in existence by hiding the truth regarding the nature and dignity of the human person. One of the most obvious falsehoods undergirding the culture of death is it refusal to recognize the humanity of the child before birth. Supreme Court Justice Harry Blackmun gave legal standing to this masking of the truth when he wrote in Roe v. Wade-the case which legalized abortion throughout pregnancy-that "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus "10 When the culture of death is expressed in a legal system in this way it surrounds the citizen and his conscience with a social environment which separates him from the truth about who he is as a person. Thus, the legal acceptance of abortion destroys not only the child but, in some sense, every person. Writing in 1978, Vaclav Havel provided a deep insight into this phenomena.
In The Power of the Powerless Havel wrote, "The profound crisis of human identity brought on by living within a lie, a crisis which in turn makes such a life possible, certainly possesses a moral dimension as well; it appears, among other things, as a deep moral crisis in society. A person who has been seduced by the consumer value 13 system, whose identity is dissolved in an amalgam of the accoutrements of mass civilization, and who has no roots in the order of being, no sense of responsibility for anything higher than his or her own personal survival, is a demoralized person. The system depends on this demoralization, deepens it, is in fact a projection of it into society."
11 The person described by Havel as one "seduced by the consumer value system: and one whose personality is "dissolved" into mass civilization does not exist only in Marxist societies. A similar process of "demoralizing" the human person is underway in the new culture of death within Western democracies. Havel's response is worthy of deep reflection precisely because it was a response which sought to return to the politics of his native Czechoslavakia a sense of morality in order that people might once again "be able to live within the truth."
12 The rehabilitation of the "demoralized" man requires precisely the rehabilitation of his conscience through the restoration of the relationship between freedom and truth. Writing during the Second World War, Jacques Maritain explored the Christian foundations of democratic political structures. He found that in the Western democracies Christianity had not been able to supplant the secular conscience but that, instead, Christianity had been able to achieve what he termed the "evangelical inspiration" of the secular conscience.13 In Christianity and Democracy, Maritain concluded that "what has been gained for the secular conscience, if it does not veer to barbarism, is faith in the brotherhood of man, a sense of the social duty of compassion for mankind in the person of the weak and the suffering, the conviction that the political work par excellence is that of 14 rendering common life better and more brotherly and of working so as to make of the structure of laws, institutions and customs of this life a house for brothers to live in."14 In short, Maritain proposed that there was an "evangelical inspiration" of democratic principles which has made democracy possible. Reduced to its essential character, this Christian "inspiration" of democracy achieved a political consensus that "Machiavellianism and the politics of domination" were to be rejected. In their place was established the idea that "politics depends upon morality because its aim is the human good of the community."15 Thus, Maritain saw a vital and irreplaceable role for the Christian to engage democratic society at all levels of the political process. But an "evangelically inspired" secular conscience is not the same as a Catholic conscience or even a Christian conscience. The difficulty all too often today is that the Catholic politician possesses not a Catholic conscience, but a secular conscience with little or no evidence of any evangelical inspiration. How often do we hear a Catholic politician stating a political philosophy or guiding principles that reflect or move beyond those values Maritain concluded had been accomplished by the "evangelical inspiration" of the secular conscience? We must expect more from a Catholic politician than a secular conscience. Yet, this obligation brings with it a dilemma.
Joseph Cardinal Ratzinger described it when he asked, how is it possible "to allow faith to become effective as a political force without transforming it into yet another element of power?"16 Cardinal Ratzinger also put the question in a slightly different way when he asked, "How can Christianity become a positive force for the political world without being turned into a 15 political instrument and without on the other hand grabbing the political world for itself?"17 To choose the wrong answer, of course, opens up the prospect of what Jacques Maritain so aptly described as "the pharisaically Christian state"-the state which manipulates both faith and political power in order to preserve existing power structures. Evangelium Vitae's answer goes in an entirely different direction. It is a response which seeks to defend both the Christian and secular conscience. In doing so, it responds within the context articulated by the Second Vatican Council: "the civil authority must see to it that the equality of the citizens before the law, which is itself an element of the common good society, is never violated either openly or covertly for religious reasons and that there is no discrimination among citizens."18 Evangelium Vitae embraced the democratic ideal and seeks to evangelize it through a community of believers transformed into a new "people of life and people for life." Thus, the encyclical attempts to rehabilitate the secular conscience in regard to the true principles of the democratic ideal. What Evangelium Vitae brings to this discourse (nos. 18-24) is a new awakening of moral sensitivity, the rehabilitation of the concept of freedom, and the presentation of the role and dignity of conscience.
This threefold approach offers the only enduring opportunity for avoiding an unprecedented abuse of human rights of the weak, handicapped and defenseless now being fore-shadowed by the culture of death. This "inspiration" of the secular conscience is possible because, as John Paul II has observed, "there is a moral logic which is built into human life and which makes 16 possible dialogue between individuals . The universal moral law written on the human heart is precisely that kind of 'grammar'."19 But we must ask ourselves what is the language which speaks this "grammar"? It has been argued that the abortion "freedom means that women must be free to choose self or to choose selfishly . There is no easy way to deny the powerful argument that a woman's equality in society must give her some irreducible rights unique to her biology, including the right to take the life within her life."20 What is surprising here is not so much the ideological basis of the rhetoric of the abortion "freedom" but its explicit identification with the culture of death. But this is not all. If the "right" to abortion may not be limited by the combined weight of an innocent human being's "right" to life and the state's interest in the protection of human life, how is it to be supposed that the "right" to abortion may be limited by a "right" of conscience? In contrast to this view of freedom, Evangelium Vitae rejects any "notion of freedom which exalts the isolated individual in an absolute way" (no. 19). John Paul II insistence that freedom must have an "essential link with the truth" is a claim that truth is linked first and foremost not with some external moral code, but with the true identity and the true dignity of the human person-and this must include a recognition of the inviolability of conscience. As John Paul II reminded us at the United Nations, "Reference to the truth about the human person is, in fact, the guarantor of freedom's future."
21 It is only when the dignity of the human person is recognized and respected in the public order that it is possible for men and women to live not only in freedom but in truth. 17 Common law today is the basis for the legal systems of England and many other countries formerly under British rule including the United States, Canada and Australia, among others. England, the land of St. Thomas More, is also the birthplace of common law. Common law was originally derived from Natural Law and was seen as above and independent of the state.22 Many civil rights - even those found in the U.S. Constitution - are attributed at least in part to the common law system. "Common law emphasizes assent rather than domination, the community rather than the state, moral authority rather than physical power."23 The system also recognized the value of precedent. However, as St. Thomas More discovered, even English common law - the independent tradition of right and wrong within a community - was unable to grant him an exclusion from taking the Oath of Supremacy based on conscience, nor did it save him from the block. However, Thomas More held true to his beliefs - and interestingly - to common law as well. In his discourse on common law, William Blackstone, one of its most famous commentator's and a man to whom the foundational documents of the United States owe a great debt24 wrote: "Nay, if any human law should allow or injoin us to commit it [an act contrary to divine or natural law], we are bound to transgress that human law, or else we must offend both the natural and the divine."25 Thomas More certainly held fast to this principle, as "the King's good servant, but God's first," however, King Henry made no allowance for a man's conscience. Thankfully, England and other common law countries grew more tolerant of conscience in the years that followed, but to this day there is no absolute standard in common law countries with reference to exemptions on behalf of conscience for medical 18 or pharmacy personnel confronted with issues of conscience, and common law countries struggle to balance the rights of conscience with perceived "rights" to various medical procedures. However common law countries generally seem to be moving in the direction of accepting at least some conscience claims, though there are troubling exceptions. To follow their conscience, providers of health services have sometimes had to pursue legal action, however, in many cases the right to conscience seems to have prevailed in common law countries and thus, in many instances, doctors, other medical staff and pharmacists such countries can make successful moral objections to performing certain procedures such as abortions - or dispensing certain drugs, such as so-called "emergency contraception." [I have limited this commentary to abortion and the dispensing of abortifacients since they are the most likely to cause grave moral concern among health care providers. Moreover, the apparent trend toward allowing conscience exceptions for health care providers in this area may well set a precedent in other (newer) areas of medicine fraught with ethical dilemmas].
The trend toward freedom of religion and conscience has been building over the past centuries. Certainly, the last hundred years have brought a greater tolerance of religious ideas in England, with restrictions on Catholic finally lifted in the early 19th century, and the United States has, since the late 18th century enshrined religious freedom as a preeminent right. There is thus reason to hope that we may be moving toward a situation in which the precedent will be established that provides a greater understanding and accommodation of the conscience of the individual healthcare provider. However, there is not unanimity of opinion and contradictory decisions about the freedom of conscience in this area continue. "'This issue is the San Andreas Fault of 19 our culture,' said Gene Rudd of the Christian Medical & Dental Associations. 'How we decide this is going to have a long-lasting impact on our society.'"26 While many jurisdictions have moved to incorporate some element of a conscience exemption into the law, especially in the areas of abortion and contraception, the absolute right to such an exemption is not yet universally accepted - and is the subject of widespread debate and lobbying by abortion advocates, who often seek to force those in the medical profession to perform immoral procedures.27 Too common are opinions like that of philosophy professor Ken Kipnis: "If your religious orientation is such that you can't discharge your professional responsibilities, then you shouldn't take on those responsibilities in the first place [ ] You should find other work."28 Fortunately the law has often been more generous to healthcare professionals. With respect to abortion, an early example of a conscience clause occurs in England. Section 4(1) of the Abortion Act of 1967, which states: No person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised (sic) by this Act to which he has conscientious objection [ ]
29 While the burden of proof of the conscientious objection rests with the person making the claim, a statement under oath that the person indeed has such an objection "shall be sufficient evidence for the purpose of discharging the burden of proof."30 Section 4(1) of the 1967 Act was not in the original bill, but was introduced in response to concerns that doctors would be under pressure to perform terminations against their beliefs. Interestingly, one amendment that didn't make 20 the final Act proposed that, 'no person [shall be] deprived of, or be disqualified from, any promotion or other advantages by reason of the fact that he has such conscientious objection.'31 So it would seem, the protection, while better than nothing, is limited. Pharmacists in England also appear to enjoy the benefit of certain conscience exemptions. The Royal Pharmaceutical Society allows some freedom of conscience for pharmacists: "The Code of Ethics, Part 2A1(k) states "that before accepting employment pharmacists must disclose any factors which may affect their ability to provide services. Where pharmacists' religious beliefs or personal convictions prevent them from providing a service they must not condemn or criticise (sic) the patient and they or a member of staff must advise the patient of alternative sources for the service requested."32 However, because the guidelines do stipulate that a pharmacist must "advise the patient of alternative sources for the service requested," pharmacists objecting to providing a particular prescription may find themselves in the awkward position of having to be if not actors, at least accomplices. Some have evidently refused to refer their patients, and the legal consequences of such actions are, as of now, unclear.
33 In fact, the issue of referral has become a sticking point in many common law countries as health care professionals refuse to be involved in immoral treatment in any way. It seems that many common law countries have followed England in allowing physicians and pharmacists to decline to dispense medical services that they find morally unacceptable - at least under certain conditions. 21 In Canada, a 2002 article in the BC Catholic noted: They remain anxious, but Canadian nurses seem to have their right to conscientious objection worked out, for the most part. The nurses' code of ethics and their collective agreements recognize their right to withdraw from giving care that offends their morality as long the patients they tend are placed in others' care However, a recent contract cancellation at B.C. Women's Hospital, as well as developments in other provinces, raises doubt as to whether nurses do in fact enjoy unfettered freedoms of conscience and religion."34 The article cites several examples of nurses whose hospitals were forced to participate in abortions, though, in most of the cases, the results - sometimes after years of struggle -favored those who held to their conscientious objection. The Canadian Medical Association discourages any discrimination stating: "No discrimination should be directed against doctors who do not perform or assist at induced abortions. Respect for the right of personal decision in this area must be stressed, particularly for doctors training in obstetrics and gynecology, and anesthesia."35 "Pharmacists across Canada have the right to refuse to sell the contraceptive as a 'matter of conscience' as long as they refer customers to someone who will," the Daily Herald Tribune in Grande Prairie, Alberta, reported earlier this year.
36 Both in Canada and in Australia, things seem to be improving for conscientious objectors. Many legal battles and debates over conscience were seen over the past twenty to thirty years, with a shift in favor of conscience as the norm. 22 Australia generally allows for conscience exclusions for doctors and pharmacies. For example, in 2002, along with passage of a liberal abortion law in Canberra, a conscientious objection amendment allowed doctors to opt out of the procedure.37 In many areas of the country including the Australian Capital Territory, South Australia, Tasmania and Victoria the law allows medical personnel to opt out of performing abortions.38 The Age in Australia reported in 2003 that "[p]harmacists who are morally opposed to selling emergency contraception can refuse to dispense the drug but may leave themselves open to legal action."39 In 2004 CNS News reported that a pharmacist "who has moral objections is not obliged to supply a product, but is expected to refer the customer to an alternative source." The story went on to report that some pharmacists are refusing "to refer customers to other suppliers."40 As recently as last year the debate continued in Australia: "Health Minister Tony Abbott believed individual pharmacists had the right to choose whether they supplied the morning-after pill. But the Federal Opposition maintained pharmacists were obliged to offer a full range of products, particularly in one-chemist towns."41 There is some gray area, to be sure, but overall, the idea of a conscience-exemption for those morally opposed to procedures such as abortion seems to be making headway in Australia. In the United States, both the Federal Government and many states have provided some conscience exemptions for doctors who are morally opposed to abortion: The dispute over abortion access began almost as soon as the U.S. Supreme Court legalized the procedure in 1973. Six months later, Congress carved out exceptions for doctors and hospitals with moral objections to abortion. Forty23 seven states passed similar laws. Louisiana's, one of the most restrictive in the nation, says no one should be forced to 'recommend or counsel' an abortion, either.42 More recently, Congress took steps to protect health care workers whose consciences prevent them from performing abortions.
The Weldon Amendment became Federal Law in 2004 and gave "federal protection for health care providers, including hospitals and insurers, who choose not to participate in abortion."43 The Amendment stated: (1) None of the funds made available in this Act [the federal Health and Human Services appropriations bill for Fiscal Year 2005] may be made available to a Federal agency or program, or to a State or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions. (2) In this subsection, the term "health care entity" includes an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.44 The amendment was not universally accepted. California' Attorney General Bill Lockyer quickly filed suit to block the Amendment from taking effect. [The case is still pending]. For pharmacists in the United States, the laws vary according to state. As of Aug. 1 of this year: Four states - Arkansas, Georgia, Mississippi, and South Dakota - have passed laws allowing a pharmacist to refuse to dispense "emergency contraception" 24 drugs. Illinois passed an emergency rule that requires a pharmacist to dispense FDA-approved contraception. Colorado, Florida, Maine, and Tennessee have broad refusal clauses that don't specifically reference pharmacists, while California pharmacists have a duty to dispense prescriptions and only can refuse when their employer approves the refusal and the patient can still access the prescription in a timely manner.45 Unresolved and troublesome issues remain, however. While pharmacists and medical personnel can often have recourse to a conscience exclusion, hospitals - including Catholic hospitals - are increasingly under attack by laws requiring them to provide so called "emergency contraception" to rape victims. Connecticut is part of a growing number of states that are considering or have passed legislation requiring hospitals to dispense Plan B or at least provide information about the emergency contraception to rape victims.
According to advocacy groups, Massachusetts, California, New Jersey, New Mexico, New York, South Carolina and Washington require hospitals to dispense the drug. Catholic hospitals are not exempted from those laws, yet the laws in New Jersey and New York include provisions to appease the church that prevent the pill from being given if a woman is already pregnant. Similar bills are pending this session in 12 states, including Connecticut.46 The Connecticut bill was defeated, but the trend toward forcing hospitals to provide unethical treatment is troubling. Also troubling is the fact that abortion can be made nearly mandatory for physicians in training, with career consequences if they opt out. Such is already the case in New York City: 25 In July 2002 the 11 public hospitals in New York City imposed mandatory abortion training for all medical residents. Amid the bad news, an encouraging sign has been reported. Some 25 percent (or 38 of the approximately 150 doctors in residency training) have opted out of the abortion program, though doing so could compromise their medical careers.47 Challenges to the conscience of a health care professional certainly continue in common law countries, and the current system of dealing with such issues in these countries is far from adequate, or uniform. The problems will only grow as new unethical procedures become seen as "the norm" by some and as a "right" by others. A good overview of the situation in the United States, at least occurred in 2002 when the United States Conference of Catholic Bishops submitted a statement to Congress, which included the following: While the principle of protection for conscience rights is widely acknowledged, its implementation has been far from perfect, creating a need for more comprehensive and forward-looking legislation. Most federal conscience protections apply only to specific federal programs or are tied to the receipt of federal funds.(5)
Their scope is limited by this fact, and by the narrow range of procedures covered. Though the majority of states acknowledge and protect rights of conscience, their laws suffer from similar inadequacies. Most of these laws are limited to abortion. Only a few states protect health care providers from being forced to perform sterilizations. Few existing laws protect the full range of individuals and institutions that may be involved in providing health care in our increasingly 26 complex health care system. Many states do not protect the rights of conscience with respect to newly created technologies such as cloning or embryonic research, or even current misuses of older technology such as 'surrogate' motherhood. States have also not addressed the need to protect providers with respect to new threats to human life at the end of life, such as physician-assisted suicide and euthanasia. As noted by one commentator: 'As the range of medical technologies continues to expand..., the number of medical services involving potentially serious conflicts of conscience is certain to increase.'(6) Finally, with new organized threats to conscience on the horizon, it is especially important for states to expand and strengthen their existing protections now. These threats have become especially apparent in recent years in the fields of abortion and contraception, as reviewed below.48 Common law countries certainly have much to do to develop more fully the ideal of a conscience clause for those in the medical field. However, the fact that in most common law countries some accommodation at least seems to be made for the conscience of those in the health care field provides hope. It may also provide a precedent upon which we can work to build a society that does not require any protector of life with moral objections to unethical medical procedures to actively participate in a culture of death. It may seem that the discussion of the role of conscience of a Catholic politician and of a Catholic health care provider are two distinct, unrelated issues.
However, if it is true that much of the difficulty for Catholic politicians concerns the failure to adequately form a Catholic conscience or to properly understand the implications of the 27 demands of conscience on one's public responsibilities, then it is difficult to see how it will be possible in the future to fashion laws-either by legislative or judicial action-that respect the rights of a properly formed conscience. Once again we are reminded of a scene from A Man for All Seasons, this time of the conversation between More and his friend, the Duke of Norfolk. It is clear that More's stand on conscience is really incomprehensible to the duke since he asks More to join the other members of the nobility in agreeing to the demands of the king for the sake of friendship. When More asks the duke whether after he has done what has been asked whether the duke will then follow More into hell for violating his conscience for friendship's sake, the duke complains of More's obstinacy. In short, how can we expect those who have failed to take due care of their own conscience to properly care for the consciences of others? John Paul II has elevated the role of Catholics by insisting in Veritatis Splendor and Evangelium Vitae that any moral consensus within society must be one which recognizes the three fundamental principles of the culture of life. The first is the incomparable value and dignity of every human being regardless of age, condition or race. This is especially true in the case of the poor, the weak and the defenseless. And this is also true for the dignity of the human conscience. The second is that it is always a violation of human dignity to treat anyone as an instrument or means to an end. Instead, every person must be seen as good in himself or herself and never as an object to be manipulated. The third principle is that the intentional killing of an innocent human being, whatever the circumstances and particularly in cases of abortion and euthanasia, can never be morally justified. 28
In these moral principles we can see that the Church's mission in building the culture of life is inseparable from the legacy of the Second Vatican Council. This is especially the case in regard to the teaching of the Council on conscience, freedom and human dignity. By insisting that the Catholic people must be "a people of life and for life" (no. 6), John Paul II has outlined the mission of the Catholic people in the conversion of culture. In this mission, Evangelium Vitae presents a blueprint for Catholic identity in the Third Millennium in which "the dignity of the person and the Gospel of life are a single and indivisible Gospel" (no. 2). In becoming "a people of life and for life" Catholics will bear witness most truly to the truth, to conscience and to the possibility of building a culture of life. But "a people of life and a people for life" can only be so if it is at the same time "a community of consciences for life" or what John Paul II might have called "a great solidarity of consciences for life." A Catholic people must have a Catholic conscience and that conscience, to be Catholic, must be for life. 29
1. Robert Bolt, A Man for All Seasons (New York: Random House, 1960), p. 91. 2. Ibid., p. 22. 3. Complete Works of St. Thomas More, ed. Clarence Miller (New Haven: Yale University Press, 1976), vol. 14, pt. 2, p. 775. 4. Thomas More, "De Tristitia Christi", Complete Works of St. Thomas More, ed. Clarence Miller (New Haven: Yale University Press, 1976) vol. 14, pt. 1, pp. 3-4. 5. F. Fukuyama, The End of History and the Last Man (The Free Press, New York 1992). 6. John Paul II, Address to the General Assembly of the United Nations, October 5, 1995; L'Osservatore Romano (English edition, October 11, 1995) p. 8. 7. John Paul II's recognition in no. 18 of the suffering and sense of hopelessness which often pervades these decisions against life and his sensitivity in no. 99 in discussing pastoral responses to women who have had abortions reflect the depth of commitment to "solidarity" which runs through the encyclical. 8. C. Anderson, "'Evangelium Vitae' e cultura post-moderna" in Evangelium Vitae: Enciclica e Commenti (Libreria Editrice Vaticana, Citta del Vaticano 1995) also printed in L'Osservatore Romano 28 April 1995. 9. J. Tischner, The Spirit of Solidarity (Harper and Row Publishers, San Francisco 1984) p. 4. 10. Roe v. Wade, 410 U.S. 113 (1973). 11. Reprinted in V. Havel, Living in Truth (Faber and Faber, London 1986), p. 62. 12. Ibid., p. 63. 13. J. Maritain, Christianity and Democracy (Ignatius Press, San Francisco 1986) (first edition French 1943). 14. Ibid., p. 46. 30 15. Ibid., pp. 42-43. Certainly not all of Maritain's contemporaries were as sanguine regarding the influence of Christianity in the modern democracies. For example, Christopher Dawson wrote in 1938, "It may, I think, even be argued that Communism in Russia, National Socialism in Germany, and Capitalism and Liberal Democracy in the Western countries are really three forms of the same thing, and that they are all moving by different but parallel paths to the same goal, which is the mechanization of human life and the complete subordination of the individual to the state and to the economic process. Of course, I do not mean to say that they are all absolutely equivalent, and that we have no right to prefer one to another." See, C. Dawson, Religion and the Modern State (Sheed and Ward, New York 1938), p. XV. 16. J. Ratzinger, Church, Ecumenism and Politics: New Essays in Ecclesiology (St. Paul Publications, New York 1988) (first edition German 1987), p. 173. 17. Ibid., p. 216. 18. Second Vatican Ecumenical Council, Declaration on Religious Liberty Dignitatis Humanae, 6 (1965). 19. Address to the General Assembly of the United Nations, October 5, 1995, op. cit. 20. N. Wolf, "Our Bodies, Our Souls", The New Republic, October 16, 1995, p. 33. 21. Address to the General Assembly of the United Nations, October 5, 1995, op. cit. 22. Robert Clinton, God and Man in the Law: The Foundations of Anglo-American Constitutionalism. (Lawrence: Univ. of Kansas Press, 1997) 102-103. 23. James Stoner, Jr., Common-Law Liberty: Rethinking American Constitutionalism. (Lawrence: Univ. of Kansas Press, 1999) 5. 24. Wayne House, "A Tale of Two Kingdoms: Can There be Peaceful Coexistence of Religion with the Secular State?" BYU Journal of Public Law. (vol. 13, 1999) 221. 25. Quoted in Wayne House, "A Tale of Two Kingdoms: Can There be Peaceful Coexistence of Religion with the Secular State?" BYU Journal of Public Law. (vol. 13, 1999) 235. 26. Rob Stein, A Medical Crisis of Conscience in The Washington Post July 16, 2006, A1, (online). 27. Feminist Majority Foundation, Feminist Daily Newswire Sept. 24, 2002 http://www.feminist.org/news/newsbyte/uswirestory.asp?id=6910 31 28. Stein. 29. Abortion Act of 1967 quoted in www.consciencelaws.org/Conscience-laws- United-Kingdom/LawUK01.htm 30. Ibid. 31. Jacky Engel, Abortion Law Reform and Conscientious Objection in the United Kingdom in Nucleus October 2004. http://www.consciencelaws.org/Conscience- Archive/Documents/Abortion% 20Law%20Reform%20UK.html#13. 32. The Royal Pharmaceutical Society of Great Britain, Fitness to Practise and Legal Affairs Directorate: Fact Sheet: Thirteen, Employing a Locum/Working as a Locum. November 2005. http://www.rpsgb.org/pdfs/factsheet13.pdf 33. Terry Sanderson, Nothing for the Weekend, in The New Humanist. May 3, 2005 34. Greg Edwards, Accommodating Conscience in The BC Catholic, Oct. 2002 http://www.consciencelaws.org/Examining-Conscience-Background/ Abortion/ BackAbortion29.html 35. http://www.cma.ca/index.cfm/ci_id/3218/la_id/1.htm 36. Pharmacists in Religious Community Balking at Plan B Pill in The Daily Herald Tribune, Jan. 31, 2006, p. 7. (Lexis) 37. David McLennan, It's not over say abortion adversaries Canberra Times. Aug. 24, 2002, C3. (Lexis) 38. http://www.childrenbychoice.org.au/nwww/auslawprac.htm 39. Miranda Wood Morning-after Pill Available over the Counter in The Age Dec. 28, 2003 40. Patrick Goodenough, Objecting Pharmacists Refuse to Sell 'Morning-After-Pill' Cybercast News Service Jan. 6, 2004 41. Danielle Cronin, Morning After Pill Refused: 'Battleground' over Contraceptives Supply in Canberra Times. April 2, 2005 A9. (Lexis) 42. Bill Walsh, Wording Bolsters Foes of Abortion: Women in Senate are Ready to Fight It in Times Picayune Nov. 29, 2004, National 1, (Lexis). 43. http://www.nrlc.org/federal/ANDA/HydeWeldonwebnrlnews.html 32 44. Ibid. 45. States look at pharmacist 'conscience' laws regarding EC in Drug Formulary Review Aug. 1, 2006, (Lexis). 46. Susan Haigh, Connecticut Bishops Pursuing Stricter Interpretation of Abortion, Associated Press, March 12, 2006, (Lexis). 47. http://www.projectreach.org/nycDoctors.shtml 48. http://www.nccbuscc.org/prolife/issues/abortion/kansas202.htm
II. XIII General Assembly Program of the Preparatory Meeting of September 29-30, 2006 Casa Bonus Pastor Vatican City Political Obligations, Moral Conscience, and Human Life Robert P. George McCormick Professor of Jurisprudence Princeton University
The Catholic Church proclaims the principle that every human being-without regard to race, sex, or ethnicity, and equally without regard to age, size, stage of development, or condition of dependency-is entitled to the full protection of the laws. The Church teaches that human beings at every stage of development-including those at the embryonic and fetal stages-and those in every condition-including those who are mentally retarded or physically disabled, and those who are suffering from severe dementias or other memory and mind-impairing afflictions-possess fundamental human rights. Above all, each of us possesses the right to life. Now this teaching is disputed by some. There are those, including some Catholics, who deny that human embryos are human beings. They assert that and human embryo is merely "potential" human life, not nascent human life. The trouble with this position is not theological but scientific. It 2 flies in the face of the established facts of human embryology and developmental biology. A human embryo is not something distinct in kind from a human being-like a rock or potato or alligator. A human embryo is a human being at a particular, very early, stage of development. An embryo, even prior to implantation, is a whole, distinct, living member of the species Homo sapiens. The embryonic human being requires only what any human being at any stage of development requires for his or her survival, namely, adequate nutrition and an environment sufficiently hospitable to sustain life. From the beginning, each human being possesses-actually and not merely potentially-the genetic constitution and epigenetic primordia for self-directed development from the embryonic into and through the fetal, infant, child, and adolescent stages and into adulthood with his or her unity, determinateness, and identity intact. In this crucial respect, the embryo is quite unlike the gametes-that is, the sperm and ovum-whose union brought a new human being into existence.
You and I were never sperm or ova; those were genetically and functionally parts of other human beings. But each of us was once an embryo, just as each of us was once an adolescent, and before that a child, an infant, a fetus. Of course, in the embryonic, fetal, and infant stages we were highly vulnerable and dependent 3 creatures, but we were nevertheless complete, distinct human beings. As the leading textbooks in human embryology and developmental biology unanimously attest, we were not mere "clumps of cells," like moles or tumors. So the basic rights people possess simply by virtue of their humanity-including above all the right to life-we possessed even then. Another school of thought concedes that human embryos are human beings; however, it denies that all human beings are persons. There are, according to this school of thought, pre-personal and post-personal human beings, as well as severely retarded or damaged human beings who are not, never will be, and never were, persons. Proponents of this view insist that human beings in the embryonic and fetal stages are not yet persons. Indeed, logically consistent and unsentimental proponents say that even human infants are not yet persons, and therefore do not possess a right to life; hence, the willingness of Peter Singer, Michael Tooley, and others to countenance infanticide as well as abortion. Permanently comatose or severely retarded or demented human beings are also denied the status of persons. So euthanasia is said to be justified for human beings in these conditions. Although some who think along these lines will allow that human individuals whom they regard as "not yet persons" deserve a certain limited respect by virtue of the purely biological fact that they are living 4 members of the human species, they nevertheless insist that "pre-personal" humans do not possess a right to life that precludes them from being killed to benefit others or to advance the interests of society at large.
Only those human beings who have achieved and retain what are regarded as the defining attributes of personhood-whether those are considered to be detectable brain function, self-awareness, or immediately exercisable capacities for characteristically human mental functioning-possess a right to life. The trouble with this position is that it makes nonsense of our political, philosophical, and, for many of us, theological commitment to the principle that all human beings are equal in fundamental worth and dignity. It generates puzzles that simply cannot be resolved, such as the puzzle as to why this or that accidental quality which most human beings eventually acquire in the course of normal development but others do not, and which some retain and others lose, and which some have to a greater degree than others, should count as the criterion of "personhood." The superior position, surely, is that human beings possess equally an intrinsic dignity that is the moral ground of the equal right to life of all. This is a right possessed by every human being simply by virtue of his or her humanity. It does not depend on an individual's age, or size, or stage of development; nor can it be 5 erased by an individual's physical or mental infirmity or condition of dependency. It is what makes the life of even a severely retarded child equal in fundamental worth to the life of a Nobel prize-winning scientist. It explains why we may not licitly extract transplantable organs from such a child even to save the life of a brilliant physicist who is afflicted with a lifethreatening heart, liver, or kidney ailment. In any event, the position that all human beings equally possess fundamental human rights, including the right to life, is the definitively settled teaching of the Catholic Church. It is on this basis that the Church proclaims that the taking of human life in abortion, infanticide, embryodestructive research, euthanasia, and terrorism are always and everywhere gravely wrong. And there is more. For the Church also teaches that it is the solemn obligation of legislators and other public officials, as servants of the common good, to honor and protect the rights of all.
The principle of equality demands as a matter of strict justice that protection against lethal violence be extended by every political community to all who are within its jurisdiction. Those to whom the care of the community is entrusted-above all those who participate in making the community's laws-have primary responsibility for ensuring that the right to life is embodied in the laws and 6 effectively protected in practice. Notice, by the way, that the obligation of the public official is not to "enforce the teaching of the Catholic Church," it is, rather, to fulfill the demands of justice and the common good in light of the principle of the inherent and equal dignity of every member of the human family. Yet, today many Catholic politicians, including the Democratic leaders of both houses of the United States Congress and the Republican governor of New York and the former Republican governor of Pennsylvania, are staunch supporters of what they describe as a "woman's right to abortion." Most of these politicians also support the creation and government funding of an industry that would produce tens of thousands of human embryos by cloning for use in biomedical research in which these embryonic human beings would be destroyed. Catholic politicians in the United States and in other nations who support abortion and embryo-destructive research typically claim to be "personally opposed" to these practices but respectful of the rights of others who disagree to act on their own judgments of conscience without legal interference.
Former New York Governor Mario Cuomo famously articulated and defended this view in a speech at the University of Notre Dame in 1984. Recently, Cuomo revisited the issue, speaking in 7 Washington at a Forum on Politics and Faith in America. He offered an argument which, if successful, not only justifies Catholic politicians in supporting legal abortion and embryo-destructive research, but requires them to respect a right of people to engage in these practices despite their admitted moral wrongfulness. Cuomo asserted that holders of public office-including Catholic office-holders-have a responsibility "to create conditions under which all citizens are reasonably free to act according to their own religious beliefs, even when those acts conflict with Roman Catholic dogma regarding divorce, birth control, abortion, stem cell research, and even the existence of God." According to Cuomo, Catholics should support legalized abortion and embryo-destructive research, as he himself does, because in guaranteeing these rights to others, they guarantee their own right "to reject abortions, and to refuse to participate in or contribute to removing stem cells from embryos." But Cuomo's idea that the right "to reject" abortion and embryo-destructive experimentation entails a right of others, as a matter of religious liberty, to engage in these practices is simply, if spectacularly, fallacious. The fallacy comes into focus immediately if one considers whether the right of a Catholic (or Baptist, or Jew, or member of any other faith) to reject infanticide, slavery, and the exploitation of labor entails a 8 right of others who happen not to share these "religious" convictions to kill, enslave, and exploit.
By the expedient of classifying pro-life convictions about abortion and embryo-destructive experimentation as "Roman Catholic dogmas," Cuomo smuggles into the premises of his argument the controversial conclusion he is trying to prove. If pro-life principles were indeed merely dogmatic teachings-such as the teaching that Jesus of Nazareth is the only begotten Son of God-then according to the Church herself (not to mention American constitutional law and the law of many other republics) they could not legitimately be enforced by the coercive power of the State. The trouble for Cuomo is that pro-life principles are not mere matters of "dogma," nor are they understood as such by the Catholic Church, whose beliefs Cuomo claims to affirm, or by pro-life citizens, whether they happen to be Catholics, Protestants, Jews, Muslims, Hindus, Buddhists, agnostics, or atheists. Rather, pro-life citizens understand these principles and propose them to their fellow citizens as fundamental norms of justice and human rights that can be understood and affirmed even apart from claims of revelation and religious authority. It will not do to suggest, as Cuomo seems to suggest, that the sheer fact that the Catholic Church (or some other religious body) has a teaching 9 against these practices, and that some or even many people reject this teaching, means that laws prohibiting the killing of human beings in the embryonic and fetal stages violate the right to freedom of religion of those who do not accept the teaching. If that were anything other than a fallacy, then laws against killing infants, owning slaves, exploiting workers, and many other grave forms of injustice really would be violations of religious freedom.
Surely Cuomo would not wish to endorse that conclusion. Yet he provides no reason to distinguish those acts and practices putatively falling within the category of religious freedom from those falling outside it. So we must ask: If abortion is immunized against legal restriction on the ground that it is a matter of religious belief, how can it be that slavery is not similarly immunized? If today abortion cannot be prohibited without violating the right to religious freedom of people whose religions do not object to abortion, how can Cuomo say that the prohibition of slavery by the Thirteenth Amendment to the United States Constitution in 1866 did not violate the right to religious freedom of those in the nineteenth century whose religions did not condemn slaveholding? Cuomo says that the Catholic Church "understands that our public morality depends on a consensus view of right and wrong," but it would be scandalous to argue that Catholics should have opposed a 10 constitutional amendment abolishing slavery in the nineteenth century, or legislation protecting the civil rights of the oppressed descendants of slaves in the mid-twentieth century, on the ground that "prudence" or "realism" requires respect for "moral pluralism" where there is no "consensus" on questions of right and wrong. At one point at the forum on Politics and Faith, Cuomo suggested that laws against abortion and embryo-destructive research would force people who do not object to such things to practice the religion of people who do. But this is another fallacy. No one imagines that the constitutional prohibition of slavery forced those who believed in slaveholding to practice the religion of those who did not. Would Cuomo have us suppose that laws protecting workers against what he, in line with the solemn teaching of every pope from Leo XIII to Benedict XVI, considers to be exploitation and abuse have the effect of forcing non-Catholic factory owners to practice Catholicism?
At another point, in denying that there was any inconsistency between his willingness as governor to act on his anti-death penalty views but not on his antiabortion views, Cuomo denied ever having spoken against the death penalty as "a moral issue." He claimed, in fact, that he "seldom talk[s] in terms of moral issues" and that, when he speaks of the death penalty, he 11 never suggests that he considers it a moral issue. Then, in the very next sentence, he condemned the death penalty in the most explicitly, indeed flamboyantly, moralistic terms: "I am against the death penalty because I think it is bad and unfair. It is debasing. It is degenerate. It kills innocent people." He did not pause to consider that these are precisely the claims made by pro-life citizens against the policy of legal abortion and its public funding-a policy that Cuomo defends in the name of religious liberty. The fact is that Catholics and others who oppose abortion and embryo-destructive research oppose these practices for the same reason we oppose postnatal homicide. Pro-life citizens of every faith oppose these practices because they involve the deliberate killing of innocent human beings. Our ground for supporting the legal prohibition of abortion and embryo-destructive research is the same ground on which we support the legal prohibition of infanticide, for example, or the principle of noncombatant immunity even in justified wars. We subscribe to the proposition that all human beings are equal in worth and dignity and cannot be denied the right to protection against killing on the basis of age, size, stage of development, or condition of dependency. One cannot with moral integrity be "personally opposed" to abortion or embryo-destructive research yet support the legal permission of these 12 practices and even, their public funding as so many Catholic politicians do, including most Catholic Democrats and some Catholic Republicans in the United States.
For by supporting abortion and embryo-destructive research they unavoidably implicate themselves in the grave injustice of these practices. Of course, it is possible for a person wielding public power to use that power to establish or preserve a legal right to abortion, for example, while at the same time hoping that no one will exercise the right. But this does not get such a person off the moral hook. For someone who acts to protect legal abortion necessarily wills that abortion's unborn victims be denied the elementary legal protections against deliberate homicide that one favors for oneself and those whom one considers to be worthy of the law's protection. Thus one violates the most basic precept of normative social and political theory, the Golden Rule. One divides humanity into two classes: those whom one is willing to admit to the community of the commonly protected and those whom one wills to be excluded from it. By exposing members of the disfavored class to lethal violence, one deeply implicates oneself in the injustice of killing them-even if one sincerely hopes that no woman will act on her right to choose abortion. The goodness of what one hopes for does 13 not redeem the evil-the grave injustice-of what one wills. To suppose otherwise is to commit yet another fallacy. If my analysis so far is correct, the question arises: What should the leaders of the Church do about people like Cuomo and his successor as New York's Governor, Republican George Pataki who evidently takes the same position? What should they do about those who claim to be in full communion with the Church yet promote gravely unjust and scandalous policies that expose the unborn to the violence and injustice of abortion? In the run up to the last election, St. Louis Archbishop Raymond Burke offered an answer.
He declared that public officials who support abortion and other unjust attacks against innocent human life may not be admitted to Holy Communion, the preeminent sacrament of unity. Pro-life citizens of every religious persuasion applauded the Archbishop's stand. Critics, however, were quick to condemn Archbishop Burke. They denounced him for "crossing the line" separating church and state. But this is silly. In acting on his authority as a bishop to discipline members of his flock, who commit what the Church teaches are grave injustices against innocent human beings, Archbishop Burke is exercising his own constitutional right to the free exercise of religion; he is not 14 depriving others of their rights. Freedom is a two way street. No one is compelled by law to accept ecclesiastical authority. But Archbishop Burke-and anyone else in the United States of America or other freedomrespecting nations-has every right to exercise spiritual authority over anyone who chooses to accept it. There is a name for people who do accept the authority of Catholic bishops. They are called "Catholics." In many cases, the charge that Archbishop Burke and other bishops who adopt the policy of excluding pro-abortion politicians from Communion "are crossing the line separating church and state" is also hypocritical. A good example of this hypocrisy comes from the Bergen Record, a prominent newspaper in my home state of New Jersey. John Smith, the Bishop of Trenton, did not go as far as Raymond Burke had gone in forbidding proabortion Catholic politicians from receiving communion. Bishop Smith did, however, in the words of the Bergen Record, "publicly lash" Governor James McGreevey, a pro-abortion Catholic, for his support of abortion and embryo-destructive research.
For criticizing the Governor on these grounds, the Record lashed the Bishop in an April 25th editorial. The paper accused him of jeopardizing the delicate "balance" of our constitutional structure, contrasting Bishop Smith's position unfavorably with President John F. Kennedy's assurance to a group of Protestant ministers in Houston in 1960 15 that he, as a Catholic, would not govern the nation by appeal to his Catholic religious beliefs. Since the Record had seen fit to take us back to 1960 for guidance, I thought I would invite its editors to consider a case that had arisen only a few years earlier than that. In a letter to the editor, I proposed a question that would enable readers to determine immediately whether the editors of the Bergen Record were persons of strict principle or mere hypocrites. I reminded readers that in the 1950s, in the midst of the political conflict over segregation, Archbishop Joseph Rummel of New Orleans publicly informed Catholics that support for racial segregation was incompatible with Catholic teaching on the inherent dignity and equal rights of all human beings. Archbishop Rummel said that "racial segregation is morally wrong and sinful because it is a denial of the unity and solidarity of the human race as conceived by God in the creation of Adam and Eve." He warned Catholic public officials that support for segregation placed their souls in peril. Indeed, Rummel took the step of publicly excommunicating Leander Perez, one of the most powerful political bosses in Louisiana, and two others who promoted legislation designed to impede desegregation of diocesan schools. So I asked the editors of the Bergen Record: Was Archbishop Rummel wrong? Or do Catholic bishops "cross the line" and 16 jeopardize the delicate constitutional balance, only when their rebukes to politicians contradict the views of the editors of the Record? To their credit, the editors published my letter-but I am still waiting for them to reply to my question. Now, some good and sincere people have expressed concern that Archbishop Burke and bishops of similar mind are guilty of a double standard when it comes to demanding of politicians fidelity to Catholic teaching on justice and the common good.
They point out that the bishops who would deny communion to those who publicly support abortion and embryo-destructive research do not take the same stand against politicians who support the death penalty, which Pope John Paul II condemned in all but the rarest of circumstances, and the U.S. invasions of Iraq, of which the Pope and many other Vatican officials were sharply critical. The Catechism of the Catholic Church indeed teaches that the death penalty should not be used, except in circumstances so rare these days as to be, in words of the late pope, "practically non-existent." However, two points must be borne in mind in considering the obligations of Catholics and the question whether Catholic politicians who support the death penalty have in fact broken faith and communion with the Church. First, neither the Pope nor the Catechism places the death penalty on a par with abortion and other 17 forms of direct killing of the innocent. (Indeed, the Church will probably never equate the death penalty with these forms of homicide, even if it eventually issues a definitive condemnation of the practice.) Second, the status of the teaching differs from the status of the teaching on abortion. As John Paul II made clear in the great encyclical Evangelium Vitae, the teaching on abortion (as well as on euthanasia and all forms of direct killing of the innocent) is infallibly proposed by the ordinary and universal magisterium of the Church pursuant to the criteria of Lumen Gentium 25. The same is plainly not true of the developing teaching on the death penalty. Moreover, Cardinal Avery Dulles and others have interpreted the teaching against the death penalty as essentially a prudential judgment about its advisability, not a moral prohibition following from the application of a strict principle. As it happens, I don't agree with their analysis, but no one will be able to say with confidence from a Catholic point of view which side in this debate is right until the magisterium clarifies the teaching. So, it cannot be said that supporters of the death penalty are "obstinately persisting in manifest grave sin," and may or should be denied Holy Communion pursuant to Canon 915 of the Code of Canon Law. No one can legitimately claim for opposition to the death penalty the status of a definitively settled moral teaching of the Church. (Nor can one claim that the Church teaches or 18 will ever teach that the death penalty-except in cases where it is applied unjustly-involves the grave intrinsic injustice attaching to any act involving the direct killing of the innocent.)
Regarding the question of the U.S. invasions of Iraq, it is important to understand the precise terms of Catholic teaching on just and unjust warfare. These terms are set forth with clarity and precision in the Catechism. In line with the Church's historic teaching on the subject, neither Pope John Paul II nor Pope Benedict XVI has asserted that opposition to the war is binding on the consciences of Catholics. John Paul II's statements opposing the use of force in the run up to both invasions plainly questioned the prudential judgments of political leaders who, in the end, had and have the right and responsibility (according to the Catechism and the entire tradition of Catholic teaching on war and peace)) to make judgments as to whether force is in fact necessary. That is why the Pope and the bishops have not said, and will not say, that Catholic soldiers may not participate in the war. This contrasts with their clear teaching that Catholics may not participate in abortions or other forms of embryo-killing or support the use of taxpayer monies for activities involving the deliberate killing of innocent human beings. I wish to close with a word to those in politics and the media- 19 Catholics and non-Catholics alike-who have expressed anger, even outrage, at the world's Catholic bishops for teaching that the faithful must never implicate themselves in unjust killing by supporting legal abortion and embryo-destructive research. In scolding the bishops, the editors of the New York Times, for example, have insisted that "separation of church and state" means that no religious leader may presume to tell public officials what their positions may and may not be on matters of public policy. But if we shift the focus from abortion to, say, genocide, slavery, the exploitation of labor, or racial segregation we see how implausible such a view is. When Archbishop Rummel excommunicated the segregationist politicians in the 1950s, far from condemning the Archbishop, the editors of the New York Times praised him. They were right then; they are wrong now.
The most ancient writings from Greek literature, philosophy and dramaturgy, the philosophical writings of the Roman Stoics, and the books of the Old Testament give us the witness of men and women who at a decisive moment in their lives, required to make a personal choice of religious or moral importance, found themselves in the position of having to disobey the law of their country. Even if the concept of conscientious objection did not exist yet (we know that conscientious objection, in a strict sense, was theorized recently, just a little over a century ago, in relation to bearing and using arms in a military context), the reality of the act-to refuse to obey a civil law believed in conscience to be gravely unjust-appears to have always existed. One of the objectives of this report is to show the permanence over the ages of an inner human need that sometimes leads to risking one's life and judging that respect for divine laws and moral honor are values that prevail over one's own survival. Today recourse to conscientious objection has gone beyond the framework of the pacifist struggle to which it had been limited, not always without ideological influence, and been asserted in the areas of medicine and political activity. This undoubtedly calls for a differentiated, in-depth study, but also an analysis of the cultural and social conditions in which it is exercised. The witness of past centuries, at least until the end of the Middle Ages, seems linear and its contents easy to list. A general agreement existed regarding the values which were considered essential that gave foundation to political authority and social equilibriums: acceptance of duties to one's country and God, personal rules of behavior, the dignity of work, care for the family unit, filial piety, paternal authority, and many other aspects of life in society. It would be exaggerated to say that all these values have disappeared today, but realism compels us to note that they are no longer the object of unquestioned agreement; on the contrary, they are subject to continuous theoretical and practical questioning. Obviously, the attenuation and, in some cases, the disappearance of certain values necessarily elicits new social norms of 2 behavior. We are in the presence of social and political reference points that come from alternative philosophies and currents of ideas that have become more and more transversal to the cultures in a globalized world.
These ideas generate unusual judgments and behaviors insofar as they are based on truly revolutionary concepts of human nature marked by a kind of cultural relativism. We will take a look at some aspects of this. Ideological tolerance and conscientious objection One of these innovations is surely the current concept of tolerance which thrives because of a real ambiguity that will be seen later. To give a first idea of it, let us say that whereas the idea of patiently tolerating a temporary evil that is unavoidable for the moment without causing even greater damage, or calmly confronting contrary opinions has always signified a classic expression of the virtue of prudence and its reasonable expression, today tolerance has ceased to be a practical virtue because it claims to be on the level of a theoretical virtue. This claim is of a political essence, even if it has countless consequences in the order of ethos The concept of tolerance, like that of conscientious objection, also has a relatively recent history. It can be dated to the time of the Protestant Reformation. From Erasmus1 to Locke2 and Spinoza,3 from Bayle4 to Voltaire5 1 Despite his break with Luther, who had been his friend and whose seditious action he deplored, Erasmus became involved publicly so that violent methods would be avoided in the fight against the Reformation. He recommended a kind of political compromise that aimed at letting the regions practice their faith while waiting for an agreement to be made between the different parties. This is what earned the one who became the best friend of Thomas More a reputation for tolerance. In Erasmus, rather than a religious attitude, tolerance was the fruit of a kind of relativism, as has often been wrongly interpreted. 2 The Essay on Toleration (1667) is the first philosophical work on the subject of tolerance. In the period marked by the crises of the Reformation, Locke's position consists essentially in putting the parties back to back that had been confronting one another for more than a century, for reasons of civic peace inspired for him by Gospel teachings.
In a second Letter on tolerance, published in 1686, the English philosopher wrote the following: "Since you are pleased to inquire what are my thoughts about the mutual toleration of Christians in their different professions of religion, I must needs answer you freely that I esteem that toleration to be the chief characteristic mark of the true Church. For whatsoever some people boat of the antiquity of places and names, or of the pomp of their outward worship; others, of the reformation of their discipline; all, of the orthodoxy of their faith-for everyone is orthodox to himself-these things, and all others of this nature, are much rather marks of men striving for power and empire over one another than of the Church of Christ. Let anyone have never so true a claim to all these things, yet if he be destitute of charity, meekness, and good-will in general towards all mankind, even to those that are not Christians, he is certainly yet short of being a true Christian himself". (English text: http://oregonstate.edu/instruct/phl302/texts/locke/locke2/locket/ locke_toleration.html) An important step is taken in relation to Erasmus: orthodoxy is not granted to any religion. Locke, like every theoretically tolerant person, puts himself above the interested parties and gives some criteria that are authentic for him of true orthodoxy: someone who is tolerant is truly Christian. 3 Baruch Spinoza's tolerance, in his Tractatus theologico-politicus (1670), enounces an approach that is totally centered on individual freedom. In this sense, Spinoza is a great inspirer of current 3 in the age of the Enlightenment,6 it has been the subject of many subsequent, indepth studies and given different nuances.
It would not be fair not to try and list these precisely, but the semantic evolution of the term since Locke's Essay on Toleration in 1667 until our times shows that it has become a real political instrument that paradoxically contains some frightening forces of totalitarianism and exclusion. While the nature of the subject matter obliges us to consider simultaneously the two very distinct questions of conscientious objection and tolerance, we have to understand that the act of refusing in conscience to obey an unjust law is made today in a context of ideological tolerance which, by its nature, is not willing to support it. Our thesis is that an ideologically tolerant society cannot tolerate conscientious objection because in some way it escapes its control. This preliminary statement may be surprising: that is, stating that tolerance is intolerant is a paradox whose formulation may seem provocative and simplistic. However, an ideologically tolerant person is a little like Epimenides, the thinker whose fame has been handed down over the ages in the form of a paradox known as the Paradox of Epimenides: Epimenides the Cretan said: All Cretans are liars. subjectivist philosophies, many of which make reference to him. His idea is as follows: States must only be constituted on the basis of the freedom of individuals; this in turn gives grounds to the State's fundamental duty to safeguard it. No religious consideration should intervene in this because on this subject complete freedom of conscience prevails. Everyone has the right to judge and interpret religion; it is a personal matter. In this position, a philosophical origin can be found of the strict laicism that exists today in some Western democracies (France, Spain in particular). 4 Pierre Bayle (1647-1706), a French Calvinist, is considered one of the theoreticians of tolerance. His work entitled, Commentaire philosophique sur ces paroles de Jésus-Christ: Contrains-les d'entrer, unleashed a controversy around the idea of tolerance.
The Huguenot Pierre Jurieu responded in his Traité des deux souverains contre la tolerance universelle (1687). If Bayle has continued to be famous, it is because of his Dictionnaire historique et critique that defended the totally relativist thesis (or, more exactly, skeptic thesis according to which men are incapable of arriving at an absolute certitude. Hence an appeal for tolerance based on the primacy of personal conscience. In the event that this might be the pretext to carry out a persecution, it would have to be subject to reason. So Bayle grants reason the ability to judge the whole sphere of Revelation. His system thus develops an extreme rationalism. 5 6 Starting from the Enlightenment, tolerance has been at the heart of the message spread in political and economic elites by Masonic lodges. "Tolerance in the seventeenth century was conceived of as a conquest of human freedom vis-à-vis a religious position that would presume to legislate on good and evil. Roman Catholicism was the first to be targeted: faith approached in a negative way, in the eyes of a Mason as well as an Enlightenment philosopher, is that kind of blinding that allows suspicious minds to adhere naively to certain facts which reason cannot be kept from rejecting Interpreted in this way, faith can only give rise to a kind of sectarianism and fanaticism that has very often generated terror, which the Masons have no difficulty proving. Therefore, this exemplary virtue, tolerance, appears to be superior to faith". (N. Heamont, La Franc-Maçonnerie, Plon/Mame, Paris 1995, pp. 231-232.). 4 Epimenides is a Cretan. So Epimenides is a liar. So Cretans tell the truth So Epimenides tells the truth because he is a Cretan Since he tells the truth, all Cretans are not liars We can see that there is no end to this seesawing from one affirmation to its opposite. The reason is that when Epimenides makes the affirmation, he destroys the validity of the act of affirmation through its content.
By saying that all Cretans are liars, he calls himself a liar and therefore destroys the validity of his own affirmations. An ideologically tolerant person is a little bit like Epimenides. Why? By saying that all opinions are valid; he affirms as a general rule what is never more than one opinion among others, according to his own affirmation. How can he get out of this deadlock? Only through the force of the reply: If you contradict me when I say that all opinions are valid, you are a dangerous, intolerant person, to be fought by every means. In fact, the alternative--which would consist in saying: My tolerance is only one opinion among others--is not bearable for him. Ideological tolerance is meant to be imposed on everyone. For this reason we said it is of a political and not a moral essence, even if it makes an improper moral claim. Since such intolerance is really unconscious, it is exercised with even greater force. What tolerance cannot tolerate The paradox of the ideologically tolerant person is not a rhetorical exercise. It makes us understand that a society that declares itself, loud and clear, to be a tolerant society cannot bear or tolerate anything that endangers its unstable and contradictory equilibrium. In particular: - it does not tolerate the idea that there is a truth to be sought; - it does not tolerate that such a truth can have a universal character; - it calls for eliminating any in-depth discussions; in fact, in an in-depth discussion, the interlocutors may not be in agreement, but they have the common desire for a truth that is valid for all the parties in the discussion. In the ideologically tolerant society, the question of the search for truth is eliminated, and in doing this, an in-depth discussion is transformed into an exchange of relative ideas.
Each interlocutor informs the other about his ideas and is forbidden to consider them possibly valid for the others. They cease to be in-depth ideas. There are no stakes in the discussion; - it does not support the ethical implications of in-depth ideas; 5 - it always puts itself above in-depth discussions and demands the right, its own right, to judge the parties involved in their presence; in so doing, moreover, it does not exercise any real arbitration-which would be expected from an authentic political power-because its tolerant positions will always put it practically on the side of the positions of the more theoretically tolerant interlocutors, positions that are surely less disturbing for the consensual equilibrium which it intends to maintain. In a word, the tolerant society imposes a 'single thought'. It is in this sense that it is totalitarian and, without knowing it, paves the way for forms of totalitarianism, sometimes in very brief periods of time. For example, the proclamation of the revolutionary ideals of tolerance among the theoreticians of 1789 prepared the way in just three years for setting up a real regime of terror.7 Shortly afterwards, some priests tried in vain to make a form of conscientious objection understood that would have prevented them from taking an oath to the Constitution civile du clergé. The refusal of those who are called in a rather eloquent way the réfractaires earned them their death and, at best, exile with the loss of all their civil rights and possessions. The ideology of tolerance is not free from philosophical prejudices. It has been rightly stressed that the great theoreticians of tolerance at the time of the Protestant Reformation were for the most part skeptics.
This was particularly obvious for Bayle. The philosopher was not content with demanding the same rights for those who were in error as for those who were not. He went as far as to want to recognize the same status for erroneous doctrine as for expressions of truth: A conscience that errs ought to be able to assure its erroneous convictions the same privileges as those which an orthodox mind obtains for truth, he wrote in his Dictionary. To the objection that in this case one might be exposed to the torments of those whose consciences would oblige them to persecute others, Bayle could only respond by referring to the rational character of the moral conscience.8 He does this in a somewhat incantatory way without realizing the contradictio terminorum present in his theses: if conscience must obey reason, it is right for the latter to offer it some criteria of truth. It is for this reason that Bayle encountered the greatest opposition among the very ranks of his first partisans, for example, Jurieu. We have to be fair: Pierre Bayle was perfectly sincere in his desire to fight against the real intolerance of his time. He proved it by dedicating several chapters of his work to the abuses committed by his own Huguenot brothers 7 We will refer to the small critical synthesis, La Révolution ou la mort, which makes up Chapter 9 of the work by J. Sevillia, Le terrorisme intellectual, Perrin, Paris 2004 (2), pp. 156-167. 8 Cfr. H. Kamen in L'eveil de la tolérance (transl. J. Carlander), Hachette, Paris 1967, pp. 236-241. 6 against the Anabaptist minorities, the Catholics and also the Jews (the murder of Nicolas Antoine, who was strangled and burnt in Geneva in 1632). The position of Locke, the father of modern tolerance, is much more problematic than Bayle's. His concept was rather vast: he intended to open civil society up not only to the Jews, but also to the Muslims and even the pagans. However, he attached two reservations to this: Catholics and atheists were excluded from tolerance.9
Let us leave aside the exclusion of Catholics, which was undoubtedly conditioned very much by the prejudices that structured English society under James II. Let us note with interest, however, that the exclusion of atheists was based on Locke's idea that an atheist, even a virtuous one, cannot be committed either in relation to himself or in relation to others to remain virtuous; it is an inconsequential virtue because it denies the need for punishments or rewards in another world.10 So Locke's tolerance, which is sensitive to the role of civic bond exercised by religious beliefs, is not based on a nihilist, or even just a neutral concept of human society. In this it is distinguished from the ideological tolerance of contemporary secularized societies. If we want to find an answer now to the legitimate concern of Bayle, Locke and many others regarding the danger of forms of totalitarianism, we see that it cannot be found in a theoretical need for tolerance. Ideological tolerance is a false response.11 To say, in order to escape the totalitarian stranglehold, that all opinions are valid, would legitimize precisely what one would hope to avoid. The only truly realistic response from the philosophical standpoint is the positive affirmation of human dignity as a truth valid for all. This makes a real discussion possible because the interlocutor in any case is considered worthy: that is, he is the respected holder of this fundamental freedom that one intends to recognize in him. This attitude is really tolerant, we might say in the classic sense, respectful and patient, but it is not found in ideological tolerance because it supposes and affirms a universal truth. 9 Cfr. P. Thierry in La Tolérance, Société démocratique, opinions, vice set vertus, Puf, Paris 1997, pp. 35-57. 10 Ibid., p. 38. 11 "We live under the grip of a kind of moral terrorism a morality of convenience. The single thought, the single morality, moreover, are most often reactions of convenience. Once this was called conformism In a despotic regime, conformism can go in the direction of violence. In a democracy, it always goes in the direction of moderation.
The problem is that moderation can become despotic. Tocqueville explained it very well There is something totalitarian in the soft thought that governs us today". (P. Tesson in Un terrorism intellectual assez bienveillant. A subject taken up by D. Lensel in J.M. Chardon and D. Lensel, editors, La pensée unique. Le vrai process, Economica, Paris 1998, pp. 34-35. 7 If we avoid the search for a truth about man which, by its nature, is universal and can thus give foundation to the unconditional respect that should be given to his life regardless of its state, then concrete behaviors regarding man would no longer be regulated by the acceptance of a truth concerning his dignity, a truth that protects him. In reality, they would be regulated by a balance of ideological, political and financial forces. In actual fact, we can see that ideological tolerance abolishes the only viewpoint that respects human dignity. How, then, can we be surprised when, in the name of tolerance, the lives of children in their mothers' wombs are threatened and human embryos are manipulated? Anything becomes possible without unconditional respect for man. Invective, being a short circuit of reason, will overstep well-argued and fair discussion.12 Human dignity is found on a philosophical level; it is a fundamental fact that can contribute socially to bringing many different philosophical concepts closer, but at one condition: namely, the indifference that reduces fundamental choices to simple expressions of different opinions must be avoided. Human dignity, especially with regard to respect for human life, would call for a kind of prudence on the part of a politician who cannot morally legalize what many citizens consider an action unworthy of man. On the religious level, the concept of dignity also includes a vision of man as a created being. So from the Christian perspective, man finds his ultimate consistency in his nature as an image of God. He thus takes into consideration a certain design of the Creator that is readable in the facts of nature (with regard to life, these facts include, for example, the growth of the human being, the purposes of biological phenomena in the formation of the body). Believers cannot impose an understanding of vital phenomenon that explicitly includes a faith perspective. However, the contribution of faith is not inconsequential for human society. To stay with the example of human life, Christian faith and culture have certainly contributed to thinking about the coming into existence of a new human being as an event (or better, an advent). The rejection a prior by an ideologically tolerant society of the expression of this kind of sensitivity,13 can only lead to impoverishing the 12
This is what we observed at the time of the recent controversy over Telethon in France. Until the present, a real, serene and fair discussion has not taken place on the question of the ethics of the means used in biomedical research to make progress in the treatment of some diseases (in the case of Telethon, muscular dystrophy). 13 The public expression of a culture's sensitivity to the traditions of a country is no longer completely guaranteed in Western societies, as two recent incidents sadly show. In London, in December 2006, it was decided to abolish any mention of Christmas in the public celebrations for the end of the year to not offend the immigrant communities. In the North of Italy, a schoolteacher decided to not allow the children to sing the traditional Christmas carols for the same reason: to not offend the children attending that school. Beyond the act of violence of depriving the citizens of a country of legitimate 8 social awareness that human life, even in its very first instants, is a good to be respected unconditionally, protected and served. It is understandable that in this context life is trivialized and reduced more and more to a simple biological fact. In reality, ideological tolerance deprives the society of the specific contribution of philosophical and religious approaches which it refuses to include by preventing them from making their contributions to the common good. The loss of meaning of the objectivity of a judgment in conscience Ideological tolerance is always linked to an individualistic conception of the moral conscience whereby an individual who decides to act and adopt a particular behavior is seen as a kind of totally autonomous monad in his choices. The moral norm becomes a threat to freedom. At best, the norms from the moral authority, social tradition and magisterial instructions from a religious authority will be received as indicators that are no doubt interesting or stimulating opinions for reflection, but will not in any case be binding for the subject. From a perspective of this kind, the idea goes unheeded that a law, whether written or not,14 can be imposed on the subject because of the sheer force of the certain truth which that law can bring. The unwritten laws, to which Christian thought will refer with Saint Paul following Socrates and Sophocles, make it possible to integrate the rational requirement and divine law in a harmonious way.
On the other hand, since the very idea of unwritten laws present in the human heart is rejected a priori, any connection is irremediably excluded between God and conscience. In other words, God is chased away from the moral sphere and no longer granted the possibility to intervene in human action. Far beyond the ethical problem, we can see that for Christians, a whole concept of divine grace, its efficacy and power of justification of the spiritual being is put up for question. The individualistic conceptions, which are also by definition necessarily relativist, cannot leave the foundations of the faith intact. This relation between freedom and moral truth is not the only one to raise a problem in the tolerant view of conscience. All the problems of an erroneous conscience are also evaded; or the error of conscience is an access to their traditions, which are part of the common good, a totally deficient anthropology can be found behind this: namely, the importance is overlooked for the civic bond of safeguarding the festive aspects that have brought all the generations together for centuries. Moreover, this unconsciously hides a deep misunderstanding of the immigrant peoples by prejudging that they, as a whole, could take offence from the joyful celebration in their host country of a traditional festivity. 14 Second Vatican Council, Pastoral Constitution Gaudium et Spes, 16. 9 opportunity that makes it possible to act ordinarily without committing a moral fault;15 or the reality of moral error itself is denied by the very fact that the moral conscience is granted an infallible status thereby creating confusion between the two levels of conscience classically designated by the terms synderesis and conscientia.16 Since many of these aspects are treated extensively in Anthony Fisher's report, I will not develop them here. I will only stress one important dimension of the delicate and widely discussed question of the autonomy of the moral conscience: namely, there is a kind of sovereignty of the moral subject who, through his actions, decides about himself and his becoming as a man, whether virtuous or not, that has always been at the heart of classic thought.
Only the reasonable character of a judgment in conscience17 gives freedom the means to achieve its true autonomy by following the truth written into the moral good (in this sense, one commonly speaks about the freedom of the saints). A reasonable man, subject to Divine Providence, shares in this in some way. He has the ability to govern himself and to govern other beings. However, autonomy is often seen as an ability of the conscience to decide about the good. It affirms in this sense a kind of primacy of the subject's moral opinions, who can never err morally if he is sincere. At most, the possibility is admitted that he may make errors, but they are only considered errors of knowledge, in short, very comprehensible errors; and the moral conduct that follows is no longer blameworthy; it is described as inadequate or inappropriate. So the shift in meaning of the concept of autonomy of conscience is expressed in the semantic sliding of the language of ethics, which often impedes the formulation of value judgments about human behaviors. By way of example, and to stay in the area of autonomy, Carlo Caffarra has demonstrated well how speaking about a decision in conscience instead of the traditional term, judgment in conscience, contributes to eliminating any possibility of referring to criteria of truth in the sphere of action.18 15 "The erroneous conscience, which makes it possible to live an easier life and indicates a more human way, would thus be the real grace, the normal way to salvation. Non truth, remaining far from truth, would be better for man than truth". (J. Ratzinger, Coscienza e Verità in La Chiesa. Una comunità sempre in cammino, Paoline, Cinisella Balsamo 1991, pp. 113-137.). 16 Note that in the article mentioned earlier, J. Ratzinger proposed to substitute the first of these terms, which is rather obscure and somewhat accessible in his opinion, with anamnesis, which has the merit of being clearer and deeper, and also particularly suited to the language of biblical anthropology (Ibid., pp. 122ss). 17 "Rationalis creatura ( ) sic divinae providentiae subditur quod etiam similtudinem quondam divinae providentiae participat, inquantum se in suis actibus et alia gubernare potest. Id autem quo aliquorum actus gubernantur, dicitur lex. Conveniens igitur fuit hominibus a Deo legem dari" (St. Thomas Aquinas, Contra Gentes, III, 114). 18 Carlo Caffarra, L'autonomia della coscienza e la sottomissione alla verità in AA.VV., La coscienza, International Conference sponsored by the Wethersfield Institute of New York, Orvieto, May 27-28, 1994, Libreria Editrice Vaticana, Vatican City 1996, pp. 142-162. 10 The dual stakes of conscientious objection The inner discussion that proceeds any subsequent moral decision is, upon its visible and public manifestation, a deliberation, a practical judgment that refers to what one proposes to do (or with regard to conscientious objection, not to do). To choose not to do something is also a moral act with regard to the well defined object: to object is to perform an act of refusal by reason of convictions that are sufficiently important to be referred to the personal conscience.19 We do not object to obeying a positive law only because we do not like that law or because we are of a different opinion than the lawmaker. Positive laws are binding when they come from the legitimate authority to which we are subject.
They make up the legislative order that must assure justice among the citizens, regulate their relations and the proper organization of their roles and functions in all areas of social life: economy, education, health, culture, information. Laws are binding because they are supposed to protect goods and rights in a perspective, in principle, of protection and promotion of the common good. The reasons for disobeying a positive law must be capable of being referred to the solicitation of the conscience where laws other than the positive law enter into play. They are distinguished from positive law insofar as they are not subject to change like human laws; they are immutable laws and commit the totality of the person. Here are some examples that posterity has left us: a) Socrates' condemnation to death. We can ask the question: How could putting the philosopher to death have been the work of the first democratic government in history? It is not without interest to look at the political and cultural context of this trial because it does not lack similarities with the Western context at the beginning of the twenty-first century. Athens was left battered and bloodless after a war that cost the lives of nearly a quarter of its population (the Peloponnesian War). Although two attempts to overturn the democratic power failed, the intellectual discussions were still animated by the Sophists' paradoxes. Their art, inherited from Ionian rationalism, consisted in putting up for question all the foundations of the city, in particular, the gods and the laws. By introducing doubt about everything that had contributed to the glory of Athens in the age of Pericles, they were considered a threat. By playing on Socrates' original character and the impact of his teaching, his accusers managed to formulate two charges against him-- 19 J. Ratzinger, art. cit. 11 corruption of youth and belief in gods who were not those of the city--and have him condemned to death after a trial from which the condemned's admirable plea has passed on to posterity. His death was voted by a majority of 280 votes to 221: a first democratic consensus for a work of death! In his defense, the philosopher put forward the rectitude of his own conscience and said that in death he had a more enviable destiny than those who condemned him unjustly: "I would have you know, that if you kill such a one as I am, you will injure yourselves more than you will injure me. Nothing will injure me, not Meletus nor yet Anytus, they cannot, for a bad man is not permitted to injure a better than himself". Earthly goods and life itself did not seem to him to have the dignity of a pure conscience: "I do not deny that Anytus may, perhaps, injure me; and he may imagine, and others may imagine, that he is inflicting a great injury: but there I do not agree. For the evil of doing as he is doing, the evil of unjustly taking away the life of another is greater far".20 We can ask what made death in Socrates' eyes a more enviable fate than the injustice of condemning someone who is innocent. Here religious sentiment joins moral conviction and gives it all its perspective. This involved the judgment of the gods and all those who preceded us in Hades: "If indeed when the pilgrim arrives in the world below, he is delivered from the professors of justice in this world, and finds the true judges who are said to give judgment there that pilgrimage will be worth taking. What would not a man give if he might converse with Orpheus and Musaeus and Hesiod and Homer? May, if this be true, let me die again and again!21 b) The confrontation between Creon and Antigone This unity between moral requirements and religious duties is found in Sophocles' character, Antigone.
The drama opposes two wills: that of Antigone, who intended to bury her brother Polynices, and that of Creon, the King of Thebes, who thus incarnated the positive law. The context is a fratricidal war that set his two sons against one another: Eteocles, who was destined to reign, and Polynices, exiled by Creon, who attacked the city. The two brothers are killed. The king decides to honor the younger as a hero and refuse burial to the elder. The order becomes law: his body is abandoned to the dogs; anyone who tries to bury him will be condemned to death. Antigone is surprised by the guards as she covers her brother's body, and so she is brought before Creon, who actually has her imprisoned while waiting to put her to death. It is only 20 Plato, The Apology of Socrates, 30c and 30d (English translation: http://www.wsu.edu/- dee/GREECE/APOLOGY:HTM). 21 Ibid., 41a. 12 through the intercession of his forecaster with his dark predictions because the gods are angry about the situation that Creon withdraws, gives a burial to Polynices and decides to let Antigone free. But his remorse comes too late: Antigone hangs herself in prison. Haemon, the son of Creon and fiancé of Antigone, puts an end to his days. Eurydice, Creon's wife and Haemon's mother, commits suicide too when she learns of her child's death. In this way Creon loses everything. All he can hope for is a liberating death. The dialogue between Creon and his daughter merits attention. Before the blind, unjust force of the law, she makes herself the advocate of the rights of the Phusis, the demands of nature, which express the will of the gods. The dialogue presents with great clarity the opposition between the two concepts of duty and in this sense it is strikingly up-to-date. Creon expresses a viewpoint that pertains to all positivists: "No. We must obey whatever man the city puts in charge, no matter what the issue-great or small, just or unjust. For there's no greater evil than a lack of leadership.
That destroys whole cities, turns households into ruins, and in war makes soldiers break and run away. When men succeed, what keeps their lives secure in almost every case is their obedience. Until one dies the best things well may be to follow our established laws". Before the king, Antigone presents her views in this way: "I did not think anything which you proclaimed strong enough to let a mortal override the gods and their unwritten and unchanging laws. They're not just for today or yesterday, but exist forever, and no one knows where they first appeared". The antagonism is complete: divine laws against human laws, temporal decrees and unwritten, eternal laws. Note that Antigone, in referring to the gods, also evokes the precept of a law of nature: Under no pretext can a man's body be left unburied. Here nature reflects the will of those to whom it is subject, the gods. Conscientious objection joins religious duty in a natural way because the latter rightly imposes itself on the conscience: it is good, it is right, it is just to obey the gods. Antigone puts in parallel the physical and moral sufferings of the conscience that disobeys the gods: "And so for me meeting this fate won't bring any pain. But if I'd allowed my own mother's dead son to just lie there, an unburied corpse, then I'd feel distress".22 c) Seneca or the sacred character of the duty in conscience Despite the justification of suicide that we find in Rome among the Stoics-- an action that was condemned by minds as different as Pythagoras, Plato, Cicero and Plotinus--the conviction is present that men are destined to respond for their 22 Sophocles, Antigone, II, Sc. 3, 462-470. 13 actions one day before the gods. For Seneca, there is no possibility for man to be elevated above his destiny without a god, and, without him, to become really good. The conscience's need to act well enters into the perspective of having to make an account to the divinity one day.23 Once again we find the unity between the two dimensions, religious and moral, of the need to lead a virtuous life, regardless of the cost. d) The witness given to the one God as a reason for religious conscientious objection: the seven brothers of the Book of Maccabees From a directly religious perspective since it takes place in the ritual act par excellence, the seven brothers of the Book of Maccabees offer the perfect example of conscientious objection. While of religious essence, their approach is also profoundly moral. Their refusal to eat sacrilegious meat offers them the occasion to give the witness of martyrdom.
Before dying, each one of the seven brothers expresses his submission to the laws of his country and his certainty that he will receive compensation from God. God will bring about all justice in chastising the unholy persecutors. Observe that in their case, as in that of Eleazar who proceeded them in death, there is also witness to the one God as the youngest of the brothers expresses in accepting the torment: "I too, like my brothers, surrender my body and life for the laws of my ancestors, calling on God to show his kindness to our nation".24 To give witness to God is a requirement of their conscience. It is also interesting to note the elderly Eleazar's concern to not give bad example to the young who could be confused if it appeared acceptable to eat the sacrilegious meat, as he was being persuaded to do. In this example, conscientious clearly includes a responsibility for others. This is added to the perfection of wanting to keep oneself personally pure from all compromise of principle. e) The structure of believers' freedom From the beginning, Christians have found themselves in an awkward position in relation to the Jewish and then the Roman law. Obviously, their witness is first and foremost of a religious essence, which explains the outbreak of the persecutions. It was through Gamaliel's intervention that the Apostles around Peter escaped the anger of the Sanhedrin that wanted to put them to death. The crime was disobeying the order to not teach in the name of Jesus any more. Peter answers by giving one absolute rule of discernment: It is better to obey God rather than men, a principle that would accompany all baptized 23 Seneca, Ad Lucilius, IV, XII, 41. 24 2 Mac 7:37. 14 persons after him. Then, the Apostle adds, this formulates the kerygma whereby he and his companions are witnesses with the Holy Spirit whom God gives to those who submit to Him. These words recounted by the Acts of the Apostles provide the structure of what would become for Christians the specific conscientious objection that can lead to martyrdom. It expresses the believer's freedom.25 The following elements make up its structure: 1. The divine laws take precedence; 2. Only when a human law formally contracts divine law a believer can be in a situation to disobey; 3. The witness transmits a precise truth about God:26 to teach in the name of Jesus; 4. The witness is made possible through the power and help of the Holy Spirit; 5. A believer cannot shrink back: objection is a duty in conscience precisely because the Gift of the Holy Spirit is given to him. f) To not sacrifice to idols, to not recognize false gods: Saint Philias and Saint Cyprian By now, the witness given by the Christians ready for martyrdom will include all the same elements. There are plenty of examples: under the persecution of Diocletian, in the year 304, Saint Philias was interrogated by the President of the Court, Culcien, who ordered him to sacrifice to the gods. - I will not make the sacrifice, Philias answers. - Are you acting in this way because of a scruple in conscience? - Precisely for that reason. - Why then don't you observe with the same scruple in conscience the duties to your children and your wife? Philias responds: - Because the duties to God are more important than the others. To give witness to the true God by refraining from worshiping idols is indeed a duty in conscience for Philias.27 25 M. Schooyans, Le terrorisme à visage humain, F.X. de Guibert, Paris 2006, p. 112. 26
See in this regard the opposing positions of J. Assmann and J. Ratzinger, regarding the former's affirmation that religious intolerance dates back to the Exodus when Moses affirmed the existence of the One True God. Assmann sees in this the origin of ethical intolerance because this God gives instructions to men (Decalogue). The latter shows that the question of truth was not invented by Moses. It inevitably arises when the conscience arrives at certain maturation (J. Ratzinger, Fede, Verità, Tolleranza, Cantagalli 2003, pp. 223-275). 27 Martyrdom of Saints Philias and Philorome (in Actes des Martyrs, Italian ed.: Atti dei Martiri, Paoline, Milan 1985, p. 753). 15 The martyrdom of Saint Cyprian is well known. What is known less is that the bishop of Carthage had to suffer exile following a previous appearance before the court. During that first interrogation, the future martyr relates doing God's will to the rectitude of the one to whom God has revealed himself. To the Proconsul Paternus who asks him, Do you persist in this will (= to not make sacrifice to the gods)? Cyprian responds, The upright will that knows God cannot change. Sometimes it has been stated, as Voltaire did in his times, that these persecutions really came from the Empire's need to keep the spread of Christian doctrine from weakening the unity of the Empire. The philosopher even adds that this was not a sign of intolerance. Here we find an illustration of what we said in the beginning about eliminating the real questions. If the Christians had not claimed a universal doctrine of salvation, their religion would have taken its place with the other religions that were tolerated in the Empire. For this reason, it would have been sufficient for them to recognize the Roman rituals while practicing their religion. This is precisely what is unacceptable for real Christians and hence what Cyprian and the others rejected. In the interrogation before his exile, Cyprian formulated what was expected of him in this way: - The three holy emperors Valerian and Gallienus have deemed to send me a letter in which they ordered that all those who do not practice the Roman religion should recognize its rituals. What do you answer to me? - I am a Christian and a bishop, said Cyprian, I do not know any other god than the one true God who created heaven and earth, the sea and everything contained in it.28 We note that the martyrs' witness on which the Church of the first centuries was founded, makes it possible to understand the opposite act of counter-witness represented by apostasy and the idolatrous worship of the Roman gods. Note that among the lapsi in the Christians' eyes there were not only those who abandoned the one God, but also those who seemed to do so by making sacrifices to the gods of the Empire. Cyprian's attitude raises a question that is very up-to-date and worthy of an ideologically tolerant society. It is precisely the subject of the famous controversy that put Saint Ambrose in opposition to Symmachus: Why wouldn't the Christians recognize the Roman gods since Rome allowed them 28 Ibid., p. 467. 16 to practice their own religion?29 Voltaire did not hesitate to say, in his A Treatise on Tolerance, that in his eyes, the Roman Empire proved to be tolerant towards all, and added that it was the Christians who proved to be intolerant,30 by not abiding with the gods of the city.
After these pages, which have never been the subject of a critical, coherent examination by historians and philosophers, the accusation against Christianity of being intolerant has been taken up continuously down to our own times. According to the Enlightenment philosopher's thinking, the Christians could and should have tolerated the Roman gods. We can extrapolate, without going too far, that in this way they would not have disturbed the tolerant order of imperial society. In spite of the specious character of the reasoning, this kind of accusation shows in the least that from the rise and spread of its ideas, ideological tolerance saw an adversary in Christianity to be fought from the outset. As we shall see later, this observation does not prejudge other positive aspects in the reflection on the theme of tolerance. The fact remains, however, that in its exaggerated expression, it is indeed with regard to Christian thought that the tolerant ideology will reserve its most violent attacks. g) The Letter to Diognetus or the moral coherence of the Christian faith In any case, the faithful defense of doctrine and the limpid witness of the martyrs will allow Christians to give coherent and credible example of a rule of life that excludes some practices. Moral uprightness and rectitude of will are inseparably linked to the witness given to the true God. Some of them will raise objections to carrying out certain activities (for example, bearing 29 The controversy had to do with the question of knowing if it was fitting, beyond the restoration of the Altar of Victory, to re-establish the pagan religions. Symmach preached tolerance on this point, while Ambrose proved to be intractable on the grounds that a Christian cannot recognize false gods (St. Ambrose, Letters XVII and XVIII; Symmachus, Relation III, in Ital. ed., La maschera della tolleranza, Bur, Milan 2006). 30 "What! The Romans would have suffered because the infamous Antinoü was put on the level of the second gods, and would have torn and handed over to the beasts all those who were only reproached for having peacefully adored a just man! What! They would have recognized a supreme God, a sovereign God, the master of all the secondary gods, affirmed by this formula: Deus optimus maximum; and they would have sought those who adored only one God! It is unbelievable that there was an inquisition against the Christians under the emperors: that is, that someone went to their homes to question them about their religion. Neither Jew, nor Syrian, nor Egyptian, neither Bards, Druids nor philosophers were ever troubled about that article. So the martyrs were the ones who rose up against the false gods.
It is a very just, very pious thing to not believe in them; but in the end if they were not content to adore a God in spirit and truth and manifested violently against the religion received, as absurd as it could have been, we are obliged to admit that they themselves were intolerant" (Voltaire in Traité sur la tolérance, Ed. Garnier-Flammarion, Paris 1989, Chapt. IX, pp. 70-71). 17 arms, as will be the case for the Christian apologist Lactantius and for Tertullian). But all show respect for the laws of the city as long as they do not contradict the moral requirement. This is the description of the disciples of Christ made by the Letter to Diognetus:" As citizens, they share in all things with others, and yet endure all things as if foreigners They marry, as do all; they beget children, but they do not destroy their offspring. They have a common table They obey the prescribed laws, and at the same time surpass the laws by their lives".31 h) Fidelity to the Church as the content of a Christian's conscientious objection: the case of Thomas More Christians know by now that they can be compelled by the pressure of events to choose the narrow way that leads them to not deny their faith. Saint Thomas More undoubtedly constitutes the most striking example in early modern times of conscientious objection for religious reasons, and more particularly, religious belonging. After abandoning his wife, as we know, to marry Anne Boleyn, King Henry VIII needed to have his marriage annulled under pain not only of excommunication, but also of having to face insoluble problems of succession. When Rome, solicited by Catherine of Aragon, rejected the annulment of his marriage (March 23, 1534), the legitimacy of the royal succession of any children that would be born from the king's marriage to Anne Boleyn was immediately put up for question. The king reacted by having his Parliament adopt a new law regarding the succession of the English Crown. Anyone who rejected its content would be declared a felon (traitor). Every high functionary had to take an oath: the members of the Communes as well as those of the House of Lords. Only bishop Fisher refused to do this among the Lords.
As a matter of fact, there were two different oaths: one had to do with the royal succession and was addressed to the laymen; the other was destined to the clergy on whom abolition of all papal authority in England was imposed. When More is judged, he raises the invalidity of the law of succession with regard to natural law. But the question of succession was not the only one raised to Thomas More. In fact, when he was presented the text of the oath, he discovered that he was compelled not only to approve the royal succession, but also the king's authority over the Church of England. We know from his son-in-law Roper how difficult his inner struggle was. Thomas, in fact, had to resist the affection of his loved ones until the moment 31 Letter to Diognetus, V, 6-10. 18 he was summoned to take the oath in Lambeth. He had the courage to contest the illegal character of the dual oath that was expected of him. He was explicitly asked to favor his duty of obedience to the sovereign over his doubts and his conscience. He answered that he was compelled to obey his conscience rather than the king, but that he did not wish to condemn anyone. The episcopate, in fact, had already renounced its tie to Rome, with the exception of Fisher. Thomas was later imprisoned for contumacy. The firmness he demonstrated until the end was accompanied by a very keen sense of his own weakness. In this way, the example he gives of conscientious objection, which is profoundly Christian in its motivations, is first of all the expression of a divine gift: I can only hope that recourse will not be made to violent means of coercion and, moreover, if that was the case, that God with the help of his grace as well as that of the many prayers of faithful people will give me the strength to stay firm For of this I am entirely certain: if ever I would make an oath, I would act entirely against my personal conscience.32 More demonstrates that the right to object to an unjust law is not the fruit of a haughty decision on the part of someone who puts himself above the law. Moreover, the difficulty, as in the previous case, in exercising it in stages, so to speak, proves that martyrdom is never chosen a priori. It represents the arrival point of a course of action that is careful at every stage to find a solution that safeguards the rights of conscience and, if possible, at the same time, respect for authority.
Thomas More was not a revolutionary. His actions were not first of all political in nature. Thomas More did not escape from any of the obligations that were made on him: he went to Lambeth when he was convoked, he gave witness to respect and deference to his sovereign, and he did not avoid any of the formal obligations required of him, except for the precise subject of his objection: the rejection of the pope's authority. At no time did he contest the legitimacy of the legislator as such: the objection only has bearing on the subject of the law that is considered unjust. As for every authentic conscientious objector, his passivity and docility with regard to the sanctions incurred impede considering him a traitor or a rebel. Only his assumed impotence attests to his attachment to the State whose sovereign authority and power to legislate he recognizes.33 The refusal to act against one's conscience has naturally developed over the ages in a Christian compost. As we have seen, it has concerned subjects 32 Quoted by E.M. Ganne, Thomas More. L'homme complet de la Renaissance, Nouvelle cité, Coll. Historiques, Montrouge 2002, p. 216. 33 Cfr. M. Broc - R. Pietra in L'objection de conscience, Esprit 10 (October 1963), 375. 19 as different as bearing arms, denial of faith, and laws against the Church on the part of the temporal authority. Behind the rejection of a law or disobedience to an immoral order, a force is always present which, beyond the firmness of personal witness, is undergone and interpreted by the civil authority as a potential threat. The refusal of the adolescent martyrs of Uganda, for example, not to bend to the king's immoral whims was interpreted and judged as a crime of lese-majesty (a crime against royalty or a sovereign power). The secularization of conscientious objection: modern times By its nature, conscientious objection is exposed to retaliation and sanctions unless it is codified by the law. Conscientious objection in modern times has become secularized and taken definitive shape around two specific themes.
The first is military service, the civil obligation required by most legislations which calls for all young adults to serve a certain period of time in the armed forces. Such service involves learning to use arms in the event that the country will be exposed to an armed conflict. The refusal of this possibility by those who are called conscientious objectors has given rise to a codification that was the result of a long evolution over more than a century. The status of conscientious objection, the cultural and political context in the West where this action has been legitimated by law, and the object of what has often become a demand of a political nature, requires us to compare it with traditional conscientious objection. The second area of application is recent and for less than half a century has concerned the issue of the practice of decriminalized and then legalized abortion. The fact that procured abortion is not only tolerated but also recognized as a right and an individual freedom creates a totally unprecedented situation in the history of public expressions of the demands of personal conscience: it is the subject of a positive right that becomes the object of conscientious objection. Let us examine two more recent forms of conscientious objection: a) Military service: Christian objectors have found the foundations of their position in Scripture: the Fifth Commandment, the teaching about loving one's enemies, Jesus' order to Peter to put the sword back in the sheath (Cfr. Jn 18:11). The prospect of performing an action, shedding blood, against their own conscience 20 has convinced them that they will incur the severity of divine justice on Judgment Day, according to the saying of Pope Gelasius in his letter to Emperor Anastasius: Quicquid fit contra conscientiam adeificat ad gehennam.34 However, refusing to bear arms has never been an attitude shared by all Christian consciences. With the reign of Constantine, the legitimate character seems to be affirmed of the State's need to use all means-and hence the force of soldiers-to safeguard the common good. The sovereign's authority comes from God and there is no opposition in principle between the evangelical precepts and the citizen's duties. The protection of the common good is the responsibility of every citizen and a Christian is also a citizen. In no place in the Gospel can we see, for example, Christ reproaching the Roman centurions (and yet, they were the occupants) for the nature of their service. We know that only a contemporary, ideological re-reading of the Constantine era interprets, as a compromise of principle with the Empire, Christian thought on the temporal authority, which began to be systematized then, following Saint Ambrose and Saint Augustine. Medieval reflection will strive to show that circumstances exist in which war conducted by a sovereign State can prove to be just.35
The protection of its subjects, and the integrity of its territorial limits in the event of unjust aggression are two examples of this. In actual fact, the refusal to bear arms among Christians has had more to do with currents in the Anglo-Saxon countries that came from churches which sprang from the Reformation: Anabaptists, Mennonites, and Quakers. Dispensation from military service for religious reasons existed in the sixteenth century in some European regimes. For example, the Dutch Mennonites and later those in Russia enjoyed freedom of worship accompanied by a dispensation from the duty to serve in the armed forces. However, this concession was not, strictly speaking, inspired by philosophical reasons. It was part of the usual exemptions granted as privileges in different juridical, civil and religious areas. These communities ran their own religion, courts and schools. So it was in favor of the Mennonites that the first civil service to substitute military service was granted and created in Russia in 1875. The objectors had to take part in forestry work. Their number never exceeded a thousand. It was 34 PP. Gelasius, Epistola VIII, Ad Anastasium imperatorem, PL LIX, col 42. 35 Extrapolating the Roman idea of just war (justum bellum)--a purely formal idea inasmuch as war was considered just that was declared according to the well-known rituals carried out by magistrates empowered to do so--Christian thought with Saint Augustine and later with Saint Thomas would specify the conditions of just war: it can only be declared by the competent authority, there must be a just cause (requirement of punitive justice), and, lastly, it must have an upright intention: war cannot have any other purpose than the reestablishment of peace and justice. 21 only in the beginning of the twentieth century that provisions in favor of objectors were made in different countries, but on the condition that their requests would be presented individually. We mention Sweden (1902), Australia (1903), South Africa (1912), Great Britain (1916), Canada, the United States and Denmark (1917), Norway in 1922, and the Netherlands in 1923. The interested parties had the choice between unarmed military service and civil service. Very soon a considerable part36 of the objectors refused any assignment at all and made an absolutist choice. The same phenomenon could be seen all over. In some countries, the lawmakers were very late in providing a statute. This is the case of France which waited until December 21, 1963 to vote on an original status for objectors.
Previously, the refusal to do military service was harshly sanctioned by law and punishments of imprisonment were usually inflicted. The country had to confront the question because of the rapid development of the objection movement, which was favored, among other things, by the Jehovah's Witnesses in the difficult context of the Algerian War. The 1963 law was equivocal: on the one hand, it recognized the right to objection demanded by a part of the population (it was in fact a small minority at the time) and resolved the questions of the objectors who were still in prison; on the other, it surrounded this right with such constraining administrative conditions that it made it a shameful right, we might say, through very dissuasive measures (doubling the time period of civil service in relation to military service, prohibition of making publicity about it; moreover, the request was not accepted if it was not presented many months before the date of induction). The abolition of compulsory military service as a result of creating professional armed forces has made the question less acute in many countries. It has shifted to other areas of social life and become more and more politicized. In reality, these difficulties in making laws express the fact that the secularization of conscientious objection at the end of the nineteenth century often brought a deviation in the meaning of this course of action. To obvious cases of refusal authentically inspired by scruples in conscience of religious origin, motivations of a philosophical and especially a political order were soon added. It is commonplace to say that conscientious objection has found in the antimilitarism linked to the anarchist current37 a matrix that contributes to making it an issue of political action. Hard-line pacifism, the theory of nonviolence and civil disobedience have given rise for some decades to the creation 36
According to J.P. Cattelain, the absolutist choice concerned, by way of example, 6,261 objectors out of a total of 15,925 in Great Britain for the period 1916-1918. The statistics that we give are taken from his historic work on the subject (J.P. Cattelain, L'objection de conscience, PUF, Coll. Que saisje?, Paris 1973, pp. 50ss). 37 All the organized movements of conscientious objectors refer to historical figures of anarchism for which any demand on the part of a State is inadmissible. 22 of a host of movements, associations and publications in the West that share the demand for a more and more extended recognition of the right to objection. The demands of conscience sometimes pave the way for political and ideological convictions and turn quite simply into opinions. Today, most objectors invoke non-violence and are involved in causes that have become public issues in political life: the struggles against the arms industry, against nuclear energy, against internationalization. Conscientious objection has become pure political objection: it is no longer a question of refusing, for reasons of conscience, personal participation in military activities that would require bearing arms, but rather of militating-and sometimes not without violence-against a whole political and economic system in force in the Western countries. In the most extreme cases, the mere fact that constituted bodies-the army, Civil Service, the Church-are hierarchized, is sufficient to consider them enemies to be defeated. Then the political choice becomes, in Cattelain's words, a libertarian choice.38 The ambiguity of the concepts used explains the difficulties encountered by the legislator in setting down the objective criteria of the status of objectors. Can the refusal to do military service be based on adherence to somewhat imprecise values (non-violence, for example), or even philosophical opinions? Where is the limit? We know that in many countries legislators have made a limitation that only recognizes objection inspired by religious requirements. This fact constitutes a paradox in the sense that, in the final recourse, it is indeed personal conscience that ought to inspire the attitude of objection. To obey religious prescriptions is also a moral duty, but to limit the right to religious motivations would come back to exclude those who may be very sincerely motivated by moral reasons. Having said this, the development of ideologies illustrated earlier and the tribunal they find in many media show how necessary the distinction was between moral requirements and simple political opinions, which was expressed in the beginning by the severity of the law.
This makes it possible to understand the animated discussions that have surrounded the consideration of the second modern form of conscientious objection regarding questions in biomedical ethics directly related to the problems of respect for human life and different health care actions. b) The recent development of conscientious objection in health care The current discussions on conscientious objection in medicine have taken shape first around the decriminalization and legalization of abortion, and then extended to many question raised today in very different contexts. The 38 Cf. J.P. Cattelain, op. cit., p. 76. 23 problems taken up are many. Among these problems giving rise to objection besides abortion, we find the question of some patients' refusal to undergo certain treatments (the case of blood transfusions for Jehovah's Witnesses, for example), the refusal to take part in acts of euthanasia, sterilization and capital punishment, research that involves the destruction of embryos, assisted procreation techniques, and many other questions. They all concern medicalsurgical practice on the one hand, and biomedical research on the other. Since these two precise areas are the subject of two specific studies in our Congress, I will only deal with them in this report from the particular viewpoint of what has characterized this kind of conscientious objection: - From the viewpoint of the State's authority, it is a concession granted to a citizen exactly like the license granted to the objector who refuses to bear arms. Note that this right to refrain from taking part in "medical" acts (or pseudo-medical acts since it involves abortion and anything that threatens human life), or from acts of research involving manipulations which the persons judges as morally unacceptable, is based both on ethical requirements (the Hippocratic tradition) and on religious reasons. Many times the two coincide, moreover, for the reasons already shown with regard to the witness of the Christian martyrs. - From the viewpoint of the objector, these new areas of application, compared to the area of military involvement, give the conscientious objection, at least whenever a human life is at stake, an objectively higher moral consistency. To refuse to serve in the framework of the armed forces of one's country is a recognized object of conscientious objection; however, from a moral standpoint, no one can question a country's right to take proportioned means to defend its territory and protect its citizens. On the other hand, the certain endangerment of the life of an innocent human being through a deliberate act justifies not only conscientious objection, but absolutely requires it.
Observe that international law does not ignore the existence of a right of this kind because in some cases it has reproached subordinates for carrying out orders, in a context of war, which they should have disobeyed (participation in war crimes), even when these acts were falsely covered by scientific research. This was the case during the second trial at Nuremberg against the Nazi doctors in 1946-1947. In a recent work, Michel Schooyans, in considering the accusation against the latter, notes that at the time, the Nuremberg judges went much further than many classic Catholic moralists go today.39 In fact, canon law only considers the materiality of the act, while 39 M. Schooyans, Le terrorism à visage humain, op. cit., pp. 121ss. The author adds that the judges "accepted the idea of the inalienable responsibility of those who institutionalize crime. They condemned the organization of eugenics, immoral and cruel medical experiments, and death en masse" (Ibid.). 24 military law, as expressed at Nuremberg, also took the intention into consideration in order to condemn it. From these observations, let us keep in mind the chain of responsibilities in the evil committed. We find this in a particularly developed way in the question of abortion: preparation of the law, lobbying with the mass media, the lawmaker's work with different contributions from jurists, the participation of MPs who vote on the laws, setting up the material conditions (hospital establishments, social services, "medical" prescriptions) that encourage and orient persons, and finally the performance of the act, with all the aspects of immediate and mediate cooperation in the act of abortion. The decriminalization laws have been a politically subtle way of presenting to public opinion what was already dictated by an intention to legalize purely and simply. In this sense, the Weil Law of 1975 in France was the first of a long series in Western Europe. To negotiate it, it had to be presented using a technically neuter term that was, we daresay, morally sterilized (voluntary interruption of pregnancy), and better yet, only its initials (VIP). For some years the term MIP (medical interruption of pregnancy) has also been used to designate procured abortion performed in the framework of medical treatments for the mother.
The recent history of the past thirty years has just expanded a movement that is presented not only as an individual right (a woman's right to have control over herself), but has laid down the conditions for real eugenics by including so-called therapeutic abortion in the usual procedures of selecting healthy embryos and eliminating sick embryos (for example, in the context of a prenatal diagnosis). Conscientious objection in this context is raised on different levels: that of the health care professions and that of politicians. We will take the example of the French law to illustrate this. The law in France provides for a right to conscientious objection for the health care professions, but the possibility to exercise it is so restricted that it establishes a real right to abortion system. Everything is articulated around the distinction between public and private establishments. Since objection is not recognized for establishments, only persons-a problem, moreover, which has been raised recently in other countries, Argentina, for example- all the public establishments must provide services where abortions can be practiced. The obstetricians who work in these establishments cannot refuse the fact that abortions are practiced in their department. If they do, they will be asked to leave the public structure. In the private sector, the doctors are not held to practice them or to accept them if they are in charge of an establishment. However, they have to indicate an alternative structure to patients who so desire where they can undergo the interruption of pregnancy. Refusal to do so would mean to incur grave sanctions if the patient decides to 25 press charges (for example, by invoking medical reasons such as infections or others). Nurses that have been assigned to a department where VIPs are practiced certainly have the freedom to ask for a change of duty, which is granted, but not without difficulties at times. This system calls for many observations. The first is that with conscientious objection, we really have a theoretical right, not a practical right. It does not have the same status at all as the right to abortion: it is accompanied by such limitations and conditions for its applications that its public exercise marginalizes those who use it and sometimes exposes them to sanctions. What is true for obstetricians in the public sector is true a fortiori for the profession of pharmacists. They cannot refuse to sell products that are considered and classified as contraceptives when they are not in fact abortifacient. So in the area of conscientious objection to abortion, we find the same limitations as the restrictive arrangements we indicated in the area of objection to military activity.
The second observation is an implication of the preceding one: the higher values--which are the only ones in principle that justify someone's objection in conscience to taking part in an action that is considered morally unacceptable--are not really considered by the State authority as higher, or in fact even equal to the values judged to be politically consensual (such as freedom of the individual, tolerance). A third observation: obstetricians and gynecologists are no longer in a position to exercise their profession in serene conditions. They are exposed to possible sanctions if, in the framework of prenatal diagnosis, they commit an error of evaluation that would under evaluate the infirmity of a fetus, thus influencing the mother's decision to let it live. But here we note the imbalance: when, on the contrary, a doctor's error leads to the death of the fetus when the mother wants the birth of the child, the doctor cannot be prosecuted.40 The developments in the recent history of abortion in France make it possible to understand a deviation which, following in the example of what is happening in more and more countries, marginalizes the conscientious objector increasingly. The fact that since 1982 (Roudy Law) abortions have been reimbursed by Social Security shows that the act of aborting is no longer considered the negative action which the initial law of 1975, despite its remote intentions, wanted to dissuade mothers from committing.
The act 40 Cf. Gènéthique 72 (December 2005). 26 of aborting has practically become the alternative of an iniquitous choice because it no longer incurs more disapproval than deciding to give birth to a child. The State itself facilitates the conditions for its execution and the fact that it reimburses it is its spectacular and sad material expression. Conscientious objection is also limited in the choice of its action. Analogous to what happened before 1963 for actions against military service, the law sanctions some militant actions which are interpreted as disrespectful of the law and intolerant. Since 1993, a new crime has even been created: obstruction of VIP. The parallel with the crime of disobedience (insubordination) in the military area of the past is instructive: obstruction of VIP incurs comparable prison punishments (from two to three years of prison); but the wording of the crime seems to indicate that VIP designates an objective social good, not an evil that the State would refrain from sanctioning by decriminalizing it. Insubordination, on the other hand, only indicated a subjective attitude (the action of not submitting to the obligation of military service). So we have understood this: in contemporary culture, the VIP has become a good, not only for the person who is free to practice it, but also for the society itself that permits, encourages, promotes and finances it. Historically, this kind of approach can only increase the practice of abortion more and more by trivializing it. In July 2001, the conditions for access to this procedure were the subject of new measures, some of which, without being unfair, could be described as incitation: the legal cutoff time is brought to twelve weeks, parental authorization is abolished for minors, and even the conversation, which was compulsory up until that time for women of legal age, has disappeared.
crime of obstruction is extended to moral and psychological pressures.
Regarding the conscience clause for doctors, this has been greatly
undermined and even abolished for heads of hospital service. In
November 2004, a decree authorizing medical abortion at home was
signed by the Minister of Health (!). The case of abortion is
paradigmatic: the ideology that has established and encouraged
it by presenting it as a personal right of pregnant women, has
deprived society of any possibility of reflecting serenely on
the fundamental question of the status of the embryo precisely
out of fear that this legislative choice will be put up for question
again. By doing this, society is no longer able to face the challenges
ethically that are represented by some medicalsurgical practices
and manipulations related to biomedical research. How, and by
virtue of what, could society express a reservation in principle
to procedures involving the destruction of many embryos if, until
now, it has not accepted to confront the problem objectively related
to the act of aborting?. It has taken away from any future reflection
on these themes the essential criteria that would have enabled
it to look at them serenely. 27 Such political action has an immediate
effect on the possibilities that citizens will have in the future
to exercise a right to conscientious objection with regard to
scientific procedures that threaten human life. This political
action lays down the conditions for an immediate limitation and,
in the end, the abolition of the right to conscientious objection
in the area of respect for human life. A legal intentions is already
expressed to evolve towards the abolition of this human right,
even though it is linked to the most fundamental requirements
of the human moral conscience. The reason invoked is classic:
the objection would express a means of escaping from the law and
violate the principle of everyone's equality before the law. It
will be then that our starting thesis will come about: a tolerant
society cannot tolerate that a right of conscientious objection
is exercised in it because it is no longer in a position to accept
it by honoring the higher values expressed therein. So it chooses
consensual values, some of which will unfailingly lead it to death.
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GRANT US, Father a spirit of wisdom and insight, so that we may know the great hope to which we have been called.
Let peace and harmony reign among all the dwellers on the earth.
To those who exercise the ministry of authority in the service of their brothers, send a spirit of wisdom and humility.
May all those consecrated to you together devote themselves to constant prayer.
Grant us, O God, to fill up in our own flesh what is lacking in the sufferings of Christ for his Church.
To our families and benefactors grant the blessing of everlasting life.
Be ever mindful of your mercy, exalt the lowly; fill the hungry with good things.
Both in life and death, let us be yours, O Lord.
the world from its slavery to corruption, to share in the
glorious freedom of the children of God.