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Thursday, September 11, 2008

Session 2: Conscience and the History of Moral Philosophy

John Paris, S.J., Ph.D.

Walsh Professor of Bioethics, Department of Theology, Boston College


CHAIRMAN PELLEGRINO:   Our next topic is the topic of conscience and its place in health care and medical care today, particularly the question of the conscience of the health professional and health care institution. In light of the growth and emergence and almost absolutization of patient autonomy, how are the two to be balanced? And what is the present status, both legally and morally, of the sanctity of the human conscience? Should the health professional be morally neutral as some have said?

To start this discussion from its groundwork of the history of the conscience and definition of what it is, we've asked Dr. John Paris, the Walsh Professor of Bioethics in the Department of Theology at Boston College. Dr. Paris has been a friend of mine for a long time. I'm not going to give an extended discussion, but we've asked him to address the fundamental issues while others will pick up the more recent issue of relationship to the health profession specifically. John?

FR. PARIS: Thank you very much, Dr. Pellegrino. As he said, I've known him for years, worked with him at the Kennedy Institute, worked with him at the Center for Clinical Bioethics at Georgetown, and have been a great admirer of his work for many years.

So when he called, he called with a very open discussion, "I'm going to make you an offer, and you cannot refuse." Now it wasn't an offer that I would willingly refuse. "So whatever you're doing, you have to do this because this is an important issue." And I said, "Oh, Ed. What is this great issue?" "Conscience." "Oh, MON DIEU! That's not my field of expertise." He said, "No, but you're going to do it."

Conscience is a word we all use, and it's not very well understood. Despite the fact that there is an enormously rich, complex history to it going back into the ancient Hebrews, into the ancient Greeks, all through the medieval period, the focus that I'll have — and some of you will wonder why this is so particularly oriented to Catholic theology, and that's because that's where the development has been very sophisticated and very nuanced in its assessment and evaluation.

But before we begin that, I think it would be important to see why we need conscience. And the best way into contemporary culture, I think, is through film, and two films that we saw in the Academy Award winners this year, No Country for Old Men and There Will Be Blood, point out the issue of the role of conscience.

In the first of these, No Country for Old Men, you know the psychopath goes around and kills everybody with his bolt gun. He's seeking some money. That $2 million was stolen, and he's after it, and he goes and kills anybody who gets in the way. And there's no remorse, there's no regret, there's no reflection, there's nothing. This is the psychopath who has no concern or consideration for anything but the goal he wants to achieve.

Equally dark and equally neolithic is There Will Be Blood, and there you have the protagonist in Plainview blinded by greed. He wants money, and he will do anything to obtain money. One of the workers — he's in a oil field. One of the worker's sons is killed, and he adopts him, not because of any empathy for the child, but because he sees this as the way of getting sympathy and selling his product better. In fact, when the boy suffers an injury and is nearly deaf, he sends him off to a school for the deaf. And later when the young man comes back to see him, he says, "You have nothing in me. You are nothing but a bastard in a basket. Get out." The only thing this man wanted was wealth, and he would do anything for it — throw out his adopted son, murder — it didn't matter.

And what you see in these two is the absence of what we call conscience. There was no reflection. There was no sense of right and wrong. There was no sense of regret. There were no moral values other than self-interest.

Conscience is that process by which we reflect upon life and ask, "What is it that I should do, not because somebody else wants me to do it" — and here's one of the counter-distinctions about conscience, not to be confused with the super-ego, that psychological theory of guilt. The super-ego is imposed on us by the ego of others, parents or families in saying "don't do this," "don't do that." We do it to children to protect them from injury. But it's always other-directed. Conscience is an inner-directed sense of growth.

Where does it come from? How does it form? What's its basis? Well, part of it is that we understand ourselves as moral entities. We understand ourselves as entities who have freedom, who can make choices, and these choices are not arbitrary. We determine them for some purpose, and the purpose is that they would achieve some good, that they would avoid doing some evil.

These are internalized values. They're acquired values. And the way in which we acquire them and achieve them is varied. And there are whole world views, there are religious views, philosophical views as to understanding this. And the way I'm going to approach it is from the Catholic perspective because that's the one in which I am most familiar and it's the one in which I said I find the greatest richness in the history of it.

And the baseline theological reason as to why we argue that we have freedom and that we have conscience is because we are creatures of God and we are in the image of God. And of all places, we find this in the Inaugural Address of George Bush, in his second Inaugural Address, and he said the following. He said, "From the days of our founding, we've proclaimed that every man and every woman on this earth has rights and dignity, and this is because they bear the image of the Maker of heaven and earth."

So here you have a broad consensus at least that we have dignity, and if there's one thing that this commission has done, it's to write books on the dignity of the human being. And while there may be disputes as to what the source of this is, at least theologically it is because we are creatures of God. We are in the image of God, and God is at work in us.

Theology understands two things: One, we are to act on the basis of our conscience. We are to act on the basis of values. We are to act on the basis of what we perceive or understand to be right and to refrain from acting on what we understand to be wrong.

And theologians also understand that we can fail, that failure and error are part of the human condition. We can fall short of what it is that we want to do as the right thing. This is put best, I think, by St. Paul in Romans when he says, "The good that I would do, I do not, and the evil that I would avoid, I do." Why? Why do I not do what I resolve to do when I say, "This is the right thing to do"? And it's as easy as and as frequent as getting on that scale yesterday and discovering 160 pounds, which some people would think was great, but I think is terrible and say, "I'm not going to snack anymore between these meals," and on the way down to this talk, three carrot sticks and four dips later, what happened to the resolve?

Now, I don't think it's, as Paul would put it, sin, and I don't think it's really sloth or gluttony. But you say, there are things where we fall short. We don't do what it is that we want. But we do have values, and we identify ourselves by our values.

And I think we've seen that certainly in the story of John McCain when he's talking about his days in the prisoner-of-war camp, and he said, "Why did I do what I did? Because that is who I am." And he said, "I sat there thinking of my father and my grandfather and the values that I had and who it is. It would have been easy. It would have been in my self-interest to sign up to leave early. But that's not who I am."

Conscience has to do with character. And even a clear expression of that was seen in Tim Russert's book on his father called Big Russ. His father was the superintendent of sanitation in Buffalo, and he was offered a big promotion if he would — offered a big bribe, rather — if he would allow somebody else to get the promotion on the list by taking himself off, and he said no. And when he was explaining it to Tim, he said, "Because that's not who I am. I define myself by my values and my conscience."

Conscience is an old notion. It goes back to the Hebrew notion of the heart, that the heart was the seat of reason, that the heart is the seat of our feeling. The heart is the seat of our decision-making. And the call of the prophets was to put on a new heart so that you would be faithful to the covenant.

St. Paul in Romans talks as well about the Greek and Hebrew notion of this fundamental awareness that's implanted in the heart of each of us, that's in our nature, that's ingrained, that all of us have somehow ingrained in our very being this sense of what is right and what is wrong, and that becomes the guide to our decision-making.

I think that the best single articulation of that in the modern world is one of the conciliar documents of Vatican II called The Church in the Modern World in which the Council fathers said the following, following along the same lines as the Hebrews, "Man has in his heart a law written by God. To obey is the very dignity of man for there he is alone with God whose voice echoes in his depths." And here they make the distinction between you find yourself alone in the depths of your very own soul — the words they would use using the Latin, solo cum solo, that is alone with another alone, alone with God, not as they put it, solo cum se ipsa, alone with oneself. That is, that God is implanted in our hearts, in our nature, in our being as a part of the dignity of being in his image, this sense, this capacity, for understanding good.

There are, I propose to you, three parts to this conscience. The first is the capacity for it, this natural capacity we have; then a process by which we discern; and then a judgment by which we make a decision to act.

Except for the brain-damaged, infants, and the psychopaths, it seems to me that everybody has an innate sense of right and wrong. They know what right is, and they know what wrong is. Thomas Aquinas called this that first kernel, that kernel of first principles that we all understand. And Thomas writes later, "Most people don't have the time, the capacity, or the inclination to do vast philosophical analysis." But we have, all of us, got this capacity to reason about what's right and what's wrong, about what the good thing to do and the bad.

Now it's important to understand that this foundation that we have is not the same as — and we don't have equal clarity or certainty — with applying this conscience to concrete situations in the human world. That's the role of the second factor of process.

Now that we have this sense, this innate sense, how do we begin to work at it? And it's through experience, through critical investigation, through looking to sources of moral wisdom. We know that don't ourselves have all this capacity, so we look to others, to family, and you certainly saw it in the political conventions. Every single one of the candidates began his or her biography with, "Here's my family. There's my 91-year-old mother. There's my 96-year-old mother. There was my father. I learned at my grandmother's knee." They went to their families. Then they went to their tradition, and then they went to the sense of their community. So you get this wisdom, not simply from your own self-reflection, but you get it from the wisdom of the community.

We get it in the broader perspective from the prophets, from scripture, from the tradition, from the Founding Fathers. We find this richness of the wisdom, and we go there.

And then, finally, you have a judgment. What is it that I ought to do in these particular circumstances, given my understanding of right and wrong, given the sort of history of where this all fits in? One of the ways in which this works — and I've talked to Dr. Pellegrino just two weeks ago wholly independent of this — we begin to apply this. There was in the August 14th issue of the New England Journal of Medicine a very controversial article about infant heart transplants.

And the proposal of the Denver transplant team was that we should, when removing a ventilator from a brain-damaged child, wait for death to occur, or wait for the cessation of cardiac activity, and then wait 75 more seconds to declare them dead and harvest the heart.

The commentary and the prospective in that same issue of the journal by a physician at Dartmouth says, "Wait a minute. What do you mean, 75 seconds? What about the dead-donor rule? What about auto-resuscitation? What about? What about? What about?" He said, "We have to look at the tradition of cardiology. It's not simply a matter of saying, 'We like hearts, and, therefore, 75 seconds is enough. Let's look to the tradition of medicine.'"

One of the judges, late judges, of our Supreme Court in Massachusetts, Paul Liacos in the Saikewicz case case [Superintendent of Belcherton State School v. Saikewicz, 370 N.E. 2d. 417 (1977)] raised the same sort of issue when the question came, could we remove or could we withhold chemotherapy from a patient, an elderly, mentally-incompetent patient with leukemia? And this was a case of first impression. The question had never been raised in the law before, and Justice Liacos says, "The law frequently lags behind technology." The technology has advanced. Now we have to have our moral reflection on it. And the law simply doesn't bring it out of thin air. As Justice Liacos puts it, "We look to philosophy and to theology and the tradition of medicine. We look to the wisdom of the society in order to determine what it is we believe the right thing to do is, law not being conscience, but law saying, 'This becomes the reflection of the conscience of the society on how we behave in this particular activity.'"

That is, the formation of conscience is social in nature. It's not simply solipsistic. It's not simply, "I believe, and, therefore, it is." It's formed with experience and with knowledge and aware that we can have lapses. We look to families, to friends, to colleagues, and to experts in the field. We also look to stories, and to laws, to images, to traditions, to rituals, to norms. We look to all of these for insight and for understanding as to what constitutes the right thing.

Another factor is that conscience goes to character. It's not simply, "What should I do," but "What sort of a person ought I be?" John McCain put that so forcefully when he said, "This is who I am." This is how we act because this is who we are.

We also have to understand very clearly, of course, that conscience can err. Kerry Kennedy put this best, I think, in her new book [Being Catholic Now: Prominent Americans Talk About Change in the Church and the Quest for Meaning (Largo, Maryland: Crown Books, 2008)] — I haven't seen the book yet, but I heard it on NPR the other day — talking about how the nuns were talking to the various students in school and looked at one boy and says to him, "You have a superabundance of original sin." Now, I'd never heard that put that way before. I thought we all had it and all had it in abundance. But it's the only empirically verifiable theological concept we have, but it's there.

Knowing we can err, what then about conscience? Well, in the investigation, we might be mistaken. We might distort. We might have the wrong facts. We might be driven by passion. There is Plainville in There Will Be Blood driven by greed. It blinds him to all other aspects of life.

What about the erroneous conscience? What about the conscience that's mistaken either out of passion or out of ignorance or out of failure to do the homework? It can be what the theologians call, either vincible or invincible; that is, it can be conquered, or it's just intransigent. You cannot change it.

And Thomas puts it this way: "If by more diligent study you could have learned the facts, you have responsibility for changing." A simple example would be HIV/AIDS. When this first occurred, physicians didn't have an idea as to what this was and had lots of misdiagnoses. I recall a person whom I know now died of HIV, but this was before we understood what it was. And he went everywhere from Dana Farber to Stanford in search of a diagnosis. They said, "We can't figure out what's gone wrong." Were those doctors in error? Yes. Was it a moral judgment, a moral lapse? No.

Alternatively, if today a patient came to your hospital and had HIV and you said, "It sounds like the flu to me," this would be an error, but it would be a moral lapse as well. It would be the failure to exercise your knowledge.

Knowledge is going to include the ability to reason and to analyze. It also requires experience and reflection, not just information. It involves freedom, but not just to self-chosen goals. It's not a license to do whatever we want.

Another aspect is going to be the emotions. The emotions are a very important part of this, and that was what's missing in the psychopath. He has no empathy whatsoever. Those of you who have seen the film know that along the course of his way when he's going out killing everybody, he comes across the man in the store, and he says to him, "Flip a quarter." And the guy says, "What do you mean, 'Flip a quarter'?" He said, "Well, if it's heads, you live. If it's tails, you die" — no empathy about the human condition, no concern about anything, no regret, no remorse, just wanton killing.

Conscience is what the moral theologians call the proximate norm of personal morality. Now that will put you to sleep — if nothing else will today. What does it mean? It says it sets the boundaries for acting with integrity and for acting with a sincere heart.

What's the test of the validity of one's conscience? You say, "Oh, my conscience wouldn't allow me to do that." What's the test? The test historically has been the willingness to pay the price of an adverse outcome for standing for what you believe in.

The best example historically, I think, is Antigone. You'll recall in Sophocles ' play King Creon decrees that no one shall bury the bodies of those who are in revolt, and Antigone says, "My brother is my brother, and duty requires me to bury him." And she's advised, "Don't do this. You'll be killed." And she says, "I have a duty that transcends the law." That is the willingness to pay the price. In Martin Luther's, "Here I stand. I can do no other," the price was being excommunicated from the Church.

Thomas More in the Oath of Supremacy, his friend, the Duke of Norfolk, comes and says, "Oh, just come along and do it." And More looks at him, as you recall, and particularly in A Man for All Seasons, and says, "Oh, that's fine for you. Your conscience allows you to do that. And when you die, you go to heaven. And as for me, I go to hell." And Norfolk says, "Well, do it for friendship's sake." And he says, "When I go to hell, Norfolk, will you come with me for friendship's sake" — the test of your conscience, the test of your willingness to bear the price.

And in the long history of conscience, there've been disputes even against the Church. And amazingly enough, Thomas Aquinas in his commentary on the sentence of Peter Lombard says, "If your conscience tells you that this is wrong," Lombard says, "Your conscience can never go against the Church." And Aquinas says, "If your conscience — and you've diligently applied yourself to it — tells you that this is wrong, you should be willing to die excommunicated rather than violate your conscience," whereas Cardinal Newman said in a somewhat jocular vein one time, "If we were to toast a pope, I would toast first conscience and the pope afterwards because ultimately I am not going to be judged by the pope. I'm going to ultimately be judged bySsomeone higher."

What do we do with the erroneous conscience? How do we deal with the erroneous conscience? If someone came to you and said — you go home tonight and you meet your spouse and he says to you, "Oh, dear. Some terrible news, but I want you to know he did it out of conscience," would you find those comforting or warning words? The fact that someone does it out of conscience doesn't necessarily mean it's right. The fact that someone did it out of conscience means, if it's a sincere conscience, that he or she believed it was right and was willing to do it, contrary to the norms of the standards of society, even contrary to the law, and willing to pay the price.

Aquinas picks up this question and he asks about the sincere conscience. He said, "There must be sincerity. There must be integrity in the individual in believing this, and the individual must also be striving to ascertain why it is that others are holding a different position. You owe it as an obligation to attempt to understand what the objections to your actions are, if there are them." If the person sincerely believes it and even if he's wrong, Thomas says, "Ah, this person is excused." He's not saying what he is doing is good, but he's excused from any moral impropriety.

Today, we'll find people very lightly using the theme, "It's my conscience." "My conscience wouldn't let me do that." And then you press further and you get, "My conscience wouldn't let me do that." And you press further, and you get the same answer. Well, what is there in your conscience that won't let you do it? It's not as Joseph Ratzinger called it, "It's simply the apotheosis of subjectivity. It's not simply, 'This the way I see it and that's the end of the story.'" He said, "In order to have your conscience be properly formed, you must know what the general rules are, the circumstances, the contingencies, to anticipate the consequences, and to anticipate what the response of the consequences is going to be."

An easy way into this is storytelling. Abstract theory, at least in my experience — and I suspect it's yours — when you stand there and give them abstract theory, they fall asleep. They want cases. And there's a big problem in medical ethics. They only want cases — no theory.

But let's look at two cases of conscience and see how conscience was formed. Did this individual know what was right and know what was wrong? Did he violate that without any impact on his conscience?

The first case I'd like to examine is David and Bathsheba. We know the story. David looks over and see the beautiful Bathsheba, lusts for her, does his thing. She announces she's pregnant, and there's a problem. She's got a husband who is a soldier in the army. So what does David do? He calls him back to see him, suggests he go visit his wife for the night so that he will have sex with her and think he's father. He said, "Oh, David, while my soldiers are in the field, I could not sleep in my own bed. I will camp on your doorstep." So the next day, David, continuing his cunning ways, invites him in for a big banquet and gets him drunk thinking this will dull his will — the same thing. Now David has got a problem. What does he do? He calls his generals in and said, "Bring this general out, put him in front of the army, withdraw your troops, and he will be killed," and he was.

David thinks he solved his problems. David has no remorse, no regret. He's got Bathsheba. Where's his conscience? Does he have one? Is he a psychopath not knowing good and evil? The test is very shortly thereafter. The prophet comes to him and says, "Let me tell you the story of the man with one little new lamb and the rich man. The rich man takes the poor man's new lamb for his feast." And David looks and says, "As long as I am king and judge of Israel, that man deserves to die." He knew right from wrong. And the prophet looks and says, "Thou art the man," and David knew.

A more contemporary example of this is Chuck Colson. If you go back to the Committee to Re-Elect [the President] and you'll recall Chuck Colson 's argument, "I would walk over my grandmother to achieve the reelection of Richard Nixon." It reminds me of [Thomas] More, but for Wales. Now he's in jail post-Watergate and reflects on it, and his comment was, "I lost my moral compass," much the same as Solzhenitsyn did in the Gulag Archipelago when he writes, "Here I was in prison, and I had these blue stripes on my tunic. That set me apart, and I did awful things." Now in prison — and not in prison for that, but in prison — he realizes how he had behaved, and he said, "I forgot the lessons I learned from my grandmother when kneeling at her side when she sat underneath the icon."

Colson, Solzhenitsyn, they had consciences. They had erred. They had failed. But they had not lost their capacity to reflect and needed simply the occasion, as did David, to reflect on the moral action and to be able to pronounce a judgment on it.

Conscience is not simply Jack Abramoff as he was last week saying, "Have mercy on me. I'm now the butt of jokes." That's not conscience. Conscience is what the theologians call that antecedent conscience. It's not the regret that you got caught. Conscience is before the action understanding and assessing its moral character and determining whether one should or should not do it because it is good or because it is evil.

Now the question — the question that Dr. Pellegrino and the question this group, this Council, is going to confront is — What about cooperating in what you understand to be wrong? Your conscience says it's wrong. When, if ever, may you cooperate, in what you perceive to be evil — what theologians call cooperatio in male? Must you refrain from all action that your conscience tells you is morally improper?

There are those who try to do that: H. Richard Niebuhr in Christ and Culture writes about Christ against culture. Culture is evil, rescind from it, withdraw from the evil world and keep yourself pure. The best articulation of that, I think, is J.D. Salinger 's The Catcher in the Rye. Do you remember when Holden Caulfield is there with his little sister, Phoebe, and they go to that awful place called New York City and they see the terrible graffiti on the walls and Holden is going to erase the graffiti. But what does he learn? You can't erase all the evil in the world. You can't protect individuals from all evil, that in this world you're going to have to adjust somehow so that your conscience doesn't result in pure moral purity of the eschaton here.

Let me give you two cases broaching, bridging into where you're going to go, two legal cases. The law is not the definitive analysis of morality, but it gives you an insight into at least how we approach it. These are two recent cases of addressing exactly the issue: One, Storman versus Selecky, the 9th Circuit, 2000 [Stormans Incorporated, et al. v. Selecky, et al.: U. S. District Court for Western District of Washington No. 07-cv-05374-RBL: “Order Granting Preliminary Injunction,” November 8, 2007], was the pharmacy case, and you're all familiar with this. Some states have laws insisting pharmacists do not have to violate their conscience. Some states say pharmacists must [fill all legally valid prescriptions]. We haven't sorted out that problem fully yet.

But the 9th Circuit looked at it and said, "If the pharmacist is being ordered to provide a contraceptive that he believes is killing the life of a newborn or of a newly-created life, he has no obligation to do it." The pharmacists wanted a refuse-and-refer, and the state wouldn't allow it. And the court said, "This is a Hobson's choice for this pharmacist. Either he violates his conscience or he loses his job," at least in the state of Washington, where this occurred.

A different case was one that occurred in California involving Catholic Charities, and it was the issue of insurance. If you have an insurance plan, the argument or the statute read, you must provide prescription contraceptives to all the insured. Catholic Charities protested and said, "This violates our institutional conscience. We don't believe that this is a moral action and, therefore, we won't." And the California court said, "It may well offend your conscience, but these people have a right to it," and the argument is very narrow. You would not have to provide it if you were an institution designed simply to inculcate religious values, if the majority of your employees and participants were members of this faith, and you were what the IRS calls a church; that is, a convent or a religious order.

A convent of Carmelite nuns might have a legitimate argument as to why they would not provide insurance benefits involving contraceptive prescriptions, but does that apply to Georgetown University and Medical Center? Is this an institution designed to inculcate religious values? Are the majority of their people going to be of one religious faith? And is it specifically restricted to those? We'll recognize conscience in the narrow sense. But in the broader, it's not.

Those are just two ways in which the approach came, and it gets you into sort of one of the final descriptions of how it is: namely, what's the degree and intensity of the involvement of the individuals with conscience in the practice?

There's the question of — and we have it from 1973 from Senator Church 's amendment on abortion. You need not — no physician or health care provider need directly be involved in the procuring of — I wouldn't even use procuring — in the performance of an abortion.

How far up does that extend? Does that extend to when Ed Pellegrino was a kid working in the pharmacy stocking the pharmacy with contraceptives?

The philosophers make the distinction between direct formal participation, which is a very high value, and then indirect and material.

Does the porter in the hospital who is pushing the patient down the hall to the operating room? Does the clerk in the insurance company who's processing the insurance claims have a right to say, "I believe this procedure is immoral. It violates my conscience, and I won't process the claim nor will I report the non-processing of the claim because others would be now involved in it."

Where along the line do you begin to draw the difference between direct formal participation in a grave evil and indirect material participation in an evil that the society doesn't quite find as egregious an act? And I think that MacIntyre put it best when he said, "If we're going to have a stable, social society, we must have some consensus as to what constitutes acceptable behavior or tolerable behavior, or otherwise we're in chaos." We simply have individuals saying, "My conscience is the only value and I am not willing to compromise in any way for any purpose," and then you have, not a society or a community. There you have chaos, and we'd be right back with Hobbes. And do we want to have a short, brief, vicious, and bitter community at each other's throats, or is there a possibility of saying there are some things that are so important,and so imperative, and of such value to an individual that as a society we would be willing to recognize that individual's right to rescind from direct form of participation in that form of behavior? But we've got to make distinctions as to where along the continuum that line falls. Thank you very much.


CHAIRMAN PELLEGRINO: Thank you very much, John. Gilbert Meilaender, Dr. Meilaender, will open the discussion. Gil?

PROF. MEILAENDER: Thank you very much for the presentation. I feel myself at a grave disadvantage on several counts here. A man who thinks that eating a few carrot sticks is falling off the wagon doesn't inhabit my world. I had six of those Burger King chocolate chip cookies at the airport yesterday. And a man who deals in these award-winning movies that I have not seen, I can't — if he were to comment on Mamma Mia or, dare I say, House Bunny, I've seen them and we could have sort of engaged each other on that.

Let me just raise a couple of points really to highlight some issues that come out, not to disagree, but just to note some things.

You began by saying that conscience is inner-directed, not other-directed, and, yet, if we think about the whole of your talk, I think that was too simple a formulation to capture what, in fact, you said. You later in talking about the process of discernment talked about the conscience as social, and, clearly, conscience is not in your view entirely inner-directed since one is alone, not with oneself but with God, so that an utterance of conscience is not simply self-assertion; thus, this is the person I am. It's able to be questioned so that in some sense, while there is that enormously important subjective aspect of conscience, there is also in your view an objective aspect in a way.

At least in respect to the relation with God and maybe somewhere else, when you first talked about the things we know about conscience, you said we that we can act on the basis and we know that we can fail, and you later used the word "lapse" — "We will lapse." But then you also asked the question, "Can we be wrong?" and your answer was, yes, so that there is some kind of objective aspect as well. It's not just an assertion itself that's involved. And I think sorting out the relation between those two is what makes for some of the complications in the kinds of questions that we're facing.

When you said — and I don't know. I would defer to your judgment about what St. Thomas says, and I haven't looked lately — but when you said, what's the test for validity of one's conscience — and I think you were talking in the context of discussing Thomas, but I may not remember right — you said a willingness to pay the price for acting in accord with it. Now as I said, I don't know what Thomas said— but validity seemed like a strange word there, the fact that I'm willing to pay the price for it, at least in our normal use, if one grants it, there is an objective aspect of conscience. The fact that I'm willing to pay the price says something about my wholeheartedness but not necessarily about the validity of my conscientious judgment, I think, but I don't know. I'm just puzzling over that relation between the objective and the subjective.

And then, finally, just one more thing. When you came to the issue of cooperation at the end, which is really where we're headed, of course, you distinguished between formal cooperation which is, I think, really sort of embracing the evil as a good, which is always forbidden, and material cooperation in not-so-great evils, which, if the truth were to tell, we're all involved in all the time and you can't, as you said, live in society without that.

It leaves the category of material cooperation in a grave evil, and, of course, the difficulty of reaching agreement on what constitutes a grave evil, and that I wasn't so clear on either what you wanted to say or what any of us ought to want to say about it.

So just by way of a summary, I mean, I think that relation between the objective and the subjective, in various ways you came back to it, and sorting it out is really hard. And I think some kinds of cooperation are pretty easy to decide what we think about. But material cooperation in what one thinks to be a very serious evil is not so easy to work through.

FR. PARIS: Well, you found the difficulty I had in putting this talk together. And in talking with Dr. Pellegrino, he said, "I want you to talk informally. I don't want you to come and give a lecture."

And the relation between when talking about the super-ego and conscience in the early part saying the super-ego is simply other-directed, I was not implying that conscience has no other-directed as part of it, but it's trying to distinguish it from the super-ego which is exclusively other-directed. You simply incorporate the values of your parents and the authority figure and you don't want to lose their affection and, therefore, you do it, not because you believe that it's the right thing to do, but because you fear their disapproval. That's not conscience. Freud is on point on that with psychologists. That's something different because it doesn't have that sense, that innate sense, of "this is who I am and this is why I act the way that I do because these are the values that I have." It's just simply you don't want to incur the wrath of some authority figure. And I moved too quickly into that.

The same on St. Thomas. I moved in and out of St. Thomas several times. But St. Thomas doesn't talk about conscientious objection, that willingness to pay the price was moving over into, for example, the war issue, that you'd be willing to pay the price. You simply can't say, "I object to the war and, therefore, I'm not participating, and I am free." No, no, no, no.

There's a presumption that the laws are to be obeyed. There's a presumption that you are to fulfill your duties in society, and if your conscience says to you, "This is something evil," you simply don't proclaim, "I believe it's evil," and, therefore, don't participate. It's, "I believe it's evil, and I'm willing to bear the price," and the price for More is execution. The price for Luther is excommunication. The price for Ghandi is imprisonment.

And part of the price is, this will then affect the conscience of those who impose it and they'll see the injustice because of my willingness to accept it. This is very much what Ghandi was talking about, saying, "When they see the punishment that we will accept unjustly, then their consciences will be affected. They will be like David. Suddenly, the scales will fall from their eyes, and they will see."

And it may or may not be effective in implementation. But the argument that I was trying to make there was, the invocation of conscience alone doesn't absolve me from responsibility. And the test, the test which had nothing to do with Thomas, the test of the authenticity of my conscience is my willingness to suffer adverse consequences up to and including death for it.

PROF. MEILAENDER: I just note that you switched from validity to authenticity in that formulation. I think that's a better formula, the test of the authenticity would be. I'm not sure it's a test of the validity.

FR. PARIS: Oh, oh, you're right. You're right. You're absolutely right, yes.

And, oh, you didn't miss the point that I did not talk about, what your Council is going to have to discern, the tough and difficult parts. I just give the big picture. That's the role of the casuist. That's the role of the Council, because you are going to be casuists, taking the principles and applying to specific issues and trying to discern the prudent response to that in a community.

CHAIRMAN PELLEGRINO: Gil, had you completed your comment? Dr. Gómez-Lobo?

PROF. GÓMEZ-LOBO: I'm sorry. When I was listening to our speaker and to Gil, it suddenly felt a little bit strange. I said, "We are American public officials enjoying a theological feast at this moment. Should we be doing this or not? Where's the separation of church and state?"

And my little contribution to that question is this: Although our speaker said on several occasions "theologians say this," "theologians say that," and although if I'm well-informed, the bulk of Aquinas ' theory of the conscience is in the Prima Secundae of the Summa Theologica, I would argue that it's not specifically a theological doctrine.

The fact that we're starting from principles known by themselves, perse nota omnibus, to everyone, not just sapientarus, not just to those who are wise nor fidelirus, not to those who have the faith, allow us to say, "Look. This is a theory about, partly about, moral psychology, about human understanding of action, and it's also a normative theory. But the whole of it, the whole of it, can be understood in purely philosophical terms."

That is the reason why this discussion is relevant to what we're going to be doing in the afternoon. In other words, it seems to me that the discussion this afternoon has to be to the effect that here we have an understanding of the particular judgment that a person makes about his or her action, such that society as a whole has to respect that or not respect that if we take the other position. But my inclination is to emphasize that, that the defense of conscience can be — not necessarily that it must be — but it can be defended on purely rational grounds.

FR. PARIS: You're absolutely right. That's how Thomas begins. The reason I use theologians — I mean, we end up quoting councils and popes, but they're reflecting now, not on received revelation. They're reflecting on rational analysis and philosophical discourse. But they were theologians, so I don't want to misconstrue that they were just — you know, they were philosophers independent of that.

But the fact is that within the Catholic Church this sort of discussion and debate has been going on for centuries and that's where the richness of the debate comes. But you're absolutely right. Thomas says everyone is capable of doing this.


PROF. ELSHTAIN: Well, thank you very much, Fr. Paris, for your interesting presentation. I'd like to get your reflections on a couple of statements that emerge in one of the documents in our briefing book, specifically the limits of conscientious refusal in reproductive medicine is the essay. You needn't have read it to respond.

FR. PARIS: I haven't.

PROF. ELSHTAIN: That's what I'm going to ask you. It's put out by the American College of Obstetricians and Gynecologists, the Women's Health Care Physicians Division. And there are a couple of interesting things here. One is that conscience is defined as private. And I took your argument to be that — and building on what Gil Meilaender has said — that that is not an adequate characterization of conscience, that there is an inevitable subjective dimension, but the reference point is always some notion of an objective moral law, and the presupposition is that human beings can be formed within that moral law and that that in a sense becomes the very substance or content of conscience that then is held, if you will, subjectively. So I'd like to get your comments on that.

And then one of the other claims in this essay we were given to read is that — and I'm sure you would agree with this — claims of conscience are not always genuine; that is, you can have, as you put it, an erroneous conscience. But that creates a terrific problem, does it not, when we're dealing with the kinds of issues that this Council is going to be talking about; namely, who makes a judgment as to whether a claim of conscience is or is not authentic or is or is not sincere? Do we have some body that adjudicates that? Do we make a case or make the argument that any claim of conscience has to be backed up by a set of stipulated reasons on the part of the conscientious objector before we acknowledge that claim of conscience as genuine? Or, again, alternatively to some other group, simply claim — that's in a position of authority — or that can say, "We don't really think that's an authentic claim of conscience." So how does one sort out whether a particular claim of conscience is or is not a genuine one?

FR. PARIS: Well, to the first point on the privacy, I agree completely that that's a vast overstatement and misstatement. Conscience is not simply a subjective wish, whim, will, or desire. It's not that. It never historically has meant that, and I'm afraid that we've gone far, far, too far on this, what I call now, the autonomy run amok, that it's my belief and therefore -

PROF. ELSHTAIN: And that's it?

FR. PARIS: Therefore that's it, yes.

Then you come to the difficult question of, how do we assess, A, the sincerity of the conscience? Now part of that was in my answer to Prof. Meilaender, that historically what we've done — and the classic case was war, a conscientious objection to war — and then the willingness to pay the price, and it became a negotiated price within the society of willingness to be in the medical corps or willingness to — or go to jail or go to exile. But there were prices that were attached to it.

When you get into the medical side of it, a part of the issue becomes, in using the pharmacy bit as the early example, saying, "Well, if you find this offensive and we, as a community, insist upon this, then you may choose not to practice," and there the real test, I think, there becomes a legislative one, certainly not a judicial one. But the enactment of the law saying, if as a society, we believe that this violation forth sincerely held would be so appalling to the conscience of a civilized society or to an organized community, we will write exemptions into the law. You would petition for these, and they would be written, and that's how we organize ourselves in a democratic society.

I think you have to be careful though of there's a difference between a sincere conscience and then the erroneous conscience of saying, "Well, I don't do this because I believe that this is." An example of this — and I'm not going into details because I don't know anything about it — but is this morning-after pill, Plan B. And Dan Sulmasy wrote an article in the Kennedy journal on this saying, "Look. This is not abortifacient. You in conscience will not participate in an action that is abortifacient. But there's no physiological support for the argument that this is. So you have to do your homework better, and when you understand" — now whether Sulmasy's physiology is correct, I haven't a clue. But there's an argument where you can say, "This could be an erroneous conscience. You raise the question. And more work, more investigation, more analysis, more understanding of medicine..." — and it certainly persuaded the bishops of Connecticut and New York. They stopped their opposition on that on the basis of the argument that Sulmasy put forward and said, "Well, if it is true that this is not certain, then we cannot say it's a grave moral error when there's lack of certainty."

Who's right in this debate, I don't know. But that's an example where you could say, "Here's an erroneous conscience based on faulty facts." That's different from a sincere and factual, but non-supportable in the community.

PROF. ELSHTAIN: Can I do just a very quick followup? I was very happy you mentioned conscientious objection because, reading over some of these documents that called for more restriction perhaps on the operation of conscience, a conscience clause could certainly be used to limit conscientious objection in time of war as well. I mean, that would be one of the implications, it seems to me, that was not drawn by the folks writing this. Thank you.


DR. CARSON: Well, thank you for that very thoughtful discussion. And I certainly understand why you started out by talking about a theological basis of conscience because it's fairly easy to understand the concept of right and wrong if you have a theological base.

My question is, you said you certainly understood the point also -

FR. PARIS: The point that Alfonso made?

DR. CARSON: — the point that Alfonso made, about it being possible to have a well-developed conscience without a theological base. Now, let's say that man is the result of an evolutionary process that takes advantage of survival of the fittest. At what point in that process does the conscience arise? Should a lion have a conscience? Maybe they're a little lower on that scale when they kill a lamb or they kill the mother of a lamb and leave the lamb without a mother. I mean, where along that continuum, if, in fact, that is how things arose, does conscientiousness arise?

FR. PARIS: It arises with the ability to reason and to reflect upon one's action in a reasoned fashion and to formulate values and articulate those values as important for the assessment and understanding who you are. So it has to do with reason.

DR. CARSON: Well, if, in fact, it has to do with reason, why would it not be legitimate for someone to say, "My conscience tells me that I need to eradicate certain people because they're a scourge upon the earth"?

FR. PARIS: Well, we've certainly seen people who, at least philosophy — I wouldn't even use the word conscience — articulates that, and we, as a world community, hold them guilty of genocide or crimes against humanity.

PROF. ELSHTAIN: And those articulations, if I may just add this, are usually not made in the language of conscience. It's another rhetoric entirely that enters in when you want to exterminate categories of people. Usually a language of the will, a language of fit and unfit, a language that seeks to dehumanize those you aim to destroy, which in its own bizarre way, I suppose, could be a kind of underhanded tribute to conscience that says we don't treat fellow human beings this way, so you make them less-than-human. But I don't recall, for example, Hitler ever saying, "My conscience tells me to do this." It was a very different language.


PROF. DRESSER: Getting back to the analogy of objection to the military service, my memory is that draft boards did make distinctions about people claiming conscientious objections. So I was a little young for this, but I remember during the Vietnam War, some people said, "Well, the Vietnam War is immoral, but I can imagine a just war," and that wasn't being counted, that you had to be a complete pacifist.

I mention this because this has been suggested. I remember reading in an article about access to abortion and how many residents were unwilling to learn the technique and physicians unwilling to do it. And the question was, was this based on sincere conscience or a fear of protestors or the negative things that could come from that? And the suggestion was, well, we could have an examination of their beliefs to see how sincere they really are.

Now my view is, I don't think that would be a good thing to import into medicine, and I don't think it was very good in the military context either. But I wondered if you had any thoughts about that?

FR. PARIS: Well, actually, I wrote a doctoral dissertation on that subject. So you don't want to know all that I think about that.

What you had was a society, in fact, that, if we're going to make these kinds of distinctions and authorize some objection, you've got to have a bright line. You can't have a fuzzy line. And a philosophical objection to war in principle is a clear, bright line. If we're getting in a just war, which is the traditional Catholic argument and analysis, then you've got all sorts of areas in which there can be disputes and distinctions and there's no clarity on the behalf of those who have to judge, namely, the draft board, as to whether you sincerely hold this, whether you really hold this view or not. It's an impossible task, and we'd be right into wholly-subjective, self-serving withdrawal from it. So that won't work as policy.

It's easy to say it's all or nothing, and we understand and we're willing to accept and we're willing to accommodate those who are philosophically opposed to war in principle. But if I'm opposed to war because I think it's too costly on the American economy, that's not going to — how are we ever going to be able to calibrate that?

Over then into your issue with regard to residents declining to participate in this issue, you can say. Now, one of the very interesting phenomena would be if you had a whole class of people called physicians who all declined in this action. That might cause society to reflect and say, "What is it that they see that I'm missing?" And it's relatively easy to say, "Yes. I refuse to learn how to perform an abortion because I'm morally opposed. I believe it's a grave moral evil, and I won't participate in it." Now that might exclude me from ever being a gynecologist, but I'd be happy to be a dermatologist, radiologist, or ophthalmologist — better working hours.

But when you're setting policy, you have to have it in a practical way that you can discern which side of the line these people are on, and you cannot make a purely subjective assessment.

PROF. DRESSER: Yeah. I was just going to say that I think the bright-line rule is one thing, but the sincerity is very difficult because how can we know?

FR. PARIS: It's impossible to test sincerity. Yeah, it's impossible.

PROF. DRESSER: And sometimes people are probably fooling themselves about what they believe. So as a policy matter, I think we can't say, "Well, it will depend on how authentic or sincere it really is."

FR. PARIS: That's too flexible a standard, I suspect, to be able to be judged objectively by an independent observer.

CHAIRMAN PELLEGRINO: Other comments, members of the Council? Dr. Hurlbut?

DR. HURLBUT: I'm only making a comment because nobody else is, okay, because I don't want to waste the — what do we have? Ten minutes left roughly with such a well-informed and thoughtful speaker?

I don't have this very well formulated, but I'd just like you to respond a little bit to the modern critique of moral theory that's emerging, often designated sociobiology or evolutionary psychology, and its erosion or corrosion at the core source of what we call moral conscience. In other words — and I'm sure you're familiar with this. Right? Am I right in that?

FR. PARIS: Some of it, yes.

DR. HURLBUT: So the comment is made that conscience doesn't necessarily have any transcendent referent of truth but is socially constructed. You've said yourself that there's a degree of communal grounding and conscience. Such thoughtful authors as Charles Taylor speak of the dialogical nature of conscience formation. In fact, I believe if you go back etymologically and look at the source of our word conscience and conscientiousness were joined together thinking together in moral matters, our very conscientiousness then itself is formed within social process.

The critics then say, "Well, these flow forward from a kind of functional utility that are to some extent relative to circumstances, to some extent whether relative to one circumstance or not at the foundation of biological adaptive advantage, in this case social engagement."

And what I'm trying to get at here — and I'll stop saying my part and let you say something — is basically the question comes down to in a modern society with so many diverse views of what medicine should be and what constitutes the good of medicine, this controversy obviously is about it's most centrally — in medicine at least, it's most centrally oriented along the axis of the abortion debate. And yet for thousands of years, the moral traditions of medicine, the great weight, was against abortion. And yet people have new views on this and diverse views on this, likewise on many reproductive technologies.

It seems to me that what you're saying you're implying that there is something that overarches and transcends individual's thoughts of this and even social culture's constructions of it and that we must tap into that, when an individual is doing that, his claim to following conscience is legitimate; otherwise, it's not.

I guess what I'm getting at here is something maybe akin to a natural affirmation or something like that. Can you just carry that a little ways?

FR. PARIS: Well, part of it was the discussion I heard briefly this morning about what's the nature of medicine? Is this simply a business? Bud Relman wrote year after year in the New England Journal "At the peril of its soul, medicine will adapt the business model as its goal in its understanding."

And then we hear, "Well, I only treat patients who pay." It used to be that we would have patients and they didn't have the ability to pay, we treated them, there was no concern. Today, it's about contracts and capitated payments and covered lives and consumer-driven health insurance and, if you can't pay, well, too bad. And then you have others saying, "But that's not what I understand by medicine. As a profession, we have duties and obligations to sick people indifferent to their ability to pay."

I mean, the whole debate is how do we — which is how do understand ourselves? How do we understand who we are and, from that follows, how do we understand what we ought to do?

If you understand that we're just social constructs and that this is just simply a contractual relationship and my involvement in medicine is simply that, if you can contract for it and pay for it, I'll provide it, and those who haven't got the ability to pay, that's too bad. But then you say, is that medicine? What's that got to do with the tradition of medicine? What's that got to do with how we understand ourselves as humans — which gets you right back into the question of conscience.

How do we understand who we are and what our obligations are? Are we simply just isolated monads in a world of Leibniz in which our relationships have nothing to do with anybody else? And, if so, I can be purely subjective. Or if, in fact, the impact of my actions have significant involvement with you, then I've got to be careful about what it is that I do so that I don't adversely injure you or hurt you.

It's a basic philosophical assessment as to who we understand ourselves to be as individuals and as a community.

CHAIRMAN PELLEGRINO: Thank you, John. If there are no more questions, we're five minutes before the termination of our session. I see none. Let us adjourn until — I'm sorry, Gil. Were you reaching for the microphone?

DR. HURLBUT: Well, while we're on it, why don't we really get to the crux here? You're basically affirming that there should be common terms of reasoned truth and conscience formation, that there is something that transcends individuals? It's not just opinion? I mean, isn't this the crux of our cultural dilemma here? We have the different competing concepts of the source and significance of world and our place in it?

I mean, is this resolvable? Are we just heading for two diverging theories of two diverging, what you might call, spiritual anthropologies, or do we have a foundation for finding a way to resolve these conflicts? If I understand it right, you're affirming there is the latter.

FR. PARIS: And it's a lifetime task. It's not solved in one conference or solved in one semester. It's a lifetime ongoing task, which I think is probably best seen by parents raising children. You can tell them. You can guide them. You can direct them. You can inform them. You can pray for them. You can work with them. But in the end, you can't force them. And when they err and fall, you don't abandon them. You bring them in and they are still — this is a loving, caring relationship. These are our children. This is what's precious. They've made a mistake, and we go back time and time again to try to do it.

So whatever it is, this discussion is not a philosophical debate that's resolved by analytical clarity. It's a lifetime commitment to trying to be what we were created to be.

CHAIRMAN PELLEGRINO: Thank you. Oh, no. Gil, I'm sorry. Were you going to speak? Forgive me. Did you want to respond?

I think, I mean, I agree with you that we need to have an answer. I think at least I have expatiated far too much in this in the literature, so I'm not going to say anything here at this point. But did you want to say something further?

I'll just end it by saying that there is an act of profession which you referred to when you become a physician, and the answer is, we do have an end and the immediate end is, as it always has been, the care of the suffering, the relief of pain and suffering, cure when possible, care always, and I don't think there's any argument about that.

The question is, how well do we do it? And I happen to agree with John that it is the task of a physician to reflect on who he or she is in relationship to the obligation one has professed oneself to at the very entry into the profession.

Now that's a little, again, a sermon, a sermonette. I'll be glad to talk a lot about it, but I think we're at this point and can maybe pick it up later on when we move to the more concrete questions of what the physician does when the patient wants X and the physician, both from the point of view of professional and moral integrity, thinks it is not to be done.

And I think we thank John for laying out for us some of the fundamental questions about conscience — that was the idea we had — and we'll move into the concrete questions and, therefore, John and Gil, I think we asymptotically at least approach your question.

Have a good lunch. We will reassemble at 2:00 o'clock.

  - The President's Council on Bioethics -  
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