Which Conscience?

Forcing a person to violate his or her conscience seems intuitively wrong. Respect for a person demands that we respect that person’s conscientiously held views. However, we need to question whether conscience in all its forms is equally deserving of protection and accommodation in the professional sphere. Clearly not just any moral view a professional might hold is thought to be deserving of such accommodation. A physician with very sincerely and deeply held racist views would not be entitled to refuse service on the basis of race. This suggests that there are normative standards that the conscientious objector needs to meet in the formation of his or her conscience and against which the deliverances of that person’s conscience may be measured.

According to a number of philosophers (e.g., Allen Wood ^{Footnote 6} ), accounts of conscience fall into three broad divisions, which may also represent different aspects of conscience. The first two of these are: moral knowledge and moral motivation. Knowledge theories see conscience as a source of moral knowledge. Our conscience tells us what is right or wrong. But how? Conscience may be taken to be the direct voice of God within. Or it may simply represent the moral standards inculcated in childhood by parents, teachers, and houses of worship. Motivation theories focus on the prickings and proddings of conscience. Conscience motivates us to act in accordance with our judgements of right and wrong. To act against conscience is uncomfortable and leads to feelings of guilt. Moral knowledge and moral motivation theories, therefore, seem to go together. A reflexive negative emotive response to an action may be taken by the agent as a veridical indication that the proposed action is wrong.

The view of conscience as involving these two elements chimes with evidence from psychology that suggests that conscience requires the internalization of conduct norms, and that it manifests in moral emotion and rule-compatible conduct. A study of the development of conscience in children found that: “The structure of conscience was remarkably stable over time. The coherence between Moral Emotion and Rule-Compatible Conduct factors increased as children grew older.” ^{Footnote 7} Measures of conscience included resistance to temptation, complying with moral norms without surveillance, intensity of guilt feelings, and reparation.

However, there are obvious problems with privileging rather than challenging conscience based on the elements of claims to moral knowledge plus moral motivation. Many evil acts are done out of a firm belief in their rightness. Consider slavery, apartheid, genocide, and the Inquisition. At least some perpetrators were acting “in good conscience.”

This suggests that more is required of conscience than conviction if it is to deserve protection. A.C Garnett argues that the first two aspects of conscience can function quite uncritically. He thinks it is particularly dangerous when people invest their emotional reactions with moral authority and this “emotive element” inhibits critical activity. This leads to the third view of conscience: reflection theories, or as Garnett calls it critical conscience. These are views that prioritize moral considerations in reflection, and stress the need for reasoned moral judgment and critical examination of moral ideas. ^{Footnote 8}

I now turn to Immanuel Kant’s view of conscience, which I suggest combines a motivation account with a critical account. It thus escapes the objections to accounts that characterize conscience as an infallible inner voice. By a Kantian account, the kind of conscience that deserves respect requires a conscientious and autonomous moral agent capable of rigorous self-examination and impartial judgment. Characterizing conscience in this way has important implications for questions about how and when to accommodate conscience in healthcare settings.

Kant’s Account of Critical Conscience

Although Kant is often stereotyped as a hyper-rationalist for whom emotions were largely a distraction from duty, this is misleading. Moral feeling plays a constitutive role in Kant’s account of moral agency. Indeed, at first glance, Kant appears to hold a simple motivation theory of conscience.

For Kant conscience is one of the moral feelings that lies: “at the basis of morality, as subjective conditions of receptiveness to the concept of duty” He argues that “any consciousness of obligation depends upon moral feeling to make us aware of the constraint present in the thought of duty.” ^{Footnote 9}

Without moral feeling (including conscience) duty could not motivate us, and if a person cannot be constrained by thoughts of duty then that person could not reach the threshold for moral agency: that person would in Kant’s terms be “morally dead.” He says “conscience is not something that can be acquired, and we have no duty to provide ourselves with one; rather every man, as a moral being, has a conscience within him originally” (my emphasis). ^{Footnote 10}

Therefore, according to Kant, conscience is fundamental to moral agency. Without it, morality has no force. It is conscience that warns the agent before he or she makes a decision that might violate duty and that prosecutes them afterwards. When conscience acquits the agent of wrongdoing he or she is relieved of the anxiety and discomfort of a bad conscience. However, Kant clearly rejects the view that such feelings of discomfort and relief are the source of moral knowledge saying: “we no more have a special sense for what is (morally) good and evil than for truth” ^{Footnote 11} Rather, it is the process prompted by the feelings that is key to Kant’s view.

According to Kant, “conscience is practical reason holding man’s duty before him for his acquittal or condemnation.” It operates as an internal courtroom; man finds himself “observed, threatened…and kept in awe (respect coupled with fear) by an internal judge; and this authority watching over the law in him is not something he himself (voluntarily) makes but something incorporated in his being?” ^{Footnote 12} As Allen Wood explains it, “Conscience is always a reflection on one’s actions in which the issue, as in a criminal court is guilt or innocence.” Within the internal courtroom that Kant speaks of, “both the accuser and the defender within us must be seen as articulating their arguments on explicit grounds, and the verdict of the judge must equally be a reasoned one.” ^{Footnote 13}

If we are acquitted in this internal courtroom then, Kant says “as far as guilt or innocence is concerned” nothing more can be required of us. ^{Footnote 14} This endorsement of the supremacy of conscience in guiding conduct, however, must be seen in the light of what is required of agents in the formation and testing of moral principles. Kant notes that it is incumbent upon the agent to “enlighten his understanding in the matter of what is or is not duty” ^{Footnote 15} (my emphasis). This is a continuous and central task for moral agents, and requires the application of critical reason and “[i]mpartiality in appraising oneself in comparison with the law.” ^{Footnote 16} The Kantian view thus stresses moral autonomy and what personality psychologists term conscientiousness. Conscientiousness is one of the Big Five personality traits and is characterized by planning, persistence, self-control, and responsibility. Conscientiousness seems to require rational reflection and the capacity to step back from one’s impulses, and is consistent with developmental accounts of conscience in which early inhibitory control is clearly linked to conscientiousness in later life. ^{Footnote 17} In sum, Kant rejects a knowledge account of conscience. Although he accepts that conscience has a crucial motivating or feeling aspect, he argues that good conscience requires rigorous critical reflection.

What are the implications of this view of conscience for the issue of conscientious objection in healthcare settings? To tease this out, I turn first to Kant’s view of professional role responsibilities and of the legitimate restrictions that can be placed on role occupants, and then apply this to the case of service refusal by healthcare professionals.

Conscience, Enlightenment, and Professional Role Responsibilities

In his essay What is Enlightenment? ^{Footnote 18} Kant considers the conditions under which a society may progress toward enlightenment. He argues that progress depends on the free use and protection of public reason and debate. All adult members of a society have the right and the responsibility to engage in public debate, particularly on matters about which they have some special expertise. However, he draws a sharp distinction between the public use of reason and what he terms the private use of reason. Kant argues that private use of reason—in the context of a particular civil post or office—“may quite often be narrowly restricted.” He says “we require a certain mechanism whereby some members of the commonwealth must behave purely passively, so that they may…be employed by the government for public ends.” ^{Footnote 19}

Kant’s example here of a public good is the military. Soldiers must obey orders. They cannot argue about strategy in the field, or the protection of the commonwealth is at risk. Disagreements over military strategy and policy must seek other forums. Similarly, we cannot as private citizens withhold our taxes because we do not agree with the uses they are put to. We can, however, vigorously debate tax policy and suggest alternative proposals. However, it is Kant’s discussion of the clergyman with doctrinal disagreements that is most relevant to conscientious objection in healthcare settings, and that is where his position becomes clearest. The clergyman who has doubts about church teachings is nonetheless: “bound to instruct his pupils and congregation in accordance with the doctrines of the church he serves for he was employed by it on that condition …he is not and cannot be free as a priest (my emphasis).” ^{Footnote 20}

In this private context—a priest with his flock or a physician with his or her patient—the employment of reason is restricted to the appropriate delivery of the service and governed by precepts internal to that institution or profession. One’s conscientious disagreements should not enter into one’s private professional interactions with patients or parishioners who are entitled to expect the appropriate service delivery, but should be kept for professional and public fora.“Conversely, as a scholar addressing the real public through his writings, the clergyman making public use of his reason enjoys unlimited freedom to use his own reason and speak in his own person.” ^{Footnote 21}

Freedom of conscience, then, is not the freedom to deny service or to demand accommodation from others; it is the freedom and indeed the obligation to argue one’s views in the public arena or in discussion with fellow professionals as scholars and citizens, and Kant is resolutely opposed to any move to restrict such freedom. He thinks we cannot achieve enlightenment by binding others to our views through rules, legislation, or doctrines that do not permit the expression of disagreement or doubt. Kant says: “One age cannot…put the next age into a position where it would be impossible for it to extend and correct its knowledge …This would be a crime against human nature, whose original destiny lies precisely in such progress.” ^{Footnote 22}

For Kant, the requirement on us to enlighten our understanding through the continuous exercise of reason is stringent. Only then does conscience have a firm and defensible basis. But even then it does not entitle us to special accommodation in the conduct of our professional duties. In particular, it does not entitle us to refuse to perform the duties assigned to enable the delivery of public goods while enjoying all the benefits of employment.

Conscience and Integrity

This hard-line view on conscientious objection raises an immediate issue. Is not the requirement to check one’s conscience in at the door an assault on the integrity and moral autonomy of the health professional? We surely do not want physicians to be passive instruments of their employers. They need to be ethically engaged and to refuse to compromise their standards at the whim of an employer. The Nazi doctors should have refused to experiment on their patients. Physicians working for government departments should not compromise their professional assessment of a person’s level of disability to meet their employer’s target of reducing the number of people on disability benefits. Physicians in detention centers should continue to speak out about the disastrous health and developmental outcomes caused by prolonged detention.

In my view, these kinds of examples, potent though they are, rely on blurring the distinction between conscientious refusal of service to the patient on the basis of one’s private moral views, and conscientiously refusing to carry out a directive or act in accordance with a law that would require the health professional to act in a way that is clearly contrary to his her professional role responsibilities to prioritize the medical interests of the patient. In the second kind of case, the employer often also seeks to restrict the capacity of professionals to engage in public debate about the objectionable practice (as in the case of medical professionals working with immigration detainees in Australia or physicians working for insurance companies), thereby violating their freedom of conscience even on Kant’s restricted account of what is required for the free exercise of conscience in professional settings.

Interestingly, and for reasons that cannot be fully explored here, accommodation for conscientious objection is only sought in the first kind of case. ^{Footnote 23} Seeking special accommodation in order to perform one’s role responsibilities would seem faintly ridiculous. I will focus here on two Kantian responses to the first kind of case—refusal of service on private moral grounds—and then argue that refusal of service on such grounds does violate the professional role morality of health professionals. I will also argue, with Kant, that imposing a cost on conscience is consistent with respect for conscience.

Artificial Conscience and Conscientious Objection

Wood points out that Kant makes a distinction between reflective conscience, which is impartial and reasoned, and “artificial conscience.” Garnett similarly argues that we should distinguish between traditional conscience (which can also be a source of unwarranted guilt) and critical conscience or conscientiousness. Artificial conscience (the internalized voice of society, religion, or convention) is bound, unfree, unenlightened, and, crucially, immature. In What is Enlightenment? Kant characterizes immaturity as “the inability to use one’s own understanding without the guidance of another” ^{Footnote 24} and sees it as abdicating one’s responsibilities as an agent.

Religious beliefs are arguably the most common source of conscientious objection in healthcare. To the extent that health professionals passively accept religious doctrine as an unanswerable source of authority without critical reflection and without exposing their views to the rigors of public reason, their conscience is, in Kant’s terms, artificial and not deserving of protection. ^{Footnote 25} They remain unenlightened and non-autonomous. As Kant scathingly remarks: “It is so convenient to be immature! If I have a book to have understanding in place of me, a spiritual adviser to have a conscience for me…and so on, I need not make any efforts at all.” ^{Footnote 26}

Conversely some such physicians are active in what Kant calls private roles. They effectively impose their private views on people who are entitled to expect something else in this context. Critically, their objections to providing service need not be based primarily on considerations of the health and best interests of the patient but on moral and metaphysical views that are not essential to the role they occupy and that may be actively rejected by the patient. If physicians are permitted to refuse medical services at will by citing religious authority or personal moral conviction, the valuable social institution of which their employment is a part would be hamstrung in performing its role of providing a universal healthcare service to citizens, and the burden of delivering such care would be passed to other practitioners. The distinction between artificial conscience and critical conscience suggests that accommodation of conscientious refusal is not a condition of freedom of conscience. Freedom of conscience relies rather on the freedom to argue one’s case and subject it to public reason.

Answerability for Conscientious Objection: An Analogy with Civil Disobedience

I suggest that conscientious objection in medicine should be conceptualized and treated analogously to civil disobedience. According to John Rawls’s (1971) account of civil disobedience it is “a public, non-violent and conscientious breach of law undertaken with the aim of bringing about a change in laws or government policies. On this account, the persons who practice civil disobedience are willing to accept the legal consequences of their actions, as this shows their fidelity to the rule of law.” ^{Footnote 33} The liberal democratic state in turn often extends a degree of forbearance to the conscientious disobedient.

As Kimberley Brownlee ^{Footnote 34} describes Rawls’s position, civil disobedience is never conducted covertly or secretively. It requires advance notice to legal authorities. Rawls’s account may be too restrictive, as an account of the conditions under which civil disobedience may be warranted particularly in non-liberal states (see Brownlee for discussion); however, I suggest that it is an excellent model for conscientious refusal of service in healthcare settings. Indeed some aspects of this account such as advance warning to authorities are already captured by medical codes covering conscientious objection.

The decision to engage in civil disobedience is not trivial. The protestor is typically willing to risk something of importance, including liberty, to advance or defend deeply held moral views. Likewise, refusal of service on the grounds of conscience should be seen by individual health practitioners and by their professions and governing bodies as a serious and weighty matter that is never to be undertaken lightly. If the service refusal is indeed a matter of conscience, then the practitioner must be prepared to stand behind this refusal and answer for it.

Sometimes a good doctor might act in a professionally disobedient way by refusing to participate in certain procedures or to provide certain types of treatment for what he or she regards as weighty moral reasons. A good doctor must then show fidelity to the regulatory ideals and moral goals of their profession by being prepared to submit to the judgment of the relevant professional association, and to accept restrictions on practice or compensatory duties to relieve the burdens that this service refusal places on other practitioners.

A Kantian requirement to defend and justify one’s position to one’s professional peers and ideally to representatives of the relevant patient group at a formal tribunal would promote the development and exercise of critical conscience by providing a forum for careful and respectful examination of the practitioner’s position. The prospect of facing relevant restrictions on practice may also, I suspect, reduce levels of conscientious objection to practices such as abortion in the hospital system, where some physicians may elevate their dislike of performing the procedure to the level of conscientious objection, although they would, for example, find no insuperable moral objection to it being provided to their family members if needed. ^{Footnote 35} If practitioners object on nonmedical religious or moral grounds to providing the full range of reproductive services to women, then perhaps they ought not to be permitted to practice in rural areas where alternative health services are not readily available for women denied their care, or ought not to be permitted to work as a general practitioner in a solo practice, or ought not to be permitted to practice unless the restrictions on their practice are prominently advertised both in the waiting room and externally, or ought not to be permitted to specialize in obstetrics and gynecology. If practitioners object to providing healthcare to addicts, perhaps they should not be allowed to work in hospital emergency rooms or as general practitioners. ^{Footnote 36} Conscientious objectors in healthcare settings should not, as is presently the case, be able to offload all the costs of their objection onto colleagues and worse, onto patients. The requirement of respect for integrity and freedom of conscience does not entail that conscientious objection should be made cost free. We trivialize rather than respect conscience if we are not answerable for it.