Conscience, Conscientious Objection Versus Civil Disobedience, and the Problem of Toleration and Public Reason
To gain a foothold on what characterizes conscience, let’s begin with the Oxford English Dictionary, which defines conscience in part as “the sense of right and wrong as regards things for which one is responsible; the faculty . . . which judges the moral quality of one’s actions or motives.” This definition reinforces the point that conscience concerns moral beliefs and actions that implicate these beliefs that are within the scope of one’s agency. On its face, conscience matters, since to violate one’s conscience makes one feel conflicted by violating one’s ethical judgments though one’s own actions and, at its most extreme, could fracture an individual’s wholeness as a person. The debate over the proper role of conscience in medicine has made clear that the relevant value to be preserved by scruples-based exemptions is the integrity of objecting providers (Wic-clair, 2000). In its most basic sense, integrity is quite simply sticking to one’s values, and preserving integrity by not violating one’s conscience may have both intrinsic and extrinsic value. Wicclair’s analysis of integrity in the debate about conscientious objection in medicine has been influential and it is therefore worthy of careful study. On the question of the moral value of integrity he says:
[I]t can be claimed that moral integrity generally has intrinsic worth or value. That is, it might be asserted that having core moral beliefs that are associated with one’s self-conception and a disposition to act in accordance with them (to act conscientiously) are intrinsically valuable and worthy of respect.
(2011,27)
On Wicclair’s view, then, it is simply a good thing to act in accord with one’s deepest values. The world can be said to be a better place when individuals have deep moral commitments and possess the tendency to guide their lives by acting in ways consistent with these values. An odd feature of integrity, however, is that if we think its maintenance is valuable intrinsically, then we would have to assign value in such a case even if the ethical beliefs maintained or promoted are evil. Wicclair (2011, 27) acknowledges this problem:
To be sure, insofar as moral integrity can involve a commitment to any ethical or religious beliefs, it does not guarantee ethically acceptable behavior. For example, depending on the content of a person’s core moral beliefs, maintaining moral integrity can require invidious discrimination, genocide, cruelty, and so forth. Nevertheless, similar to courage and honesty, admiration and respect for moral integrity is at least partially independent of an assessment of ends and consequences.
For Wicclair, maintaining and respecting integrity has intrinsic value, though his account is not clear about the degree to which integrity is valuable intrinsically versus extrinsically. By contrast, as I will discuss, I doubt that moral integrity generally has intrinsic value. Nevertheless, it is worth briefly exploring what can be said to support the intrinsic and extrinsic value of integrity. Regarding intrinsic value and focusing upon medicine, consider that a great number of medical providers such as doctors and nurses view their practice of medicine as constitutive of their identity; since their core moral values are also part of their selfconstitution, their moral values are thereby imported into their practice. Christine Korsgaard reflects on the general connection between selfidentity and justification in relation to acting ethically, saying
sometimes doing the wrong thing is as bad or worse than death . . . the only thing that could be as bad or worse than death is something that for us amounts to death—not being ourselves any more.
(Korsgaard 17-18)
So, to violate one’s own integrity is to perform an act of self-alienation, which itself makes that person’s life go less well. This unpacks my earlier point that the unique sort of moral beliefs involved in conscientious objection are identity-conferring beliefs; violating a belief of this sort means sacrificing a part of oneself and changing (perhaps irrevocably) the person one takes oneself to be. While it is only beliefs of this central kind that rise to the level of beliefs involved in a genuine conscientious objection, I would add that if the values the person is seeking to maintain are clearly the kinds of values that characterize a bad person (e.g. hatred, racism, sexism), then this calls the wisdom of respecting and preserving integrity into question. I would add that given this phenomenon of selfidentification, if I identify as a physician or nurse, then I should also take the values of the profession as core values of my own as well. This again calls into question the idea that a medical professional should be able to request an accommodation to preserve integrity by simply referring to any personal selection of values. The nature of the moral values and beliefs underlying the preservation of integrity is intimately connected to the valuation that integrity and its preservation should garner, thereby problematizing any strong account of integrity as intrinsically valuable.
Regarding the ascription of extrinsic value to maintaining integrity, there are good reasons to think that we ought to prefer a world in which medical providers are not constantly violating their own moral integrity. Various empirical studies related to moral distress suggest this. The concept of moral distress, discussed extensively in the field of nursing ethics, can be understood as
painful feelings and/or psychological disequilibrium that occurs in situations in which the ethically right course of action is known but cannot be acted upon. As a result, persons in moral distress act in a manner contrary to their personal and professional values.
(Elpern, Covert, and Kleinpell 523)
These negative feelings can include anxiety, guilt, sorrow, anger, frustration, and helplessness. A few concrete examples will help to ground the concept; what follows are several qualitative responses to Elpern, Covert, and Kleinpell’s (525-27) study of moral distress in nurses:
- • “I often equate my job with ‘keeping dead people alive.’ On these days, I dread coming to work.”
- • “Some days ... I see patients as ‘my job,’ not ‘real people’ with families.”
- • “I’m scared that I’m causing undue pain and suffering, and this causes me great distress.”
Institutional or agency constraints can make it the case that one’s (active or passive) participation in an activity compromises or violates one’s moral integrity; Epstein and Hamric suggest that the repetitive nature of such situations leads to an erosion of moral integrity, causing burnout or compassion fatigue. To illustrate the relevant concepts, consider the following example in a study by Epstein (quoted in Epstein and Hamric 335):
And we just had that happen with Baby [LJ. I had been taking care of him, and they . . . flogged that poor baby. . . . [Also] they [the doctors] don’t sit down and talk with the family. . . . I’ve had that experience many times with attendings . . . because they don’t talk to families.
This quote points to agency constraints—a nurse who witnesses a baby receiving an inappropriate level of care that he or she deems wrong and abusive but feels powerless to change, perhaps due to this nurse’s belief that the physicians simply will not understand the perspective of the family. It also clearly points to the repetitive nature of these distressing situations, which may lead to the nurse questioning the physician’s orders, calling an ethics consultation, or in its most extreme form, refusing to follow medical orders.
The phenomenon of moral distress, then, can lead a nurse, physician, or other medical professional to turn to conscientious objection—after all, this is one way to maintain one’s moral integrity. Epstein and Hamric (336-37) recognize the connection between moral distress and conscientious objection. They discuss the moral distress crescendo that occurs as the clinical situation evolves, say, in the case of a stroke patient that poses a danger to himself and the nursing staff. If in this case these medical professionals’ concerns are not acknowledged, even when the case is resolved (e.g. the patient is transferred to another unit or facility) this creates what Epstein and Hamric call “moral residue,” and this residue increases each time such a case occurs and is not given proper attention. As time goes on, if we assume that the nursing staff’s concerns are not given proper acknowledgment, the moral residue grows and grows, as future (repetitive) instances of the same sort of case occur and remind the health care workers of previous cases. Epstein and Hamric see conscientious objection as one possible response to the phenomena of moral residue and moral distress. My suggestion here is that maintaining moral integrity by allowing at least some conscientious exemptions is important because it acknowledges moral distress, and acknowledging moral distress is a necessary first step in an effort to reduce it. The nurse’s emotional response to the distressing case of a baby in the neonatal unit is a natural and responsible human reaction; it is not an attempt to shirk one’s duties. This argument from moral distress makes the initial case for the validity of some conscientious objection in medicine, in contrast to others who assert that medical professionals should simply do their job.
More formally, maintaining integrity by reducing moral distress is valuable because this phenomenon has been shown to lead to decreased job satisfaction and increased turnover (Elpern, Covert, and Kleinpell), burnout and decreased employee morale (Beil and Breslin), and to decreased ability to provide good care to patients (Austin, Lemermeyer, and Goldberg). In short, there are good effects from reducing moral distress. Since encouraging the voicing of conscientious objection reduces moral distress, allowing scruples-based accommodation for some reasonable conscientious objections that give voice to such distress possesses positive value.
Some have suggested that moral distress leads to a slippage of integrity or desensitization to perceived wrongdoing over time (Webster and Bayliss). If this was true, then advocating the acknowledgment of moral distress and the voicing of some conscientious dissent may not be indicated on a regular basis, since on this account, as a nurse completes more years of service, his or her experience of moral distress decreases. There are some reasons to doubt this claim. Studies have found a positive correlation between years of experience in nursing and moral distress scores (Elpern, Covert, and Kleinpell 525), meaning that moral distress increases as the nurse matriculates in his or her career. So, in fact, it is sound to ascribe importance to the regular voicing of moral distress and, in turn, to accommodating some conscientious objection stemming from moral distress. At the most fundamental level, on my view, giving voice to conscientious dissent (even if an accommodation is not extended in every case) is important since it bears witness to one’s values by making clear the reasoned basis supporting the provider’s conscience claim. In addition, we have learned that reducing moral distress has beneficial effects for both health care providers and for patient care. These considerations make the basic case for the importance of allowing the voicing and accommodation of some conscience claims in medicine.
Yet this case should not convince us to follow conscience unreflectively. Peter Fuss philosophically examines the notion of conscience and makes several powerful criticisms against those (such as the philosopher Bishop Joseph Butler) who hold such a view. If we assume that conscience is selfjustifying—rhe very fact a person is told by his conscience that not doing X is his duty, so it is conclusively proven—we discover some troublesome results. First, the consciences of people in various cultures tell them different things, and hence these dictates conflict. As Fuss points out, if we are to make a rational decision to favor rhe judgments asserted by one as opposed to another, this decision must be based on something other than the consciences involved (111-12). Further, even within an individual, she may find that her conscience tells her conflicting things at different times. Again, if she is to rationally decide which dictates are authoritative and hence worthy of action, she must appeal to something other than her conscience, meaning that conscience is not infallible and its dictates are not always worthy of adherence (112).
Finally, over and above the previous points that conscience can sometimes get it wrong, it is unclear how conscience itself can justify the dictates of conscience. Even if we assumed arguendo that conscience was internally consistent and interpersonally uniform, we can (and should!) always ask why our obedience to the dictates of this human faculty is warranted. If the defender of the authority of conscience states that following conscience is the supreme guide for ethical human behavior or serves as a check upon moral theories, thereby carrying its authority with it, we can always properly ask: Why? The defender’s line of thought does not provide us with a justification to follow conscience at all, since it simply begs the question of why the dictates of conscience are authoritative. Of course, what we need are reasoned principles for why we ought to follow the advice that flows from conscience. To this point, philosopher Josiah Royce wrote: “ethical doctrine must tell us why, if the devil’s conscience approves of the devil’s acts, as it may well do, the devil’s conscience is nevertheless in the wrong” (quoted in Fuss 120). Normative ethical theories such as (e.g.) Consequentialism or Kantianism provide just such a grounding; while of course neither of these theories can provide infallible guidance either, they can provide a rational framework that allows for reasoned moral discourse. I aim to defend a principled view of conscientious objection (and its associated conception of conscience) on which the benefits and harms associated with granting a conscientious exemption are one of several central considerations taken into account to determine whether an accommodation is justified; I will return to discuss in detail the relevant factors in Chapter 3. As alluded to earlier in this section, I question a formal conception on which conscience continues to possess intrinsic value regardless of the content of the values involved; this is worthy of further exploration.
The value of conscience, as I have observed, is often understood in a formal way. If integrity is considered intrinsically valuable, it is good independently of the nature of the values the person holds. I’ve made clear earlier in this section that Wicclair subscribes to a conception on which integrity itself has value over and above the ends promoted by maintaining integrity. In line with this formal conception of the goodness of integrity, Wicclair says:
Requiring a substantive “right reason” from health professionals who request accommodation generally is inconsistent with the goal of providing them moral space to act according to their moral convictions and maintain their moral integrity.
(2014,276)
Since the relevant value in claims of conscience is integrity, and integrity possesses intrinsic value, then on this view we should not request a substantive, independent reason from that individual. Maintaining moralintegrity is important not because the values implicated are true or justified, suggests Wicclair, but instead because these are this person’s values, and this is an act to maintain the “moral space” for this person to act upon his or her moral convictions.
I do not accept this notion and instead offer a substantive conception of integrity since, as we have learned, conscience can get it wrong and can lead a person to commit heinous actions. If we accept a formal conception of integrity, it is unclear what can be said against honoring requests for accommodation from such an individual. From our discussion earlier, we learned that conscientious claims are not self-justifying because they emanate from conscience; I will suggest instead that conscientious claims require externally validated principles or standards to provide justificatory force. On this substantive conception, maintaining integrity by granting a conscientious exemption is allowable only when extending the accommodation does not cause unjustified harm. For a formalist, since conscience is agnostic regarding the values in play, we should allow a medical practitioner to maintain his or her integrity by refusing a patient without examining the values implicated or the reasons supporting the conscientious objection. The harm to patients seems irrelevant, or at least less relevant, to the question of whether an accommodation should be extended since conscience claims are intrinsically valuable and special in nature. By contrast, I will argue that we should allow an appeal to conscience to exempt one from what would otherwise be his or her professional duty only if this promotes good ends such as minimizing harm, realizing justice, or promoting equality. I will return to the debate I have identified between formalist and substantive conceptions of integrity and conscience later in the book. At this point, what is important is that we have a working understanding of the notions of integrity and conscience to use going forward in our examination of the boundaries of conscientious objection in medicine. Now that we have discussed the concept of conscience and have delineated different understandings of the value of integrity, we should distinguish the notion of conscientious objection from civil disobedience to focus the discussion.
Regarding civil disobedience, James Childress (68) says, “I will use ‘civil disobedience’ to refer to public, nonviolent, and submissive violations of law in protest based on moral-political principles and designed to effect or to prevent social, political, or legal change.” By “submissive,” Childress means “non-evasive”—the civil disobedient does not attempt to act in a clandestine manner and submits to the costs of performing this public action. Childress (68) says of the former notion, “I will use “conscientious objection” to refer to public, nonviolent, and submissive violations of law based on person-moral, often religious, convictions and intended primarily to witness those principles or values.” While it is certainly possible that some acts will represent a mixture of these two concepts, there is much to recommend this way of understanding the distinction. As I see it, the essence of civil disobedience is making a social point; such agents are basing their acts on a political value and seek to change a social policy. By contrast, the essence of conscientious objection is objecting based on personal values to participation in a contested activity, since this leads to the individual being morally complicit in that activity from their perspective and hence undermines their integrity. African-Americans who joined in the US civil rights movement in the 1960s were not specifically protesting their participation in carrying out racist actions; they were the victims of such racism. Their protests were instead premised on the political ideal of equality to demand that the country’s policies of institutionalized racism be changed. It seems consistent with conscientious objection to say: “I won’t participate in furthering X, but if others do so, that is their business.” Yet regarding civil disobedience, civil rights activists did not think: “I oppose racial segregation in schools, but I am fine with others who support such segregation.” A medical conscientious objector could refuse to dispense hormonal birth control based on her religious beliefs yet could realize that the law supporting distribution of birth control materials and products is well settled (having been addressed over 50 years ago by the US Supreme Court)2 and accept that others with different beliefs may engage in this if they choose. Their conscientious objection is centered upon their personal moral beliefs, and the objection is focused on blocking their participation in the practice—it need not explicitly seek to overturn the legalization of distributing birth control in the US.
In fact, medical conscientious objectors to birth control do not even seem to be asking for such a thing. Karen Brauer, the President of Pharmacists for Life International, seems to suggest this when she states regarding FDA approval to dispense the emergency contraceptive levonorgestrel or Plan B over-the-counter, “The FDA doing a stupid thing doesn’t change anything for those of us who need to do the right thing” (Stein, 2006). As briefly alluded to earlier, however, there can be overlap between the two concepts. When Kim Davis, a county clerk in Rowan County, Kentucky, stated in 2015 that she was religiously-morally opposed to same-sex marriage and hence would not grant such couples marriage licenses, her specific basis for ceasing to issue all marriage licenses was that those issued to same-sex couples would carry her name and position as county clerk, pursuant to state law. This objection made a social-political point by taking issue with the US Supreme Court’s decision in Obergefell v. Hodges the summer before, which struck down all state laws forbidding same-sex marriage. Yet her specific objection was with her participation in a practice she religiously opposes, and so her actions are best described as a primary instance of a conscientious objection that seeks an exemption from a generally applicable law. (Her participation was presumably captured in her name and position appearing on the marriage license.) So, while an instance of conscientious objection can make a social point, some degree
The Main Considerations 19 of overlap should not lead us to deflate the distinction between these two concepts.
Another major thinker draws the distinction between the two concepts somewhat differently. Kimberley Brownlee (2-5) views civil disobedience as public, communicative, and non-evasive acts that prioritize convictions or conscience over a legal demand, while conscientious objection is viewed as private, non-communicative acts. By “communicative,” Brownlee means that the actor is expending dialogic effort, so that acts of civil disobedience are attempts to engage citizens in reasoned dialogue about the contested practice, and this communicative element can include constrained disobedience of law. She views conscientious objection as less justified than civil disobedience regarding the protections we ought to give to individuals to express their conscientious convictions without punishment. Her reason is that conscientious objection is not essentially communicative—it can occur privately and so is not offered as an act of protest conjoined with a willingness to bear the costs of expressing one’s conviction. As such, it is not communicative since it does not necessarily aim to engage fellow citizens in dialogue. What should we think about the additional features Brownlee suggests for these two concepts?
The case of conscientious objection in medicine is an interesting one for Brownlee’s conditions, since it is not at all clear that such objections are private in nature when expressed in the health care context. While I agree that there is a lack of willingness on the part of some medical conscientious objectors to bear the cost of expressing their convictions, the actions still have a public dimension insofar as they are discovered and identified within the profession of medicine. The most interesting point concerns Brownlee’s claim that civil disobedience is essentially communicative while this is not the case for conscientious objection: this again does not seem entirely true when one considers conscientious objections in health care. It is the case that medical conscientious objectors do not seem intent on engaging others in dialogue so much as they are set on blocking their own participation in the contested practice. Yet the assertion of conscientious objections by providers regarding reproductive medicine—very often religious in nature—does carry with it a larger communicative element. Advocates of conscientious objection in medicine seem to be inveighing against a “vending machine” model of the health care professional: the practice of medicine, they assert, necessarily involves value judgments and medicine is not best viewed as separate from the personal, spiritual realm. This, they maintain, is most clearly echoed in the questions of life and death surrounding reproductive medicine. Such a reflective proponent of conscientious objection is communicating a message of religious protest to the hegemony of science, just as much as she is defiantly questioning the hegemony of law to establish the standard of care in medicine. I am not fully convinced, therefore, that conscientious objection lacks a communicative element when thinkingabout this phenomenon within the context of medicine. In fact, given the position I am defending that those seeking conscientious exemptions must make the reasoned basis for their objection public and allow this basis to be subjected to critical examination, one could say that my view requires dialogic effort on the part of successful conscientious objectors.
On a related note, Brownlee discusses the role of conscience as she sees it. She writes:
Given conditions of moral pluralism, the function of conscience is not to give objectively right answers to moral questions. Rather, its functions are to make us sensitive to the complexity of the moral decisions we make, and to help us to privilege certain values over others in light of our personal moral situation.
(10)
I of course acknowledge the fact of moral pluralism, yet I find Brownlee’s thoughts here puzzling. If consulting conscience is to help us achieve greater sensitivity to ethical complexity, this would presumably make us more unsure of the moral values to which we appeal in such decisionmaking. Yet this seems to be the opposite of what is the case—appeals to conscience are often regarded as the most certain of all appeals to moral value. One does not have to deliberate about whether they hold a certain principle as a matter of conscience; that principle will simply be apparent and its salience clear to the individual. In addition, do appeals to conscience help us to prioritize our moral values in a concrete circumstance? Conscientious values are not simply convictions—Brownlee (4) agrees with this—but instead are our deepest convictions, what I have described as identity-conferring beliefs and commitments. It seems strange to think that I could organize parts of myself (insofar as these are instantiated in moral values) as having more priority than other parts of my identity. The point in a conscientious objection is to refuse to sacrifice any part of one’s moral identity since the values at stake are integral to one’s status as a certain person.
On a broader note, this prioritization seems to involve judgment— since values are normative, assigning priority to one value over another seems to be a normative exercise as well. Yet, as I have conceived it, conscience cannot on its own deliver us substantive, normative content, yet this would appear to be required if conscience were to help us “privilege certain values over others.” While I acknowledge the influence of her recent account of civil disobedience and conscientious objection and the importance of the dialogic condition in relation to these topics, some parts of Brownlee’s analysis seem problematic. In contrast to Brownlee, my goal is not to offer a fully developed theoretical account of civil disobedience versus conscientious objection; I aim only to sketch a sufficiently clear view within this literature so that I can satisfy my practical goal of analyzing the bounds of conscientious refusals within medicine. On my account, conscientious objection concerns blocking one’s participation in the contested activity, yet that does not prevent the objection from possessing a public dimension; a true conscientious objector must be willing to bear the costs associated with her refusal and must be willing to publicly explain the reasoned basis of her refusal to establish the value of accommodating this objection.
Brownlee and I can agree, however, that voicing dissent and abiding by one’s conscientious beliefs is important, yet this creates a challenging social-political issue. A number of philosophers, most famously including John Rawls, have wrestled with the problem of toleration of different beliefs in a society characterized by the fact of moral pluralism. The difficulty we are addressing can be stated as follows: if we assume that persistent and deep disagreement exists among citizens regarding matters of value, how can we enforce a set of rules or laws that have proper authority over these individuals? The answer, Rawls claims, lies in an ideal of public reason—this ideal justifies a set of rules for the governance of society that warrant endorsement by all citizens, no matter their religious or cultural affiliation. Rawls (1996,1) provides a clear statement of the ideal of public reason in the following passage:
This ideal is that citizens are to conduct their public political discussions of constitutional essentials and matters of basic justice within the framework of what each sincerely regards as a reasonable political conception of justice, a conception that expresses political values that others as free and equal might also reasonably be expected reasonably to endorse.
The idea of public reason is to be contrasted with an individual’s personal comprehensive conception of the good—the latter is founded upon the person’s cultural or ethnic identity, religious beliefs, and so on, while the former is derived from purely political ideas5—and it is discussions of constitutional essentials and matters of public justice that must be cast in these political terms. By constitutional essentials, Rawls means political rights and liberties one might want enshrined in a constitution, and by matters of basic justice, Rawls means matters that “relate to the basic structure of society and so would concern questions of basic economic and social justice and other things not covered by a constitution” (1). In this book, we are talking about citizens acting in their public role as medical professionals—even if they are not serving as identified political actors who are explicitly advocating for an ideological position. I contend that access to reproductive health care involves constitutional rights and liberties and is a matter of basic justice as Rawls conceives it; to cite just one example, reproductive rights vis a vis access to abortion has been noted by the US Supreme Court to be an issue of social justice, and the effects of legalized access to abortion have been identified by the Court as having a positive effect on women’s equality and political rights in this country.4 Given that the United States has a health care system in which medical providers systematically deny women access to reproductive services via conscientious objection with little or no regulatory oversight, this goes against the idea of women as free and equal citizens. Relating to such matters, then, on a Rawlsian approach such providers must not solely appeal to their personal, comprehensive doctrines in their refusals of care within the institutional structure of medicine but must appeal to public reasons—those that are consistent with a reasonable public conception of justice. These arguments clearly justify invoking the concept of public reason in this discussion; the actions of medical professionals affect their patients as well as influence societal debates about reproductive technology, end-of-life treatment, and the like. On my position, the ideal of public reason will be used as an overarching principle to determine what counts as acceptable grounds for conscientious objection in a society characterized by the fact of pluralism.’
Does this mean that citizens cannot ever appeal to their personal comprehensive (i.e. religious) conceptions to justify actions in the public sphere that relate to public reason? This was Rawls’ view for some time, but as he notes in later work:
When engaged in public reasoning may we also include reasons of our comprehensive doctrines? I now believe . .. that reasonable such doctrines may be introduced in public reason at any time, provided that in due course public reasons, given by a reasonable political conception, are presented sufficient to support whatever the comprehensive doctrines are introduced to support.
(lii)
This passage emphasizes the main point I have been driving home: even when personal comprehensive doctrines can be marshalled to support an action in the public sphere that bears on matters of basic justice, that comprehensive conception must be reasonable. While there are differences between possessing a reasonable conception of one’s personal comprehensive conception of the good and an action or policy that satisfies the standard of public reason, the upshot is that acts performed in the social sphere must appeal to public reasons stemming from a political conception of persons as free and equal and society as a system of fair cooperation, and emanating from values that other such persons could reasonably be expected to endorse.6
Let’s summarize and extend these ideas to move forward. We have learned from this discussion, first, that we should acknowledge the importance of the public/private distinction and allow broad but not unlimited freedom for individuals to hold and act upon their personal comprehensive conceptions of the good within the private sphere. Also, within the public sphere, when organizing the basic institutional structure of society, we can ask that individuals only act upon reasonable conceptions of the good, if reasons from one’s personal conception are to be introduced into public reason (given that in due course, sufficient public reasons stemming from a reasonable political conception follow). Minimally, this means that we can rule out (e.g.) racist or sexist beliefs as a proper basis for accommodations within the public sphere. Since we can find no good reasons to justify organizing institutions based on rules founded upon the racial or gendered identities of the actors in those institutions—ones which are justifiable to all individuals to whom such rules would apply—we can simply refuse to use these considerations as organizing principles for our societal institutions. Finally, to borrow a point from the literature following in the wake of Rawls’ work in A Theory of Justice, we should see that the public/private distinction is not as sharp as it may appear. Thinkers such as Susan Moller Okin (1989) have rightly pointed out that the private sphere and the public sphere interact with one another, so that for example the evolution of gender within the family (private sphere) affects greatly what happens to women in their employed lives (public sphere). The takeaway here is that even though such thinkers are right to be cautious with respect to the public/ private distinction, the distinction is still sufficiently robust to be workable for our purposes. The ideal of public reason strikes the proper balance between the private and public spheres by requiring that when a citizen appeals to a comprehensive conception of the good in the public sphere, the conception in question must be reasonable, that is, supportable (in due course) by public reasons.
As I reflect on the importance of this discussion about our public versus our private lives more generally, it is important to stress that the notion of giving reasons to fellow individuals as we conduct our lives in the public sphere is simply what we owe to one another as citizens. After all, reasons speak to something powerful—as human beings here engaging in moral discourse about conscientious objection, we share the ability to think rationally (at least to some degree), and reasons appeal to this deep, shared ability. Giving reasons captures this shared ability, and acting in the public sphere only upon reasonable reasons properly shows respect to others with whom we live and work. It further represents the proper response to the problem of toleration: we do not ask our fellow citizens to tolerate acts stemming from unreasonable conceptions of the good, and in turn, we acknowledge the validity of acts performed by others that, even if we personally disagree with them based on our own comprehensive conception of the good, emanate from a reasonable conception (assuming again satisfaction of the “Rawslian wrinkle” that in due course public reasons are given). The full import of this dialogue is not simply captured in giving reasons, however, but in providing justifications cast in public reason that, if all goes well, comport with this ideal.
To extend these points explicitly towards the view on conscientious objection I defend, consider how Jonathan Quong (2013) sets up the dichotomy between different theories of political legitimacy. If we want to know whether our governance structure and the political rules imposed on us are legitimate, Quong points out that there are several classic standards of evaluation for doing so. The first is consent. Some political philosophers following in the footsteps of thinkers such as John Locke think that political legitimacy requires actual or implied consent by the people governed. Another answer is truth-, we can simply assess the State’s structure based on whether the purported moral or political principles upon which governance occurs are true. As Quong insightfully notes: “Public reason does not aim either at consent or truth. Public reason instead requires that our moral or political principles be justifiable to, or reasonably acceptable to, all those persons to whom the principles are meant to apply.” So, defenders of this notion in moral and political philosophy must guard against public reason devolving into a standard of consent by simply pointing to those principles that people already have chosen to accept. Public reason must maintain its normative edge but cannot be based upon what political standards are true, since then public reason would again do no work of its own (Quong). Public reason, then, relies upon a notion of idealization-. what rules or standards people should accept given other principles they have already adopted. Public reason provides a compelling solution to the problem of toleration: by appealing to widely held principles such as justice or equality, we can defend the existence of rules and standards that warrant acceptance by those who are governed by those rules. Since I view the challenge of adjudicating conscientious objections in health care as an instantiation of the larger problem of toleration, getting clear about the nature of public reason is of immense importance. I acknowledge the existence of persistent moral disagreement in society, yet the concept of public reason allows a standard of reasonability to exist alongside the fact of moral pluralism. Invoking the public reason standard into our discussion of how to approach the proper philosophical position and public policy response to conscientious objection in health care implies that we need only look to whether the reasons supporting a conscientious objection are justified, not to whether they are true.
This point is worth amplifying by using a rare example in which Rawls discusses a concrete social issue. In the context of discussing citizens’ behavior in reaction to a reasonable argument given in public reason for a right to abortion (and assuming there is no equally reasonable argument in public reason to deny the associated right), Rawls writes:
This doesn’t mean the outcome is true or correct, but it is for the moment reasonable, and binding on citizens by majority principle.
Some may, of course, reject a decision, as Catholics may reject a decision to grant a right to abortion. They may present an argument in public reason for denying it and fail to win a majority. . . . They can recognize the right as belonging to legitimate law and therefore do not resist it with force. To do that would be unreasonable.
(1996, Ivi-lvii)
This passage reinforces several important points. First, social policy outcomes that emanate from public reason are not assessed in terms of truth but instead in terms of justifiability and reasonableness. The view I defend will appeal to Rawls’ notion of public reason and require that those seeking conscientious exemptions show that the reasons supporting their objections are justified, not that they are necessarily premised upon reasons that are true. Dan Brock (2008) makes this point in a cogent fashion by arguing that given the fact of persistent pluralism, this entails that all the different moral judgments rendered by individuals cannot be true. This point by itself serves as a reason to give up the pursuit of truth as a standard to assess conscience claims and to instead focus on justification; after all, both the abortion opponent’s belief that early human life possesses full moral standing and the pro-choice thinker’s conviction that fetuses lack intrinsic moral consideration can be justified, even though both cannot be true.
Second, this passage suggests that if a right to abortion is supportable in public reason and belongs to legitimate law (as it does in the United States), a citizen cannot flout this law, and this holds even more strongly for a citizen acting as a medical professional licensed by the State. The relevant reference class for our conversation consists of medical professionals versus the entire political populace, though I hasten to add that I do not aim to totally uncouple these two classes. Medical professionals act as citizens as well as practitioners, but it is their actions and reasons in the latter capacity that are pertinent since the question of conscientious objection applies to them acting as professionals. As I shall emphasize, medical professionals have professional obligations that are nor possessed by ordinary citizens, and this fact should weigh heavily in any acceptable account of the proper scope of conscience claims in medicine. This book does something novel, then, by appealing to the concept of public reason and deploying this within a circumscribed population to distinguish reasonable from unreasonable conscientious objections. Finally, these points about the necessity of justification in terms of reasonability apply even more clearly when a matter of basic justice is at stake—as is the case when conscientious objection by state-licensed medical providers serves to block women’s access to legally available reproductive services such as hormonal birth control, emergency contraception, and other kinds of medical treatment while pregnant. Given the existence of pervasive disagreement surrounding abortion and conscientious objections related to women’s reproductive rights, this approach centered on justification is both sensible and practical. As I will discuss in the next section, the focus in my view is on a standard of reasonability; this standard determines what reasons supporting a conscience objection warrant acceptance and thereby can be used to justify a claim for a conscientious exemption.7
