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Protection of Conscience Project

Service, not Servitude

The President's Council on Bioethics
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

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 by Someone 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.

[Applause] [. . .Discussion]


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Conscience, Moral Philosophy