Introduction

Reporting on controversies over freedom of conscience in Canada and the United States last year, National Post reporter Charles Lewis asked the question, "as our society becomes increasingly rights-focused, is there less tolerance for acts of conscience?"1

Lewis' article was titled, "The next moral quagmire: conscience."

I don't suppose that mud wrestling was on your professional horizons when you were called to the bar. Nonetheless, on behalf of the Protection of Conscience Project, welcome to the quagmire.

I believe that your practical work in defending freedom of conscience and religion will take the form of correspondence, negotiation and litigation with professional health care bodies.2 What I propose to do is offer material that can be employed to persuasive effect in all of these activities.

Freedom of conscience and abortion law reform

We will start with a review of some social and political history.

I'll take you back to the mid-1960's, when Canada was moving toward liberalization of its abortion law, and the word "conscience" did not inspire fears of drowning in quicksand. In fact, respect for freedom of conscience was a prominent theme in public discourse.

Abortion law reform advocates frequently portrayed themselves as champions of freedom of conscience. In 1965, for example, the Globe and Mail demanded liberalization of the law "to enable doctors to perform their duties according to their conscience and their calling."3

Two Private Members Bills on abortion were introduced in1967.4 M.P. Grace MacInnis, sponsor of one of the bills, assured the committee that "nobody would be forcing abortion procedures on anybody else," suggesting that abortion should be up to the individual conscience.5

The Omnibus Bill introduced in 1967 included what later became Canada's new abortion law. It did not include a protection of conscience clause.

Nonetheless, the Canadian Welfare Council stated:

At the risk of labouring the obvious, no woman will be required to undergo an abortion, no hospital will be required to provide the facilities for abortion, no doctor or nurse will be required to participate in abortion.6

Nor was the Catholic Hospital Association concerned:

We note that there is no question of [our hospitals] being obliged to change their present norms of conduct. On the contrary, proponents of a 'liberalized' abortion law admit that it should exempt those who object to being involved in procuring abortions.7

A protection of conscience clause was proposed when the Omnibus Bill returned to the Commons the following year.8 Justice Minister John Turner responded that the conscience clause was unnecessary because the proposed law

• imposed no duty on hospitals to set up committees,
  
• imposed no duty on doctors to perform abortions,
  
• and did not even impose a duty on doctors to initiate an application for an abortion.9

The protection of conscience clause was rejected, and abortion was legalized and regulated.10 The following year, Dr. Henry Morgentaler, annoyed by continuing legal restrictions on abortion, expressed his defiance in an article titled, "A Physician and his Moral Conscience."11

Of course, Dr. Morgentaler was not the only one unhappy with the new law, and the continuing moral controversy about abortion has been a fact of Canadian life and medical practice ever since. Since this is so well known, I will, for the moment, use abortion as an exemplar of contentious procedures. A review of the history of the past forty years will, I submit, disclose a pattern that is highly significant with respect to freedom of conscience in health care.

Progression of conflict

First Stage: expectation vs. reality

An expectation that medical personnel will provide or facilitate abortions runs up against the fact that many are unwilling to do so. That there are not enough physicians willing to provide abortions is a frequent complaint of abortion rights activists in the United States12 and Canada.13

The reluctance of many health care workers is complicated by the fact that many of those willing to provide abortion in some circumstances are unwilling to do so in others. Their response to what they consider late term abortions14 is frequently adverse,15so that women wanting late term abortions may have to travel from one country to another.16 This is true even in Quebec,17 where Premier Jean Charest, following a unanimous motion in the National Assembly, recently declared abortion to be "an inalienable right."18 But gestational age is only one of the factors that can give rise to conscientious objection.19And even after legalization, opposition to abortion does not necessarily diminish over time.20

This my first point: that there is a conflict between the expectation that health care workers will provide abortions, and the reality that many of them may be unwilling to do so.21

Second Stage: expectations rise

But expectations are not static. In the second stage, expectations tend to rise. They are fuelled by continuing pressure to legalize abortion, liberalize existing abortion laws and expand abortion services, so that they continually collide with resistance and opposition, especially in countries that have strong cultural and religious traditions against the practice.22

Third Stage: expectation to demand

In the third stage, rising expectation that health care workers will provide abortions tends to evolve into a demand that they do so. This is especially true where (as in Canada) the state has assumed responsibility for providing health care. This has been affirmed by Dr. Preston Zuliani, the President of the College of Physicians and Surgeons of Ontario.23

And here we return to the promises made in the 1960's by those advocating legalization of abortion.

No hospital will be required to provide the facilities for abortion.

. . . no doctor or nurse will be required to participate in abortion

. . . nobody would be forcing abortion procedures on anybody else

. . . no woman will be required to undergo an abortion

But five years after abortion was legalized, the Globe and Mail (that erstwhile champion of freedom of conscience) complained:

. . . hospital boards should never have been allowed a choice in the matter. The Government should . . . require hospitals which receive public grants to establish abortion committees.24

In fact, since the early 1970's, every one of these promises made by abortion law reform advocates has been broken.25

Fourth Stage: from demand to right

Recall the first stage: expectations that health care workers will provide abortion encounter the reality that many are unwilling to do so.

The second: expectation rises and collides with opposition.

The third stage: rising expectation evolves into demand.

There is one more stage. Demand evolves into a claim of rights.26

Early rights claims were directed only at the repeal of abortion laws, so that women would be free to seek abortions and physicians free to provide them.27 I am not now talking about "rights language" from this early period, but about current claims of rights that are meant to force health care workers and institutions to provide or at least facilitate abortions.

Activists world-wide28 are attempting to establish "hard norms" - treaty-based international laws29 - that recognize access to abortion as a fundamental human right.30 They plan to develop a "culture of enforcement" that will compel governments to respect this 'right'31 and enforce it against health care workers and institutions.32 This is precisely what the Ontario Human Rights Commission was trying to do in 2008.

Even as they work toward this end, activists are cultivating "soft norms" in the form of statements by international, regional, and intergovernmental bodies.33 One might include among "soft norms" editorials and columns in professional journals. As "soft norms" quietly accumulate it becomes easier to claim that they represent an emerging consensus that should be codified in binding "hard norms."34 The recent statements by the Quebec National Assembly and Premier of Quebec will, no doubt, contribute nicely to this project.

Should they be successful they will have destroyed almost all hope of respect for freedom of conscience in health care. For if, as Jean Charest claims, abortion is an "inalienable right," then refusal to facilitate abortion would become, in law, an offence like racial discrimination, and conscientious objection would be prohibited, just as racial discrimination is now prohibited. Canadian Professor Bernard M. Dickens has gone so far as to suggest that refusing to refer for abortion is a crime against humanity analogous to torture,35 a claim that is making the rounds elsewhere.36 Jean Charest might not go that far, but, if he really meant what he said, he will at least take steps to force all Quebec health care workers and institutions to remove their gestational limits on abortion, now commonly about 14 weeks.37

This four stage progression with respect to abortion, often assisted by abortion rights activists, can also be observed outside North America. Examples ready to hand come from the United Kingdom,38 Switzerland,39 Australia,40 Africa,41 Poland,42 Portugal,43 Spain,44 India,45 Pakistan,46 and Colombia,47 not to exclude others.

Other controversial procedures

I have thus far confined the review to abortion, using it as a convenient example for the purpose of illustration. But if objecting health care workers can be forced to provide or facilitate abortions, they can also be forced to provide or facilitate other morally controversial procedures.

Such as?

In alphabetical order:

Adult female circumcision48

Amputation of healthy body parts49

Artificial reproduction, including production of children

• for single women50
• for homosexual couples51
• for tissue donation52
• and of children of dead parents53
• or with handicaps to match those of their parents54

Assisted suicide55, 56

Causing death of non-dying patients by starvation and dehydration57

Contraception

Contraceptive sterilization 58

Cosmetic surgery59

Embryonic stem cell research

Eugenics60

Euthanasia61

Human experimentation, including the use of pvs patients62N Levy, A Ravelingien, J Braeckman, F Mortier, E Mortier, and I Kerremans, Respecting rights ... to death. J. Med. Ethics, Oct 2006; 32: 608 - 611. and sham surgery63

Infant male circumcision64

Infanticide65

Sex change surgery66

The list is, quite possibly, incomplete.

The references to female circumcision and the amputation may raise some eyebrows. How could these be considered legitimate medical procedures? The most frequent reasons given are patient autonomy and harm reduction. If someone is determined to cut off a foot or a leg, better it be done by a competent surgeon than have a desperate patient attempt it himself or go to some back alley amputationist.67 One law professor has implied that surgeons who refuse to perform adult female circumcision are abandoning the patient, and even cited an opinion that refusing to perform the surgery is discriminatory.68 The same sorts of things are said with respect to assisted suicide.69

Most of these procedures are already accepted or have at least some support among establishment academics and professional authorities. Further: the progression leading to claims of rights that we have seen with respect to abortion can also be observed with respect to assisted suicide,70 artificial reproduction,71 contraception,72 contraceptive sterilization,73 sex change surgery74 and euthanasia.75

Is there less tolerance?

Return to Charles Lewis' question in the light of these developments: "[A]s our society becomes increasingly rights-focused, is there less tolerance for acts of conscience?"

I have mentioned Bernard Dickens' notion that refusing to refer for abortion is a crime against humanity. Others claim that it is immoral not to clone human beings,76 reckless to have a child without genetic screening,77 and wicked to refuse a request for assisted suicide.78

The answer, it seems, is a qualified "yes." There does seem to be less tolerance for acts based on some kinds of conscientious convictions.

The fundamental question

I have given you a precis waggishly called, "Fencing for Freedom," which briefly considers claims often encountered in arguments about freedom of conscience in health care. However, fencing with opponents about the definition of "abandonment" or the nature of fiduciary duties, while necessary, does not get us very far. The fundamental issue in protection of conscience work may be phrased as a question:

Upon what principle consistent with the best traditions of liberal democracy should individuals be forced to give up their own convictions and made to act upon the contrary moral beliefs of another person, an institution, or the state?

Opponents of freedom of conscience must be confronted with this question, and this should remain the focus of correspondence, negotiation and litigation.

In addition, it is necessary to articulate the importance of freedom of conscience and the goods that it serves, a subject that has been sorely neglected. One author who has made a recent and significant contribution on this topic is Holly Fernandez Lynch, a lawyer who, two years ago, published Conflicts of Conscience in Health Care: An Institutional Compromise. She focuses exclusively on physicians,79 and an attentive reading of the book must take into account the effects of two underlying elements: some form of anti-religious prejudice, and dogmatic moral pluralism.80 Nonetheless, readers will welcome many of the author's trenchant observations and the book has much to offer. There is an extensive review of the book on the Project website.

Today, however, I want to draw to your attention what Fernandez Lynch has to say about the goods served by freedom of conscience, and to another lesson that can be taken from her work.

Re: Conflicts of Conscience in Health Care

While she does not argue from a Catholic or even religious perspective, she introduces her book, Conflicts of Conscience in Health Care: An Institutional Compromise, with a statement from Pope John Paul II:

. . . to refuse to take part in committing an injustice is not only a moral duty, it is also a basic human right. Were this not so, the human person would be forced to perform an action intrinsically incompatible with human dignity, and in this way human freedom itself, the authentic meaning and purpose of which are found in its orientation to the true and the good, would be radically compromised.81

The author believes that freedom of conscience for physicians and the provision of legal medical services are both important social goals, and that they are not incompatible.82 Ultimately, quoting the Protection of Conscience Project,83 she affirms that all legitimate concerns can be met by "dialogue, prudent planning, and the exercise of tolerance, imagination and political will."84

Overview

The author suggests the following explanation of the current controversy. She observes that physicians act as "gatekeepers" to medical services, but an objecting physician may sometimes be the only available "gatekeeper" who can open the gate to a desired service. Her solution: tell patients about other gates and gatekeepers, redistribute them, and, if necessary, provide more gates and more gatekeepers.85 Or, to paraphrase anti-euthanasia activists, if access is the problem, eliminate barriers to access, not objecting physicians.86

Fernandez Lynch identifies two key conditions for compromise: avoiding harm to patients,87 and ensuring "access to desired services,"88 including a guarantee of access to abortion,89 whether for medical or social reasons.90 She suggests that the public will support freedom of conscience for objecting physicians as long as the services to which they object can be obtained elsewhere.91 Indeed, she describes concerns about patient access as lying "at the very heart of the conscience clause debate."92

The reasons for compromise

The author identifies "the driving force and strongest argument" for preserving freedom of conscience for physicians.93 One word sums it up: ignorance. More specifically, the ignorance consequent upon moral pluralism - which she celebrates-94 and her view - but by no means hers alone - that "no one has special access to knowledge about what is right and wrong."95

Fernandez Lynch admits that if we do not know what is truly right and truly wrong, we cannot accuse an objecting physician of wrongdoing. Her clarity on this point is refreshing.

If we cannot be completely sure that we have gotten it right . . . there is a distinct possibility that the refusers are right, leaving no legitimate grounds on which to exclude them from the profession. The problem is that we often just do not know. (emphasis added)96

Preserving moral diversity

In this situation, the just and prudent course, she argues, is to preserve moral diversity by protecting freedom of conscience. She believes that this will ensure a continuing debate within the medical profession, inspired by the collision of conflicting ideas, thus helping us to avoid error and to identify "the most accurate version of moral truth."97

Preserving access to services

She acknowledges that some people would like to force objecting physicians out of the profession to ensure access to services.98 But she challenges this approach on its own terms.

Suppose that a patient who is denied a service sues a physician or makes a formal complaint. The physician would probably continue to refuse.99 If the patient obtains the service at all, it will be through a willing physician, and it will not be because of the complaint or lawsuit. The objecting physician might be suspended or struck from the register, or leave the specialty or the profession. In all such cases, access to medical services will suffer.100

If the real goal is to ensure access to services, says the author, punishing unwilling physicians is likely to be counterproductive. If the real goal is to ensure access - not to punish objecting physicians - that goal is best served by connecting patients with physicians willing to help them.101

The social goods of freedom of conscience in medicine

Turning to the social goods served by freedom of conscience, Fernandez Lynch suggests that "patients may prefer to be treated by physicians with similar values." Physician-patient matching based on shared values would minimize the likelihood of conflict, and might well contribute significantly to meeting patient needs.102 This can be understood as simply another aspect of culturally competent medical practice.

In addition to what might be called the argument from ignorance, Fernandez Lynch asserts that physicians cannot be expected to "check their personal religious and moral beliefs at the door"103since "the segmentation of one's personality demanded by secularization may be utterly impossible."104 Such a policy would turn physicians into technical automatons who are fully responsive to patient requests but "detached from potentially appropriate moral qualms." This, she says, would "corrode the humanity and compassion patients expect and need from their doctors."105

She points out that society has not been well served by physicians without moral qualms,106 and asks the reader to imagine the consequences if only "morally insensitive" applicants were admitted to medical practice. It would, she believes, lead to a shortage of physicians. And she is concerned that such a policy could destroy the reputation of the profession. She warns that people might come to view physicians as they view lawyers.107

In sum, physician freedom of conscience, she says, provides important social goods. She argues that the costs of suppressing it would outweigh the benefits, and that denying it to physicians might actually diminish patient access to services.

Limitations of the book

The author warns the reader that her book is not about moral philosophy.108 She does not try to understand the origin of conscience, does not attempt to define it, and does not consider its nature.109 Nor does she, at any point, consider the origin, definition, or nature of freedom. She explains that she wants to leave philosophy to philosophers, and that her book has a strictly "legal trajectory."110

As a result, the best and most patient of readers will, reaching the end of the book, have no clear idea about what all of it means. We cannot possibly know whether or not what the author proposes will safeguard freedom of conscience if we do not know what it is.111

The nature of the book

It does no disservice to the author to acknowledge what she, herself, admits. In her view, the heart of the conscience clause debate is patient access to services.112 She has written a book about how to help patients obtain services when some of the gatekeepers who control access to them are uncooperative.113 It is not a book about freedom of conscience. She has observed how conscience operates in the medical environment, and concludes that we do not need philosophy to solve access problems. All we need is a strategy.

Granted: the strategy she proposes is very promising in its broad outlines, and I again emphasize that the book has much to offer. But it is necessary to raise the discussion to a new level, or, rather, to go deeper and see what underlies a work that purports to have a strictly legal trajectory.

A new level of discussion

The first step in this process is to recognize that philosophy cannot be left to philosophers. That is impossible. Every proposal for the just ordering of society rests upon some kind of philosophy or constellation of philosophical ideas. That is why, despite the author's disclaimer that she is leaving philosophy aside, social contract theory114 permeates the book.115 It is also why the author has, in the Project's view, failed to correctly identify the central issue.

Professionalism is not the centre

Fernandez Lynch asserts that everything relevant to the discussion of freedom of conscience in health care turns on a correct understanding of medical professionalism.116 However, as she develops her proposal, we find that she is unable to find a standard that can be used to decide what services ought to be guaranteed by a regulatory authority.117 She struggles - without success - to find broadly acceptable definitions for concepts like "harm,"118 "needs and preferences"119 - even "emergency."120 She remarks that it is impossible even to agree on what services are "controversial."121

Defining these terms is absolutely essential for working out the practical details of any compromise, but theories of professionalism have nothing to offer in this respect. It turns out that everything does not turn on a correct view of professionalism. Everything - including one's view of professionalism - turns on an adequate understanding of the nature of the human person.

This is not a scientific issue,122 nor is it a legal issue, the concept of legal personhood notwithstanding. This is a philosophical issue. Reasoning from different beliefs about what man is and what is good for him leads to different definitions of "need,"different understandings of "harm," different concepts of right and wrong, and, ultimately, to different ethical conclusions. We cannot agree upon what is good or bad for the patient - or the physician - without first agreeing upon the nature of the human person. That is what determines not only how we define medical necessity or emergency, but how we approach every moral or ethical problem in medicine - including freedom of conscience.123

Everything proposed by Fernandez Lynch is based on the understanding of the human person that she brings with her to the table to discuss the terms of her compromise. And this is very evident in Conflicts of Conscience in Health Care, beginning with the statement from Pope John Paul II in the introduction. The author seems to have agreed with this statement without comprehending its full significance, especially for lawyers concerned about human rights.124 I now propose to explain that significance in a series of four hypotheses.

First hypothesis: the person is at the centre

First: fundamental disagreement about the nature of the human person is what lies at the centre of disputes about freedom of conscience. The nature of the human person - not professionalism - must be the focus of our attention.

And when we shift our focus to the notion of the human person that informs her work, we discover that Fernandez Lynch identifies autonomy as the essential characteristic of the human person.125

One increases one's autonomy by being "empowered" to get what one wants or to do what one wants. For this, freedom of choice is essential;126 one must eliminate factors that might restrict freedom of choice, like restrictive laws or beliefs.127 Even religious beliefs are understood and valued primarily as expressions of autonomy.128

The pursuit of autonomy is potentially limitless, but resources and opportunities are finite. Thus, human interactions come to be seen primarily in terms of power.129 People can, of course, consent to co-operate with one another to satisfy their respective interests.130

But the key word is consent. Consent justifies any action that might otherwise be held to violate personal autonomy,131like euthanasia.132 Autonomy is violated when consent is improperly obtained,133 but also whenever someone's interests are adversely affected without his consent.134

Finally, when pursuit of personal autonomy is the dominant ethic, it is socially critical to maintain a balance of power. Hence, maintaining equality - understood as an equitable balance of power - becomes the dominant concern.135

Second hypothesis: the ideology of the autonomous person

It is reasonable to believe that the emphasis placed on power and autonomy in contemporary thought is the product of an ideology, as defined by Hannah Arendt: a system of thought in which everything that needs to be explained can be explained "in the consistent process of logical deduction" from a single controlling idea.136 And with this we come to the second hypothesis. The ideology of the autonomous person (to give it a name), while it fits well with utilitarianism and social contract theory, does not comport with the concept of the human person that informs the statement by John Paul II that introduces the book. It does not have room for all that is contained in concepts of the human person that come to us from the patrimony of great religious and philosophical traditions.

Historical notes

The third hypothesis is best understood in an historical context.

Our modern notion of freedom of religion could not take root in Europe prior to the Reformation. From that point it became possible to think of freedom of religion in some form, and increasingly necessary to do so as an important element in maintaining civil order. Freedom of conscience was the necessary (though not sufficient) condition for the exercise of freedom of religion, since the decision to convert from one religion to another depended on the judgement of conscience.

For the next four hundred years, freedom of religion made its way forward in the realms of politics and law, but freedom of conscience lingered in the provinces of philosophy and theology. Thus, when "freedom of conscience" appeared in the statutes and constitutions of this period, it was - almost without exception - always in its Reformation context, directly linked to freedom of religion.

The proclamation of the Universal Declaration of Human Rights in 1948 marked the first time that freedom of conscience and freedom of religion were clearly distinguished in law.137 Since that time, it has appeared in numerous national constitutions that used the Declaration as a template.

But the Declaration had a limitation that has been inherited by subsequent constitutions and charters. French philosopher Jacques Maritain, one of the driving forces behind the Declaration, identified it at the time. He explained that the Universal Declaration of Human Rights was, in a sense, only an action plan. It was an agreement only about how people and states ought to behave. There was no agreement about why they should behave that way: no agreement about the nature of the human person, and - important in the present context - no agreement about the origin, definition or nature of freedom of conscience.138

Maritain was, nonetheless, optimistic, convinced that much could be accomplished.139 But his optimism was also based on a key premise: that no "genuine democracy" would demand conformity to "any philosophic or any religious creed." Such demands, made by totalitarian states, had produced, he said, only an "inhuman counterfeit of civilization."140

Third hypothesis: rights charters transformed.

What Maritain appears not to have foreseen is a possibility that is stated here as a third hypothesis: that charters and bills of rights can be used to impose precisely the kind of ideological conformity Maritain feared. This can be done by changing the understanding of the human person upon which the definition and interpretation of human rights depends. Not one word of the law need be changed to accomplish this; it will continue to appear to protect fundamental rights and freedoms. But this will be true in fact only if the concept of the human person that informs the official interpretation of the law is at least adequate.

Fourth hypothesis: charters of destruction

With the fourth hypothesis comes controversy. If the underlying concept is not adequate - and especially if it is erroneous - human rights law will not sustain or protect authentic human rights and freedoms. Quite the reverse. It will become an instrument of their destruction, working through the key disciplines of education, law and medicine.

In this case, the effect on the body politic will be analogous to the effects of HIV on the immune system. Institutions meant to preserve and protect human society will not just fail. Like infected immune cells, they will become the very means by which that failure spreads. Ultimately, they will produce the kind of oppressive counterfeit of democracy that Maritain feared. Perhaps John Paul II had something like this in mind when he observed that a democracy without values can easily become an "open or thinly veiled totalitarianism."141 Perhaps a post-modern culture naturally produces a post-democratic regime.

Canadians tend to be of the opinion that our country is a model of democracy the rest of the world would do well to imitate. We like to think that we're experts in the field, that the rest of the world ought to look to us to see democracy, if not in its most perfect and final form, at least in its maturity. But the oldest modern democracy is only a little over 200 years old; in historical terms, modern democracy is still in diapers. Is it not possible that, as a nation, we are toddlers who have not yet developed the kind of moral balance demanded by the nature of democratic government? We have an appetite for freedom, to be sure, but what kind of freedom? For what purpose? As CS Lewis observed, the kind of things that citizens in a democracy naturally like are not necessarily the things that will best preserve democracy.142

"Managing" rights

In the 60 years since the proclamation of the Universal Declaration of Human Rights, the phrase "freedom of conscience" has been cut and pasted into countless charters and bills of rights, but there is yet no common and coherent agreement about what freedom of conscience is, and how it relates to the good of the human person and human society. This cannot continue indefinitely. We are approaching a time when a handful of academics, medical bureaucrats and judges will be asked to impose their notions of freedom of conscience upon their fellow citizens, and manage the exercise of that freedom in the presence of conflicting claims.

"[W]hen courts engage in this "managing" exercise," says Mr. Justice David M. Brown of the Ontario Superior Court of Justice, "they do not operate as philosophically-neutral actors."

Instead, the case law reveals that they perform the "managing" exercise through philosophical lenses that are not blank, but reflect philosophical choices which inform their balancing task.

Mr. Justice Brown warns that "philosophical perspectives - stated or unstated" influence the outcome of cases dealing with freedom of conscience or religion.143 This is also true of decision-making by adjudicators and functionaries of professional medical bodies. Despite claims to the contrary, their decisions - like Fernandez Lynch's book - do not have "a strictly legal trajectory."

Thus, when you correspond with them, negotiate with them, or meet them in litigation, it will be critical to remind them that the philosophical perspectives they bring to bear on the issues must be informed by an adequate understanding of the nature of the human person as it relates to freedom of conscience.

What follows is an account of the human person that is consistent with the best of our political, legal and religious traditions.

The human person

Integrity

The health care worker has only one identity, served by a single conscience that governs his conduct in private and professional life.144 This moral unity of the human person is identified as integrity, a virtue highly prized by Martin Luther King Jr., who described it at as essential for "a complete life."145

The integrity or wholeness of the human person was also a key element in the thought of Jacques Maritain,146 who held that "in the depth of his being he is more a whole than a part and more independent than servile."147

This concept is not foreign to the practice of modern medicine. Canadian ethicist Margaret Somerville, for example, asserts that one cannot overemphasize the importance of the notion of 'patient-as-person' and acknowledges a "totality of the person" that goes beyond the purely physical.148

Dignity and inviolability

Maritain would agree. "Man," he wrote, "exists not merely physically; there is in him a richer and nobler existence."149

Applying this principle, Maritain asserted that, even as a member of society or the state, a man "has secrets that escape the group and a vocation which the group does not encompass."150 His whole person is engaged in society through his social and political activities and his work, but "not by reason of his entire self and all that is in him."151

"For in the person," he said, "there are some things - and they are the most important and sacred ones - which transcend political society and draw man in his entirety above political society."152

A part exists only to comprise or sustain a whole; it is a means to that end. But even as part of society, Maritain insisted, "the human person is something more than a part;"153 he remains a whole, and must be treated as a whole.154The human person is an end in himself, not a means to an end.155 Thus, according to Maritain, the nature of the human person is such that it "would have no man exploited by another man, as a tool to serve the latter's own particular good."156

British philosopher Cyril Joad applied this to the philosophy of democratic government:

To the right of the individual to be treated as an end, which entails his right to the full development and expression of his personality, all other rights and claims must, the democrat holds, be subordinated. I do not know how this principle is to be defended any more than I can frame a defence for the principles of democracy and liberty.157

Like Maritain, Professor Joad insisted that it is an essential tenet of democratic government that the state is made for man, but man is not made for the state.158 To reduce human persons to the status of tools or things to be used for ends chosen by others is reprehensible: "very wicked," wrote C.S. Lewis.159 Likewise, Martin Luther King Jr. condemned segregation as "morally wrong and awful" precisely because it relegated persons "to the status of things."160

Polish philosopher Karol Wojtyla (later Pope John Paul II):

. . . we must never treat a person as a means to an end. This principle has a universal validity. Nobody can use a person as a means towards an end, no human being, nor yet God the Creator.161

Maritain, Joad, Lewis, King and Wojtyla reaffirmed in the twentieth century what Immanuel Kant had written in the eighteenth: "Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only."162

Human dignity and freedom of conscience

This was the approach taken by Madame Justice Bertha Wilson of the Supreme Court of Canada when she addressed the issue of freedom of conscience in the landmark 1988 case R v. Morgentaler. Madame Justice Wilson argued that "an emphasis on individual conscience and individual judgment . . . lies at the heart of our democratic political tradition."163 Wilson held that it was indisputable that the decision to have an abortion "is essentially a moral decision, a matter of conscience."

In a free and democratic society, she wrote, "the state will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating these choices to any one conception of the good life."164

Quoting Professor Joad - the same passage that I have just quoted - Madame Justice Wilson approved the principle that a human person must never be treated as a means to an end - especially an end chosen by someone else, or by the state. She rejected the idea that, in questions of morality, the state should endorse and enforce "one conscientiously-held view at the expense of another," for that is "to deny freedom of conscience to some, to treat them as means to an end, to deprive them . . .of their 'essential humanity'."165

Conclusion

In the tradition of Kant, C.S. Lewis, Martin Luther King Jr., Cyril Joad and Karol Wojtyla, and following Madame Justice Wilson, to demand that health care workers provide or facilitate procedures or services that they believe to be wrong in order to serve ends chosen by another is to treat them as means to an end and deprive them of their "essential humanity."

The Ontario Human Rights Commission has proposed that, as a matter of principle and even as a matter of law, health care workers can be compelled to do what they believe to be wrong, and that they can be punished if they do not. This drives a knife into "the heart of our democratic political tradition," and it is blasphemy against the human spirit. In the words of Alexander Solzhenitsyn, "To this putrefaction of soul, this spiritual enslavement, human beings who wish to be human cannot consent."166

Recalling the trademark scene from an old television series, your mission, should you decide to accept it, is to convince the Canadian establishment that this is a plausible view of the human person, and to remind judges and professional bodies that they must leave room in this country for more than one understanding of the human person - for more than one philosophy of life.

Thank you.

Notes