The Silence of Good People and Non-cooperation with Evil: A Response to
Prof. R. Alta Charo
Responding to: Charo RA. The Celestial Fire of Conscience - Refusing
to Deliver Medical Care N Eng J Med 352:24, June 16, 2005
19 August, 2005
It is especially noteworthy that, in an essay about the exercise of
freedom of conscience by health care workers, Professor R. Alta Charo has
virtually nothing to say about freedom or conscience (The Celestial Fire of
Conscience- Refusing to Deliver Medical Care. N Eng J Med 352:24, June 16,
2005). "Conscience clauses," yes: conscientious objection, to be sure: and
she mentions acts of conscience and the right of conscience. But nothing
about freedom, and, on the subject of conscience itself, the most she can
muster is, "Conscience is a tricky business."
Given her silence on freedom and suspicious distrust of conscience, it is
not surprising that her quotes from Mahatma Gandhi, Martin Luther King Jr.
and C.S. Lewis are no more than crumbs from their tables, for these men had
robust views of freedom and conscience that Professor Charo does not share.
For example, Prof. Charo and Ellen Goodman (whom she quotes with
approval) hold that conscientious objectors should be willing "to pay some
price" to exercise the freedom promised as their birthright; the price Ms.
Goodman has in mind is loss of employment.1
What tax Professor Charo would impose she does not say. Instead, she offers
a quote from Martin Luther King about going to jail for disobeying an unjust
Now, King was talking about civil disobedience, not conscientious
objection, but leave that aside. His statement makes clear that he believed
that it was wrong to jail people for disobeying an unjust law, not that
imprisonment was somehow a fitting quid pro quo for the legitimate
exercise of freedom. Going to jail was, in King's view, a necessary but
temporary strategy to be employed on the road to a better state of affairs.
He did not see imprisonment as the price blacks should continue to pay to
live in freedom, but as an appeal to "the conscience of the community" that
would demonstrate the injustice of the law:
A just law is a man-made code that squares with the
moral law or the law of God. An unjust law is a code that is out of harmony
with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust
law is a human law that is not rooted in eternal law and natural law.2
These are principles of the tradition that King, a Protestant, shared
with Catholic Aquinas, the Anglican Lewis, Gandhi, a Hindu, and with
countless others of all faiths who have resisted and protested tyrannous
laws down through the ages. They understood that freedom and conscience are
essential to human nature and inextricably linked to the primordial
obligation to choose good and avoid evil.
King spoke a language widely understood and accepted by friends and foes
alike - but not by Professor Charo. For what differentiates the latest round
of battles about conscience from those fought by Gandhi and King is not, as
Professor Charo and Ms. Goodman would have it, that objectors are seeking
"conscience without consequence." It is that Gandhi and King shared the same
moral universe with their opponents, but Charo and Goodman do not.
An indication of this is found in Professor Charo's mistaken suggestion
that "an expanded notion of complicity" underlies the refusal by objectors
to facilitate morally controversial acts by referral or counselling.
Contrary to her assertion, there is nothing new or "expanded" in the idea
that one can incur moral responsibility in ways other than by 'just doing
it.'3 As a law professor, she must
be familiar with the concept that a person can incur criminal responsibility
or civil liability by aiding, abetting or counselling. She must also know
that the scope of moral or ethical culpability is much broader than that of
legal responsibility; witness statements from both King and Gandhi.
"We will have to repent in this generation not merely for the hateful
words and actions of the bad people," wrote King, "but for the appalling
silence of the good people."4
"Non-cooperation with evil," said Gandhi, "is as much a duty as is
cooperation with good."5
Professor Charo's language and thinking simply cannot bear the weight of
the tradition behind these words. Instead, her analysis draws mainly upon
the notion that human fulfilment is achieved, not by seeking the good and
living a blameless life, but by the maximization of personal autonomy. This
is why she defines the issue as a power struggle: a conflict of autonomy
between patients and health care workers.
But when what is essential to the human person is seen as the exercise of
power, the human person comes to be defined primarily by what he does, not
by what he is or might become. This is a vision of a human doing, not a
human being; the human person is subsumed by his role or function. In
consequence, relationships between human persons are eclipsed by functional
roles. Health care workers become, in Professor Charo's words, "mere
purveyors of medical technology."
To thus 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.6Likewise,
Martin Luther King condemned segregation as "morally wrong and sinful"
precisely because it relegated persons "to the status of things."
Similarly, Madame Justice Bertha Wilson of the Supreme Court of Canada,
in striking down all restrictions on abortion in Canada, held that the state
should not 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'."8 This is especially
true when people are compelled to serve ends that they find morally
Professor Charo, however, denies that there is significant moral or
ethical content in controversies about euthanasia, assisted suicide,
reproductive technology, and research on embryos. Once more applying the
paradigm of power struggle, she argues that such disputes are not about
morality or ethics at all, but about strategy - anti-abortion strategy. The
exercise of freedom of conscience by objecting health care workers is, she
suggests, a "proxy war" - "an attempt at cultural conquest."
C.S. Lewis invented a name for this "modern method" of argument:
'Bulverism.'Rather than demonstrating that an opponent is wrong, the
Bulverist assumes, without discussion, that he is wrong, "and then
distract(s) attention from this (the only real issue) by busily explaining
how he became so silly." In the words of Ezekiel Bulver, imaginary founder
of this school of thought, "Assume that your opponent is wrong, and then
explain his error, and the world will be at your feet."9
Assume, with Professor Charo, that there aren't any significant moral or
ethical controversies about abortion, cloning, euthanasia, etc. because
'everyone knows'these procedures are not wrong. Assume with her that
anti-abortionist sentiment is the 'real'or primary motive for opposition to
them. Granted such assumptions, justification for conscientious objection
disappears, the fear of moral complicity through referral becomes
ridiculous, and accusations that conscientious objection is actually "an
attempt at cultural conquest" seem plausible. This is Professor Charo's
approach, and it would win accolades from Ezekiel Bulver.
But Bulverism, Lewis pointed out, works both ways. Assume, against
Professor Charo, that 'everyone knows'that euthanasia, assisted suicide,
etc. are wrong. Assume, against Professor Charo, that pro-abortion sentiment
is the 'real'or primary motive for supporting them. Granted such
assumptions, the reason for conscientious objection is clear, concerns about
moral complicity are logical, and it is plausible to see in Professor
Charo's article "an attempt at cultural conquest."
Lewis saw Bulverism in play on both sides of all political arguments and
could not, when he coined term, see how it could lead to anything other than
a stalemate, or to "sheer self-contradicting idiocy."10
Bilateral Bulverism, with its mutual accusations of "cultural conquest,"
does not provide a basis for resolving conflicts about freedom of conscience
in health care.
Equally problematic is Professor Charo's concern about "a diminution of
the difference between our personal lives and our professional duties." This
statement reflects, in the words of Professor Frederic Hafferty and Dr.
Ronald Franks, "a view of ethics that frames ethical principles as tools to
be employed . . . something that can be picked up or put down, used or
discarded, depending upon the situation or circumstances involved . . . an
instrument for manipulation much like any of the more technological tools
medicine has at its disposal."11
One keeps several ethical toolboxes on the shelf by the back door: one
for the home, one for the office, another, perhaps, for the political arena.
Use the right tool for the right job, and don't embarrass yourself and your
colleagues by bringing the wrong toolbox onto the ward. Hafferty and Franks
observed that this "rather limited and task-oriented view of ethics" is the
"prevailing sentiment, at least within the basic science faculty of medical
In contrast, conscientious objectors do not instrumentalize moral and
ethical norms, but internalize them. They are not tools for solving
problems, but form part of their identities. And a human person has only one
identity, served by a single conscience that governs his conduct in private
and professional life. This moral unity of the human person —
integrity — was highly prized by Martin Luther King, who described it at
essential for "a complete life.13
[W]e must remember that it's possible to affirm the
existence of God with your lips and deny his existence with your life. . . .
We say with our mouths that we believe in him, but we live with our lives
like he never existed . . . That's a dangerous type of atheism.14
Against this, Professor Charo invokes the venerable concept of
self-sacrifice. "Professionalism," she suggests rhetorically, ought to
include "the rather old-fashioned notion of putting others before oneself."
But self-sacrifice, in the tradition of King, Gandhi and Lewis, while it
might mean going to jail or even the loss of one's life, has never been
understood to include the sacrifice of one's integrity. To abandon one's
moral or ethical convictions in order to serve others is prostitution, not
"He who surrenders himself without reservation," warned C.S. Lewis, "to
the temporal claims of a nation, or a party, or a class" - one could here
add 'profession'- "is rendering to Caesar that which, of all things,
emphatically belongs to God: himself."15
The passage also illustrates that Lewis, like Martin Luther King, quite
naturally expressed himself in religious terms because he was motivated by
religious conviction. Neither he nor King believed that publicly expressing
or acting upon their religious convictions was a threat to democratic
freedom. But Lewis feared the development of a state that rejected the
natural moral law and Scripture16
in favour of some 'humanitarian'theory of social control. It was within
this context that he sounded his warning about "omnipotent moral
busybodies:" experts determined to cleanse the land of certain "states of
mind" - like religious belief.17
Professor Charo does not mean to eliminate religious belief, but she
wonders how much of it to tolerate in the public square: whether to allow it
"unfettered expression" even if this "creates an oppressive atmosphere for
minority groups," or to permit religious expression only if it "does not in
any way impinge on minority beliefs and practices" (emphasis added).
Leave aside the false dichotomy: that the only choice lies between
expression that is completely unfettered or barely (if ever) permitted.
Ignore her peculiar solicitude for favoured minorities, which clearly
excludes the minority comprised of conscientious objectors. What deserves
attention is Professor Chao's insinuation that religious beliefs have the
potential to create "an oppressive atmosphere," but non-religious beliefs do
One must be very selective in one's reading to maintain anti-religious
sentiment of this sort for very long. The atmosphere in Nazi Europe resulted
from non-religious beliefs about racial superiority and social organization.
Atheism contributed to a stifling atmosphere in the Stalinist and
post-Stalinist USSR and eastern bloc countries. Belief - but not religious
belief - produced the atmosphere in Abu Ghraib prison, and continues to do
so in the interrogation rooms in Guantanamo Bay.
It is simply false to assert that only religious believers are motivated
by faith. That human dignity exists -or that it does not - or that human
life is worthy of unconditional reverence - or merely conditional respect -
and notions of beneficence, justice and equality are not the product of
scientific enquiry, but rest upon faith: upon beliefs about human nature,
the meaning and purpose of life, the existence of good and evil. Disputes
about morality - about the morality of contraception, assisted suicide, stem
cell research - are always, at the core, disputes between people of
different faiths, whether or not those faiths are religious. "Everyone
'believes'," writes social critic Iain Benson. "The question is what do we
believe in and for what reasons?"
Once we realize that everyone necessarily operates out
of some kind of faith assumptions we stop excluding analysis of faith from
public life. We cannot simply banish "religious" faiths from our common
conversations about how we ought to order our lives together while leaving
unexamined all those "implicit faiths" in such areas as public education,
medicine, law or politics.18
Does an implicit faith in the morality of contraception or other
controversial treatment underlie Professor Charo's failure to grasp the
moral implications of referral and counselling, which she proposes as part
of the solution to conflicts of conscience? Perhaps not: but, as Benson
argues, the possibility should not be left unexamined.
The good news to be drawn from Professor Charo's article is that she
seems sincerely interested in developing a strategy to accommodate freedom
of conscience among health care workers, while providing patients with
access to the drugs and services they want, even if, as she admits, it is a
difficult goal. It is also a particularly worthy goal, and her interest in
it is most promising.
1. Ellen Goodman, “Dispensing Morality”, Washington Post (9 April, 2005) (“[T]here are other ways to exercise a private conscience clause. Indeed, in a conflict between your job and your ethics, you can quit. It happens every day.”).
2. Martin Luther King Jr, “Letter from Birmingham Jail” (16 April, 1963), The University of Alabama Libraries Special Collections (website), [King] at 7.
3. Sean Murphy, “Referral: A False Compromise” (27 May, 2010), Protection of Conscience Project (website).
4. King, supra note 2 at 11.
5. Mahatma Gandhi: In “Great Trial of 1922" (18 March, 1922) Comprehensive Website by Gandhian Institutions-Bombay Sarvodaya Mandal & Gandhi Research Foundation (website).
6. CS Lewis, “The Humanitarian Theory of Punishment” in Walter Hooper, ed, C.S. Lewis: First and Second Things (Glasgow: William Collins & Sons, 1985) 96 [Lewis: Humanitarian] at 101.
7. King, supra note 2 at 7-8.
8. R. v. Morgentaler (1988)1 SCR 30 at 178-179, Wilson J.
9. CS Lewis, “Bulverism: The Foundation of Twentieth Century Thought”in Walter Hooper, ed, C.S. Lewis: First and Second Things (Glasgow: William Collins & Sons, 1985) 13 [Lewis: Bulverism] at 16.
10. Ibid at 17.
11. Frederick Hafferty & Ronald Franks, “The Hidden Curriculum, Ethics Teaching, and the Structure of Medical Education” (1994) 69:11 J Academic Medicine 861 at 862. (The identity considered by the authors is a professional identity, and, to the extent that they separate personal and professional identities in the same person, they actually adopt the “ethics-as-tools” approach that they critique. Nonetheless, the author is indebted to them for their insight, which is applied here in a manner that is probably different from what they intended).
12. Ibid at 864.
13. Martin Luther King Jr, “The Three Dimensions of a Complete Life” (Sermon delivered at New Covenant Baptist Church, Chicago, Illinois, 9 April 1967), The Seattle Times, Martin Luther King Jr: An Extraordinary Life (website).
14. Martin Luther King Jr, “Rediscovering Lost Values” (Sermon delivered at 2nd Baptist Church, Detroit, Michigan, 28 February, 1954), Stanford University, The Martin Luther King, Jr. Research and Education Institute (website).
15. CS Lewis,“Learning in War Time” in CS Lewis, The Weight of Glory and Other Addresses. (Grand Rapids, Mich.: William B. Eerdmans, 1975) 43 at 47.
16. What King called “the moral law or the law of God”. King, supra note 2 at 7.
17. Lewis: Humanitarian, supra note 6 at 104-105.
18. Iain T Benson,“There are No Secular ‘Unbelievers’”, Centrepoints 7, 4:1 (Spring 2000) at 3.