Opting Out

Conscience and Cooperation in a Pluralistic Society

David S. Oderberg

• Publisher: London Publishing Partnership
• Year: 2018
• Print ISBN: 9780255367615
• eBook ISBN: 9780255367639
• Edition: 1

Should people with deeply held objections to certain practices be allowed to opt out of involvement with them? Should a Christian baker who objects to homosexuality be allowed to deny service to a customer seeking a cake for a gay wedding? Should a Catholic nurse be able to refuse to contribute to the provision of abortions without losing her job? The law increasingly answers no to such questions. But David Oderberg argues that this is a mistake. He contends that in such cases, opting out should be understood as part of a right of dissociation – and that this right needs better legal protection than it now enjoys.

1. Introduction
   Brief background to this book
   What threats are there to freedom in contemporary Western societies? Many of us would immediately think of such things as terrorism, mass surveillance or the general power of an overweening state. All of these are serious concerns, no doubt. There is, however, a threat that is in some ways more insidious or less overt – until one finds oneself facing it. This is the threat to freedom of conscience and, more specifically, freedom of religion.
   Most of the cases we will look at involve the threat to freedom of religion, but the danger applies equally to the more general freedom of conscience. I will take some liberty on occasion in using the terms interchangeably, sometimes also using one of the terms to refer broadly to both kinds of freedom. When we think of freedom of religion, we often think of the freedom publicly to profess one’s faith and to live according to one’s religious tenets without fear of persecution or repression by the state or one’s fellow citizens. In this monograph, however, I will consider a narrower aspect of freedom of religion, one that brings out its relationship to freedom of conscience. At its core, freedom of religion involves the right to live according to one’s sincerely held religious beliefs, at least the tenets making up the essence of the religious system to which a person adheres. This cannot, of course, be an unqualified right, and we will look at difficult cases as we go along. One thing we can be fairly certain of, though: in a society professing itself to be liberal and tolerant, compelling or coercing religious believers to act in ways contrary to their sincere, core beliefs should form no part of law or public policy except in the most extreme cases – cases about which no reasonable person, religious or not, could disagree.
   Freedom of conscience might not involve religious beliefs; it arises also in the case of non-believers and people who are generally opposed to religion. In all cases, though, it will involve some deeply held beliefs of an ethical nature. A conscientious objector in wartime, for example, might be a pacifist for non-religious reasons, but liberal societies have typically allowed such a person to live according to their pacifism by assigning them in wartime to non-­combat duties such as medicine or administration, or even allowing them to abstain from any involvement in the war effort.
   If freedom of religion and conscience mean anything in a liberal society, it must mean the right at least to live out one’s core beliefs in a way that does not involve compulsion to violate them, whether it be the threat of force, the imposition of significant material burdens, and the like. Even if one puts aside behaviour such as public profession, proselytisation, political activism, and so on, it remains that not being compelled to violate one’s beliefs is a sine qua non of religious freedom in a liberal society. Freedom of religion and conscience have typically involved these other activities as well, but I am concerned with the narrower core. That core must entail a person’s freedom from being coerced by the state to violate their deeply held beliefs. Rightly do we balk at the very idea that a government could force by law, threat, or actual violence, a Christian or a Jew, say, publicly to denounce their faith, or prevent them from attending a place of worship, or from speaking openly about their religion. The same for compelling a pacifist to serve on the front line, or a vegetarian to eat meat. These, we believe, are the hallmarks of totalitarianism.
   Fortunately, Western societies have not yet reached that stage. We are, however, moving in a direction uncomfortably close to that sort of coercion, so far confined to the legal system. Consider some recent news stories:
   (1) Health insurers in California have been required by the state to provide health cover for abortion (not just contraception) even if the employer is a church.1
   (2) The College of Physicians and Surgeons of Ontario, Canada, now requires all Ontario doctors to refer requesters of euthanasia if the doctor objects.2
   (3) A Catholic care home in Belgium has been fined for refusing euthanasia.3
   Cases such as these are arising ever more regularly in the field of health care. Moreover, fifteen philosophers and bioethicists recently issued a ‘consensus statement’ stating that conscientious objection should be all but eliminated from health care (Uehiro 2016). They say that ‘the patient’s wellbeing (or best interest, or health)’ should ‘normally take priority over [a health care practitioner’s] personal moral or religious views’. If a practitioner has a conscientious objection to providing some treatment or procedure, they must always refer the patient to someone who will provide it. They must ‘explain the rationale’ for their objection to a ‘tribunal’. If the objector receives an exemption, they must ‘compensate society and the health system for their failure to fulfil their professional obligations by providing public-benefitting services.’ Medical students should receive no exemption from learning how to perform procedures they believe to be morally wrong. Health care practitioners should be ‘educated to reflect on the influence of cognitive bias in their objections’.
   Such an extreme statement, albeit by only a handful of academics, is disturbing – the sort of thing one might expect from a totalitarian regime rather than a liberal society that professed respect for diverse religious and ethical beliefs. As John Rawls, a key apostle of liberalism, affirms: ‘reasonable persons will think it unreasonable to use political power, should they possess it, to repress comprehensive views that are not unreasonable, though different from their own’ (Rawls 1993: 60). Needless to say, assessing what counts as reasonable is of central importance – obviously a task well beyond the scope of this small monograph, especially if we are thinking ‘cosmically’, as it were, about reasonable and unreasonable views of the world, ethical and religious systems, and so on. That aside, however, must we agree that opposition to euthanasia, or abortion, or genetic engineering, or artificial human ‘enhancement’, or extreme cosmetic surgery, or transgender surgery, is ipso facto unreasonable? Even if opposition to any one of these is in fact unreasonable, this cannot be demonstrated at the drop of a hat. It requires philosophical argumentation, sometimes quite abstruse, to get to the heart of such issues. Reasonable people disagree, both within the academy and outside it. There is a long tradition of heated debate, popular and scholarly, over what we might label conservative and permissive views in medical ethics. Yet reasonable disagreement, and the correlative protection of basic freedoms that should follow from it in a liberal, professedly tolerant society, seems rapidly to be descending the ladder of priorities for people who call themselves liberal.
   Freedom of religion is certainly on the back foot across Western society. When a baker can be found guilty of discrimination simply for refusing to decorate a cake with a pro-‘gay marriage’ slogan (about which more later),4 when a city council can try to prevent a small Orthodox Jewish synagogue from meeting to pray in a private home,5 and when parents can be prevented from withdrawing their children from compulsory sex education that violates their religious or ethical beliefs,6 one can be sure that religious believers are under pressure to go against their own deeply held beliefs in areas that only a few decades ago were off limits to state intervention.
   What is the solution to this problem? How should freedom of conscience and religion be protected in a liberal society? The main theme of this book is that liberal societies need a developed statutory and case-law framework, built on sound legal and ethical theory, for freedom of conscience and religion to be given the sort of fundamental protection it deserves. Mere piecemeal protection afforded by various ‘conscience clauses’ is not sufficient; nor is the somewhat vague, skeletal protection offered by various treaties and conventions. Rather, overarching protection for freedom of conscience in a liberal society starts with a concept I am going to call involvement. Involvement means a citizen’s being bound up, to a greater or lesser degree, in the affairs and transactions of others. We are all involved in the affairs and transactions of some other citizens, to some extent – with our family, friends, neighbours, fellow members of this or that organisation or body, with our co-religionists, members of the same ethnic or cultural group, and our compatriots.7 But how far does this go? More precisely, how far should it go?
   My case study for this monograph will be health care, where issues of freedom of religion and conscience are most prominent. I will argue that a developed legal and policy framework can provide the protection that conscientious objectors lack, but that certain theoretical mistakes need to be avoided in order for the framework to be feasible. Surprisingly, perhaps, I will appeal in part to a sophisticated tradition in Catholic moral theology where issues concerning the ‘ethics of cooperation’ have been worked out in detail. The theory from that tradition offers a way in which conscientious objectors can avoid the kind of involvement in health-care activities to which they object. But it also draws various distinctions that allow certain kinds of involvement, on ethical grounds, that should not trouble the conscience of a reasonable objector. Focusing mainly on the UK and the US, I will argue that the courts should incorporate a ‘jurisprudence of cooperation’ into their decision-making. This would give conscientious objectors a well-founded legal protection that they currently lack. Were it to be supplemented by substantial statutory protection, freedom of conscience and religion would be put on a much sounder footing than it is now.
   Although my main concern is health care, I will also expand the discussion to some broader, deeper and even more vexed issues surrounding the concept of involvement. Freedom of conscience and religion in a liberal society, I argue, derives at least partly from an even more basic freedom – freedom of association. Whom we associate with, our choice of friends, partners, business associates, n...

Table of contents

• The author
• Acknowledgements
• Summary
• 1 Introduction
• 2 The attack on freedom of conscience
• 3 The state of the law: unclear and inadequate
• 4 Law needs philosophy: ethical principles of cooperation
• 5 Application to contested cases
• 6 Freedom of conscience: how far can it go?
• 7 Policy guidelines: time for parliaments and courts to take notice
• References
• About the IEA