Let me begin with asserting several truths that I hope are obvious and uncontroversial.
1. Human beings generally like to be free to do whatever we want to.
2. Ours is a pluralistic culture. It is a culture that in many ways tries to maximize the opportunity for people to make autonomous choices. We generally limit these choices when they are harmful to others or even significantly harmful to the agent.
3. Simply because the law permits an action does not mean that we as a people have decided that the action is moral. Simply because a person has a right to engage in an action does not mean that others must help facilitate the person in that action.
4. Historically at least, this country has respected the freedom of the individual to practice religion and to not have to engage in actions that would be a violation of conscience. We have recognized that to do otherwise is to slide toward oppression and even totalitarianism.
5. Our democratic society has generally recognized that it is best to have people have their conscience and their desire to live by the truth that they know, be their ultimate guide for their behavior. We know that mandating that people blindly obey the law and make the law the final determinant of their behavior does not, in fact, produce model citizens but possibly dangerous ones.
Let me sketch out some of the justifications for each, though in a slightly different order.
1. Why Do We Like to Make Free Choices?
The respect for the freedom of individuals is generally rooted in an understanding of the nature of the human person. There are dominant philosophies that argue that human beings are simply matter and determined and thus incapable of free choice. Nonetheless, most citizens and lawmakers operate under the assumption that human beings are by nature free creatures. Our willingness to punish people for some of their choices and to reward them for others is rational only if we think they made those choices freely.
We believe that making free choices is essential to our nature and to our happiness. Thus, to respect human beings means to respect their freedom to make free choices. We believe that freedom is a core defining feature of what it is to be human, and we attempt to respect that freedom to a great extent. Again, we tend to limit freedom when an action would harm other people or even the agent himself.
Here are some freedoms we traditionally honor:
1. The freedom not to be forced to marry someone against one's will.
2. The freedom not to be forced to take jobs or join professions we don't want to join.
3. The freedom to choose what state to live in.
We also give people these kinds of freedom:
4. Restaurant owners can set dress codes for their restaurants.
5. Lawyers can refuse to take cases from clients if they don't agree with their case.
6. Stores can refuse to sell items that they find offensive, such as pornography or suggestive clothing.
7. Tattoo artists can refuse to paint tattoos that they find morally offensive.
Limits on people's freedom are generally justified because certain actions harm others or harm the agent in significant ways.
1. Laws against murder and theft limit human freedom.
2. Laws against sex with children and animals limit human freedom.
3. Laws that limit drugs for recreational and medicinal purposes limit human freedom.
4. Laws that require people to wear seat belts and drive below certain speeds and to wear motorcycle or bicycle helmets limit human freedom.
Simply because the law permits an action does not mean that we as a people have decided that the action is moral. Simply because a person has a right to engage in an action does not mean that others must help facilitate the person in that action.
Let me note that we permit people to do some things that are manifestly harmful to themselves and to others:
1. We permit people to smoke cigarettes.
2. We permit people to overeat.
3. We permit people to use pornography.
We do not think that other people or the state need to enable people to do these things. In fact we do not think that other people or the state need to provide opportunities for things that are good for people, like studying music or exercising. Sometimes people and the state do, but we don't think that people have a legal right to have an exercise track, for instance.
We often speak in terms of rights to identify what we think is fundamental to human freedom.
1. We speak of a right to life, liberty and the pursuit of happiness.
2. We speak of a right to food and shelter, to work and to a right to education.
3. We speak of a right to health care.
4. We speak of a right to police protection.
5. We even speak of a right to be wrong.
Rights to be wrong and stupid are rather interesting. Once we have paid our bills and taxes we have the right to spend our money however we like. Some of us do that very stupidly, in ways harmful to others and to ourselves.
In our culture we have the right to be impressively stupid about sexual behavior. We can be as promiscuous as we choose and have legions of children outside of wedlock -- children who often face lives of poverty and serious difficulty; we allow people to spread sexually transmitted diseases, some of them lethal.
Perhaps this is a good point to stress -- not all rights are of the same kind. Traditionally a distinction has been made between negative rights and positive rights.
Negative rights have been described as bestowing a kind of ''zone of non-interference.'' For instance, my right to life means no one can take my life; my right to property means no one can take my property.
In fact, I am going to speak of ''non-interference'' rights rather than ''negative rights'' because the term is more descriptive.
Positive rights refer to things to which one has some entitlement; I will speak of these as ''entitlement rights'': the right to education is an entitlement right -- we understand a right to education to mean that the state must provide us with some level of education; and a right to police protection means that the state must provide us with some degree of police protection.
Sometimes people are unclear on the difference between what constitutes a noninterference right and an entitlement right. What can cause real trouble is when people think that what is a noninterference right is an entitlement right.
It is easy to grasp that just because people have a right to marry doesn't mean that the state needs to find a spouse for everyone.
Just because a person has a right to smoke cigarettes doesn't mean that the state needs to provide cigarettes or even that any store needs to sell cigarettes.
We easily understand that the right to marry (which is a right to something good for you) and the right to smoke cigarettes (which is a right to be foolish) are noninterference rights.
The legal rights to have an abortion or to use contraceptives are also noninterference rights: women have a legal right to these but have no claim on others or the state that they should be provided them.
We must keep clearly in mind that few instances of abortion or contraception truly classify as health care. It is lifestyle choices that explain the vast majority of abortions and contraception. It is fundamentally erroneous to classify abortion and contraception use under the category of ''health care needs.''
Ours is a pluralistic culture. It is a culture that in many ways tries to maximize the opportunity for people to make autonomous choices. We generally limit these choices when they are harmful to others or even significantly harmful to the agent.
It would be difficult to demonstrate that there is complete logical coherence in what we permit and what we forbid and what the state provides and what the state does not provide. Moreover, as we become a more pluralistic culture, a more skeptical and more relativistic culture, we have a harder time coming to a consensus on what is harmful both to others and to ourselves.
But we do have some standards and principles that serve to guide us. We try to let reason guide us. When some actions are obviously against reason, such as the abuse of children, we are comfortable making all such acts illegal even if some want to engage in such abuse. When the judgments of mature people disagree, we often honor those judgments by allowing things that perhaps most of us would think are not rational good behavior, such as the use of pornography.
Those of us who think pornography is degrading to women and to men and harmful to both would have it be illegal, but our culture had decided that within limits, those who want to use pornography should have access to it. This decision seems to be based largely on wanting to respect the freedom of people, even when respecting their freedom likely means some harm to those engaging in it and to others as well. (But, again, we don't think the state needs to provide pornography.)
Indeed, decisions of what to permit and what to forbid are difficult even for cultures that are confident that they know some truths. I will say more about that in the next section.
4. Individual Freedom
Historically at least, this country has respected the freedom of the individual to practice religion and to not have to engage in actions that would be a violation of conscience. We have recognized that to do otherwise is to slide toward oppression and even totalitarianism.
The Catholic Church, for instance, teaches that even if a state were controlled by the Catholic Church, individuals should have the right to practice other religions. This troubles some Catholics since they think it is wrong to let people worship false gods or worship the true God in false ways. Those Catholics argue that parents do not allow their children to do things that are harmful to them and so the state should not allow the harm that comes from belonging to non-Catholic religions.
Some states that are confessional Muslim states do not allow diversity in religious practice precisely for these reasons. They believe they are honoring God in doing so and protecting the immortal souls of their constituents by doing so.
But the Catholic Church, in the Second Vatican Council document Dignitatis Humanae (on Human Dignity), asserts that it is a fundamental human right that people should be able to determine their life choices in accord with their sense of duty and conscience and without undue external pressure.
Veritatis Splendor states:
Certainly people today have a particularly strong sense of freedom. As the Council's Declaration on Religious Freedom Dignitatis Humanae had already observed, ''the dignity of the human person is a concern of which people of our time are becoming increasingly more aware.'' Hence the insistent demand that people be permitted to ''enjoy the use of their own responsible judgment and freedom, and decide on their actions on grounds of duty and conscience, without external pressure or coercion.'' In particular, the right to religious freedom and to respect for conscience on its journey towards the truth is increasingly perceived as the foundation of the cumulative rights of the person.
This heightened sense of the dignity of the human person and of his or her uniqueness, and of the respect due to the journey of conscience, certainly represents one of the positive achievements of modern culture. -- No. 31.
The respect that the Catholic Church has for the human person is rooted in its understanding of the human person. Catholics and Christians believe that man is made in the likeness and image of God; that our rationality and ability to make free choices are divine like features of our nature. We are obliged to live in accord with the truth. It is our free choices that form our characters and shape our souls and determine our eternal destiny.
We do not believe we can force any one to believe or that forced good actions are meritorious. Thus Aquinas could argue that the state with the fewest laws would be the best state since people would be free to determine their own destiny most freely.
He, as we, however, knew that many, if not most, people, if given the opportunity, often use their freedom not to make good choices but to make bad choices, choices harmful to themselves and to others. Those who are virtuous would not be inclined to harm others so societies in which men are most virtuous are the ones in least need of laws.
Such thinking actually governed the decisions of many of the founding fathers of this country. They very much wanted a presence for religion in the state since they believed that religion fosters virtue. It was their view that a state that allows free practice of religion is a state that will have fewer laws and be less oppressive.
Catholics and other Christians understand that all human beings have a conscience. It is part of our nature. The conscience is that part of our nature that is concerned that our actions be moral; that we do what is good and avoid what is evil. Catholics and others believe that certain moral truths are easily known by the conscience -- that human beings who don't know that murder and theft are wrong, for instance, are either very damaged or very evil human beings.
We believe that all human beings should know such truths. We believe that even if one's superiors, one's bosses or government leaders should demand that we do certain actions, such as murder or rape, we ought not to do them. We should treat our consciences as a higher law than the law of the land. Such was the decision of the Nuremberg Trials.
Christians should rather be martyred than to do certain actions and to assist in certain actions. Christians should rather be killed than to murder innocent human beings or to assist others in murdering innocent human beings. So Christians have very good reasons both to respect the consciences of others and to want to have their consciences respected.
The concept of conscience is not, of course, strictly religious or confined to Christians. As mentioned, most Americans believe that human beings are by nature free and that it is important that we get to exercise that freedom in respect to the most important decisions of our lives. But we don't really have much of a philosophical foundation for that. It may be because most Americans are Christians or are still shaped by a Christian heritage that we tend to be such fierce defenders of freedom and claims of conscience.
We also have a sense that states that do not respect claims of conscience quickly become totalitarian. States that have an ideology often impose that ideology on all their citizenry; communist nations have little room for conscientious objection to state policy.
5. Freedom of Choice
Our democratic society has generally recognized that it is best to have people have their conscience and their desire to live by the truth that they know, be their ultimate guide for their behavior. We know that mandating that people blindly obey the law and make the law the final determinant of their behavior does not, in fact, produce model citizens but possibly dangerous ones.
One area in which most of us have been familiar with rights of conscience is the conscientious objection that has been permitted in times of war when the military draft has been in place. We permit those who have a conscientious objection to killing to serve in other ways.
We believe there is something really valuable in protecting the conscientious views of people who refuse to kill, even though we as a culture believe it is moral to kill in self-defense.
As mentioned earlier, we allow practitioners of many professions, such as lawyers, to refuse to serve clients. At times, of course, getting a good lawyer is just as essential to one's well-being as good health care, but we do not force lawyers to violate their consciences and defend those they choose not to defend. We don't force lawyers, simply because they are licensed by the state to operate as ''hired guns.'' We honor their autonomy in practicing their profession.
So let me briefly turn to the example chosen for this article: whether we should allow pharmacists who have a conscientious objection to dispensing drugs that can kill a human embryo to refuse to do so.
Let us get straight here that the pharmacist is not refusing to dispense the drug because of disapproval of what the one purchasing the drug is going to do. Rather the pharmacist is refusing to dispense the drug because she thinks she would be morally culpable for an evil action; that she would be assisting another in taking an innocent human life.
Accountable to her conscience for what she is being asked to do, she refuses to perform an action she believes to be immoral. It is her own evil action that she does not want to perform.
I stated earlier that it is not correct to classify abortion and contraceptives as health care. Abortion is nearly always an elective procedure and use of contraceptives is rarely directed at dealing with any physiological malady. If doctors are forced to do procedures that are elective, we would be forcing them to be ''hired guns'' or ''technicians for hire.''
Should doctors be forced to amputate the limbs of healthy people? There are such people. They want to be amputees; some of them claim it is essential to their sense of identity and well-being. They need a surgeon to help them achieve that sense of well-being.
Almost everyone who becomes a physician does so to save lives and reduce suffering. Should physicians be forced to act against this deep core value of their profession to satisfy the lifestyle choices of their patients?
The U.S. Supreme Court some decades ago decided to decriminalize abortion. All 50 states had had laws against abortion. Many religions and most of Western civilization have believed that it is wrong to kill the innocent human life in its mother's womb.
The understanding of many that life begins at conception is not idiosyncratic; there is abundant scientific evidence to bolster that conviction. Indeed, many of those in the pro-abortion movement concede that life begins at conception but insist that a woman's right to choose trumps an embryonic human being's right to life. Our country is still deeply divided over the issue of abortion.
How can we insist that physicians and pharmacists do something that violates the deepest code of their profession?
Don't we desperately want citizens who will refuse to do something that they understand to be killing an innocent human being? Won't we be driving away from the professions of physician, pharmacist, and many others, those who are precisely the kind of principled people we need to have in such professions; those who think justice and protection of innocent human life are among the most important values of all? TP
Dr. Smith holds the Father Michael J. McGivney Chair of Life Ethics at Sacred Heart Major Seminary in Detroit. She is the author of Humanae Vitae: A Generation Later, editor of Why Humanae Vitae Was Right: A Reader. She has published many articles on ethical and bioethics issues.