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“THE CHRISTIAN CONSCIENCE IN SUPPORT OF THE RIGHT TO LIFE”

PROCEEDINGS OF THE THIRTEENTH GENERAL ASSEMBLY OF THE PONTIFICAL ACADEMY FOR THE LIFE

Vatican City, 23 - 25 February 2007

Edited by :

ELIO SGRECCIA

JEAN LAFFITTE

LIBRERIA EDITRICE VATICANA 2008

Discorso del Santo Padre BENEDETTO XVI

Dichiarazione finale

Comunicato Ufficiale

TASK-FORCE'S CONTRIBUTIONS

H.E. Card. JAVIER LOZANO BARRAGÁN, Reflexiones a propósito de algunos textos sobre la conciencia de Juan Pablo II y Benedicto XVI

H. E. Msgr. Anthony FISHER, The moral conscience in ethics and the contemporary crisis of authority

Prof. Brian JOHNSTONE, he moral conscience and Christian innovation: elements for a theological reading

Prof. Robert P. GEORGE, The moral conscience and human life

Prof. Luke GORMALLY, Personal and social responsibility in the context of the defence of human life: the question of co-operation with evil

Prof. Jean LAFFITTE, The history of conscientious objection and contemporary interpretations of the concept of tolerance Prof. Gerard MEMETEAU,Conscientious objection in the field of international legislation 1

Prof. Carl ANDERSON, Conscientious objection in relation to countries with a common law tradition

Prof. Patricio VENTURA-JUNCÁ, Conscientious objection and witness in medical-surgical practice

Prof. Monica LÓPEZ BARAHONA, Conscientious objection and witness in the field of biomedical research

Prof. Alicja GRZESKOWIAK, Conscientious objection and specific professional categories (pharmacists, judges, administrators, consultants, etc.)

H.E. Card. Ivan DIAS, The role of the Christian conscience in the promotion of life in developing countries.

2 BENEDETTO XVI

DISCORSO

Sala Clementina 24 Febbraio 2007

Cari fratelli e sorelle,

è per me una vera gioia ricevere in questa Udienza così affollata i Membri della Pontificia Accademia per la Vita, riuniti in occasione della XIII Assemblea Generale; e quanti hanno inteso partecipare al Congresso che ha per tema: "La coscienza cristiana a sostegno del diritto alla vita". Saluto il Cardinale Javier Lozano Barragán, gli Arcivescovi e Vescovi presenti, i confratelli sacerdoti, i relatori del Congresso e tutti voi, convenuti da diversi Paesi. Saluto in particolare il Vescovo Elio Sgreccia, Presidente della Pontificia Accademia per la Vita, che ringrazio per le amabili parole rivoltemi, e per il lavoro a cui attende insieme con il Vice-Presidente, il Cancelliere e i membri del Consiglio Direttivo, per attuare i compiti delicati e vasti della Pontificia Accademia. Il tema che avete posto all’attenzione dei partecipanti, e pertanto anche della comunità ecclesiale e dell’opinione pubblica, è di grande rilevanza: la coscienza cristiana, infatti, ha una interna necessità di alimentarsi e rafforzarsi con le motivazioni molteplici e profonde che militano a favore del diritto alla vita. E’ un diritto che esige di essere sostenuto da tutti, perché è il diritto fondamentale in ordine agli altri diritti umani. Lo afferma con forza l’Enciclica Evangelium vitae: "Pur tra difficoltà e incertezze, ogni uomo sinceramente aperto alla verità e al bene, con la luce della ragione e non senza il segreto influsso della grazia, può arrivare a riconoscere nella legge naturale scritta nel cuore (cfr Rm 2, 14-15) il valore sacro della vita umana dal primo inizio fino al suo termine, e ad affermare il diritto di ogni essere umano a vedere sommamente rispettato questo suo bene primario. Sul riconoscimento di tale diritto si fonda l'umana convivenza e la stessa comunità politica" (n. 2). La medesima Enciclica ricorda che "questo diritto devono in modo particolare difendere e promuovere i credenti in Cristo, consapevoli della meravigliosa verità, ricordata dal Concilio Vaticano II: ‘con l’Incarnazione il Figlio di Dio si è unito in certo modo ad ogni uomo’ (Gaudium et spes, 22). In questo evento di salvezza, infatti, si rivela all’umanità, non solo l’amore sconfinato di Dio, che ‘ha tanto amato il mondo da dare il suo Figlio Unigenito’ (Gv 3,16), ma anche il valore incomparabile di ogni persona umana" (ibid.) Continuamente, perciò, il cristiano è chiamato a mobilitarsi per far fronte ai molteplici attacchi a cui è esposto il diritto alla vita. In ciò egli sa di poter contare su motivazioni che hanno profonde radici nella legge naturale e che possono quindi essere condivise da ogni persona di retta coscienza. In questa prospettiva, soprattutto dopo la pubblicazione dell’EnciclicaEvangelium vitae, molto è stato fatto perché i contenuti di tali motivazioni potessero essere meglio conosciuti nella comunità cristiana e nella società civile, ma bisogna ammettere che gli attacchi al diritto alla vita in tutto il mondo si sono estesi e moltiplicati, assumendo anche nuove forme. Sono sempre più forti le pressioni per la legalizzazione dell’aborto nei Paesi dell’America Latina e nei Paesi in via di sviluppo, anche con il ricorso alla liberalizzazione delle nuove forme di aborto chimico sotto il pretesto della salute riproduttiva: si incrementano le politiche del controllo demografico, nonostante che siano ormai riconosciute come perniciose anche sul piano economico e sociale. Nello stesso tempo, nei Paesi più sviluppati cresce l’interesse per la ricerca biotecnologica più raffinata, per instaurare sottili ed estese metodiche di eugenismo fino alla ricerca ossessiva del "figlio perfetto", con la diffusione della procreazione artificiale e di varie forme di diagnosi tendenti ad assicurarne la selezione. Una nuova ondata di eugenetica discriminatoria trova consensi in nome del presunto benessere degli individui e, specie nel mondo economicamente progredito, si promuovono leggi per legalizzare l’eutanasia. Tutto questo avviene mentre, su un altro versante, si moltiplicano le spinte per

3 la legalizzazione di convivenze alternative al matrimonio e chiuse alla procreazione naturale. In queste situazioni la coscienza, talora sopraffatta dai mezzi di pressione collettiva, non dimostra sufficiente vigilanza circa la gravità dei problemi in gioco, e il potere dei più forti indebolisce e sembra paralizzare anche le persone di buona volontà. Per questo è ancor più necessario l’appello alla coscienza e, in particolare, alla coscienza cristiana. "La coscienza, come dice il Catechismo della Chiesa Cattolica, è un giudizio della ragione mediante il quale la persona umana riconosce la qualità morale di un atto concreto che sta per porre, sta compiendo o ha compiuto. In tutto quello che dice e fa, l’uomo ha il dovere di seguire ciò che sa essere giusto e retto" (n. 1778). Da questa definizione emerge che la coscienza morale, per essere in grado di guidare rettamente la condotta umana, deve anzitutto basarsi sul solido fondamento della verità, deve cioè essere illuminata per riconoscere il vero valore delle azioni e la consistenza dei criteri di valutazione, così da sapere distinguere il bene dal male, anche laddove l’ambiente sociale, il pluralismo culturale e gli interessi sovrapposti non aiutino a ciò. La formazione di una coscienza vera, perché fondata sulla verità, e retta, perché determinata a seguirne i dettami, senza contraddizioni, senza tradimenti e senza compromessi, è oggi un’impresa difficile e delicata, ma imprescindibile. Ed è un’impresa ostacolata, purtroppo, da diversi fattori. Anzitutto, nell’attuale fase della secolarizzazione chiamata post-moderna e segnata da discutibili forme di tolleranza, non solo cresce il rifiuto della tradizione cristiana, ma si diffida anche della capacità della ragione di percepire la verità ci si allontana dal gusto della riflessione. Addirittura, secondo alcuni, la coscienza individuale, per essere libera, dovrebbe disfarsi sia dei riferimenti alle tradizioni, sia di quelli basati sulla ragione. Così la coscienza, che è atto della ragione mirante alla verità delle cose, cessa di essere luce e diventa un semplice sfondo su cui la società dei media getta le immagini e gli impulsi più contraddittori. Occorre rieducare al desiderio della conoscenza della verità autentica, alla difesa della propria libertà di scelta di fronte ai comportamenti di massa e alle lusinghe della propaganda, per nutrire la passione della bellezza morale e della chiarezza della coscienza. Questo è compito delicato dei genitori e degli educatori che li affiancano; ed è compito della comunità cristiana nei confronti dei suoi fedeli. Per quanto concerne la coscienza cristiana, la sua crescita e il suo nutrimento, non ci si può accontentare di un fugace contatto con le principali verità di fede nell’infanzia, ma occorre un cammino che accompagni le varie tappe della vita, dischiudendo la mente ed il cuore ad accogliere i fondamentali doveri su cui poggia l’esistenza sia del singolo che della comunità. Solo così sarà possibile avviare i giovani a comprendere i valori della vita, dell’amore, del matrimonio, della famiglia. Solo così si potrà portarli ad apprezzare la bellezza e la santità dell’amore, la gioia e la responsabilità di essere genitori e collaboratori di Dio nel dare la vita. In mancanza di una formazione continua e qualificata, diventa ancor più problematica la capacità di giudizio nei problemi posti dalla biomedicina in materia di sessualità, di vita nascente, di procreazione, come anche nel modo di trattare e curare i pazienti e le fasce deboli della società. E’ certamente necessario parlare dei criteri morali che riguardano questi temi con professionisti, medici e giuristi, per impegnarli ad elaborare un competente giudizio di coscienza, e, nel caso, anche una coraggiosa obiezione di coscienza, ma una pari urgenza insorge a livello di base, per le famiglie e le comunità parrocchiali, nel processo di formazione della gioventù e degli adulti. Sotto questo aspetto, accanto alla formazione cristiana, finalizzata alla conoscenza della Persona di Cristo, della sua Parola e dei Sacramenti, nell’itinerario di fede dei fanciulli e degli adolescenti occorre unire coerentemente il discorso sui valori morali che riguardano la corporeità, la sessualità, l’amore umano, la procreazione, il rispetto per la vita in tutti i momenti, denunciando nel contempo con validi e precisi motivi, i comportamenti contrari a questi valori primari. In questo specifico campo l’opera dei sacerdoti dovrà essere opportunamente coadiuvata dall’impegno di laici educatori, anche specialisti, dediti al compito di guidare le realtà ecclesiali con la loro scienza illuminata dalla fede. Prego, pertanto, il Signore perché mandi fra voi, cari fratelli e sorelle, e fra quanti si dedicano alla scienza, alla medicina, al 4 diritto, alla politica, dei testimoni forniti di coscienza vera e retta, per difendere e promuovere lo "splendore della verità" a sostegno del dono e del mistero della vita. Confido nel vostro aiuto, carissimi professionisti, filosofi, teologi, scienziati e medici. In una società talora chiassosa e violenta, con la vostra qualificazione culturale, con l’insegnamento e con l’esempio, potete contribuire a risvegliare in molti cuori la voce eloquente e chiara della coscienza. "L’uomo ha in realtà una legge scritta da Dio nel suo cuore -ci ha insegnato il Concilio Vaticano II-; ubbidire ad essa è la dignità stessa dell’uomo e, secondo questa, egli sarà giudicato" (Gaudium et spes, 16). Il Concilio ha offerto sapienti indirizzi perché "i laici imparino a distinguere accuratamente diritti e doveri che spettano loro in quanto membri della Chiesa da quelli che competono loro in quanto membri della società umana" e "perché imparino ad armonizzarli fra loro, ricordando che in ogni cosa temporale, devono lasciarsi guidare dalla coscienza cristiana, perché nessuna attività umana, nemmeno temporale, può sottrarsi a Dio" (Lumen gentium, 36). Per questa stessa ragione il Concilio esorta i laici credenti ad accogliere "quanto i pastori decidono come maestri e capi della Chiesa" e, d’altro canto, raccomanda "che i pastori riconoscano e promuovano la dignità e responsabilità dei laici nella Chiesa, si servano volentieri del loro prudente consiglio" e conclude che "da tali rapporti familiari tra laici e pastori si devono attendere molti vantaggi nella Chiesa" (Lumen gentium, 38). Quando è in gioco il valore della vita umana, questa armonia tra funzione magisteriale e impegno laicale diventa singolarmente importante: la vita è il primo dei beni ricevuti da Dio ed è fondamento di tutti gli altri; garantire il diritto alla vita a tutti e in maniera uguale per tutti è dovere dal cui assolvimento dipende il futuro dell’umanità. Emerge anche da questa angolatura l’importanza di questo vostro incontro di studio. Ne affido i lavori ed i risultati all’intercessione della Vergine Maria, che la tradizione cristiana saluta come la vera "Madre di tutti i viventi". Sia Lei ad assistervi e a guidarvi! A suggello di questo auspicio, desidero impartire a tutti voi, ai vostri familiari e collaboratori l’Apostolica Benedizione.

© Copyright 2007 - Libreria Editrice Vaticana

5 DICHIARAZIONE FINALE

15 marzo 2007

1. Nei giorni 23 e 24 febbraio scorsi, la Pontificia Accademia per la Vita, in occasione della sua XIII Assemblea Generale, ha organizzato un Congresso internazionale, tenutosi in Vaticano, che ha sviluppato un'approfondita riflessione sul tema: "La coscienza cristiana a sostegno del diritto alla vita". Il Congresso ha registrato la presenza dei Membri della PAV e di altri studiosi di nota fama provenienti da diversi Paesi, oltre ad un numeroso pubblico (circa 420 presenze) dai cinque continenti. A conclusione dei lavori, sulla scorta di quanto emerso dalle relazioni proposte e da un vivace e costruttivo dibattito in assemblea, la Pontificia Accademia per la Vita desidera offrire alla riflessione della comunità ecclesiale, alla comunità civile e ad ogni persona di buona volontà le seguenti considerazioni. 2. "Nell'intimo della coscienza l'uomo scopre una legge che non è lui a darsi, ma alla quale invece deve obbedire e la cui voce, che lo chiama sempre ad amare e a fare il bene e a fuggire il male, quando occorre, chiaramente parla alle orecchie del cuore. . . L'uomo ha in realtà una legge scritta da Dio dentro al suo cuore; obbedire ad essa è la dignità stessa dell'uomo, e secondo questa egli sarà giudicato" (Gaudium et Spes 16). Agendo dunque in fedele obbedienza ai giudizi della propria coscienza morale, che rettamente cerca il bene e costantemente si nutre della verità conosciuta, ogni persona esprime e realizza in profondità la sua dignità umana, edificando se stesso e la comunità intera mediante le proprie scelte consapevoli e libere. 3. Perché l'uomo possa essere guidato dai giudizi della sua coscienza morale ad agire sempre per realizzare il bene nella verità, è necessario che egli ne curi con ogni impegno la formazione continua, nutrendola con quei valori che corrispondono alla dignità della persona umana, alla giustizia e al bene comune, come ha ricordato il Santo Padre nel suo discorso alla Pontificia Accademia per la vita: "La formazione di una coscienza vera, perché fondata sulla verità, e retta, perché determinata a seguirne i dettami, senza contraddizioni, senza tradimenti e senza compromessi, è oggi un’impresa difficile e delicata, ma imprescindibile" (Benedetto XVI, Discorso ai partecipanti alla XIII Assemblea Generale della Pontificia Accademia per la Vita, 24/2/2007). La coscienza del cristiano, in particolare, è illuminata pienamente nella sua ricerca del bene dall'incontro costante con la Parola di Dio, compresa e vissuta nella comunità cristiana, secondo gli insegnamenti del Magistero. 4. Questa esigenza di continua formazione ed approfondimento della coscienza, si rende oggi del tutto evidente di fronte all'emergenza di tante problematiche culturali e sociali che toccano il diritto alla vita nell'ambito della famiglia, nell'assunzione dei compiti propri dell'essere coniugi e genitori, nelle professioni sanitarie e nei compiti politici. In maniera sempre più necessaria ed urgente, la coscienza cristiana, assumendo gli autentici valori umani, a cominciare da quello fondamentale del rispetto della vita, nella sua esistenza fisica e nella sua dignità, ha il compito di considerare tali problemi, alla luce della ragione illuminata dalla fede, nell'elaborazione dei giudizi sul valore morale dei propri atti. 5. Inoltre, non possono essere taciute le numerose difficoltà che la coscienza cristiana dei credenti incontra oggi nei suoi giudizi e nel suo percorso formativo, a causa del contesto culturale in cui si trova immersa la vita dei credenti, un contesto in cui si sperimenta la crisi di "autorità", la perdita della fede e spesso una tendenza a rifugiarsi in forme di razionalismo estremo. Altra coordinata che mette alla prova la coscienza cristiana, oltre quella culturale, è costituita dalle norme giuridiche vigenti, sia quelle codificate sia quelle definite dai tribunali e dalle sentenze dei tribunali, che, in misura crescente e sotto una forte pressione di gruppi coalizzati e influenti, hanno aperto e stanno aprendo la breccia rovinosa delle depenalizzazioni: si prevedono eccezioni al diritto 6 individuale alla vita, si vanno legittimando sempre più diversi attentati contro la vita umana, finendo di fatto per disconoscere che la vita è il fondamento di ogni altro diritto della persona, e che il rispetto dovuto alla dignità di ogni essere umano è il fondamento della libertà e della responsabilità. A questo proposito, Benedetto XVI ha ricordato che "il cristiano è chiamato a mobilitarsi per fare fronte ai molteplici attacchi a cui è esposto il diritto alla vita" (Benedetto XVI, ibid). 6. Le esigenze specifiche della coscienza cristiana trovano il loro banco di prova nell'applicazione alle professioni sanitarie, allorquando si trovino di fronte al dovere di proteggere la vita umana e di fronte al rischio di trovarsi in situazioni di cooperazione al male nell'applicazione dei doveri professionali. In questa situazione, acquista maggiore rilievo l'esercizio doveroso, di una "coraggiosa obiezione di coscienza", da parte dimedici, infermieri, farmacisti e personale amministrativo, giudici e parlamentari, ed altre figure professionali direttamente coinvolte nella tutela della vita umana individuale, laddove le norme legislative prevedessero azioni che la mettono in pericolo. Ma, allo stesso tempo, va anche messo in rilievo come il ricorso all'obiezione di coscienza avvenga, oggi, in un contesto culturale di tolleranza ideologica, che talvolta, paradossalmente, tende a non favorire l'accettazione dell'esercizio di questo diritto, in quanto elemento "destabilizzante" del quietismo delle coscienze. Desideriamo sottolineare come, in particolare per le professioni sanitarie, sia difficile l'esercizio del diritto all'obiezione di coscienza, dal momento che questo diritto viene generalmente riconosciuto solo alle singole persone, e non alle strutture ospedaliere o associazioni. Nel campo della prassi medica, una menzione specifica merita il caso della "contraccezione di emergenza" (in genere realizzata mediante ritrovati chimici), ricordando innanzitutto la responsabilità morale di coloro che ne rendono possibile l'uso ai vari livelli e l'esigenza di ricorrere all'obiezione di coscienza nella misura in cui i suoi effetti siano abortivi (antinidatori o contragestativi); va ribadito anche il dovere morale di fornire al pubblico un'informazione completa sui veri meccanismi d'azione ed effetti di tali ritrovati. Naturalmente, sussiste il dovere di opporre la stessa obiezione di coscienza di fronte ad ogni intervento medico o di ricerca che preveda la distruzione di vite umane. 7. Sempre più opportuna appare una mobilitazione di tutti coloro che hanno a cuore la tutela della vita umana, una mobilitazione che si deve estendere anche a livello politico: è un'esigenza imprescindibile della giustizia il rispetto del principio di uguaglianza, che esige di onorare e proteggere i diritti di tutti, specialmente nel caso dei soggetti più fragili ed indifesi. Riproponiamo con convinzione l'insegnamento specifico in materia di obiezione di coscienza dell'Enciclica Evangelium Vitae (nei § 72, 73 e 74), particolarmente nella prospettiva dell'adesione dei cristiani ai programmi proposti dai partiti politici, così come auspichiamo una legislazione che completi l'Articolo 18 della Dichiarazione Universale dei Diritti Umani, proclamata dalle Nazioni Unite nel 1948, per garantire il diritto all'obiezione di coscienza e difendere questo diritto contro ogni discriminazione nei campi del lavoro, dell'educazione e dell'attribuzione dei benefici da parte dei governi. 8. In conclusione, riproponiamo l'auspicio del Santo Padre, come messaggio di speranza e di impegno per contribuire a costruire una società umana realmente edificata a misura dell'uomo: "Prego, pertanto, il Signore perché mandi fra voi, cari fratelli e sorelle, e fra quanti si dedicano alla scienza, alla medicina, al diritto, alla politica, dei testimoni forniti di coscienza vera e retta, per difendere e promuovere lo "splendore della verità" a sostegno del dono e del mistero della vita. Confido nel vostro aiuto, carissimi professionisti, filosofi, teologi, scienziati e medici. In una società talora chiassosa e violenta, con la vostra qualificazione culturale, con l’insegnamento e con l’esempio, potete contribuire a risvegliare in molti cuori la voce eloquente e chiara della coscienza." (Benedetto XVI, ibid.).

(Bollettino della Sala Stampa della Santa Sede di Venerdì 16 marzo 2007)

7 COMUNICATO UFFICIALE

In seguito ad alcune interpretazioni - palesemente parziali e fuorvianti - dei contenuti della Dichiarazione finale della XIII Assemblea Generale, apparse in questi giorni su alcuni organi d'informazione italiani, La Pontificia Accademia per la Vita (PAV) desidera puntualizzare quanto segue: 1. la Dichiarazione finale è un breve documento di sintesi che, ogni anno, viene pubblicato a conclusione dei lavori dell'Assemblea Generale della PAV, in forma di messaggio, allo scopo di presentare al pubblico i principali risultati delle sessioni di studio. Come è noto, quest'anno, il Congresso internazionale organizzato in occasione dell'Assemblea ha riflettuto sul tema "La coscienza cristiana a sostegno del diritto alla vita" ed ha registrato un'ampia presenza di studiosi e partecipanti da tutto il mondo (oltre trenta Paesi dai cinque continenti). Appare, pertanto, del tutto scontato ed inequivocabile il carattere d'indirizzo universale di quanto riportato dalla suddetta Dichiarazione Finale, come peraltro risulta chiaramente dal testo, che recita: "La Pontificia Accademia per la Vita desidera offrire alla riflessione della comunità ecclesiale, alla comunità civile ed ad ogni persona di buona volontà le seguenti considerazioni" (Dich. Fin. , 1), e come si addice di consuetudine ad un organismo legato alla Santa Sede. Di conseguenza, ogni interpretazione che tenda a considerare quanto proposto nel documento come se fosse rivolto ad una nazione in particolare risulta del tutto errata e, talvolta, mostra il sapore di una forzatura un po’ "provinciale". 2. La PAV è un organismo legato alla Santa Sede, che ha finalità specifiche di studio e di ricerca sui temi della vita. Il valore dei suoi testi e dei risultati dei suoi studi si basa sostanzialmente sulla correttezza scientifica dei dati presentati e sull'argomentazione bioetica che in essi viene proposta. Inoltre, la PAV ha il compito di diffondere, mettendoli a disposizione della comunità ecclesiale e civile, i risultati del suo lavoro. Concretamente, questo significa mettere in evidenza, accanto ai dati della scienza, anche i problemi bioetici connessi con le tematiche fatte oggetto di studio. Tale prospettiva si è verificata anche nella Dichiarazione di quest'anno, in particolare a proposito del delicato problema del ricorso all'obiezione di coscienza nell'ambito della tutela della vita umana (Dich. Fin., n. 6). In essa, è contenuta un'esortazione generale a sollevare un problema di coscienza di fronte alla possibile cooperazione con quegli atti, privati o pubblici, che costituissero un attentato all'integrità ed alla dignità della vita umana individuale e, laddove non vi fossero alternative, a considerare il ricorso all'obiezione di coscienza. Interpretare una tale esortazione, rivolta a tutti coloro che, nel mondo, hanno parte attiva nelle decisioni ed azioni che riguardano la vita umana e la sua tutela, come un "attentato" alla sovranità dello stato o addirittura come un'istigazione a commettere reato, francamente risulta iperbolico, strumentale e, soprattutto, poco incline alla garanzia effettiva di quella libertà di pensiero e di espressione che costituisce il requisito necessario di ogni società autenticamente democratica. 3. Alla PAV, così come agli altri organismi della Santa Sede, non appartengono in alcun modo finalità di intervento politico o di interferenza con i processi democratici dello Stato, in nessun Paese del mondo. Spetta ai laici cattolici ed ad ogni persona di buona volontà, secondo le proprie responsabilità sociali, il compito di trovare le vie concrete e possibili per tradurre in pratica le esigenze che scaturiscono dal riconoscimento della dignità di ogni essere umano e del valore inviolabile della sua vita. Ma la PAV ritiene di avere anch'essa il diritto (che peraltro essa considera come un dovere) di contribuire a richiamare ed incoraggiare ciascuno ad esercitare la propria responsabilità in ordine alla tutela della vita umana individuale, ben consapevole del fatto che, talvolta, l'esercizio concreto di tale responsabilità ha dei costi personali anche pesanti.

8 4. Alla luce di queste precisazioni, la PAV ribadisce il suo impegno per continuare a contribuire, mediante i suoi studi e le sue ricerche, ad una più approfondita comprensione del mistero della vita umana, in uno stile di dialogo costruttivo e fecondo con ogni persona o istituzione che abbia a cuore la dignità dell'uomo e riconosca nella vita umana un bene fondamentale. La ricerca comune della verità, perseguita con onestà intellettuale e rettitudine morale, nel rispetto delle diverse visioni, sarà la strada migliore per raggiungere mete comuni al servizio del bene autentico di ogni essere umano.

Città del Vaticano, 21 marzo 2007

9 JAVIER LOZANO BARRAGÁN

Reflexiones a propósito de algunos textos sobre la conciencia de Juan Pablo II y Benedicto XVI Conciencia y Cultura

Al leer algunos textos de Juan Pablo II y de Benedicto XVI sobre la conciencia, me ha llamado la atención la manera como plantean la relación entre subjetividad y objetividad en la sociedad actual en la que fácilmente se cae en el Relativismo. Este problema se profundiza a tratar las relaciones entre Dios y la conciencia y entre la Teología y el Magisterio de la Iglesia. Mi propósito en esta intervención al inicio del trabajo de la Pontificia Academia de la Vida es aportar una modesta reflexión que pudiera contribuir a iluminar estas relaciones desde el concepto de cultura. Comienzo presentando una selección de textos de ambos Pontífices, donde resalta la problemática aludida. En una segunda parte intentaré profundizar en dicha problemática.

I. EL PENSAMIENTO PONTIFICIO.

1. Juan Pablo II. "La conciencia es alguien, no algo en realidad, es el sitio donde el hombre es iluminado por una luz que no viene a el de su razonamiento creado y siempre falible, sino de la Sabiduría misma de la Palabra de quien creo todas las cosas"1 . "Solamente una conciencia desarrollada cabalmente corresponde a la dignidad humana- una conciencia que busca la verdad, e iluminada por ella, decide. Por lo tanto, la dignidad humana requiere, que una persona oriente su conciencia de acuerdo con el orden de la ley establecida por el Creador. En asuntos de conciencia ella debe consultar la verdad revelada en Cristo, e incluir la enseñanza reveladora de la Iglesia." 2 "La formación de la conciencia propia es un deber fundamental. La razón es muy simple: Nuestra conciencia puede errar. Y cuando el error prevalece sobre ella se convierte en la causa del daño mas grande para la persona humana..." 3 "Es a través de la Iglesia como la conciencia moral de una persona crece y madura; la Iglesia la ayuda a evitar el `ir y venir con cada viento doctrinal, por la astucia de los hombres'. La Iglesia en realidad es el `pilar y defensa de la verdad' (1 Ti 3:15). La fidelidad al magisterio de la Iglesia por lo tanto, evita que la conciencia moral se desvíe de la verdad sobre el bien del hombre."4 "...el peregrinaje hacia una conciencia moral madura no puede ni siquiera comenzar, si el espíritu no esta libre de una enfermedad mortal muy difundida hoy en día: la indiferencia a la verdad... "Si un ser humano es indiferente a la verdad...ni siquiera pensará en el desarrollo de su conciencia y terminara tarde o temprano confundiendo la fidelidad a su conciencia con la adherencia a cualquier opinión personal de la mayoría".5 "No es suficiente, por lo tanto, decirle al hombre: `Sigue siempre tu conciencia'. Es necesario añadir inmediatamente y siempre: Pregúntate a ti mismo si tu conciencia te esta diciendo la verdad o algo falso, y busca incansablemente la verdad'. Si no hiciéramos esta clarificación necesaria, el hombre se arriesgaría a encontrar en su conciencia una fuerza que es destructora de su verdadera humanidad, en vez del lugar santo donde Dios le revela a él su verdadero bien".6Cuando el juicio de la mente decide erróneamente que algo es legal cuando en realidad es ilegal, o vise versa, el error puede estar en los falsos principios usados o porque la mente fue obscurecida o confundida en su razonamiento. "Puesto que Cristo el Señor creo el Magisterio de la Iglesia para iluminar la conciencia, apelar a esa conciencia precisamente para rebatir la verdad de lo que enseña el Magisterio, implica un rechazo del concepto Católico tanto del Magisterio como de la conciencia moral". "La tarea de interpretar auténticamente la Palabra de Dios, ya sea escrita o transmitida de unos a otros, ha sido asignada exclusivamente al oficio 10 de enseñanza viviente de la Iglesia, cuya autoridad se ejerce en el nombre de Cristo Jesús." “No se puede ver la intervención de la Iglesia en esta campo como el equivalente de una opinión entre otras.... (porque) ella disfruta del carisma de la verdad y certeza ." "Apelar a una `fe de la Iglesia' para oponerse al Magisterio de la Iglesia sobre la moral, equivale a negar el concepto Católico de Revelación." 7 "No se puede decir que los fieles se hayan embarcado en una búsqueda diligente de la verdad, si ellos no toman en cuenta lo que el Magisterio enseña, o si al ponerlo al mismo nivel que cualquier otra fuente de conocimiento, uno se convierte en juez, o si ante la duda, uno sigue su propia opinión o aquella de los teólogos, prefiriéndolas a la enseñanza segura del Magisterio".8

2. Benedicto XVI. Benedicto XVI, nos dice sobre las relaciones entre fe y cultura y cómo se han desarrollado en las últimas décadas: "La cultura europea se ha formado a través de los siglos con la contribución del cristianismo. A partir del Iluminismo la cultura de occidente se fue alejando de sus fundamentos cristianos con creciente velocidad. Especialmente en el periodo más reciente la disolución de la familia y del matrimonio, los atentados contra la vida humana y su dignidad, la reducción de la fe a experiencia subjetiva y la consiguiente secularización de la conciencia pública nos demuestran con dramática claridad las consecuencias de este alejamiento"9. La conciencia no es solamente subjetiva sino que responde también a criterios objetivos que se encuentran en la fe. Me parece que la "subjetivización" de la conciencia es un gran error de nuestra época 10. "La verdad no se determina mediante un voto de la mayoría." "La ciencia como tal no puede generar una ética y no se obtiene una conciencia ética mediante debates científicos." 11 En el primer Congreso internacional sobre la “Fides et Ratio” decía el entonces Cardenal Ratzinger: “No dice Pablo que si los gentiles se mantienen firmes en su religión sean buenos ante el juicio de Dios; al contrario, condena muchas de las prácticas religiosas de su tiempo; remite más bien al único Dios que los gentiles llevan escrito en sus corazones (Ro 2,14...). “Actualmente la conciencia aparece como expresión del carácter absoluto del sujeto, sobre el que no puede haber, en el campo moral ninguna instancia superior; pues lo bueno como tal no es conocible, el único Dios no es conocible. El concepto moderno de conciencia es la canonización del subjetivismo relativista; sobre la cual no puede haber ninguna instancia superior. Es imposible que haya normas morales y religiosas comunes. Mientras que para Pablo y la Tradición cristiana la conciencia es la garantía para la unidad del hombre y para la cognoscibilidad de Dios, para la obligatoriedad común del mismo y único bien.. El que haya santos paganos se basa en que la voz de Dios es perceptible en el corazón y se hace Thorá perceptible también como obligación en nosotros mismos, en nuestro ser creatural y así se hace posiblesuperar lo meramente subjetivo con relación de unos con otros y en relación con Dios. Y esto es salvación” 12. En su libro "Verdad, valores, poder" nos insiste Benedicto XVI: "La identificación de la conciencia con el conocimiento superficial y la reducción del hombre a la subjetividad no liberan, sino que esclavizan. Nos hace completamente dependientes de la opiniones dominantes y reducen día a día el nivel de las mismas opiniones. La conciencia se degrada a la condición de mecanismo exculpatorio en lugar de representar la transparencia del sujeto para reflejar lo divino, y, como consecuencia, se degrada también la dignidad y la grandeza del hombre. La reducción de la conciencia a la seguridad subjetiva significa la supresión de la verdad". Quisiera resaltar el pensamiento de Benedicto XVI en una curiosa cita que él mismo antes de ser Papa hace de una anécdota que narra del Cardenal Newman de quien cita una frase de la carta dirigida al duque de Norfolk: “Ciertamente, si yo debiera emplear la religión en un brindis después de un banquete – cosa que no es muy indicado hacer – entonces brindaría por el Papa, pero primero por la conciencia y después por el Papa” 13. Y explicaba el ahora Santo Padre el por qué de la actitud del Cardenal Newman, concibiendo la

11 conciencia como cierta memoria “anamnesis” profunda del hombre: “El significado auténtico de la autoridad doctrinal del Papa consiste en el hecho de que él es quien garantiza la memoria cristiana. El Papa no impone desde afuera sino que desarrolla y defiende la memoria cristiana. Por esto el brindis por la conciencia debe preceder a aquel por el Papa, porque sin la conciencia no habría ningún Papado. Todo el poder que él tiene es poder de la conciencia: servicio al doble recuerdo sobre el que se basa la fe, que debe ser purificada, ampliada y defendida contra las formas de destrucción de la memoria que se ve tan amenazada por una subjetividad que olvida su propio fundamento, y por las presiones sociales y culturales14 .

II. ENSAYO DE REFLEXIÓN: CULTURA Y CONCIENCIA Primero expongo el concepto de cultura y luego lo aplico a la comprensión de la problemática enunciada a propósito de la conciencia, subrayando tres aspectos: Dios y la conciencia; Objetividad y Subjetividad; y Magisterio, Teología y conciencia. Como introducción a mi reflexión sobre conciencia y cultura, me parece interesante hacer un recorrido sintético sobre algunos conceptos importantes sobre la conciencia fuera del ámbito católico. Para algunos La conciencia es el conocimiento que tiene el ser humano de sí mismo y de su entorno. Es la facultad de decidir y hacerse sujeto. Es la atención para percibir la entidad global de un objeto o su propia existencia. Es la capacidad de un organismo de tener experiencia. Locke afirma que la conciencia es el conjunto de informaciones recibidas de los sentidos. Leibinitz dice que la conciencia es el alfabeto de los pensamientos humanos semejante a un orden matemático. Para Freud el inconsciente más que el consciente es quien determina la conducta. Es creado por experiencias infantiles que producen heridas, traumas, y la conciencia las sepulta en el inconsciente. Marx por su parte afirma que la conciencia es creada por la pertenencia de clase social. En el Behaviorismo John Watson opina que no hay conciencia, sólo se trata de reacciones correspondientes a estímulos externos. Contra las posiciones de Freud, en la así llamada Psicología americana se sostiene que no se debe recurrir al inconsciente, sino a las zonas inexploradas de la conciencia que se hacen patentes en circunstancias extraordinarias, por ejemplo en experiencias místicas, alucinaciones drogadas, meditación trascendental, percepciones extra sensoriales. Se trata de actividades y potencialidades de la mente humana que rebasan la moral tradicional. Se afirma que la Resonancia Magnética descubrió en qué zonas del cerebro se organiza la memoria, cuál es la región cerebral en la que se toman las decisiones, cuál es el comportamiento de los neurotransmisores. La conciencia entra dentro de las realidad cuánticas. Se comporta como una manifestación de los procesos cuánticos de la materia. Se explica así por una superposición de estados, la no localización y el entrelazado de partículas. Desde estos conocimientos se prevé a lo que pudiera ser un concepto científico del alma. 15.

1. Concepto de cultura. El punto de partida para la reflexión, decíamos que es el concepto de cultura. El Papa Benedicto XVI, antes de ser Papa, ha presentado claramente su pensamiento con relación a una cultura concreta, nos dice que la verdad supera todas las culturas pero no las excluye. Estas, en su legitimidad son diversas aproximaciones a la verdad como tal. Así no es posible que el Cristianismo se identifique con una cultura, sino que es la trascendencia de todas. Las culturas se caracterizan por el vencimiento de las categorías espacio temporales, pero una forma de lograrlo como en la cultura hindú, no significa la absolutización de dicha cultura. La cultura bíblica no se identifica con la cultura de Israel. Lo característico del A.T. es el desinstalar al pueblo de su cultura hacia el Dios de Israel. Así desde Abraham que se hace salir de su pueblo, el rechazo del Becerro de oro, etc.. No es pues el Cristianismo una cultura europea, o incluso semítica, es un desinstalarse de cualquier cultura, estando al mismo tiempo arraigado en las diversas culturas. En cambio sí entra en contacto con la Filosofía en su búsqueda de la verdad. No entra en contacto con las

12 religiones, pero sí con las filosofías. En cambio, las religiones pueden presentar formas de acercamiento a la Verdad. Siguiendo el pensamiento del Papa, mi reflexión no parte de la concretización de una cultura determinada, sino más bien del mismo concepto de cultura. Si bien, el Cristianismo no se identifica con ninguna cultura, sin embargo, el concepto de cultura puede servir para comprenderlo un poco más. Entiendo la cultura como la humanización de la naturaleza. Para que se logre esta humanización son cuatro las etapas que hay que recorrer, a saber, la introspección, la Tradición, la Asimilación y el Progreso. El hombre es una existencia que enmarca una necesidad. En sí mismo es receptibilidad, y es actuando esta receptibilidad, como capacidad de recibir, como va humanizando la naturaleza y creando la cultura, esto es, cultivándose. Esto se puede concebir de una manera simple, primitiva, básica e inicial; o bien en la complejidad de relaciones de la sociedad actual tecnológica que concretizan la receptibilidad humana actual, ya sea tomando a la persona en su individualidad o bien en su vertiente social y colectiva; ya sea en su propia actualidad infrahumana, o aun en la posibilidad de su agrandamiento, trascendiendo categorías temporales y espaciales gracias a su participación en la filiación divina. Esta receptibilidad se muestra en perenne avance, no en un sentido oscuro y nebuloso, sino como rompimiento de límites.

Etapas de la cultura. Para que cualquier cultura sea posible, necesita recorrer cuatro etapas bien definidas, aunque entrelazadas. Estas son las ya enunciadas de Introspección, Tradición, Asimilación y Progreso.

1.1. Introspección La introspección significa un mirarse adentro y ser conscientes del propio vacío, a la vez que tener la posibilidad más o menos consciente de con qué se puede llenar dicho vacío. La introspección es esencialmente relacional. Esta relacionalidad es fundamental, puesto que sin ella no se da la introspección, pues es detectar necesidades. Esto es, en la introspección cultural el sujeto entra y sale de si mismo. Entra y sale a la vez al comprender sus vacíos, pues no los puede catalogar como tales si no es por la presencia captada de posibles satisfactores externos a sí mismo. Estos satisfactores los encuentra en tres planos: el plano sub humano, el plano humano y el plano trans humano. En el plano sub humano encontramos los satisfactores que podemos en cierta forma llamar ampliamente constitutivos ambientales que rodean físicamente su existencia concreta, y demás satisfactores que se refieren también a la constitución bioquímica de la persona, desde su formación genética, que por las leyes de la herencia se remonta a todo el patrimonio genético de la humanidad, hasta la química biológica de su actual constitución celular. En los planos humanos los satisfactores se encuentran en el nivel de las relaciones interhumanas que constituyen la persona. Estas relaciones no se pueden concebir solo como meros añadidos desde fuera si un soporte real que se encuentra dentro del mismo sujeto. En este mismo nivel relacional, y todavía con mayor intensidad, en la misma constitución humana se encuentra dentro del sujeto el plan trans humano, que es la apertura total hacia la Trascendencia. Dentro de estos tres planos, como coordenadas dentro de las que se ubican todo género de satisfactores, se instituyen toda clase de relaciones, que son las que fundan el interés, como un verdadero “inter esse” entre el propio vacío y el propio satisfactor. El interés es el que compele a ir tras el satisfactor. Este interés es a la vez que subjetivo, objetivo, y en su compleja totalidad subjetiva y objetiva es a lo que llamamos valor. El valor es el núcleo de lo que es bueno. La mayor o menor transparencia consciente más profunda del interés que la persona percibe en estos niveles, no se encuentra en un razonamiento previo sino en una especie de “intuición de esencia” que va mas allá del enunciado lógico intelectual de los primeros principios, pues comprende toda la existencia ontológica del sujeto. Es a lo que se refiere la filosofía griega al hablar mediante Platón del mito de la cueva, o racionalizando con Aristóteles sobre la indemostrabilidad de los primeros principios. En cierta manera aparece esta 13 misma intuición en San Anselmo con relación a la existencia de Dios; un anhelo de esta intuición se encuentra, bajo el influjo platónico, dentro de la elaboración de Descartes de su “idea clara y distinta”. Me parece encontrar un eco de ello en Heidegger en su percepción oscura del misterio del ser mediante el lenguaje. Dentro de los tres planos relacionales aludidos en mutua compenetración, intentando una primera categorización genérica de los vacíos, encontramos vacíos biológicos, psicológicos, sociales y espirituales. En los biológicos colocamos todo aquello que físicamente se necesita para vivir. Estos vacíos se pueden expresar muy diversamente y se proyectan hacia la necesidad de una subsistencia física. Aquí se encuentran todos los espacios fisiológicos. Su dominio es recorrido actualmente por las ciencias experimentales y la tecnología en sus aspectos biológicos, económicos, financieros, etc.. Los vacíos psicológicos los centramos en las necesidades que ven a la vida psíquica de la persona, centrada en la verdad y el bien. Es toda la complejidad psicológica de la persona, su entender y su amar, su decisión y su libertad. Los vacíos sociológicos los concebimos como los vacíos que se colman al encontrarse el “yo” con el “tú” humano. Es la esfera del amor y del odio, es la gran problemática que surge entre la individualidad y la colectividad. Los espirituales, los situamos como la necesidad vital expresada en lo más intimo como exigencia de auto posesión en la unidad; que sólo es posible en la Trascendencia. Es el problema de la autoposesión o alienación, es el problema integral de la vida y de la muerte, de la supervivencia y del amor infinito. Si existen vacíos que tengan la posibilidad de llenarse, es evidente que esta posibilidad estriba en la relación real con aquello que los puede llenar. Es obvio que una introspección verdadera no da una relación de vacíos entre sí como situados en compartimentos cerrados, sino que son formalidades de la misma realidad. Si se quiere usar una imagen, diríamos que dichos vacíos se relacionan entre sí a manera de vasos comunicantes. También resalta a la vista que en la introspección se hace patente una relación real que debe fincarse en ambos términos reales: el vacío y su satisfactor, el sujeto y el objeto. Por esta relación, la medida según la cual la introspección es auténticamente subjetiva es en tanto sea realmente objetiva.

1.2. Tradición . Cuando hablamos de la segunda etapa de la cultura, la Tradición cultural, nos atenemos al rigor etimológico de la palabra “tradere”. Todo aquello que no somos nosotros, como marco existencial de pura necesidad, es “traído” desde el exterior, es “entregado”, es “dado”. Pero antes de ser traído allí está en cierta manera “afuera” del sujeto, en espera de ser “tomado” “traído”. Este “afuera” es lo que llamamos “bien cultural”. Su conjunto es el fruto de la historia, es el acervo cultural acumulado por los siglos. Aquí ocurre regresar a lo dicho anteriormente a propósito de la relación: algo no puede ser traído al sujeto existencial si no hay una correspondencia subjetiva-objetiva. Por decirlo así, no puede ser asumido si no hay compatibilidad entre el sujeto y lo que se asume. Otra anotación importante es que ya desde aquí se puede entender la diferencia entre noticia y Tradición. En la noticia el sujeto se da cuenta de lo que existe fuera de él. Adquiere una información. Por su facultad retentiva puede repetir exactamente la más variadas informaciones, pero sin convertirlas en Tradición, en “traídas”. Una mera información que permanece sólo como tal no puede ser cultural. Es totalmente inútil. La erudición no es lo mismo que la cultura.

1.3. Asimilación. Esta última anotación nos abre el camino hacia la tercera etapa de la cultura, “Asmilación”. Cualquier percepción exterior al sujeto no se vuelve Tradición si no existe una verdadera Asimilación. La Asimilación significa traer del exterior lo que en cierta manera no es propio y apropiárselo. Así lo existente llega al sujeto y verdaderamente comienza a llenar sus vacíos, sus necesidades, tanto físicas, como psicológicas, como sociales. La Asimilación se basa en la introspección, haciendo de las 14 relaciones algo absoluto; haciendo que la receptibilidad se vuelva recepción. Su naturaleza y variedad a la vez que sus relaciones internas con lo que se recibe, viene determinada por la naturaleza y variedad de la introspección.

1.4. Progreso. En la medida que se asimilan estos satisfactores y se van colmando los vacíos, la introspección avanza y se descubren nuevas relaciones, esto es, nuevos vacíos que en los tres planos iniciales dentro de las cuatro categorías mencionadas: fisiológicas, psicológicas, sociales y espirituales, exigen nuevos satisfactores y lanzan al sujeto en pos de nuevas adquisiciones de la Tradición. O bien, si verdaderamente la Tradición se ha ya agotado, tiene lugar el avance de nuevas combinaciones de lo existente en todos los campos biológicos, psicológicos, sociales y espirituales, dentro de un proceso metódico determinado por cada una de las categorías y coordenadas aludidas. Este progreso cultural en realidad tiene un límite que es propiamente la mutabilidad. En otras palabras, la perfectibilidad. Esto es llegar a lo perfecto sin ulterior perfectibilidad en plenitud de recepción mutua, que quiere decir, en plenitud de donación y recepción sin dar lugar a nuevos vacíos culturales y habiéndolos llenado todos en un cultivo total. O sea, el límite es llenar totalmente la propia capacidad que de por sí está abierta a una continua perfectibilidad. El límite es alcanzar la plena perfección, la cultura total. Aquí se encuentra el abismo entre la criatura y el Creador. Pasar este límite es la divinización. Al ocurrir esto la cultura no es más la humanización de la naturaleza, sino su divinización. La cultura se vuelve así la “divinización de la naturaleza” por supuesto que no en una concepción panteísta sino en la misteriosa participación divina.

2. Cultura y conciencia 16 . Notamos que en el segundo y tercer paso de la cultura, Tradición y Asimilación, en la Asimilación el sujeto examina la Tradición y encuentra en ella tres grandes vetas: errores, valores y acomodos. Esto es, la historia es la maestra de la vida, pero para que sea tal debemos ser conscientes de que en la historia encontramos innumerables errores; en el correr de los tiempos el hombre se ha equivocado muchas veces y ha ofrecido como satisfactor de las necesidades descubiertas en la introspección, lo que destruye al hombre, no lo que lo construye. Sin embargo no todo es error. La Tradición cultural encierra una cantidad enorme de valores que han hecho progresar a la humanidad. Pero no cabe duda que estos valores no se encuentran absolutizados. Seria absurdo pues son relacionales. Se encuentran de una manera vital asimilados en sujetos determinados de acuerdo a la asimilación lograda en un momento dado, en una época determinada de la historia, épocas que a pesar de sus parecidos con otras, no se repiten. Esto es, los valores se encuentran “acomodados”, asimilados en bienes culturales de acuerdo a la distinción característica de otras personas, ya sea de épocas pasadas, ya de la presente. Esto es, si bien la Tradición tiene valores, para que estos sean asimilados ahora y se tornen en bienes culturales hoy, es necesario que no se repitan exactamente las mismas asimilaciones de otras personas o épocas. Sin embargo, estas asimilaciones ajenas, sirven de soporte proporcional, esto es, si generaron bienes culturales en circunstancias distintas al sujeto que ahora los recibe, haciendo una proporción entre sus circunstancias actuales y las ajenas pasadas o presentes, pueden ser asimilados hoy de una forma diferente por un sujeto diferente. Situaría la conciencia especialmente en la etapa cultural de la introspección. Por supuesto que en plena interacción con estas dos etapas. Es el motor de asimilación correcta; por tanto juega un importante papel de discernimiento entre valores, desvalores y meros acomodos. Tratamos ahora de aportar algunas ideas, basándonos en estos conceptos sobre cultura, a la problemática enunciada: Dios y la conciencia; objetividad y subjetividad; Magisterio, Teología y conciencia.

15 2.1. Dios y la conciencia. La conciencia es la luz relacional entre el vacío y el satisfactor. Siendo el proceso de Tradición y Asimilación tan complicado, en la realidad se encuentra en su totalidad fuera del mero dominio humano y se necesita para ello una luz especial que perfeccione y complemente grandemente la intuición de esencia de la que hablábamos en un principio. Esto aparece con más claridad cuando la línea de satisfactores rompe la creaturalidad en la absoluta perfectibilidad de la que hablamos. Esta luz especial es aquello que en concreto nos participa la filiación divina. Se inicia con la imagen de Dios en el hombre y se perfecciona insospechadamente por la filiación divina. Esta imagen de Dios en el hombre la constituye la llamada “Ley Natural”, y la filiación es obra de la luz especial que es la persona del Espíritu Santo. En este ámbito nos encontramos en la categoría de las necesidades espirituales dentro de la coordenada aludida de lo trans humano. Consideramos en primer lugar la “Ley Natural”. Empiezo con las tres definiciones clasicas de ley natural: “Ratio vel voluntas divina, ordinem naturalem conservare jubans, perturbare vetans”; ”Participatio legis eternae in creatura rationalis”; “Lumen intellectus insitum nobis a Deo, per quod cognoscimus quid agendum, quid vitandum”. Me parece que poniendo en esta secuencia las definiciones, la clave se encuentra en la participación de la ley eterna. Esta participación constituye el orden que definido como “Parium dispariumque rerum apta dispositio”, en esa “apta dispositio” hace del hombre internamente imagen de Dios, lo hace orgánico, ordenado, organismo, ser vivo. Así, la ley eterna es el correlato relacional cultural de la introspección, el fundamento vital del hombre. No es meramente una luz “exterior” sino que constituye la esencia misma de la criatura como participación divina. La ley natural no es por tanto un voluntarismo, sino la máxima racionalidad que se comunica ejerciendo la voluntad creativa de Dios, esto es amando. Así se constituye lo más intimo de la humanidad. La conciencia es esta participación amorosa divina. Es el amor divino que abraza al hombre para que viva y así le dice por dónde puede vivir, por dónde puede satisfacer sus vacíos, por dónde puede construirse, por dónde encuentra el “orden natural”, por dónde puede crecer; qué es bueno y qué es malo para él; esto es, cuál es la apta disposición del plan de Dios que ha creado el universo para el hombre y lo ha hecho su señor. La conciencia como autentica introspección es imposible sin la ley natural, la conciencia es imposible sin la creación participativa, la ley natural la constituye. La conciencia es lo más profundo de la imagen de Dios en el hombre.

2.2. Objetivo Subjetivo. La conciencia es el punto genuino de coincidencia de la humanidad. La conciencia es auténticamente subjetiva en cuanto construye al hombre, y lo construye en cuanto su ser relacional responde a sus verdaderos “intereses”, que lo llevan a la Asimilación de bienes culturales que “le convengan”, esto es que le vengan al hombre, que sean verdaderamente “buenos” para él. Esto es, de acuerdo a la relación entre la introspección, la tradición y la asimilación, la conciencia es subjetiva en la medida que es objetiva; en la medida de que los propios vacíos se llenan de satisfactores adecuados; de lo contrario la conciencia se volvería una mera tautología que quisiera llenar sus vacíos sólo con vacíos. Sin “Asimilación” muere en su propio vacío. La oposición entre subjetivo y objetivo es la oposición entre vacío y satisfactor. Una conciencia meramente subjetiva y no objetiva es una conciencia vacía e inútil. La norma que la rige es la objetividad que la construye y construye así a la persona.

2.3. Magisterio, Teología y Conciencia. Ya anotábamos cómo en el bagaje cultural se encuentren los valores unidos con los errores y acomodos culturales. La conciencia en su gran complejidad de introspección que cotidianamente crece al crecer la vida del hombre, tanto individual como colectivamente, se encuentra sujeta a estas vicisitudes. Más todavía atendiendo al oscurecimiento de la luz inicial recibida de Dios, debido a la culpabilidad 16 histórica personal y colectiva del pecado, la posibilidad y actualidad de una consciencia errónea es más que real. Así se llega a la conciencia errada. Más difícil todavía es ir tras los auténticos satisfactores cuando en la satisfacción de los vacíos pasa la frontera de la creaturalidad en la participación de la vida divina. Crecer en perfectibilidad hacia la divinización es donde los satisfactores se vuelven más oscuros y difíciles; más aun, tanto los satisfactores como los mismos vacíos se encuentran en su percepción y asimilación más allá de las meras posibilidades humanas. Entonces los senderos se estrechan porque el bien que pretende la conciencia es infinito. Aquí ocurre una luz especial para que el hombre sea transparente a si mismo. Pasamos las fronteras de la “Ley Natural”. Nos encontramos con la “Ley del Espíritu”. El máximo satisfactor que corresponde al máximo vacío vital humano, está más allá de las posibilidades humanas. Es el escándalo de la cruz como camino a la resurrección. La transparencia ante la paradoja cristiana muertevida que es gratuitamente constitutiva de la conciencia cristiana y que la hace así paradoxal, es sumamente ardua. Y aquí entra necesariamente como detector de necesidades y creador de satisfactores el Espíritu Santo, “Luz de los corazones”, que solo por el amor forja la conciencia crucificada, única constructora del hombre por la resurrección de Cristo. El es el Optimo Consolador, el Dulce huésped del alma. El es el único formador de la conciencia. La conciencia avanza en su formación en la medida que el Espíritu Santo hace que el hombre sea miembro del Cuerpo de Cristo y transparente a Cristo muerto y resucitado. Así en la intimidad de la conciencia, ya no es él sino Cristo Quien vive en él. La conciencia del cristiano se adecua muy penosamente en su sufrimiento y en su muerte con la conciencia redentora. Esta adecuación se da en plena gratuidad y mediante esta intimidad subjetiva del regalo del Espíritu, como persona “Don”, se realiza la máxima objetividad de la conciencia del Cristo total. Esta es la única manera cómo se crece culturalmente en humanidad, mas aun, la cultura así ya no es mas la humanización de la naturaleza sino su divinización17.

Magisterio y conciencia. Para realizar este misterioso proceso Cristo envía a sus apóstoles a proclamar el Reino de Dios. Según el Evangelio de San Marcos, los elige para tres cometidos, para que estén con El, para que proclamen el Evangelio y para que destruyan el mal (Mc. 3, 13-15). Experimentan la presencia amorosa de Cristo para que anuncien la máxima bondad que construye desde dentro al hombre y destruye el mal. De acuerdo a lo dicho anteriormente, leyendo la misión apostólica en clave de conciencia, los apóstoles son enviados para formar el recto sentido subjetivo y objetivo de las conciencias. Se comprende como este envío se realice plenamente en Pentecostés con el envío del Espíritu Santo. El Señor glorificado envía al Espíritu Santo a sus apóstoles para que con la clarividencia del amor infinito sean instrumentos que forjan la nueva conciencia. Esta es la autentica Tradición cultural que se convierte en la Tradición apostólica, la “Paradòseis”. Y valga aquí la redundancia, ya que Tradición y apóstol convergen. Magisterio y conciencia se compenetran en la Tradición del Espíritu. El amor divino invade a los Obispos con el Papa a la Cabeza, sucesores de los apóstoles con Pedro a la cabeza, para que presenten la transparencia de Cristo a toda la humanidad y así construyan la autentica conciencia. El misterio de la conciencia cristiana es el misterio de la vida del pueblo de Dios. Es en una mutua comunicación con el pueblo de Dios en su totalidad que el Magisterio debe discernir el desarrollo de la conciencia cristiana. El modelo a seguir es la “Pericóresis” trinitaria a través de la cruz y resurrección. La conciencia cristiana se desarrolla en todo el pueblo de Dios y adquiere tintes maravillosos que constituyen los carismas del pueblo de Dios, cuya autenticidad debe sujetarse a la discreción del Espíritu que ha sido dada al Magisterio. Entre estos carismas forjadores de la conciencia cristiana descuella el carisma teológico otorgado por el mismo Espíritu, que en su constitución divino humana tiene como objeto renovar, ampliar y unificar la Iglesia. Su punto básico de unificación es la discreción del Magisterio de la Iglesia. Así, una teología que no parte del Magisterio y culmina en él, no es una teología católica, y muchas veces no podrá superar el nivel de una ciencia de la religión.

17 Teología, Magisterio y Conciencia. Al tratar el tema de la Teología y la conciencia, nos abocamos a la cuarta etapa de la cultura, el progreso. La Teología es uno de los factores de la evolución del dogma aunque no el único, y así, uno de los factores, importante, del progreso de la conciencia. Al hablar de la Teología en el sentido al que me he referido pienso que no habrá problemas con el Magisterio. La razón es que ambos, Magisterio y Teología, proceden del mismo Espíritu, aunque con funciones diferentes, como hemos recordado. De hecho, la autentica Teología es un esfuerzo por comprender la Palabra de Dios, pero un esfuerzo que podemos llamar teándrico. Dios y el hombre juntos. El conocimiento teológico a la vez que rigurosamente científico es un conocimiento gratuito que Dios misteriosamente infunde en el teólogo. Es un conocimiento místico que procede de la luz del Espíritu Santo. Esta es la luz determinante. Aquí se encierra la autentica relación entre Teología y Magisterio. Ambos provienen del mismo Espíritu. Aunando ambos, radican profundamente en el sentido de la fe del pueblo de Dios, y cada uno desde su ángulo diferente, coincide en el mismo amor divino. Es el Espíritu Quien guía a la Iglesia, Quien edifica el Reino y lo conduce por senderos insospechados. Esto es la conciencia: una actualización e iluminación cotidiana creciente que a manera de una sinfonía converge la fe del pueblo de Dios con el discernimiento magisterial y la elaboración teológica. El director de la orquesta es el Magisterio. Las tan difíciles circunstancias de un mundo actual en continuo cambio son firmemente iluminadas sólo así por la conciencia. El progreso es continuo, por eso la formación de la conciencia es siempre un progreso permanente. La vida avanza y en cada momento se debe construir la introspección creciente de la conciencia y el discernimiento del cúmulo de satisfactores para llegar a la divinización del hombre. Este progreso cultural de la conciencia viene a significar el crecimiento continuo del Reino de Dios. El motor del crecimiento es el amor divino. Es el Espíritu Santo. Todo enfrentamiento autosuficiente entre los actores del crecimiento de la conciencia es absurdo; genera odio y nunca puede hacer progresar la conciencia. O se crece en la bondad, comprensión y amabilidad como frutos del Espíritu o se destruye la conciencia. Por esto insiste tanto Juan Pablo II en que una conciencia pretendidamente formada por teólogos en disonancia, en desamor contra el Magisterio, es una conciencia equivocada que no hay que seguir. No se trata de represión del Espíritu sino de solidaridad bajo su dirección. ****************** Para terminar me parece oportuno regresar a la interpretación que Benedicto XVI hace del brindis del Cardenal Newmann con el que comenzamos estas modestas reflexiones: hace bien el Cardenal en brindar en primer lugar por la conciencia, pues es la que debemos seguir, y luego por el Papa, Quien es al que debemos oír para poderla seguir.

Ciudad del Vaticano, 23 de febrero de 2007.

+ Javier Cardenal Lozano Barragán.

18 1 Nov. 1988, al Segundo Congreso Internacional sobre Teología Moral, L'Obsservatore Romano, Dic. 19-26, 1988 2 Sep. 88, a los obispos Austriacos en Salzburgo, L'Obsservatore Romano, Sept. 5, 1988 3 Agosto. 1983, audiencia general, L'Obsservatore Romano, Agosto 22-29,1983 4 Agosto. 1983, audiencia general, L'Obsservatore Romano, Agosto 22-29,1983 5 Agosto. 1983, audiencia general, L'Obsservatore Romano, Agosto 22-29,1983 6 Agosto. 1983, audiencia general, L'Obsservatore Romano, Agosto 22-29,1983 7 Nov. 1988, al Segundo Congreso Internacional sobre Teología Moral, L'Obsservatore Romano, Dic. 19-26, 1988 8 Nov. 1988, al Segundo Congreso Internacional sobre Teología Moral, L'Obsservatore Romano, Dic. 19-26, 1988 9 Comunicación a la Conferencia episcopal italiana,/A los periodistas de la CEI; 03.06.06. 10 « La foi chrétienne a son mot à dire sur la morale ",Le Figaro, 20 de abril de 2005 11 Carlos Soler cita el pensamiento del actual Papa sintetizándolo de la siguiente manera: El puro positivismo de los derechos humanos como tal no puede ser, en ningún sentido, la última palabra. Tal vez sea suficiente para una Constitución, pero para nuestro debate cultural humano, para nuestro encuentro con las demás culturas, es insuficiente. Este positivismo es, sin embargo, solo la fachada de un dilema más profundo. Como no existen ya grandes inspiraciones para nuestros grandes principios éticos, para la dignidad humana, se llega al positivismo. De hecho, también el "patriotismo constitucional" de Habermas es positivismo. En nuestro debate dijo que la Constitución de por sí produce moralidad. Pero eso no es verdad: tiene necesidad de fuerzas que la precedan. Tenemos que reencontrar y despertar estas fuerzas. El relativismo puede aparecer como algo positivo, en cuanto invita a la tolerancia, facilita la convivencia entre las culturas, reconocer el valor de los demás, relativizándose a uno mismo. Pero si se transforma en un absoluto, se convierte en contradictorio, destruye el actuar humano y acaba mutilando la razón. Se considera razonable solo lo que es calculable o demostrable en el sector de las ciencias, que se convierten así en la única expresión de racionalidad: lo demás es subjetivo. Si se dejan a la esfera de la subjetividad las cuestiones humanas esenciales, las grandes decisiones sobre la vida, la familia, la muerte, sobre la libertad compartida, entonces ya no hay criterios. Todo hombre puede y debe actuar solo según su conciencia. Pero "conciencia", en la modernidad, se ha transformado en la divinización de la subjetividad, mientras que para la Tradición cristiana es lo contrario: la convicción de que el hombre es transparente y puede sentir en sí mismo la voz de la razón fundante del mundo. Es urgente superar ese racionalismo unilateral, que amputa y reduce la razón, y llegar a una concepción más amplia de la razón, que está creada no solo para poder "hacer" sino para poder "conocer" las cosas esenciales de la vida humana. Cfr. “Joseph Ratzinger, Benedicto XVI: su idea de Europa” La Gaceta de los Negocios Madrid 22 de abril de 2005 12 Fe, Verdad y Cultura. Reflexiones a propósito de la Fides et Ratio, Primer Congreso Teológico Internacional sobre la Encíclica "Fides et Ratio/ Facultad de Teología "San Dámaso" febrero 16, 2000. 13 Letter to Norfolk, p. 261 14 “Coscienza e Verità”, en “La Coscienza, Conferenza internazionale patrocinata dallo “Wethersfield Institute” di New York, Orvieto, 27-28 maggio 1994”, Libreria editrice vaticana, 15 Cfr. Nociones acerca de la conciencia, en www.es.witkipedia.org/wkj/concie 16 Splet Jörg dice a este respecto: La conciencia es la experiencia de tres factores: yo mismo, mi experiencia íntima y el contenido de dicha experiencia. En cuanto al tiempo de tener esta conciencia se da en el momento de tener la experiencia, en su recuerdo y en su proyección al futuro. Funda una identidad entre objetos y sujeto en cuanto los objetos se interiorizan en el sujeto en su adecuación consigo mismo y por tanto lleva consigo la luz de los primeros principios: lo verdadero y o bueno. Se llama "intellectus principiorum", con relación a estos principios, y con relación a su desarrollo moral se llama "sindéresis". Por razón del conocimiento de estos principios y su actuación que depende del hombre en cada momento de la conciencia, el hombre es libre. La conciencia se esfuma en la medida 19 que el objeto la avasalla y libremente no puede decidirse a la acción y entonces el objeto se apodera del sujeto. Se encuentra así también en el dominio del inconsciente. Por lo que el hombre no puede llegar a una plena conciencia. La conciencia da la norma en el momento de hacer propio el objeto, pero esta luz que allí se irradia, no es posible captarla con la misma intensidad por el recuerdo. Así la conciencia no da una luz refectible con absoluta certeza. No se sabe plenamente si se está o no oprimiendo la verdad. Aquí se toca el problema de conciencia y certeza cartesianos; y la respuesta del pensamiento cristiano con "cor, mens, anima": encuentro personal con Dios en una absoluta entrega que funda la solidez de la conciencia. Por otros caminos se ha llegado a la conciencia general de Kant, o la mera formalidad, o a la elevación de la conciencia a un nivel infinito en el Idealismo alemán, o a su objetividad en el Estado de Hegel, o bien en el pensamiento logístico o vitalista. Cfr. Conciencia, en "Sacramentum Mundi", Enciclopedia teológica I. Herder 1972, 950-854. Para Hofmann Rudolf, la conciencia Significa el núcleo de la vida unitaria de la persona, previo a la división en diversos actos específicos. Para Freud sería la elaboración de las tendencias del sujeto. Para el Existencialismo sería la llamada a la realización de la existencia. La originalidad receptividad del bien por parte de la conciencia no se puede falsear, aunque sí entorpecer debido a factores externos. Factores externos pueden también ayudar a determinar las posiciones de la conciencia. La conciencia se forma y se ejercita y de acuerdo a dicha formación y ejercicio se perfecciona la conciencia. La conciencia posterior a la acción no es solamente un juicio sobre el objeto moral, sino una manifestación de la conformación o no con el propio yo. La conciencia no se sitúa indiferentemente frente a la norma como frente a un objeto, sino que la norma, o sea la voluntad de Dios se hace el mismo hombre creado y redimido por Dios y llamado a la salvación eterna. La conciencia no puede ser suplida por la opinión moral o por la instrucción heterónoma. Es la norma última de moralidad, pero no puede convertirse en norma universal para la decisión personal en casos parecidos. El valor moral de una acción se mide por el dictamen que la conciencia ha emitido una vez ponderado todo el material disponible. Cuando persiste la duda hay que escoger el camino más seguro por 1. un esclarecimiento de la situación moral mediante la propia reflexión o con ayuda del consejo ajeno; cuando esto es imposible, 2. se debe buscar una decisión moralmente justificada a base de consideraciones morales de carácter general; 3. finalmente el cristiano debe buscar el bien y decidirse por él partiendo de toda su actitud moral, poniendo en juego la última fuerza moral de la persona, para emprender el camino a través de una oscuridad irremediable, por puro amor y fidelidad a Dios. La tentativa para superar estas dudas ha dado origen a los diversos sistemas morales. En todo caso, lo que siempre se impone es la prudencia. (cfr. Conciencia moral, "Sacramentum Mundi", Enciclopedia Teológica I, 857-864). 17 En una rápida ojeada a la Sagrada Escritura, en el Antiguo Testamento no encontramos la palabra "conciencia", aunque sí su contenido que se describe como "riñones", "corazón". Significa la actitud frente a la Palabra de Dios, la acción conforme a su voluntad, el conocimiento del propio estado, el juicio de Dios. En el Nuevo Testamento tiene una importancia central, se describe con la palabra griega "synéidesis". Para San Pablo, en ella el cristiano se sabe llamado, requerido y juzgado por Dios, que le comunica el conocimiento de sus mandamientos y de su gracia (2Cor.1,12). Es la norma de conducta ante Dios (Ro.13,5), ya se trate de la buena o mala conciencia. La buena conciencia nos hace libres e independientes de los demás (Act.23,1; 1Cor.10,29...) En cuanto facultad humana no puede dar seguridad acerca del juicio de Dios (1Cor.4,4). transmite los mandamientos aun fuera de la Revelación como una ley dada por la naturaleza (Ro.2,15). Como conocimiento humano está vinculada al engaño, pero sigue siendo norma moral para el hombre (1Cor.8,7ss). En el cristiano actúa en el Espíritu Santo (Ro.9,1), en virtud de la fuerza de la Resurrección de Cristo (1Pt.3,21). Se purifica y perfecciona por la sangre de Cristo en el Espíritu Santo (Hb.9,9-14). En ella se revela apostólicamente la verdad (2Cor.4,2), se conservan puros los misterios de la fe (1Tim.3,9.) Se permuta con la fe "Pístis" (Ro.14,23) .

20 ANTHONY FISHER

Conscience in ethics and the contemporary crisis of authority

1. The voice of conscience

1.1 What conscience is not I keep a lady in my car. From the dashboard she instructs me on which way I should go in life. “In three kilometres turn left,” she commands. “Turn around,” she pleads. “Coming up, on your right, you have arrived,” she advises. She is, of course, a global positioning satellite navigator and I would be lost without her calm voice telling me where to go. She can be wrong at times, due to mechanical faults or wrong information, especially about new developments on the roads. Sometimes I ignore her or switch her off. But usually I obey her; and I have found that when I fail to do so, due to inattention or a belief that I know better than her, I am usually sorry later. In lots of ways conscience might seem to function like my satellite navigator and so we might call her Conscientia. Though I will argue that conscience is, in the most important respects, not like a satellite navigator, many people think it is just like that: a sort of angelic voice distinct from our own reasoning which comes, as it were, from outside us, even if we hear it inside our head or heart; it is generally trust-worthy, but we must nonetheless decide to obey it or not. Cardinal Newman, “whose life and work could be called one great commentary on the question of conscience”,1 might have encouraged such a view when he called conscience - at its best - a messenger of God, ‘the aboriginal Vicar of Christ’.2Newman’s influence at Vatican II is evidenced in the citation of this text in the Catechism of the Council3 and in the Council’s poetic description of conscience as a ‘voice’ of God, echoing in the depths or core or sanctuary of the human person. In the depths of his conscience, man detects a law which he does not impose upon himself, but which holds him to obedience. Always summoning him to love good and avoid evil, the voice of conscience when necessary speaks to his heart: do this, shun that. For man has in his heart a law written by God; to obey it is the very dignity of man; according to it he will be judged. Conscience is the most secret core and sanctuary of a man. There he is alone with God, Whose voice echoes in his depths.4 Whatever these passages mean, they clearly do not mean that conscience is a divine or diabolical voice that intrudes into our ordinary reasoning processes, commanding or complaining, and that acts as a rival with our own moral thinking. If we experience such voices we should probably see a doctor or an exorcist! Were conscience really a voice from outside our reasoning it would play no part in philosophical ethics and there might be some kind of double truth in moral theology: my merely-human practical reason tells me to do X, but my divine voice says to do Y not X.5 Ockhamite voluntarism led much Christian moral theology down just such a blind alley after the high scholastic period.6On this account the human will was a purely autonomous power, completely indeterminate and free. Its regulation came not from practical reason, or the intellect directing it from within, but from law, as an extrinsic principle obligating and constraining it. Here too, the idea of law was radically deformed. Whereas St Thomas Aquinas saw law as an ‘ordinance of reason,’ that is, reason’s own internal illumination and direction of the will, in Ockham’s scheme law emerges as a gratuitous and arbitrary check upon the will. Obedience thus replaces prudence as the chief cardinal virtue. The virtues themselves, seen by Aquinas as ‘excellences’ or powers informing and educating the passions from within, are downgraded. They now exercise the negative function of repressing the passions and keeping them out of the will’s way in its obedience to the law.7 Various schools of thought - laxists and rigourists, probabilists, probabiliorists and equi-probabilists -gave different legal interpretations and diverse cases, but once the law applicable to the particular case was known it was thought that there was nothing more to do than conform. Magisterium became the

21 satellite navigator and the rôle of conscience was to hear, interpret and obey this externally-imposed law. Many theologians and pastors today are heirs to this. For some the solution to the contemporary crisis of moral authority is to keep calling for submission to the navigator Magisterium. Moral tax-lawyers, on the other hand, try to find ways around the navigator or ways to ‘sail as close to the wind as possible’ without actually breaking the moral law. They ask: how far can you go? How much can you get away with before it becomes (seriously) sinful? Can you do a little bit of abortion or embryo experimentation or euthanasia without breaking the moral law or reclassify some abortion or embryo experimentation or euthanasia as something else and thereby avoid the law? What both approaches have in common with the late schoolmen is a view of the magisterium as a voice external to conscience which commands things to which conscience is not naturally disposed; if conscience cannot find a way around such commands it must simply acquiesce to the law-giver or disobey and take the consequences. Freud’s view of conscience as a psychic policeman, the inner remnant of childhood authority figures, and Nietzache’s view of conscience as a social policeman, the construct of a controlling community, both continued to posit a kind of internal war between conscience as an alien legal voice and the freedom of the agent to disobey. Enlightenment liberalism and existentialism likewise enhanced the rôle of the free subject - now not only over and against institutions such as church and state, but also vis-à-vis God and nature. Thus Newman warned as early as 1875 that the idea of conscience was fast degeberating into “an Englishman’s prerogative, to be his own master in all things”.8 Revelation, tradition, community, even reason itself, were increasingly seen as rivals with the free agent. Instead of being informed by right reason purified by Church teaching, conscience was now about personal choice over and against all constraints. In modernity autonomy trumps all, morality is merely a power game, and agents are consumers in the value-free market. By the 1960s conscience had become something like strong feeling, intuition or sincere opinion - what Allan Bloom called “the all-purpose ungrounded ground of moral determination, sufficient at its slightest rumbling to discredit all other obligations or loyalties”.9 To appeal to conscience was to foreclose all further discussion and to claim an immunity to reasoned argument or the moral law. In Catholic circles “a certain allergic aversion to law shifted the centre of gravity in moral theology away from law and toward personal freedom, the individual subject and conscience.”10 ‘Follow your conscience’ came to be code for pursuing personal preferences or reasonings over and against the teachings of Christ and the Church in areas of sexuality, bioethics, remarriage and reception of the Eucharist.11 “Here one’s conscience, anchored in genuine, authentic feeling, becomes the highest court of appeal”12 - it is infallible. The language of the primacy of conscience, unknown to the tradition, more often implied contest with the Church rather than with the spirit of the age or the surrounding culture.13 Sophisticated consciences yielded judgments in accord with the New York Times than L‘Osservatore Romano. By 1993 Pope John Paul II could sum up the ‘blind alley’ down which the conscience idea had been taken in the West: The individual conscience is accorded the status of a supreme tribunal of moral judgment which hands down categorical and infallible decisions about good and evil. To the affirmation that one has a duty to follow one’s conscience is unduly added the affirmation that one’s moral judgment is true merely by the fact that it has its origin in the conscience. But in this way the inescapable claims of truth disappear, yielding their place to a criterion of sincerity, authenticity and ‘being at peace with oneself,’ so much so that some have come to adopt a radically subjectivist conception of moral judgment.14 As the Pope explained, this is not the Christian conception of conscience at all. It is, rather, as his collaborator and eventual successor observed, “a cloak thrown over human subjectivity, allowing man to elude the clutches of reality and to hide from it.”15

22 1.2 What conscience is: a little history Well, if conscience is not this, what is it? The classical account of conscience begins by reflecting upon the universal experience of agency: that I can choose and that I can reflect upon past choices; and that in doing so I can judge rationally present possibilities and past choices. I have a sense of responsibility, of accountability, of self-possession in my present and future decisionmaking and in reflection upon my past decisions and actions. We may call this human capacity to know and choose the good and this human activity of thinking practically and choosing well ‘conscience’. The Old Testament has no word for ‘conscience’, but it does speak of the true heart (lêb) that interiorizes the divine law. God converts the hard of heart and recreates the heart anew. Some Old Testament figures experience God calling them to live his will or Law; at other times they experience him probing or judging their hearts.16 The shame of sinful Adam and Eve and the repeated remorse of Israel are amongst many Biblical examples of what was later called a retrospective judgment of conscience.17 The Eden story also describes well the process of self-justification or blame-shifting that commonly occurs when people find their heart judging them sinful.18 Jesus built on the idea of the right or pure or single heart that allows a man to judge justly and act authentically.19 In the Septuagint translation of the Book of Job the Hebrew word ‘heart’ is translated with the Greek word συνειδησις (27:6).20 In the Wisdom literature the guilty συνειδησις of the unrepentant man adds to his misfortunes (Wis 17:11). Such texts echoed the philosophical wisdom of the Græco-Roman world where some, such as the Stoics, called συνειδησις the human faculty of right decision-making in harmony with the eternal world-plan or λογος. For these writers this natural law of the λογος would only be accurately discerned by the man with the virtuous habit or human excellence of Φρονησις. St Paul was heir to both these Hebrew-Christian and Græco-Roman traditions. Some thirty times in his epistles and discourses he uses the term συνειδησις interchangeably with καρδια which English- language bibles commonly translate as conscience and heart. For Paul conscience is not some special faculty different from the rest of human thinking and choosing, nor is it some secret wisdom given only to a few. Rather it is the human capacity to know and choose the good, the mind thinking morally and the will acting responsibly. Thus for Paul:  συνειδησις is universal knowledge of God’s law (e.g. 2 Cor 4:2; Rom chs 1 & 2)  συνειδησις is also experienced as an inner tribunal guiding, accusing or approving outer behaviour, in prospect or retrospect (e.g. Acts 24:16; 2 Cor 1:12-14; Rom 2:14-15; 9:1; 2 Tim 1:3; Heb 13:18)  the judgments of συνειδησις, like other acts of the human mind, can be accurate (1 Tim 1:5) but can also be mistaken, for the mind and will can be weak or corrupt; conscience may falsely accuse us or remain silent when it ought to speak (e.g. 1 Cor ch 8 & 10:23-30; Tit 1:15; Heb 10:22) so that we “practise cunning and tamper with God’s word” (2 Cor 4:2); it may even be so stifled as to be inoperative (1 Tim 1:19; 4:2; cf. Mt 6:22-23)  the redeeming work of Christ and the action of the Holy Spirit heal, instruct and renew the human mind and will, including συνειδησις, so that we can “put on the mind of Christ” (1 Cor ch 2; Rom 9:1; 12:2; Heb 9:14)  συνειδησις must be honoured even if erring (e.g 1 Cor 10:23-30; Rom ch 14).21

These themes, only very sketchy in Paul, were further developed in the Patristic period by Sts Jerome, Augustine and John Chrysostom amongst others.22 By this time the term συνειδησις had been mis- transliterated into Latin as synderesis. Augustine taught that God shares his saving truth with human beings through the illumination of their synderesis. However, ever since the Fall human beings have been inclined to errors of judgment, temptations, weakness of will, and thus to sin; they would not seek their genuine good without the tutelage of God’s law, moderating habits and the grace granted through Christ’s saving death - all of which were, he thought, only reliably communicated by the Church. Any 23 tension between the individual’s conscience and the Church was, for Augustine, evidence of our fallen natures. The Christian would always seek to ‘put on the mind of Christ’ by bringing his synderesis into line with the Sacred Scriptures and Tradition. In the scholastic and pre-modern eras Peter Lombard, Stephen Langton, Philip the Chancellor and Sts Bonaventure, Thomas Aquinas and Alphonsus Ligouri all wrote on synderesis, conscientia and prudentia.23 Bonaventure followed Augustine and Lombard, teaching that “conscience does not command things on its own authority, but commands them as coming from God’s authority, like a herald when he proclaims the edict of the king. This is why conscience has binding force.”24 Aquinas added a good deal of Aristotle, by providing: first, a theory of practical reason by which primary moral principles or ‘natural laws’ are known by reflecting upon human nature and choice (synderesis), secondary principles are derived, and these are applied in choice (conscientia); secondly, a moral psychology of virtues both natural and infused which integrate, moderate and direct character, especially that virtue most essential to right-reasoning in moral matters, prudentia; and finally, a theology of grace and beatitude which clarifies, motivates and enables agents to pursue rightly their final good. Conscientia, for Aquinas, is the immediate or proximate norm of morality, that last, best judgment by which a person of right reason seeks to apply objective moral truth to his own choices.25 While the concept of conscience played only a minor rôle in Aquinas’ moral theory, in the early modern period it was “hoisted to new heights” and a whole, lengthy tract was devoted to it in the manuals, while the rôles of practical reason and prudence were diminished. Soon “all roads, in the moral world, led to conscience.”26 Thus conscience was to feature especially often in the documents of the Second Vatican Council. In Gaudium et spes the Council sought to make its focal point “man himself, whole and entire, body and soul, heart and conscience, mind and will.”27 Amongst the aspects of “heart and conscience” identified by the Council are that:  all are bound to seek, embrace and live the truth faithfully;28  conscience is experienced by human beings as an inner sanctuary or tribunal, rather than something external to them,29 yet it mediates a universal and objective moral law which is given rather than invented;30  conscience summons the agent to inscribe the divine law in every aspect of life by seeking good and avoiding evil, by loving God and neighbour, and by keeping the commandments and all universal norms of morality;31  conscience is common to all human beings, not just Christians, and the experience of and obedience to conscience is “the very dignity of man”, a dignity the Gospel protects;32  the moral law and the particular judgments of conscience bind the human person,33 so that human beings will be judged according to how they formed and followed their conscience;34  agents sometimes experience “anxiety”, “contradictions” and “imbalances” within conscience and conscience may err blamelessly out of “invincible ignorance” or by being blamefully corrupted;35  claims of personal freedom or of obedience to civil laws or superiors do not excuse a failure to abide by the universal principles of good conscience;36  conscience must be properly formed and educated by ensuring it is “dutifully conformed to the divine law itself and submissive toward the Church’s teaching office, which authentically interprets that law in the light of the Gospel”; 37and  freedom of conscience, especially in religious matters, must be respected by civil authorities and people not be coerced into any religious practice.38

1.3 Three acts of conscience In its summary of the teaching of the Second Vatican Council on conscience, the Catechism of the Catholic Church distinguishes three acts or dimensions of conscience: the perception of the principles 24 of morality; their application in the given circumstances by practical discernment of reasons and goods; and, finally, judgment about concrete acts yet to be performed or already performed.39 These require a little unpacking. The first act of the conscience, identified in the Catechism with synderesis, is what I call Conscience- 1:40 the perception of basic human goods and the most basic principles of morality. I have already noted texts from Paul, the Fathers, Aquinas, Newman and Vatican II that presume a very high - some might say even romanticized - doctrine of Conscience-1 as a voice or vicar or sanctuary of God. These authors presume a long tradition of reflection on what we call today “the first principles of the natural law”: basic principles of practical reason accessible to all people of good will and right reason. The highest norm of human life is the divine law - eternal, objective and universal - whereby God orders, directs and governs the entire universe and all the ways of the human community by a plan conceived in wisdom and love. Man has been made by God to participate in this law, with the result that, under the gentle disposition of divine Providence, he can come to perceive ever more fully the truth that is unchanging. Wherefore every man has the duty, and therefore the right, to seek the truth in matters religious in order that he may with prudence form for himself right and true judgments of conscience, under use of all suitable means.41 Because of their ‘givenness’ the principles of Conscience-1 provide us with bases both for self- criticism and for social criticism, so that when our passions or self-interest or social pressures incline us in one direction, these principles may suggest another. Far from being a cause for the subjectivism of those who think conscience means “doing my own thing” or the relativism of those who think it means “doing what the group does”, Conscience-1 is actually the beginnings of an antidote to these. Conscience-2 involves further practical reasoning towards more particular moral principles and their application to given circumstances. It therefore requires certain habits of mind, especially prudence in deliberation. Some readers of the tradition, including some readers of St Thomas Aquinas, have suggested that this is the primary or only meaning of the word conscience: they equate conscience with prudence.42 Others have suggested, I think persuasively, that the habitually prudent operation of the mind when applying principles to circumstances is only one act of the complex of acts of conscience and as a habitus of mind should be distinguished from the acts of the mind in practical reasoning.43 Prudence, we might say, is really an adjective (a quality of the virtuous mind) and especially an adverb (a quality of virtuous doing), while conscience is really a noun (the mind thinking practically) and especially (as I will amplify below) a verb (doing practical reasoning toward good action). In Conscience-2’s process of deliberatio the mind often faces temptations, dilemmas and confusion.44 It is here that conflicts of conscience occur and, as I will argue later in this paper, it is here that any tension between the teachings of the magisterium and other parts of one’s moral reasoning process arises. To reason well at this level requires qualities such as foresight, sensitivity and seriousness about moral reasoning and discernment: and for these qualities to be present conscience must not only be well-informed but well-formed. Morality is not just a mind game. Its purpose, the ancients insisted, is choice: the choice of some real action by a real person in real circumstances. Thus Conscience-3 is our best judgment “about concrete acts yet to be performed or already performed”. When theologians such as St Thomas used the word conscientia it was usually in this sense. This explains why, unlike the manualists and to the surprise of some modern readers, St Thomas did not bother to provide a treatise specifically on conscience in the Summa theologiæ: the tracts on natural law, practical reasoning and the virtue of prudence sufficed for his purposes. Conscience-3 is only worthy of respect when it can bite, i.e. when it can tell us to do what we might otherwise be disinclined to do, or vice versa, or when it can give us cause for remorse about something we have already done or failed to do. Once again, there is plenty of ground for error here. Thus while insisting that we must follow our last, best judgment of conscience as the proximate norm of action, St 25 Thomas wrote so much about how we might ensure such a judgment is a reliable application of moral truth. He would, I think, have been bewildered by contemporary talk of ‘the primacy of conscience’ or the primacy of any intellective operation. Just as the value of memory is in remembering accurately, so the value of conscience, for Thomas, is in yielding the right choice. Truth always had primacy for him.45 The Catholic view of conscience presupposes an optimistic view of human capacities to discern the good and ultimately, I would suggest, a theological position on the way man discerns God’s will even after the Fall. The reason for this optimism is that God is the creator of the human mind and the origin of the ‘natural law’ of human beings, that God purifies and confirms that natural reasoning through revelation, and that God redeems the human mind through His healing grace. But if conscience is reduced from objective God-given principles to subjective sincerity or from shared God-given principles to private ones, it is hard to see why we would take people’s consciences so seriously or how we could have any real moral conversation - let alone consensus - with people different to us. Too often in recent years those desperate for moral education or advice have been fobbed off with “follow your conscience” or indulged with “do what you think is best”. Too often in international forums human rights documents have become weapons against the rights of some people and apparently innocent words code sinister meanings. Without shared objective principles, appeal to conscientious belief degenerates into window-dressing for the raw expression of preference or power. And we have no way of knowing whether our conscience is well-formed or not, well-functioning or not, accurate or disastrously off-course.

1.4 The authority of conscience Thus when the documents of the Second Vatican Council use the term conscience 52 times and its Catechism also, both texts presume a long history and complex content not necessarily shared by many users of the word conscience or spokesmen for the Council’s ‘spirit’. Nor does the concept of the ‘infallibility’ or ‘primacy’ of conscience appear anywhere in the Council’s texts. On the contrary, for all its celebration of the dignity of conscience, the Council always qualified the word conscience with adjectives such as ‘right’, ‘upright’, ‘correct’, ‘well-formed’ or ‘Christian’ -allowing, by implication, that not a few consciences are confused, deformed or otherwise misleading, and that there is some other standard by which that might be judged which has ‘primacy’.46 The Council pointed out that conscience often goes wrong, sometimes ‘invincibly’ (i.e. by no fault of the agent and so without losing its dignity) but at other times ‘voluntarily’ (i.e. due to negligence or vice, in which case conscience is degraded). In fidelity to conscience, Christians are joined with the rest of men in the search for truth, and for the genuine solution to the numerous problems which arise in the life of individuals from social relationships. Hence the more right conscience holds sway, the more persons and groups turn aside from blind choice and strive to be guided by the objective norms of morality. Conscience frequently errs from invincible ignorance without losing its dignity. The same cannot be said for a man who cares but little for truth and goodness, or for a conscience which by degrees grows practically sightless as a result of habitual sin.47 Two thousand years before, St Paul had made the same point in rather more colourful language: those of corrupt conscience are good for nothing. To the pure all things are pure, but to the corrupt and unbelieving nothing is pure. Their very mind and conscience [συνείδησις] are corrupted. They profess to know God, but they deny him by their actions. They are detestable, disobedient, unfit for any good work. (Tit 1:15-16) In the tradition that followed Paul conscience, like any intellectual ability, could err because the human mind can be more or less mature, experienced, trained, healthy, sophisticated, imaginative, prudent, integrated with passion etc. As a result conscience can be more or less sensitive, realistic, impartial, wise… The self-evidence of per se nota goods and principles is therefore no simple matter,48 let alone the derivation of secondary principles and their subsequent application, and people’s thinking in these 26 matters can be clouded or corrupted. Conscience is only right conscience when it accurately mediates and applies that universal natural law which participates in the divine law; it is erroneous when it does not. Thus, as I have suggested above, it may be more helpful to think of conscience as a verb (a doing word), describing the human mind thinking practically towards good or godly choices, rather than reifying it as a noun, a faculty or voice with divine qualities.49 Despite the tendency of conscience to error, the Church maintains its high view of the dignity of conscience. From this several things follow:  that we must do our best to cultivate a well-formed and well-informed conscience in ourselves and those we influence;  that we must take responsibility for our actions and thus always seek seriously to discern what is the right choice to make;  that we should seek to resolve doubt rather than act upon it;  that we must follow the last and best judgment of our conscience even if, unbeknownst to us, it is objectively in error;  that we must do so in all humility, aware that our choice may be wrong and so be ready, if we later realize it is, to repent and start afresh; and  that we should avoid coercing people’s consciences: people should, if possible, be persuaded rather than forced to live well and so be given a certain latitude for moral choice; we should expect and tolerate some differences of moral opinion.50 Such reverence for persons and so for their “heart and conscience” is perfectly consistent with denying that conscience is infallible or that it has “primacy” over truth or faith or the teachings of Christ and his Church. As we will see, the magisterium seeks to enable conscience to achieve a more reliable mediation and application of moral truth: it is always the objective moral truth of the moral law and of the Gospel which has primacy and only this which can be infallible.

2. The voice of the magisterium

2.1 What is ‘magisterium’? ‘Magisterium’ refers to the teaching authority of the Church, restating or unfolding the implications of Christ’s teaching.51 The task of authentically interpreting the word of God, whether written or handed on, has been entrusted exclusively to the living magisterium of the Church, whose authority is exercised in the name of Jesus Christ. This magisterium is not above the word of God, but serves it, teaching only what has been handed on, listening to it devoutly, guarding it scrupulously and explaining it faithfully in accord with a divine commission and with the help of the Holy Spirit, it draws from this one deposit of faith everything which it presents for belief as divinely revealed.52 Where do Christians get this idea from? The Christian notion of magisterium begins with certain claims about the reliability of the Church: as Paul put it, the Church is “the pillar and bulwark of truth” (1 Tim 3:15). These claims were based upon Jesus’ own promises to be with his Church always: Now the eleven disciples went to Galilee, to the mountain to which Jesus had directed them. When they saw him, they worshiped him; but some doubted. And Jesus came and said to them, “All authority in heaven and on earth has been given to me. Go therefore and make disciples of all nations, baptizing them in the name of the Father and of the Son and of the Holy Spirit, and teaching them to obey everything that I have commanded you. And remember, I am with you always, to the end of the age.” (Mt 28:16-20)53 Interestingly - given the recent controversy about whether the Church can teach infallibly in morals or only in matters of faith - Jesus’ departing charge here is not to teach the nations Christology or

27 Soteriology or even Fundamental Moral Theology, but rather to teach them his commandments. In promising to be ‘present’ to his Church he is promising the Holy Spirit to guard its veracity: I will pray the Father, and he will send you another Counsellor, to be with you for ever, even the Spirit of Truth... When the Counsellor comes, whom I shall send you from the Father, the very Spirit of Truth, he will bear witness to me...When the Spirit of Truth comes, he will guide you into all truth... (Jn 14:16f; 15:26; 16:13 etc.) Thus in their various epistles the apostolic generation set the trend of Church leaders offering a great deal of advice not merely on matters of ‘faith’ but also on the living out that faith in daily life, sometimes offering only their own opinions, but at other times claiming to teach with the authority of Christ or the Holy Spirit.54 Thereafter Christians continued to rely upon certain authoritative guardians and interpreters of the Gospel. I will not examine the evolution of this reliance here: it is long and fascinating, and has been detailed by students of the history of the magisterium.55 On Francis Sullivan’s view, for instance, Christians came to see that genuine Christian faith entailed trust in the reliability of the Church as the mediator of that faith; this in turn entails the notion that the propositions in which the Church’s normative faith is expressed are true: I do not see how one can hold that the Church is really ‘maintained in the truth’ by the Holy Spirit, and at the same time hold that the Church could oblige its members to confess their faith in propositions which would actually be not merely human, partial, limited, capable of more adequate expression, culturally conditioned, etc., but downright false. In other words the indefectibility of the Church in the truth requires that its normative confession of faith be expressed in propositions which, for all their inevitable limitations, are still true.56 Thus by the time of Vatican II the Church could assert that Christ’s faithful ought to give the unconditional obedience of faith (obsequium fidei) to all that it proposes as certainly true.57 How is this magisterium operationalised? In Lumen gentium Vatican II identified several modes of infallible teaching.58The first is by the People of God when, united with their bishops, they manifest universal agreement on some matter of faith and morals. Next it is exercised by the bishops in their ‘extraordinary magisterium’ when together in an ecumenical council they teach that something is to be held definitively and absolutely. Next it is employed by the bishops in their ‘ordinary magisterium’ when they teach something in common to be held definitively and absolutely. Also it is exercised by the pope who in his ‘extraordinary magisterium’ proclaims some doctrine in an absolute decision. And finally it is employed by the pope in the ‘ordinary magisterium’ of his definitions in conformity with revelation transmitted integrally through the tradition or held by him in common with the bishops. Of course to say that the Church is infallible in these situations is not to say that it is omniscient or inerrant in everything it says and does. In addition to infallible magisterial teaching there are the much more common pronouncements by various Church bodies or leaders proposed with a lesser degree of authority or more tentatively. Such teachings must be taken very seriously by believers out of respect for the Church as an inspired teacher; but they do not command the unconditional ‘obedience of faith’, only some degree of ‘religious assent’. What degree depends upon who teaches and when and how. Unlike the unconditional obedience of faith, such religious assent is provisional: while prima facie true, there is the possibility that what is proposed might be mistaken or in need of considerable qualification and development. Thus when a person’s own reasons against a particular noninfallible teaching are so convincing to him that he cannot give an honest interior assent to the teaching, he nonetheless remains a Catholic.59 On the other hand, it must also be recognized that some teachings not yet infallibly defined do in fact belong to the core of our tradition and may well in the future be the object of an infallible determination.60 If unsure of their own conclusions, believers will therefore be inclined to follow even a non-definitive teaching until such time as they can clarify their own best judgment of what faith and reason require of them.

28 2.2 Examples of moral magisterium What are some examples of magisterial teaching on moral matters of such high authority that they are infallible? In the Synoptic Gospels we hear Jesus repeatedly confirm the authority of the decalogue: As he was setting out on a journey, a man ran up and knelt before him, and asked him, “Good Master, what must I do to inherit eternal life?” Jesus said to him... “You know the commandments: You shall not murder; You shall not commit adultery; You shall not steal; You shall not bear false witness; You shall not defraud; Honour your father and mother.” He said to him, “Teacher, I have kept all these since my youth.” Jesus looked at him and loved him. (Mk 10:17-21 et par) Paul, again, pulls no punches: irreligion, unchastity, theft, greed and so on are inconsistent with the life of God’s kingdom.61 The continuing authority of the Decalogue was then confirmed by many of the Fathers, Popes and Councils of the Church. There are many such passages in the Scriptures as in the Sacred Tradition. An example of the latter is the Council of Trent’s anathema against polygamy.62 More recently the Second Vatican Council condemned in no uncertain terms attacks on human life and dignity, the failure to share with the needy, and the use of weapons of mass destruction against whole population centres.63 Rather than offering any definitions of moral dogmas in Veritatis splendor (1993), Pope John Paul II recalled examples of moral matters long taught definitively by the magisterium.64 Having laid this groundwork, John Paul then explicated three moral ‘dogmas’ in his sequel on bioethics, Evangelium vitæ (1995). Here he was careful to cite the texts from Vatican II regarding the papal and episcopal magisterium in moral matters, and to use the language of Petrine authority. The clearest exercise of the highest level of papal magisterium was with respect to the grave immorality of the direct and voluntary killing of the innocent.65 John Paul then applied this teaching to two pressing bioethical concerns. The Church’s teaching that direct abortion always constitutes a grave moral disorder was, he argued, “based upon the natural law and upon the written Word of God”, “taught by the ordinary and universal magisterium”, confirmed by “the doctrinal and disciplinary tradition of the Church”, asserted “with the unanimous agreement of the bishops”, and now defined with “the authority which Christ conferred upon Peter and his Successors”.66 Likewise the Church’s teaching that euthanasia is a grave violation of the law of God was, he said, “based upon the natural law and upon the written word of God”, “transmitted by the Church’s Tradition and taught by the ordinary and universal magisterium”, and now “confirmed” by him in his Petrine office of confirming the brethren and in his office as a bishop “in communion with the Bishops of the Catholic Church”.67 This list of examples of the Church claiming to teach definitively in morals is by no means exhaustive. But it gives some sense of the range of matters to which Christ and his Church have turned their mind and voice.

2.3 Conscience versus the magisterium after Vatican II Around the time of Vatican II the influential peritus Karl Rahner wrote an essay on the subject of ‘The Catholic conscience’68 in which he explained that conscience is the proximate source of moral obligation, and so must be followed even when it is in fact mistaken; but that we must form our conscience rightly and avoid confusing it with mere subjective inclination or personal preference.69 Moral maturity for Christians requires keeping the commandments given to us by God and proclaimed by the Church through her ordinary or extraordinary magisterium, and never appealing to conscience to make an exception for oneself.70 If we realized that as Christians under the cross we may well meet situations in which we must either sacrifice everything or lose our soul, then we would not look for private exceptions and our confessors would not use evasions like ‘follow your conscience’ when there is some hard if sensitive teaching needed.71 Rahner concluded by observing that if in our sinful world God’s law seems unrealistic, the trouble is not with God’s law but with the world! The early Rahner wrote on the verge of a new age in which Christian ethics faced challenges from many quarters, not least from within the Church. Vatican II sought to restate and update Catholic moral 29 teaching.72 Though aware of the growing threat of individualism and relativism, the Council fathers were optimistic to the point of naïveté about how their words would be received. Many took up the Council’s views on the dignity and liberty of conscience with greater enthusiasm than they did its teaching on the duty to inform conscience and exercise that liberty in accord with moral absolutes known to right reason and proclaimed by the magisterium.73 The Council had barely closed when Paul VI’s encyclical on birth control, Humanæ vitæ (1968), met a hostile reception even among many clergy and theologians. A group of American theologians, led by Charles Curran, asserted that Catholics might properly ‘dissent’ from Church teaching on contraception and ‘follow their conscience instead’. Curran soon taught that Catholics could legitimately dissent from many moral teachings of the Church.74 Philip Keane suggested that pretty well anything goes in the area of sexuality as long as it accords with personal conscience: contraception, fornication, homosexual relations, extra-marital sex…75 Hans Küng dismissed all of Vatican II’s statements about the magisterium as having theological “feet of clay”.76 Even Rahner seemed to ‘cross the floor’ on the matter of the Church’s ordinary authority in morals and the supposed conflict with the liberty or primacy of conscience.77 The stage was set for the polarisation of moral theology for the following quarter-century, as contending schools responded to “the crisis of ’68”, a crisis at least in part over the meaning of moral conscience, its implications for decisionmaking and its relationship to the magisterium of Christ and the Church. In the 1970s a number of theologians proceeded to deny that the Scriptures, the Tradition and the hierarchy have any ‘strong’ magisterium in moral matters.78 The ‘situationists’ echoed the contemporary exaltation of human freedom and rejection of appeals to nature, reason, authority or any objective standards: what matters, in the end, is whether the person’s ‘heart is in the right place’.79 The ‘proportionalists’ asserted that the rôle of conscience was to identify and balance the upsides and downsides of options and that the Church could propose some ‘rules of thumb’ for this balancing act, but no moral absolutes.80 Timothy O’Connell, in his popular textbook Principles for a Catholic Morality, suggested that conscience is infallible at the most basic level of a sense of moral responsibility and of fundamental moral principles.81 Once we move to specifics, however, people can disagree or make mistakes and so the Church can be helpful as a counsellor. Conscience, however, always has primacy over the magisterium. While Catholics believe the Holy Spirit guides the Church “to some extent”, the Church, he explained, is more the ‘whore of Babylon’ than ‘the unblemished bride of Christ’.82 Though the Church might in theory be able to teach infallibly in morals, it never has done so. It has only ever taught in moral matters with its ordinary teaching authority and any ordinary teaching of the Church is “susceptible to error and therefore fallible”.83 Similarly, Francis Sullivan in his book Magisterium asserted that even if very general principles of morality could be solemnly defined—and he was unsure that they could be—they would be so general as to be largely uninformative. More concrete moral norms such as, presumably, those against contraception, abortion, euthanasia and homosexual acts, are “not among the truths which God has revealed to us for the sake of our salvation, nor can they be strictly deduced from any such truths”. Indeed such matters “do not admit of irreversible determination” and “are not proper matter for irreformable teaching”. Sullivan’s reasoning “rules out not only the possibility of the infallible definition of such a norm, but also the claim that such a norm has ever been, or could be, infallibly taught by the ordinary universal magisterium”.84 We are all well aware of how thoroughly this 1970s-80s style of moral thinking filtered down through many of our societies, even if it was rarely dressed up in the highfalutin language of ‘ontic evils’ and ‘authenticity’. In a slightly more sophisticated form it was taught to a generation of priests, religious and lay theology students. It will take some time to recover a more Catholic sense of conscience and authority.

3. Conscience in post-modernity 30 3.1 Rome responds In Ethics After Babel Jeffrey Stout, a non-believer, deplored the “nearly complete breakdown of fruitful dialogue between secular philosophical thought and the religious traditions”, suggesting that this had impoverished both. It was, he believed, the result not only of secular moral philosophers adopting “tropes and fetishes” that virtually preclude such conversation but also of theology failing to offer anything that might make an educated public sit up and listen. To gain a hearing in our culture, theology has often assumed a voice not its own and found itself merely repeating the bromides of secular intellectuals in transparently figurative speech... Meanwhile, secular intellectuals have largely stopped paying attention. They don’t need to be told, by theologians, that Genesis is mythical, that nobody knows much about the historical Jesus, that it’s morally imperative to side with the oppressed, or that birth control is morally permissible. The explanation for the eclipse of religious ethics in recent secular moral philosophy may therefore be... that academic theologians have increasingly given the impression of saying nothing atheists don’t already know.85 Other commentators complained that much modern moral theology was merely the ethics of ‘the world’ dressed up in religious poetry, “a series of platitudes ranging from the inane to the incoherent”, a mixture of the trivial and the sentimental, a middle-class God who was ‘therapeutic nice-guy’ commanding nothing and comfortable with our compromises. These authors called for a radical recommitment to the distinctively Christian in ethics, and for Christians to be willing to be ‘prophetic’, ‘counter-cultural’, the advocates of a genuinely alternative lifestyle.86 John Paul II took the opportunity of the 25th anniversary of Humanæ vitæ to publish his groundbreaking encyclical Veritatis splendor.87 Here he reasserted the teaching of Vatican II that Christ and the Church can, have and do teach definitively in moral matters, and that a well-formed Christian conscience will be informed by such authoritative teaching. Here one ought to proceed with personal obedience of faith, submitting one’s experience, insights and wishes to the judgment of the Gospel, prepared to reform oneself according to the mind of Christ authentically transmitted by the Church. Conscience is indeed the proximate norm of personal morality, but its dignity and authority “derive from the truth about moral good and evil, which it is called to listen to and to express.” Conscience is not infallible and sincerity cannot establish the moral truth of a judgment of conscience; freedom of conscience is never freedom from the truth but always and only freedom in the truth. The magisterium does not bring to the conscience truths which are extraneous to it, but serves the Christian conscience by highlighting and clarifying those truths which a well-formed conscience ought already to possess. A well-formed Christian conscience will seek to be both more objective about morality and truer to the Christian tradition than any morality based on sincerity or balancing acts can deliver.88 In previous documents the Congregation for the Doctrine of the Faith had taught that the magisterium has the task of “discerning, by means of judgments normative for the consciences of believers, those acts which in themselves conform to the demands of faith and foster their expression in life and those acts which, on the contrary, are incompatible with such demands because intrinsically evil.”89 Now John Paul II explored further the vocation of the theologian and the limits to dissent.90 In Ad tuendam fidem (1998) he identified three categories of doctrines to be believed by the faithful. The first are those doctrines of faith and morals “contained in the Word of God, written or handed down, and defined with a solemn judgment as divinely revealed truths by the Roman Pontiff when he speaks ex cathedra or by the College of Bishops gathered in council, or infallibly proposed for belief by the ordinary and universal Magisterium”.91 The CDF pointed out that such doctrines “require the assent of theological faith by all the faithful” and “whoever obstinately places them in doubt or denies them falls under the censure of heresy”. The Congregation gave as an example of such a teaching in the moral sphere the first matter defined in Evangelium vitæ - “the doctrine on the grave immorality of direct and voluntary killing of an innocent human being”.92 The second category of doctrines identified in Ad tuendam fidem is everything else “definitively proposed by the Church regarding faith and morals” including “all those teachings belonging to the 31 dogmatic or moral area, which are necessary for faithfully keeping and expounding the deposit of faith, even if they have not been proposed by the Magisterium of the Church as formally revealed.” All the faithful are required to give “firm and definitive assent to these truths” and “whoever denies them would be rejecting a truth of Catholic doctrine and would therefore no longer be in full communion with the Catholic Church.” In this class the CDF included Catholic teaching on the illicitness of euthanasia, prostitution and fornication; abortion presumably falls under this category as well, if not under the first category. The third class of doctrines are those teachings on faith and morals presented as true or at least sure, but not solemnly defined or definitively proposed by the magisterium, to which “religious submission of will and intellect” are required; a proposition contrary to those doctrines might be qualified as erroneous, rash or dangerous.

3.2 Continuing division over moral conscience and authority Cardinal Ratzinger opened his 1991 lecture on “Conscience and Truth” by observing that conscience has become the core issue in contemporary Catholic moral theology. As the bulwark of freedom, it supposedly confers on the agent a kind of private infallibility vis-à-vis any other authority.93 But to say conscience is infallible is, he points out, contradictory, since any two persons’ consciences may differ on a particular point. The “traumatic aversion” some have to what they take to be ‘preconciliar’ Catholicism’s faith-as-encumbrance affects their whole understanding of conscience and magisterium. For them conscience is an escape hatch from a demanding religion - a religion they are very loath to preach or counsel.94 When a fellow academic posited that even the Nazis were saints because they ‘followed their conscience’, Ratzinger was “absolutely certain that there is something wrong with the theory of the justifying power of the subjective conscience”.95His exploration of ancient Scripture and modern psychology, Socrates and Newman, confirmed his intuition that the notion needed to be thoroughly purified. Why does the Psalmist beg pardon for hidden or unknown faults? Because “the loss of the ability to see one’s guilt, the falling silent of conscience in so many areas, is a more dangerous illness of the soul than guilt that is recognized.”96 The Pharisee’s good works are undoubtedly good; the problem is that “he knows not his guilt”; he has a completely clear conscience when he should not. And “this silence of his conscience makes it impossible for God and men to penetrate his carapace - whereas the cry of conscience that torments the tax collector opens him to receive truth and love.”97 Thus Ratzinger argued that it is wrong “to identify man’s conscience with the self-awareness of the ego, with his subjective certainty about himself and his moral conduct.”98 Such a reduction does not liberate but enslaves, making us totally dependent on personal taste or prevailing opinions. To identify conscience with a superficial state of conviction is to equate it with a certainty that merely seems rational, a certainty woven from self-righteousness, conformism and intellectual laziness. Conscience is degraded to a mechanism that produces excuses for one’s conduct, although in reality conscience is meant to make the subject transparent to the divine… The reduction of conscience to a subjective certainty means the removal of truth… [It] lulls man in false security and ultimately abandons him to solitude in a pathless wasteland.99 Thus while a person’s last, best judgment binds him at the moment of acting, this must not mean “a canonization of subjectivity.”100 While it is never wrong to follow such a judgment, “guilt may very well consist in arriving at such perverse convictions”.101 The Catholic Church is far from alone today in facing polarisation over the meaning and rôles of conscience and authority. It runs deep in modern society and has touched all religions.102 On the one hand, there are those who think that if only people would attend more carefully and receptively to the magisterium instead of the zeitgeist, all would be well. The faithful should be willing to obey and their leaders to lead, and both should reject the me-generation obsession with ‘doing it my way’. Real conscience is the driver obeying the ecclesial satellite navigator, Magisterium, who tells us to turn left 32 or right in the next 500 metres if we want to get to the only destination that matters. At the opposite pole are those who argue that conscience must have ‘primacy’. On this account, Vatican II opened up a new space for Catholics to follow their own lights, rather than rely too heavily on their pastors. A renewed appreciation of personal experience and interpretation, of individual goals and the freedom to pursue such goals without interference. Conscience may listen to the ecclesial satellite navigator, Magisterium, but it must be willing to ignore it and make decisions for oneself.103 It is interesting just how much these ‘opposite’ poles actually have in common. Both are convinced the other has betrayed Vatican II and endangers the Church’s future. And both view the magisterium as an authority external to, indeed often a rival to, personal conscience - as did the Ockhamists, the casuists and the Enlightenment champions of freedom from the old authorities before them. In the last part of my paper I want to examine whether the best of ‘post-modern’ ethics might offer any ways forward. 104

3.3 A communitarian rapprochement between conscience and magisterium The first comes from a major move in contemporary ethical theory known as communitarianism.105 The very word conscientia might well point us in this direction: for it means, literally, to think with, and the with might refer to some moral community or tradition of fellow seekers after truth. Ratzinger noted in 1991 that conscience should appear “as a window that makes it possible for man to see the truth that is common to us all, the truth that is our basis and sustains us… that makes possible a shared knowledge that could generate a shared will and a shared responsibility.”106 Communitarians such as Alasdair MacIntyre and Charles Taylor complain that the autonomous ethics of modernity often fail to take seriously the extent to which community and tradition shape people’s identity and values. Even our most private goals and life-plans are inevitably interrelated with those of others. More fundamentally, our sense of who we are and what matters to us largely comes with our ties to family, work-place, party, nation, culture and, of course, church. Some of these ties are chosen, others simply ‘received’. Pre-existing rôle-models (such as Christ and the saints) and social practices (such as how we worship God and respect and care for others) are relied upon in our moral thinking or emulated in our acting, and a great deal depends on what kinds of moral communities we belong to. While the modern emphasis upon autonomy has helpfully encouraged individuality, initiative and respect, it has also had very real costs in terms of emotional distress, normative ambivalence and political paralysis: relationships are fractured, the young disoriented, and for all their freedom many people feel powerless and resentful. In such situations communities like the Church can call people back into relationships and practices which help to knit them together and give them a sense of identity and destiny. The common good requires a shared vision and life-style, handed down within the community and protected by certain authoritative figures or mechanisms. Are our beliefs and practices therefore purely arbitrary? Or can there be some more rational standard by which to judge all this ecclesial baggage? In the next section I will suggest that there are in fact some objective standards. But we must also allow that some of it can be put down to these more ‘cultural’, shifting, particular aspects of the Church’s life-history. Communities, like individuals, face a range of moral options. Some will be excluded by sound moral reasoning and especially by revelation and the constitutive traditions of the group: intentionally killing the innocent, mutilation, unjust discrimination, vengefulness, disrespect for conscience, and so on. Others will be preferred on the basis of the particular history and culture of the group. Thus from among the range of reasonable options even self- consciously ‘pluralistic’ communities do not choose randomly or value-neutrally: they stand for and against certain things, and they do this by their prayer and worship, their scriptures and creeds, and, of course, their moral codes and common projects. Thus even Sullivan observes that the faith of the Church is normative for the individual who wishes to belong to it: Christianity is not a pick-and-choose religion. As the act of faith is free, so is the choice to belong to the community of Christian faith. No one can be forced to be a Christian against his or her will. But, on the other hand, once the free choice to be a 33 member of the Church has been made, one is not free to choose one’s own confession of faith, or to choose which articles of the Christian faith one will accept, which one will reject. The Christian Church has never understood itself as a collection of individualistic believers, each free to pick and choose among the various items offered for belief.107 While one might want to nuance Sullivan’s claim that people are free to come and go with respect to faith and Church membership, he is surely right to say that once a person has chosen (and been chosen) to belong, certain practices ‘come with the package’, so to speak. If you are pro-abortion, pro- euthanasia and pro-cloning the Catholic Church is not for you; or - better - since the Catholic Church is for you, you should convert to being anti-abortion, anti-euthanasia, anti-cloning and pro-life and love, pro- the sick and disabled, and pro- the theology of the body. Documents such as the Catechism thus function as an authoritative articulation of ‘the Catholic story’. To be part of the Church is not only to believe certain things but also to live in certain ways. Orthopraxis expresses orthodoxy.

3.4 A practical reason rapprochement between conscience and magisterium The communitarian movement might be thought to reduce magisterium to culture and conscience to a social construct. Recent approaches ‘practical reason’ are therefore a useful complement. Here the very word conscientia again provides a hint: for it means to reason (morally) with knowledge and not merely on the basis of opinions or fashions. Certain goods are the ends of human nature and provide the reasons for all human actions: life, health, friendship, creativity, leisure, beauty, truth, faith, integrity, and so on.108 These goods are equally fundamental and intrinsically good; none is merely a means to the others; each is worthy of being cherished and reverenced in every life and choice; fully realised in all human lives, they constitute flourishing. The fundamental maxim that ‘the good is to be sought and done and the evil avoided’ can thus be specified as a series of underived basic principles such as “be concerned for the transmission and preservation of life, refine and develop the riches of the material world, cultivate social life, seek truth, practise good, contemplate beauty... serve God, honour parents…” - the very list of primary principles outlined by John Paul II in Veritatis splendor.109 This requires an openness to all human goods, even those not directly pursued, and never choosing directly against participation by anyone in any of them.110 With further reflection a series of intermediate principles of morality can be derived. This is the ‘natural’ law written, as St Paul put it, “even on the hearts of pagans” and Christian faith recalls and confirms it.111 Because revelation affects the whole way we understand God, each other, the world and ourselves, it inevitably colours the application of these ‘natural’ principles and brings some new norms. The Church comes in such a context as teacher- counsellor, helping us to grow.112 Conscience needs such assistance to reach maturity; 113 people are not born moral adults and some never achieve such maturity. Morality, then, is no imposition of some external authority such as the Church, but an internal pattern of life which challenges us to be more reasonable, mature, flourishing. The magisterium is not some external source of moral thinking with which private conscience must grapple: it informs conscience much like a soul informs a body, giving it its shape and direction from within. Any apparent conflict between conscience and magisterium is therefore either a conflict between what I am convinced is right and some other view, in which case, generally speaking, I must favour of the first; or, more likely, it is a conflict within my conscience between some received magisterial norm and some other part(s) of my moral reasoning (including other received norms). If what is at stake is some moral truth taught with a high degree of authority and certainty, the believer in that authority will either follow it or be confused. When he does not know for sure whether or not what is taught is a matter of faith, he properly gives that proposition his conditional or religious assent because it very well might be.114 Of course, when the Church ventures to teach non-definitively, this may represent a first stage in the development, deeper articulation or authoritative application of the faith and morals of the Church; or it may also represent a false start. Here the believer must assent to the Church’s noninfallible pronouncements as to all else he knows and do his best to reason and discern. His goal will not be to 34 argue oneself out of following some Church-given norm or to ‘limit the moral tax’ payable to God, but rather to embrace the moral vision proposed by Christ and the Church and to seek to resolve any uncertainties before making an important decision. This is quite different to situations of disagreement with the Church not as teacher but as governor. The Church may make executive decisions with which some members disagree. Sometimes there will be penalties for disobedience, as in any community. In this case the disagreement, if any, is between the agent and those with governing authority in his ecclesial community, not a conflict of conscience which always occurs within the agent between different goods or precepts or sources.115 Here we touch upon questions such as the scope and limits of the Church’s temporal authority, the authority of its prudential decisions, and the tensions between the holiness of the Church and the actions of its diverse members.116

4. Where to from here? Already in 1969 the then-Father Joseph Ratzinger expressed concern that false interpretations of Gaudium et Spes §16 on conscience were leading to a separation of freedom from truth, and that this might lead to all sorts of aberrations in the name of ‘creative conscience’.117 The warning was prophetic. His great friend Pope John Paul II was to devote much of his magisterium to recovering a true sense of conscience as a bridge between freedom and truth, and the now-Pope Benedict XVI is already doing the same. In this paper I have sketched some traditional and recent views of conscience, its rôle in ethics and its relationship to sources of moral authority such as Scripture, Tradition and Church hierarchy. I have questioned the common claim that the Church cannot or does not teach definitively in moral matters. I have suggested that most cases of supposed conflict between conscience and magisterium represent a confusion about the nature of conscience or of authority or both. In the face of continuing polarisation I have outlined two complementary ways forward in ethical reflection: one which sees magisterium as the moral authority of a person’s community which shapes his identity and conscience; the other which sees moral magisterium as authoritative teachings properly internalised in the conscience of the believer as a practical reasoner. On neither of these accounts can conscience be seen as autonomous of or a rival to the magisterium; on neither can there be some battle for ‘primacy’ between conscience and magisterium. Both of these accounts are more easily reconciled with Christian tradition than recent views of conscience as a kind of satellite navigator, a voice distinct from moral reasoning, or that see magisterium as the satellite navigator, a voice external to the believer’s personal conscience. The Church post-Veritatis splendor is still struggling to recover a Catholic sense of conscience and authority. The task is essentially an evangelical and catechetical one,118 and one especially urgent in the Western World where misconceptions about conscience have been commonplace, leading to many disastrous personal decisions and the deaths of millions. That there could still be Catholic institutions in some places performing or collaborating in abortion, in vitro fertilization, sterilisation or euthanasia beggars belief. That there are still Catholic theologians and pastors supporting these or similar practices means there is still much to do to recover a sense of the true ecclesial vocations of the theologian and the pastor.119 That there are still Catholic politicians and voters willing to cooperate in those evils means they have a faulty sense of the connections between conscience, truth and authority, whether ecclesial or civil. Wrong views of conscience have also been pastorally ruinous, resulting in diffidence about evangelisation and catechesis, a decline in the practice of Confession and the abuse of Holy Communion.120 Without an accurate understanding of Christian conscience it can never be reliably at the service of the culture of life and love or of the growth of individuals in holiness. But even when we get this right, there will still be much to do in properly forming and informing our own and others’ consciences and in drawing conclusions in the face of the complex contemporary dilemmas - in bioethics as elsewhere. Further, thoroughgoing philosophical and theological analysis is required, for instance, on questions 35 such as conscientious biolaw-making, conscientious objection and co-operation in evil121 - questions to which the present volume of essays will now turn.

1 JOSEPH CARDINAL RATZINGER, “Conscience and truth,” Values in a Time of Upheaval (New York: Crossroad / Ignatius, 2006) (hereafter ‘C&T’), 75-100 at 84; see also On Conscience (San Francisco: Ignatius, 2007). This lecture was first given in English at the Tenth Workshop for Bishops in Dallas Texas in February 1991 and was published in RUSSELL SMITH (ed), Catholic Conscience: Foundation and Formation (Braintree MA: Pope John XXIII Medical-Moral Research Center, 1991), 7- 27 and republished in JOHN M HASS (ed), Crisis of Conscience (New York: Crossroad, 1996), 1-20. The present English translation by Brian McNeil is, however, a retranslation of the German version “Wenn du Freiden willst, achte das Gewissen jades Menschen: Gewissen und Wahrheit,” Wahrheit, Werte, Macht: Prüfsteine der pluralistischen Gesellschaft (3rd ed, Freiburg i.Br., 1995), 27-62, and differs in several places. 2 JOHN HENRY CARDINAL NEWMAN, “A Letter Addressed to His Grace the Duke of Norfolk on the Occasion of Mr Gladstone’s Recent Expostulation” (1875) in Certain Difficulties Felt By Anglicans in Catholic Teaching Considered (Vol. 2, Westminster: Christian Classics, 1969), 246. On the meaning of this letter see: JOHN FINNIS, “Conscience in the Letter to the Duke of Norfolk,” in Ian Ker and Alan G. Hill (eds.), Newman after a Hundred Years (OUP, 1990) 401-418; GEORGE CARDINAL PELL, “Conscience: ‘the aboriginal Vicar of Christ’,” Be Not Afraid - Collected Writing (ed. T. Livingstone, Sydney: Duffy & Snellgrove, 2004), 283-300, and “Newman and the drama of true and false conscience,” LUMEN Christi Institute, University of Chicago, 20 October 2004 [unpublished]; JOSEPH CARDINAL RATZINGER, Presentation on the Occasion of the First Centenary of the Death of Cardinal John Henry Newman, Rome, 28 April 1990; C&T, 84-90. 3 The Catechism of the Catholic Church (1994) (hereafter ‘CCC’) §1778 4 VATICAN II, Gaudium et spes §16. Also in: JOHN PAUL II, Veritatis Splendor: Regarding Certain Fundamental Questions of the Church’s Moral Teaching (1993) (hereafter ‘VS’) §54. 5 In VS §56 John Paul II noted a similar kind of ‘double truth’ operative in attempts to legitimize supposedly ‘pastoral’ solutions to moral dilemmas contrary to objective moral truth and also in seeking personal exceptions in conscience from universally binding norms. 6 TERENCE KENNEDY, Doers of the Word. Vol. 1: Tracing Humanity’s Ascent to the Living God (London: St Paul’s, 1996), ch 5; SERVAIS PINCKAERS OP, Les sources de la morale chrétienne (Fribourg: UP, 1985; Eng. trans. M Noble, Washington DC: CUAP, 1995), chs 10, 11, 12 and 14. 7 DAVID BOHR, In Christ a New Creation: Revised Catholic Moral Tradition (Huntington: Our Sunday Visitor, 1998), 174. cf. ALASDAIR MACINTYRE, Whose Justice? Which Rationality? (Notre Dame UP, 1988), 183-208; PINCKAERS, Sources, 250. 8 NEWMAN, “Letter to Norfolk”. 9 ALLAN BLOOM, The Closing of the American Mind: How Higher Education has Failed Democracy and Impoverished the Souls of Today’s Students (New York: Simon and Schuster, 1987), 326. 10 SERVAIS PINCKAERS OP, Morality: The Catholic View (trans. M Sherwin, Sound Bend: St Augustine’s, 2001), 56-57. 11 On these see: JOHN FINNIS, “Conscience, infallibility and contraception,” The Month 239 (1978), 410-417; “IVF and the Catholic tradition,” The Month 246 (1984), 55-58; “‘Faith and morals’: a note,” The Month 21/2 (1988), 563-567; GERMAIN GRISEZ, JOHN FINNIS & WILLIAM E. MAY, “Indissolubility, divorce and Holy Communion,” New Blackfriars 75 (June 1994) 321-330. 12 BOHR, In Christ a New Creation, 170.

36 13 See, for example, RICHARD M. GULA, ‘Conscience’, in Bernard Hoose (ed), Christian Ethics (London: Cassall, 1998), 114; JAMES F KEENAN, Commandments of Compassion (Franklin WI: Sheed & Ward, 1999), 112 & 134; GEORGE V. LOBO, Christian Living according to Vatican II (Bangalore: Theological Publications in India, 1982); ANNE PATRICK, Liberating Conscience: Feminist Explorations in Catholic Theology (New York: Continuum, 1996). 14 VS §32. 15 C&T, 79. The Cardinal continues: “And this makes ‘conscience’ the justification of a human subjectivity that refuses to let itself be called into question, as well as of social conformism that is meant to function as an average value between the various subjectivities and thereby enable human beings to live together. There is no loner any need to feel obliged to look for truth, nor may one doubt the average attitude and customary praxis. It suffices to be convinced of one’s own correctness and to conform to others. Man is reduced to his superficial conviction and the less depth he has, the better off he is.” 16 E.g. 1 Sam 24:6; 2 Sam 24:10; Jer 11:20; 17:10; Prov 21:2; Ps 26:2; 95:7f. 17 Gen ch 3; Ps 7:10; 26:2; Jer 12:20; 17:10; 20:12. 18 E.g. Gen 3:8-10. 19 E.g. Mt 5:8; 6:19-23; 7:21-27; 15:10-20 etc. cf. 1 Jn 3:19-21. 20 Likewise in one place the Vulgate translates heart as conscientia: Ecc 7:22. 21 BOHR, In Christ a New Creation, 173, notes that “For Paul, ‘conscience’ serves as the personal coordinate to the civil power’s external wrath (Rom 13:5); it refers to a personal awareness of moral responsibility… Most often Paul calls it a ‘witness’ (Rom 2:15; 9:1; 2 Cor 1:12), which accompanies our actions and attests to the truth of our assertions… Ultimately, it refers to a person’s whole inner vision of reality, the world and human life, as seen through the eyes of faith (Rom 14:23). Conscience governs the new creature’s spontaneous reaction to daily events. It is formed by examining or testing oneself (dokimazein - 1 Cor 11:28; 2 Cor 13:5; Gal 6:4), by discerning God’s will (Rom 12:2; Eph 5:10) and discerning what is of value (Phil 1:10), as viewed within the context of the two great commandments of love of God and love of neighbour.” See also VS §62. 22 On the scriptural, patristic and scholastic background see: JEAN AUBERT, “Conscience e Loi,” in B. Lauret and F. Refoulé (eds), Initiation á la pratique de la théologie (vol. 4, Paris: Éditions du Cerf, 1984), 204-208; G R EVANS, Augustine on Evil (CUP, 1982); DOUGLAS KREIS, “Origen, Plato and Conscience in Jerome’s Commentary on Ezekiel,” Traditio 57 (2002), 67-83; KENNEDY, Tracing Humanity’s, ch 5; PINCKAERS, Sources, ch 8. ST THOMAS AQUINAS, Summa theologiæ Ia, 79, 13 notes the uses of the term synderesis in ST JEROME (Gloss. Ezech. 1:6), ST BASIL THE GREAT (Hom. in princ. Proverb.) and ST JOHN DAMASCENE (De Fide Orth. iv. 22). 23 MICHAEL BAYLOR, Action and Person: Conscience in Late Scholasticism and the Young Luther (Leiden: Brill, 1977); ERIC D’ARCY, Conscience and Its Right to Freedom (London: Sheed & Ward, 1961); JOHN FINNIS, “Natural Law: the Classical Tradition,” in Jules Coleman & Scott Shapiro, The Oxford Handbook of Jurisprudence and Philosophy of Law (OUP, 2002), 1-60; TIMOTHY C POTTS, Conscience in Mediæval Philosophy (CUP, 1980); POTTS, “Conscience,” in N Kretzmann, A Kenny & J Pinborg (eds), The Cambridge History of Later Medieval Philosophy (CUP, 1982); PINCKAERS, Sources, chs 9 & 10. 24 ST BONAVENTURE, In II Librum Sentent 39, a 1, q 3, cited in VS §58. See also: DOUGLAS LANGSTON, Conscience and Other Virtues from Bonaventure to MacIntyre (University Park PA: Pennsylvania State UP, 2001). 25 See ST THOMAS AQUINAS, Summa theologiæ Ia, 79; Ia-IIæ 19, 5; II Sent 24, q 2, a 4; and De Veritate 17, a 4. On Aquinas’s moral theory in general and on conscience in particular see: DENIS BRADLEY, Aquinas on the Twofold Human Good (Washington DC: CUAP, 1997), chs 5-7; JOHN FINNIS, Aquinas: Moral, Political, and Legal Theory (OUP, 1998), 123ff; DANIEL WESTBERG, “Good and evil in human acts: Ia IIæ 18-21,” in Stephen Pope (ed), The Ethics of Aquinas 37 (Washington DC: Georgetown UP, 2002), 90-102 esp. 97-98; RALPH MCINERNEY, Aquinas on Human Action: A Theory of Practice (Washington DC: CUAP, 1992), 92-95. 26 PINCKAERS, Sources, 272. cf. EDWARD VALLANCE & HARALD BRAUN (eds), Conscience and the Early Modern World, 1500-1800 (New York: Palgrave Macmillan, 2003). 27 VATICAN II, Gaudium et spes §3; cf. §61. 28 VATICAN II, Dignitatis humanæ §§1 & 2. 29 VATICAN II, Gaudium et spes §16. 30 VATICAN II, Dignitatis humanæ §3; Gaudium et spes §16. 31 VATICAN II, Gaudium et spes §§16, 43, 74, 79; cf. Lumen Gentium §36; Apostolicam Actuositatem §5; Dignitatis humanæ §3; cf. CCC 1777. 32 VATICAN II, Gaudium et spes §§16, 41. 33 VATICAN II, Gaudium et spes §16; Dignitatis humanæ §§1 & 11; cf. CCC 1778. 34 VATICAN II, Gaudium et spes §16. 35 VATICAN II, Gaudium et spes §§8, 16, 43, 47 & 50. 36 VATICAN II, Gaudium et spes §79; Dignitatis humanæ §8. 37 VATICAN II, Gaudium et spes §§31, 50, 87; Gravissimum educationis §1; Apostolicam Actuositatem, §20; Inter mirifica §§9 & 21; Dignitatis humanæ §§8 and 14. 38 VATICAN II, Dignitatis humanæ, esp. §3; Gaudium et spes §79; Gravissimum educationis §§1, 6, 8. 39 CCC 1777-1802 at CCC §1780. See also VS §§59-61. 40 I use the terms Conscience-1, Conscience-2 and Conscience-3 very differently to TIMOTHY O’CONNELL’s use of conscience/1, conscience/2 and conscience/3 in “The theology of conscience,” Chicago Studies 14 (1976), 149-66 and in Principles for a Catholic Morality (New York: Crossroad, 1978), 90ff. 41 VATICAN II, Dignitatis humanæ §3. See also most recently Benedict XVI, Address to Lateran University Conference on Natural Law, 12 February 2007. 42 JOSEF PIEPER, The Four Cardinal Virtues (Notre Dame UP, 1966), 10-11, claims that “conscience and prudence mean, in a certain sense, the same thing… Situational ‘conscience’ is… intimately related to and well-nigh interchangeable with the word ‘prudence’.” He acknowledges that was is commonly called conscience is a unity of synderesis (‘innate or natural conscience’) and prudence (‘situational conscience’). 43 RALPH MCINERNEY, Ethica Thomistica: The Moral Philosophy of Thomas Aquinas (Washington DC: CUAP, 1997), 104-108; VS §64. 44 An example of this confusion is the feeling that one is “damned if I do, damned if I don’t”: i.e. that there are some more situations in which there is no resolution possible and only ineliminable moral tragedy. In fact in every dilemma - however it might feel at the time and however hard it may e to reason and discern what to do - there will be a better course. 45 Likewise VS §60 following JOHN PAUL II, Dominum et Vivificantem: Encyclical Letter on the Holy Spirit §43: “The dignity of this rational forum and the authority of its voice and judgments derive from the truth about moral good and evil, which it is called to listen to and to express. This truth is indicated by the ‘divine law’, the universal and objective norm of morality. The judgment of conscience does not establish the law; rather it bears witness to the authority of the natural law and of the practical reason with reference to the supreme good, whose attractiveness the human person perceives and whose commandments he accepts. ‘Conscience is not an independent and exclusive capacity to decide what is good and what is evil. Rather there is profoundly imprinted upon it a principle of obedience vis-à-vis the objective norm which establishes and conditions the correspondence of its decisions with the commands and prohibitions which are at the basis of human behaviour’.”

38 46 e.g. VATICAN II, Lumen gentium §36; Apostolicam actuositatem §§5 & 20; Inter mirifica §§9 & 21; Unitatis redintegratio §4; Gravissimum educationis §1; Gaudium et spes §§16, 26, 43, 50, 52, 76 & 87. 47 VATICAN II, Gaudium et spes §16. 48 ROBERT GEORGE, “Natural law and human nature,” in Natural Law Theory: Contemporary essays (OUP, 1994), 31-41; “Recent criticisms of natural law theory,” University of Chicago Law Review 55 (1988), 1371-429; ROBERT AUDI, The Right in the Good: A Theory of Intuition and Intrinsic Value (Princeton UP, 2004), ch. 2. 49 ST THOMAS AQUINAS, Summa theologiæ Ia 79, 13. 50 VATICAN II, Dignitatis humanæ §§3 & 11; CCC 1973; D’ARCY, Conscience, Part 4. 51 Similar issues for any believer whose faith tradition purports to teach in moral matters. The recent crisis of authority with respect to the authority of Scripture and Tradition in the Anglican communion when debating issues such as homosexuality has many parallels. 52 VATICAN II, Dei Verbum §10. 53 See also Jesus’ promises to Peter and the apostles and his commissions to them: Mt 16:18-19; 18:18; Jn 21:15-19; Acts 1:8 etc. 54 cf. Acts 15:28; 1 Thess 1:5; 4:8; 1 Cor 7:10-16; Rom 9:1; 1 Tim 6:3 etc. 55 E.g. JOHN P. BOYLE, Church Teaching Authority: Historical and Theological Studies (Notre Dame UP, 1995); AVERY DULLES, “The Magisterium in history: a theological perspective,” Theological Education 19(2) (Spring 1983), 7-26; LAWRENCE WELCH, “The infallibility of the ordinary universal magisterium: a critique of some recent observations,” Heythrop Journal 39 (1) (1998), 18-36. 56 FRANCIS SULLIVAN, Magisterium: Teaching Authority in the Catholic Church (Dublin: Gill and Macmillan, 1983), 16. As we will see, Sullivan strangely restricts the Church’s infallibility to matters of faith and not of morals. cf. JOHN M. HAAS (ed), Crisis of Conscience (New York: Crossroad, 1996). 57 VATICAN II, Dignitatis humanæ §14: “In order to be faithful to the divine command, “teach all nations” (Mt 28:19-20), the Catholic Church must work with all urgency and concern “that the word of God be spread abroad and glorified” (2 Thess 3:1)… In the formation of their consciences, the Christian faithful ought carefully to attend to the sacred and certain doctrine of the Church. For the Church is, by the will of Christ, the teacher of the truth. It is her duty to give utterance to, and authoritatively to teach, that truth which is Christ Himself, and also to declare and confirm by her authority those principles of the moral order which have their origins in human nature itself. Furthermore, let Christians walk in wisdom in the face of those outside, “in the Holy Spirit, in unaffected love, in the word of truth” (2 Cor 6:6-7), and let them be about their task of spreading the light of life with all confidence and apostolic courage, even to the shedding of their blood. The disciple is bound by a grave obligation toward Christ, his Master, ever more fully to understand the truth received from Him, faithfully to proclaim it, and vigorously to defend it, never - be it understood - having recourse to means that are incompatible with the spirit of the Gospel. At the same time, the charity of Christ urges him to love and have prudence and patience in his dealings with those who are in error or in ignorance with regard to the faith.” Cf. VATICAN I, Dei Filius §8; VATICAN II, Verbum Dei §10. 58 VATICAN II, Lumen gentium §§12 & 25. 59 SULLIVAN, Magisterium, 557; cf. GERMAIN GRISEZ, The Way of Our Lord Jesus Christ. Vol 1: Christian Moral Principles (Chicago: Franciscan Herald, 1983), ch. 35. 60 LADISLAS ORSY, The Church Learning and Teaching: Magisterium, Assent, Dissent, Academic Freedom (Wilmington: Glazier, 1987). 61 E.g. “Do not be deceived! Fornicators, idolaters, adulterers, catamites, sodomites, thieves, the greedy, drunkards, revilers, robbers: none of these will inherit the kingdom of God.” 1 Cor 6:9-10. 39 62 COUNCIL OF TRENT, On Marriage, can 2: “If anyone says that it is licit for Christians to have several spouses at the same time and that this is not prohibited by any divine law: let that person be anathema.” 63 VATICAN II, Gaudium et spes §§26, 69 & 80. 64 VS §§51-52: “Persons must do good and avoid evil, be concerned for the transmission and preservation of life, refine and develop the riches of the material world, cultivate social life, seek truth, practise good and contemplate beauty... It is right and just, always and for everyone, to serve God, to render him due worship, and to honour one’s parents as they deserve.” 65 JOHN PAUL II, Evangelium Vitæ: On the Value and Inviolability of Human Life (1995) (hereafter ‘EV’) §57: “The absolute inviolability of innocent human life is a moral truth clearly taught by Sacred Scripture, constantly upheld in the Church’s Tradition and consistently proposed by her Magisterium. This consistent teaching is the evident result of that ‘supernatural sense of the faith’ which, inspired and sustained by the Holy Spirit, safeguards the People of God from error when ‘it shows universal agreement in matters of faith and morals’. Faced with the progressive weakening in individual consciences and in society of the sense of the absolute and grave moral illicitness of the direct taking of all innocent human life, especially at its beginning and at its end, the Church’s Magisterium has spoken out with increasing frequency in defence of the sacredness and inviolability of human life. The Papal Magisterium, particularly insistent in this regard, has always been seconded by that of the Bishops, with numerous and comprehensive doctrinal and pastoral documents issued either by Episcopal Conferences or by individual Bishops. The Second Vatican Council also addressed the matter forcefully, in a brief but incisive passage. Therefore, by the authority which Christ conferred upon Peter and his Successors, and in communion with the Bishops of the Catholic Church, I confirm that the direct and voluntary killing of an innocent human being is always gravely immoral. This doctrine, based upon that unwritten law which man, in the light of reason, finds in his own heart (cf. Rom 2:14- 15), is reaffirmed by Sacred Scripture, transmitted by the Tradition of the Church and taught by the ordinary and universal Magisterium.” (citing Vatican II, Lumen gentium §§12 and 25, and Gaudium et spes §27). 66 EV §62. 67 EV§65. For the new pope’s views on these matters see: JOSEPH CARDINAL RATZINGER, Christianity and the Crisis of Cultures (San Francisco: Ignatius, 2006), Part 2. 68 KARL RAHNER, “An appeal to conscience,” Nature and Grace: Dilemmas in the Modern Church (London: Sheed & Ward, 1963) 49-69. This essay is more fully analysed in GRISEZ, Christian Moral Principles, and WILLIAM E MAY, An Introduction to Moral Theology (Rev ed., Huntington: OSV, 1994) - to both of whom I am deeply indebted here as elsewhere. 69 RAHNER, “An appeal to conscience,” 50: “Man has a duty to do everything he can to conform his conscience to the objective moral law, to inform himself and let himself be taught, and to be prepared to accept (how difficult this often is!) instruction from the word of God, the magisterium of the Church, and every just authority in its own sphere.” 70 RAHNER, “An appeal to conscience,” 51-53. 71 RAHNER “An appeal to conscience,” 55-56. 72 With respect to moral theology it prescribed “livelier contact with the mystery of Christ and the history of salvation”, a firmer grounding in Scripture and tradition, and a clearer recognition that the Christian calling is heavenward in direction but earthly in its temporal enactment. It thus invited, on the one hand, a renewed Scriptural, Christocentric and eschatological focus and, on the other, an openness to contemporary experience, the findings of scientific exegesis, the human sciences, ecumenical and interfaith dialogue (e.g. VATICAN II, Optatam totius §16; Presbyterorum Ordinis §19; Dei verbum §12). Yet, as we have seen, the Church continued to make high claims for its own teaching authority in moral matters (e.g. VATICAN II, Lumen gentium §25; Dei verbum §10). 73 See VS §54 on the idolization of freedom. 40 74 CHARLES CURRAN, “Ten years later,” Commonweal 105 (July 7 1978), 429; Transition and Tradition in Moral Theology (Notre Dame UP, 1979); Critical Concerns in Moral Theology (Notre Dame UP, 1984); The Catholic Moral Tradition: A Synthesis (Washington DC: Georgetown UP, 1999). See his essays and those of some associated in Curran’s edited volumes: Conscience (New York: Paulist, 2004); The Moral Theology of Pope John Paul II (Washington DC: Georgetown UP, 2005). 75 PHILIP KEANE, Sexual Morality: A Catholic Perspective (New York: Paulist, 1977). 76 HANS KÜNG, Infallible? An Inquiry (New York: Harper, 1971), 86. 77 On KÜNG and RAHNER which see GRISEZ, Christian Moral Principles, 857-859. 78 See for example the many articles by PETER KNAUER, LOUIS JANSSENS, BRUNO SCHÜLLER, JOSEPH FUCHS and others in the collections edited by CHARLES CURRAN and RICHARD MCCORMICK. On these writers see: CHRISTOPHER KACZOR, Proportionalism and the Natural Law Tradition (Washington DC: CUAP, 2002). 79 JOSEPH FLETCHER, Situation Ethics: The New Morality (London: SCM, 1966). Likewise for Curran conscience had to deal with very few moral absolutes and was essentially about subjective peace in the face of moral dilemmas: see W MAY and E BRUGGER, “John Paul’s moral theology on trial: a reply to Charles E Curran,” The Thomist 69 (2005), 279-312; J MICHAEL MCDERMOTT, “Fr Charles Curran and Pope John Paul II,” Fellowship of Catholic Scholars Quarterly 29(3) (Fall 2006), 42-51. 80 RICHARD MCCORMICK, Corrective Vision: Explorations in Moral Theology (Kansas City: Sheed & Ward, 1994) and other works; RICHARD GULA, Reason Informed by Faith: Foundations of Catholic Morality (New York: Paulist, 1989). See also: SIDNEY CALLAHAN, “What is a good conscience? Analysis of Cardinal Joseph Ratzinger’s views on morality,” Commonweal, 8 Oct 1993. 81 O’CONNELL, Principles, 89-90. 82 O’CONNELL, Principles, 94-95. 83 O’CONNELL, Principles, 95; likewise ROBERT GASCOIGNE, Freedom and Purpose: An Introduction to Christian Ethics (New York: Paulist, 2004), 241-43. 84 SULLIVAN, Magisterium, 148-152; likewise CURRAN, The Moral Theology of John Paul II, ch. 1. 85 JEFFREY STOUT, “The voice of theology,” in Ethics After Babel: The Languages of Morals and Their Discontents (Boston: Beacon, 1988), 164; cf. STANLEY HAUERWAS, The Peaceable Kingdom: A Primer in Christian Ethics (Notre Dame: UP, 1983); ALASDAIR MACINTYRE, After Virtue (2nd ed, London: Duckworth, 1984). 86 J BUDZISZEWSKI, The Revenge of Conscience: Politics and the Fall of Man (Dallas: Spence, 1999); STANLEY HAUERWAS, Vision and Virtue: Essays in Christian Ethical Reflection (Notre Dame UP, 1981); STANLEY HAUERWAS and ALASDAIR MACINTYRE (eds), Revisions, Changing Perspectives in Moral Philosophy (Notre Dame UP, 1983); STEPHEN FOWL and L GREGORY JONES, Reading in Communion: Scripture and Ethics in Christian Life (London: SPCK, 1991); JOHN MACARTHUR, The Vanishing Conscience (Thomas Nelson, 2005). See also: A CALLINICOS, Against Post Modernism (London: RKP, 1990); L KOLAKOWSKI, Modernity on Endless Trial (University of Chicago P, 1990); AIDAN NICHOLS OP, Catholic Thought Since the Enlightenment: A Survey (Leominster: Gracewing, 1998); Christendom Awake: On Re-energising the Church in Culture (Edinburgh: T & T Clark, 1999); DAVID SCHINDLER, Heart of the World, Center of the Church: Communio Ecclesiology, Liberalism, and Liberation (Edinburgh: T&T Clark, 1996). 87 VS §4 on the cultural context and systematic dissent. 88 VS §§60-64. 89 CONGREGATION FOR THE DOCTRINE OF THE FAITH, Profession of Faith and Oath of Fidelity upon Receiving an Office to be Exercised in the Name of the Church (1989); Donum Veritatis: Instruction on the Ecclesial Vocation of the Theologian (1990), §16. 90 VS §§109-113. 41 91 JOHN PAUL II, Apostolic letter motu proprio Ad Tuendam Fidem (1998) modifying Canons 750, 752 and 1371 of the (Western) Code of Canon Law. 92 CONGREGATION FOR THE DOCTRINE OF THE FAITH, Explanatory Note introducing Ad Tuendam Fidem (1998). 93 C&T, 75-76. 94 C&T, 78. 95 C&T, 80. 96 Ps 19:12-13; C&T, 81; cf. VS §63. 97 C&T, 82. 98 C&T, 82. 99 C&T, 83-84. 100 C&T, 97. 101 C&T, 97. 102 In their studies of contemporary Western culture a number of writers have identified a crisis of understanding of freedom and authority, e.g. JEFFREY STOUT, ALASDAIR MACINTYRE and STANLEY HAUERWAS, The Flight from Authority: Religion, Morality and the Quest for Autonomy (Notre Dame UP, 1981); MACINTYRE, After Virtue; CHRISTOPHER LASCH, The Minimal Self (London: Norton, 1984); ROBERT BELLAH, Habits of the Heart (New York, Harper & Row, 1985); BLOOM, The Closing of the American Mind; JEFFREY STOUT, Ethics After Babel: the Language of Morals and their Discontents (Boston: Beacon, 1988). Cf. JOYCE LITTLE, The Church and the Culture War: Secular Anarchy or Sacred Order (San Francisco: Ignatius, 1995); MICHAEL NOVAK, “Abandoned in a toxic culture,” Crisis 10 (1992), 16-17. 103 See e.g. PATRICK, Liberating Conscience, or the various texts by JAMES KEENAN. 104 In exploring these two alternative approaches to conscience and magisterium to the ‘new morality’ that went before them, I do not pretend that this exhausts the range of useful new directions. Contemporary trends in ‘Virtue Ethics’, in Personalism and in the recovery of the Gifts of the Holy Spirit offer complementary ways forward that there is not space to explore here. 105 MACINTYRE, in After Virtue and Whose Justice?; also in Three Rival Versions of Moral Enquiry: Encyclopedia, Genealogy and Tradition (London: Duckworth, 1990); CHARLES TAYLOR, Sources of the Self: The Making of Modern Identity (CUP, 1989) and Ethics of Authenticity (Harvard UP, 1991); DANIEL BELL, Communitarianism and Its Critics (OUP, 1993); AMITAI ETZIONI (ed), New Communitarian Thinking: Persons, Virtues, Institutions and Communities (Charlesville: University of Virginia, 1995). 106 C&T, 79 [emphasis added]. 107 SULLIVAN, Magisterium, 12. 108 See GRISEZ, Christian Moral Principles; GRISEZ, JOSEPH BOYLE, WILLIAM MAY and JOHN FINNIS, “Practical principles, moral truth, and ultimate ends,” Amer J Juris 32 (1987): 99-151; GERMAIN GRISEZ, JOHN FINNIS and JOSEPH BOYLE, “‘Direct’ and ‘indirect’: A reply to critics of our action theory,” The Thomist 65 (2001), 1-44. The very considerable literature by others of this school includes: JOSEPH BOYLE, “Moral reasoning and moral judgment,” Proc Am Cath Phil Assoc 58 (1984): 37-49; “Natural law,” in J. Komonchak, M. Collins & D. Lane (eds), New Dictionary of Theology (Dublin: Gill & Macmillan, 1987), 702-708; JOHN FINNIS, Natural Law and Natural Rights (OUP, 1980); Moral Absolutes: Tradition, Revision and Truth (Washington DC: Catholuc University of America, 1991); Robert George (ed), Natural Law Theory: Contemporary Essays (OUP, 1992); Natural Law and Moral Inquiry: Ethics, Metaphysics and Politics in the Work of Germain Grisez (OUP, 1998); In Defense of Natural Law Theory (OUP, 2001); WILLIAM E MAY, Introduction; Moral Absolutes: Catholic Tradition, Current Trends, and the Truth (Milwaukee: Marquette UP, 1989). Much of this is consistent with other contemporary Thomisms, but there are also important differences. 42 See: G.E.M. ANSCOMBE, The collected philosophical papers of G.E.M. Anscombe (Minneapolis: University of Minnesota, 1981) and Human Life, Action and Ethics: Essays by G.E.M. Anscombe (M Geach & L Gormally (eds), Exeter: Imprint Academic, 2005); BENEDICT ASHLEY OP, Living the Truth in Love: A Biblical Introduction to Moral Theology (New York: Alba, 1996); ROMANUS CESSARIO OP, The Moral Virtues and Theological Ethics (Notre Dame UP, 1991) and Introduction to Moral Theology (Washington DC: CUAP, 2001); JOHN FINNIS, “Introduction,” to each volume of Natural Law (2 vols, Dartmouth: Aldershot, 1991); LUKE GORMALLY (ed), Moral Truth and Moral Tradition: Essays in Honour of Peter Geach and Elizabeth Anscombe (Dublin: Four Courts, 1994); KEVIN FLANNERY, Acts Amid Precepts (Washington DC: CUAP, 2001); KENNEDY, “The heart of conscience,” Tracing Humanity’s Ascent, ch 7; “The revival of practical reason,” Doers of the Word: Vol. 2 Moral Theology for Humanity in the Third Millennium (Ligouri MI: Ligouri, 2002), ch 4; WILLIAM E MAY, “”Contemporary perspectives on Thomistic natural law,” in John Goyette et al (eds), St Thomas Aquinas and the Natural Law Tradition: Contemporary Perspectives (Washington DC: CUAP, 2004), 113-156; MACINTYRE, After Virtue and Whose Justice? Which Rationality?; RALPH MCINERNEY, The Question of Christian Ethics (Washington DC: CUAP, 1993) and Ethica Thomistica (2nd ed, Washington DC: CUAP, 1997); LIVIO MELINA, Sharing in Christ’s Virtues (trans. W. May, Washington DC: CUAP, 2001); PINCKAERS, Sources and Morality; Augustine di Noia OP et al, The Love That Never Ends (Huntington: Our Sunday Visitor, 1996); EDMUND PINCOFFS, Quandaries and Virtues (Lawrence: University of Kansas, 1986); HAYDEN RAMSAY, Beyond Virtue: Integrity and Morality (London: Macmillan, 1997). Some interesting writers who might be called ‘fellow-travellers’ with much (but not all) of the natural law tradition include: ROBERT AUDI, The Good in the Right: A Theory of Intuition and Intrinsic Value (Princeton UP 2004); NIGEL BIGGAR and RUFUS BLACK, The Revival of Natural Law (London: Ashgate, 2001); RUFUS BLACK, Christian Moral Realism (OUP, 2001); DAVID BRINK, Moral Realism and the Foundations of Ethics (CUP, 1989); CORA DIAMOND and JENNY TEICHMAN (eds), Intention and Intentionality: Essays in Honour of G. E. M. Anscombe (Ithaca: Cornell UP, 1979); PHILLIPPA FOOT, Natural Goodness (OUP, 1993); RAIMOND GAITA, Good and Evil: An Absolute Conception (London: Macmillan, 1991); ROSALIND HURSTHOUSE, On Virtue Ethics (OUP 1999); LEON KASS, Toward a More Natural Science (New York: Free, 1985); MARY MIDGLEY, Can’t We Make Moral Judgments? (Bristol: Bristol Press, 1991); THOMAS NAGEL, The Last Word (OUP 1997); MARTHA NUSSBAUM, The Fragility of Goodness (CUP, 1986) and Frontiers of Justice (Harvard UP, 2006); OLIVER O’DONOVAN, Resurrection and Moral Order (2nd ed, Grand Rapids: Eerdmans, 1994); ANTHONY O’HEAR, Beyond Evolution (OUP 1997; ONORA O’NEILL, Justice and Virtue (CUP, 1996); AMARTYA SEN, Development as Freedom (NY: Kopf 1999); NANCY SHERMAN, The Fabric of Character (OUP, 1989); MICHAEL SMITH, The Moral Problem (Oxford: Blackwell 1994). 109 VS §§51-52. 110 The requirement that good be done and evil avoided does however allow that someone’s potential participation in a good will sometimes be foreseeably but unintentionally compromised by their own or another’s pursuit of a good. 111 C&T, 95, suggests that “It is only in this context that we can rightly understand papal primacy and its connection to the Christian conscience. The true meaning of the teaching authority of the pope is that he is the advocate of Christian memory. He does not impose something from the outside but develops and defends Christian memory. This is why [Newman’s] toast must quite rightly begin with conscience and then mention the pope, for without conscience there would be no papacy at all. All the power of the papacy is the power of conscience at the service of memory…” 112 VS §64; CCC 1783. 113 BENEDICT XVI, Address to International Congress on Natural Moral Law of the Lateran University, 12 February 2007. 43 114 GRISEZ, Christian Moral Principles. On Grisez’s account of conscience see: ROBERT J SMITH, Conscience and Catholicism: The Nature and Function of Conscience in Contemporary Roman Catholic Moral Theology (Lanham MD: University Press of America, 1998). 115 Of course conflicts with the Church, state or others with governing authority can also raise questions of conscience. Often people will obey decisions they disagree with, for the sake of the common good. Sometimes, as a matter of conscience, they cannot. Later in this conference several speakers will consider the meaning and conditions for socalled conscientious objection. 116 See GEORGES CARDINAL COTTIER OP, Memoria e Pentimento: Il rapporto fra Ciesa santa chistiani peccatori (Rome: San Paolo, 2000); JEAN LAFFITTE, “L’Eglise et le pardon,” Cahiers Edifa 7 (1999), 24-36 and “Temps, mémoire et pardon,” Cahiers Edifa 7 (1999), 37-51. 117 See HERBERT VORGRIMLER (ed), Commentary on the Documents of Vatican II, vol. 5 (New York: Herder & Herder, 1969), 134-136 118 VS §§106-108. 119 VS §§109-117. At §111 John Paul addresses the particular mandate of lecturers in seminaries and theologates. 120 GEORGE CARDINAL PELL, “The inconvenient conscience,” First Things 153 (May 2005), 22- 26. 121 For my own thoughts on some of these matters see: “Co-operation in evil,” Catholic Medical Quarterly XLIV (3) (Feb 1994), 5-8, and “Co-operation in evil: understanding the issues,” in Helen Watt (ed), Cooperation, Complicity and Conscience: Moral Problems in Healthcare, Science, Law and Public Policy (London: Linacre Centre,. 2005), 27-64; “The duties of a Catholic politician with respect to bio-lawmaking,” Notre Dame J Law, Ethics & Public Policy, 20(1) (2006), 89-124,

44 BRIAN V. JOHNSTONE

Moral conscience and Christian innovation: elements for a Theological Reading.

Moral conscience is defined in The Catechism of the Catholic Church as “. . . a judgment of reason whereby the human person recognizes the moral quality of a concrete act that he is going to perform, is in the process of performing or has already completed. In all he says and does man is obliged to follow faithfully what he knows to be just and right. (1778 ) The aim of this article is to answer the question: what are the norms that guide conscience in judging whether a proposed innovation ought to be accepted into the Catholic tradition or not? For the purposes of this article, we need to integrate conscience into a wider theological context that embraces faith, the Church, the tradition of the Church and authority in the Church. The first step in the argument will be to clarify the nature of conscience and its relationship to the elements that have just been mentioned. The second step will be to explain the notion of tradition and the relation between conscience and tradition. In this context I will seek to establish the structures of tradition in relation to the two most basic innovations: the innovation of Creation and the innovation of the Incarnation, Death and Resurrection of Jesus. These, I will suggest, provide the source of the norms for accepting or rejecting other prospective innovations into the tradition. It would be possible to discuss many innovations in the tradition such as, for example, the acceptance of the doctrine of human rights, or the acceptance of the criterion of death as “brain death.” However, in this article, I will take only one example of a possible innovation, namely the acceptance of the doctrine of the “freedom of conscience” into the Catholic tradition. Freedom of conscience can be understood in the terms of the “liberal” tradition. This presumed a negative concept of freedom, according to which individual conscience claimed freedom from any external instance, which was seen as imposed or “heteronomous.” This claim would extend to “truth,” where truth itself was seen as the doctrine of another, and therefore as imposed on the individual as alien. Similarly, authority, except when it was accepted by a supposed free contract of individuals, was considered suspect, especially when it sought to enter the field of morality. Again, the suggestion that tradition could have authority would be strongly contested. In our postmodern age, some would argue that conscience should be free even from the domination of “reason.” In short, truth, authority, tradition and reason, were interpreted as forms of domination. How can a Christian, Catholic concept of conscience engage with such notions? The argument of this article will be that certain versions of these have been used as instruments of domination, but, in the Catholic tradition, truth, authority, tradition and reason are understood as gifts that are freely given so as to be freely received. This makes possible a critique of the liberal notion of freedom of conscience and a transformation of that notion that would enable it to be accepted as an innovation into the Catholic tradition. For a believing Christian, conscience has its original place within the act of faith itself. To conceive of conscience as a zone separate from faith, would imply a division in the person. Faith entails a commitment to the tradition by which the faith is transmitted and to the community that is sustained by and supports that tradition, namely the Church. The act of faith does not replace the judgment of conscience, nor does conscience supplant the act of faith. What needs to be explained are the nature of the act of faith and, based on this, the norms for a genuine act of faith. We also need to explain the nature of the judgment of conscience and the norms for a genuine judgment of conscience as a judgment of reason. The relation between faith and conscience needs further explanation. St. Thomas stated that if a person judged in conscience that an act of faith in Jesus Christ was bad, that is morally wrong, then, if a person wills to make the act of faith, the will is directed to a bad or “evil.” From this it would follow that one ought not make such an act of faith. It is not, of course, that faith is bad in itself, but it is presented by reason to the will as bad.1 For example, reason might judge that an act of faith requires a morally 45 illegitimate renunciation of intellectual integrity and so is bad. The judgment of reason in this case discussed by St. Thomas is erroneous. The judgment could be erroneous because the person who makes the judgment has an erroneous conception of what genuine faith means, as in the case described, or the person could have a correct notion of faith, but reason incorrectly in assessing a particular act. But it would be possible that what a person claimed to be a genuine act of faith, was in fact a bad moral act. For example, one might profess to “believe” a doctrine of faith, but do so to gain some personal advantage, such as a gainful position in an organization. Such would not be a genuine act of faith and reason is capable of discerning this even on purely rational grounds. But reason could also discover what revelation (the Scriptures and Tradition) presents as “faith,” for example as an act of free commitment to the person of Jesus Christ. With this knowledge, reason could then judge that what was claimed to be an act of faith, was not what revelation presented as an act of faith, that is not a free commitment to the person of Jesus Christ. Such judgments would be within the scope of reason, even for one who had not made a personal act of faith himself. However, it is not helpful simply to refer to “reason” without providing some explanation of what the word reason means. In the response that I offer here, I will follow some suggestions of Alasdair MacIntyre. We reason in tradition, as he has reminded us. Therefore, to understand reason, we need to understand the tradition within which reason emerges.2 At this point in the argument we can turn to a consideration of the first and fundamental “innovation,” that which makes possible the tradition of reason in which we all participate. The first innovation is the radical act of the absolutely gratuitous gift of being by God in creation.3 Contingent being is given being and the givenness is the fundamental guiding point, or horizon, of all our reasoning.4 God gives being; we, in our receiving that gift, come to participate in the actuality of God’s being, which is to give. Thus we become capable of giving to others. One basic way of giving to others is by communicating with them through language; such communication constitutes the human tradition of reasoning. Reason thus understands being as given being and thus grasps the basic norms of reason, as the norms of receiving and giving.5 Reason without faith in creation might arrive at an intimation that the basic norms of human thinking and living are rooted in the gift, but without faith in creation, there would be an intimation and only that.6 With such a belief, however, we can grasp that being is indeed given being, that the norms of reason are based on receiving and giving, because we recognize that we receive being from divine giving, and that divine reason itself is characterized by giving. Perhaps we could conceive of the divinity, not as thought thinking itself, but as giver giving the gift, where the gift is God’s self. We might even say, that divine reason is engaged in contemplating the divine essence so as to discern how a participation in that essence could be given as a gift. Again, because we believe in a free creation, and that the reason by which we participate in the divine reason, is given to us as a free gift, we grasp that reason must be free. Thus we can see that reason learns from faith, while at the same time remaining distinct from faith.7 An account of all the significant instances of receiving and giving that make up human living is needed for an adequate ontology of the human. As Nicholas Boyle has written, the being of each one of us is a gift that we have received from an act of love, the act of love of our parents and ultimately the act of love of God, and any ontology worthy of the name must have a place for that gift.8 Being is communicated historically in the gift of life that parents give to their child. The original gift of being by God takes its historical expression in the gift of life to the child by the parents. The original gift and the other gifts by which life is sustained and promoted constitute what we call tradition, and the giving and receiving of these gifts through time constitutes our “historicity.” Our historicity in this sense means that our receiving and giving of gifts takes place through time, and, indeed, is only possible with time.9 We cannot invoke “historicity” to claim that no moral teaching has lasting validity and applies only to certain “historical” periods. This would be to impose on human living a ideological notion of historicity as fragmentary. Historicity only makes sense in reference to the continuous giving and receiving that is tradition. The argument here is not that reason emerges from 46 “history,” that is as history considered as a series of events, but that reason is to be discovered in the development of tradition, that is, a history which is constructed by the reasoning of those who inhabit the tradition. We discern the structures of reason not primarily by reflecting on the reasoning that goes on in our individual minds, as the philosophers of the modern era proposed, but by reflection on the shared reasoning that constitutes tradition. MacIntyre has defined tradition thus: “A living tradition then is an historically extended, socially embodied argument, and an argument precisely in part about the goods which constitute that tradition.”10 We need a somewhat broader notion of tradition than that provided by MacIntyre: it is not simply an intellectual “argument,” while it will include this. It embraces language, testimonies, doctrines, forms of worship, art, all considered as freely given and received, together with the practical actions, intentions and motives that are ordered to the purposes or goods of the tradition. Tradition is constituted by testimony before argumentative discourse is engaged. Testimony, as Nicholas Boyle, invoking Paul Ricoeur, has noted, is a communication of truth, through events, and in particular through concrete events of the overcoming of evil.11 Indeed, the great traditions that have survived and have influenced so many people through the ages, are those that have claimed and have been experienced by their members as overcoming evil. This is the case, for example, with the Jewish tradition, with Islam and with the Christian tradition. However, we could say that every human tradition worthy of the name has this basic purpose: overcoming evil, above all in the form of the threat of death. It is in the overcoming of actual evil that the genuine good appears, in particular the good of life. The norms of practical reason come to light in the acts of free, gratuitous giving and receiving of gifts that constitute tradition. The ideal moral act is the free gratuitous gift of oneself to the other, a gift that makes the other capable of free gratuitous gifts to others again, thus forming a “chain reaction” of giving and receiving that forms human community in a process through time aimed at the goal of the ideal community of giving and receiving. This we call the “common good.” A process of practical reasoning is “right reason” when it accords with the structures of gift, that is, when it rightly discerns the genuine gift and allows its reception by the receiver, when it guides the receiver in integrating the gift and when it directs the giving on of the free gift to others. Theoretical reasoning then emerges to give meaning and direction to this process. A basic role of theoretical reason is to discern the nature of the human person and the genuine desires of the human person so as to be able to discover what would be a true gift for that person. Further, the role of theoretical reason is to discern the coherence, or lack of it, between more particular acts and the basic norms deriving from free giving and receiving. Thus we have a reasoned basis for judgments that some gifts are true gifts and that some acts of giving and receiving are right acts. They are so because they are acts of giving true gifts. It is in the context of the tradition and giving and receiving that the notion of truth appears.12 The primary notion of “truth” attaches to a true gift to another, that is, a gift that enables that other to become a giver of gifts to others and thus find fulfilment. Further, “true” applies to the act of giving that conveys such a gift. The important correspondence is between the gift and the genuine desires of the receiver. Theoretical reason in the form of the ontology of “given being” establishes the coherence between particular gifts and the primary gift, which is the gift of being in creation by God. In the theological reading that I am seeking to provide here, we can argue that faith in creation makes possible reason, and that the structures of creation, that is free gratuitous giving and receiving, in a teleologically ordered tradition, establish the basic norms of right reason. However, there are many human traditions of “reason” and it is only though dialogue and mutual critique they can come to truth. This is not to say that a particular tradition of reason cannot attain truth, but that it cannot do so without dialogue with other traditions. But there is a form of reason, namely that which takes as its norms free giving and receiving, and so rules out all forms of domination.13 This is necessary for any dialogue. This form of reason transcends all differences and so can guide the dialogue towards truth. 47 A human tradition is a highly complex structure and one that is fraught with tension and disagreement, indeed the more a tradition seeks to achieve and maintain coherence, the more arguments there are likely to be. As MacIntyre has pointed out, an historical tradition will need authority, since without authority there will be no way of resolving the kind of complex disputes that will arise within tradition.14 If the tradition were unable to deal with these, it would be unable effectively to pursue its goals, namely the fostering of the giving of gifts, and with that the overcoming of evil. Authority is thus a necessary condition for an historical, human tradition. The philosophers of Gift, in particular Derrida, recognize that the free, gratuitous gift is the ideal act, but claim that while “thinkable” it is impossible.15 We could grant that such a free gratuitous gift is impossible for human nature in its present sinful condition. This would mean that our “human” traditions can never be the expressions of a truly gratuitous giving, and will always include elements of self-seeking with the urge to dominate and control others for one’s own sake. From this there emerges two needs; a genuine tradition must promote and sustain conversion, in the form of personal conversion from the self-centered desire to dominate, and in the tradition’s being open to change so as to better promote its goals. + Thus tradition requires the development of the virtues and a capacity to discern and overcome vices, especially what St. Augustine called the “lust to dominate.”16 The second “innovation” that we need to considered is the giving of God’s self, historically in the self- giving of Jesus, culminating in his death on the Cross and in his Resurrection. This is the particular event, the overcoming of evil, the testimony to which gives rise to the Christian tradition. The risen Jesus is the source of the Spirit, whose proper name is “Gift.”17 The gift of the Spirit makes possible the act of faith, the act by which Christians freely accept the gift of the Spirit. This received gift enables them to communicate the faith to others through their testimony and thus to participate in the Christian tradition. The Christian and the Catholic traditions take up the human, historical form of traditions as the “body” by which they live in history. Thus the Christian and the Catholic tradition maintain the same basic structures as the human tradition, just as the Word incarnate, in taking to himself human nature assumed the basic structures of human nature. However, while the Christian faith tradition incorporates the structures of human tradition, it would reject any form of tradition that had been distorted so as to become an instrument of domination. Thus we can show that the structures of the act of faith itself conform to the norms of free giving and receiving that have been explained above. These are the norms, I suggest, by which we can judge on rational grounds, that the act is a genuine act of faith, and a good moral act. We can now indicate the ways in which the Christian tradition is an innovation with respect to purely human tradition. The Christian tradition has as its constitutive act, not simply the gift of being in creation, but the gift of God’s self in the Incarnation, Death and Resurrection of Jesus. What is given in this tradition is not merely the fruit of human experiences and the results of reflection expressed in stories, doctrines, rites etc, and in philosophy (ontology) but the experience of the absolutely gratuitous gift of the Spirit, given as “ revelation” communicated in the tradition and given formal expression in the Scriptures.18 The innovation in the Christian tradition is that it has as its goal, not merely the formation of the ideal community of receiving and giving, but the community of receiving and giving that flows from the gift of divine giving, or grace, that is, the Church. The Eucharist is the paradigm form of such gratuitous receiving and giving, and the Eucharistic community is the “ideal community” of this tradition.19 Further, the Christian tradition has as its goal not only the overcoming of evil in general, but the overcoming of the rebellion against God in the attempt to dominate, and the spiritual death that followed on this. Again since the Christian tradition takes up the structures of the human tradition, it is concerned with promoting the good of life, including a good life on this earth, but, beyond this, the attainment of eternal life in the Resurrection. A key element of the innovation that comes about through the free gratuitous gift of God’s self in Jesus, is that a gratuitous gift now becomes actual, in the case of the God-man, Jesus. It is no longer impossible. We cannot give as God gives, but by the gift of grace, 48 we can participate in God’s giving, seeking to purify our giving by continual conversion of heart. Thus emerges another norm for innovation into the Christian tradition: it must be such as to stimulate and sustain continual conversion. Here conversion entails not only a break with all forms of self-serving and domination of others, but an abandonment of the self-sufficiency that would oppose the reception of God’s gifts and that form of domination that would follow from an attempt to take over from God the role of giver of gifts. It is by reasoned reflection on the structures of giving and receiving in the faith tradition, that we can discover the structures of genuine faith, and thus the norms of the act of faith. Further, in the human tradition, the way to truth is by following the norms of giving and receiving, in dialogue between traditions of reason. But with the tradition of faith, the ultimate or absolute is the absolutely gratuitous free gift, not only of being, but of God’s self. 20 It is this gift that now becomes the norm of truth. The truth that is given is the divine person who is truth. We can understand the meaning of “truth” here in the framework of Gift: because he “corresponds” by nature to the Giver, because he is the gift, and as God-man, he is the primary receiver. Because it is founded on ultimate truth, the faith tradition can critique the errors and forms of partial truth that arise in the human traditions. This is the basis of faith’s capacity to purify reason. It is by reflection on the process of giving that constitutes this innovation, that we can discern the norms of genuine innovation in the Catholic tradition. Such an innovation must be coherent with the norms of genuine human tradition and with the norms of the faith tradition, which takes up the norms of the former but goes beyond them. We would need to ask the following questions. Is the proposed innovation offered as a free gift that can be freely received? Can it be received in such a way as to enable the receiver, either the individual or the community, to integrate that gift, so as to become more fully a giver of gifts to others? Can it be received in such a way as to promote human community as the human community of receiving and giving, and the faith community of believers? Is it a genuine gift, and not a form of domination and control? Does it promote conversion and genuine transformation of the person and of the tradition, that is by promoting more possibilities of giving and receiving and moving it closer to the ideal community, thus making it a more adequate symbol of the ideal community of the Kingdom? Does it constitute a further step in the overcoming of evil, both physical evil and the spiritual evil of sin? We can understand doctrines as interpretations of the divine giving and the community’s (that is the Church’s) receiving. Some of these interpretations express the nature of that giving and receiving in an authentic way, and have been recognized as such by the authority of the Church as a norm for all future interpretations. Thus we would have to ask whether the proposed innovation could be considered a positive gift in respect to the accepted doctrines or whether it would be incoherent with those doctrines. These considerations would provide the norms that conscience ought to follow in its judgment on the acceptability or non-acceptability of a proposed innovation. Could the liberal doctrine of “freedom of conscience” be accepted as a valid innovation? This doctrine, as has been indicated earlier, would seem to presuppose a negative freedom that would imply not only a freedom from the Church’s authority and tradition, but even from the requirements of truth itself. In the light of the arguments developed here, this could not be acceptable as an innovation into the Catholic tradition. According to the arguments that have been developed here, conscience cannot be interpreted adequately apart from a commitment to a human tradition and so apart from a commitment to truth and reason, and for a Catholic believer, apart from a commitment to the Catholic tradition as embodied in the Catholic community, the Church. Thus, the doctrine of freedom of conscience could not be accepted if it were understood in the liberal from. The issue of freedom of conscience is often stated, in a popular version, in the following way. There are certain matters that are settled by Church authority, and thus are not “left” to a free judgment of conscience. But there are other matters that are “left to one’s conscience.” However, to say that something is settled by Church authority and so is not a matter of conscience, does not make any sense, 49 at least in the framework of tradition and gift that has been explained here. The act of faith includes an act of conscience as has been explained above. The act of faith cannot be a purely individual act but must be an act of commitment to a tradition, and for one who has committed herself or himself to the Catholic tradition, to the Catholic Church. It does not make sense to say that certain matters of Church life are withdrawn from conscience, or to use the popular expression, not “left to conscience.” All human choices that engage reason and will are matters of conscience and do not cease to be so when Church authority has laid down certain moral norms. We could say that such matters are not left to conscience, in the sense of arbitrary individual conscience. But conscience here does not means isolated, autonomous conscience. It means conscience that has judged that commitment to the Church, its tradition and its teaching, is a good act, a commitment that ought to be made. More particular judgments of conscience presuppose this basic judgment of conscience. One cannot make judgments of conscience independently of the tradition of the Church while, at the same time, claiming to maintain that basic judgment of conscience. The acceptance of authoritative teachings either on “faith” or “morals” by the Church does not exclude conscience, but necessarily involves conscience. But conscience is involved in a judgment on this act because I have committed myself, following a judgment of conscience, to the tradition of which the authority of the Church is the authentic interpreter. Even if one retracts completely the commitment to the tradition of the Church, one still has to fall back on the human tradition of reason, as has been explained earlier. Here conscience must be governed by a commitment to the rationally attainable truth available in that tradition or at least proposed as a goal by that tradition. If one wants to abandon even the commitment to truth in tradition, then one elects to be utterly alone and to reason alone. But one simply cannot reason alone. We can think “for ourselves” but we cannot think by ourselves. What of the proposal that conscience should be free of the requirements of reason itself? Certain versions of “reason” have been used as instruments of domination, that is, as ideology. But reason, as understood in the framework of gift, is itself freely given, to be freely received, by which one can, in freedom, discern true gifts and give them freely to others. Reason does not cease to be free even when it requires a commitment to a tradition and to a community, or to a faith tradition and to the community of the Church.

Conclusion. In this article I have sought to set out the norms for a judgment of conscience on the acceptability of non-acceptability of a proposed innovation in the Catholic tradition. Some of these norms derive from reason, understood as reason in tradition. The criteria of right reason are developed within the framework of receiving and giving, this being the ultimate framework within which we can understand human living. There are other criteria that derive from faith. But faith also is to be understood in terms of receiving and giving. Thus the requirements of faith can integrate the requirements of reason, without either denying the validity of reason or distorting the nature of faith. I have suggested that the relationship between faith and reason can be best explained in terms of a philosophy and a theology of gift.

50 Notes 1 St. Thomas Aquinas, Summa Theologiae, I-II, 19, 5. 2 MacIntyre, A., Whose Justice? Which Rationality? Notre Dame, Ind.: University of Notre Dame Press, 1988: 349. 3 Davies, O., A Theology of Compassion: Metaphysics of Difference and the Renewal of Tradition, Gand Rapids: Eerdmans, 2001: 50. 4 See Jean-Luc Marion’s account in Caputo J.D. and Scanlon M. J., God, the Gift, and Postmodernism, Bloomington, Indiana: Indiana University Press, 1999: 56. 5 For these reflections I am indebted to the stimulus of the thought of Claude Bruaire. I do claim to represent his own thinking here. See López, A., Spirit’s Gift: The Metaphysical Insight of Claude Bruaire, Washington, DC: The Catholic University of America Press, 2006: 114. 6 It would seem that this was the case with Derrida himself. He is reported to have said, “I rightly pass for an atheist.” The Chronicle of Higher Education, http://chronicle.com/free/2004/10/2004101102n.htm. (Consulted, December 3, 2006). 7 John Paul II, Fides et Ratio, (14th. Sept. 1988) n. 43. 8 Boyle, N., Who are We Now? Christian Humanism and the Global Market, Notre Dame, Ind.: University of Notre Dame Press, 1999: 198. 9 John Paul II, Fides et Ratio, n. 11. 10 MacIntyre, A., After Virtue, 2nd. ed., Notre Dame, Ind.: University of Notre Dame Press, 1984: 222. 11 Boyle, N., Sacred and Secular Scriptures: A Catholic Approach to Literature, London: Darton, Longman and Todd, 2004: 72. 12Cf. John Paul II, Fides et Ratio, n. 24. 13 This would be an example of the “critical purification” of the tradition of reason by faith. Cf. Benedict XVI, Lecture of the Holy Father, Aula Magna of the University of Regensburg, Tuesday, 12 September 2006, “Faith, Reason and the University: Memories and Reflections.”http://www.vatican.va/holy_father/benedict_xvi/speeches/2006/september/documents /hf_ben-xvi_spe_20060912_university-regensburg_en.html. (Consulted December 3, 2006). 14 MacIntyre, Whose Justice, 354. 15 A summary of his views is provided by Derrida himself in, Caputo and Scanlon, God, the Gift, 59. 16 Contra Faustum, XXII, 74. 17St. Thomas Aquinas, S. Th., I, q. 38, a. 2. 18 Fides et Ratio, n. 16 19Cf. Ibid., n. 13. 20Cf. Ibid., n. 7.

51 ROBERT P. GEORGE

Political Obligations, Moral Conscience, and Human Life

The Catholic Church proclaims the principle that every human being—without regard to race, sex, or ethnicity, and equally without regard to age, size, stage of development, or condition of dependency— is entitled to the full protection of the laws. The Church teaches that human beings at every stage of development—including those at the embryonic and fetal stages—and those in every condition— including those who are mentally retarded or physically disabled, and those who are suffering from severe dementias or other memory and mind-impairing afflictions—possess fundamental human rights. Above all, each of us possesses the right to life. Now this teaching is disputed by some. There are those, including some Catholics, who deny that human embryos are human beings. They assert that and human embryo is merely “potential” human life, not nascent human life. The trouble with this position is not theological but scientific. It flies in the face of the established facts of human embryology and developmental biology. A human embryo is not something distinct in kind from a human being—like a rock or potato or alligator. A human embryo is a human being at a particular, very early, stage of development. An embryo, even prior to implantation, is a whole, distinct, living member of the species Homo sapiens. The embryonic human being requires only what any human being at any stage of development requires for his or her survival, namely, adequate nutrition and an environment sufficiently hospitable to sustain life. From the beginning, each human being possesses—actually and not merely potentially—the genetic constitution and epigenetic primordia for self-directed development from the embryonic into and through the fetal, infant, child, and adolescent stages and into adulthood with his or her unity, determinateness, and identity intact. In this crucial respect, the embryo is quite unlike the gametes— that is, the sperm and ovum—whose union brought a new human being into existence. You and I were never sperm or ova; those were genetically and functionally parts of other human beings. But each of us was once an embryo, just as each of us was once an adolescent, and before that a child, an infant, a fetus. Of course, in the embryonic, fetal, and infant stages we were highly vulnerable and dependent creatures, but we were nevertheless complete, distinct human beings. As the leading textbooks in human embryology and developmental biology unanimously attest, we were not mere “clumps of cells,” like moles or tumors. So the basic rights people possess simply by virtue of their humanity— including above all the right to life—we possessed even then. Another school of thought concedes that human embryos are human beings; however, it denies that all human beings are persons. There are, according to this school of thought, pre-personal and post-personal human beings, as well as severely retarded or damaged human beings who are not, never will be, and never were, persons. Proponents of this view insist that human beings in the embryonic and fetal stages are not yet persons. Indeed, logically consistent and unsentimental proponents say that even human infants are not yet persons, and therefore do not possess a right to life; hence, the willingness of Peter Singer, Michael Tooley, and others to countenance infanticide as well as abortion. Permanently comatose or severely retarded or demented human beings are also denied the status of persons. So euthanasia is said to be justified for human beings in these conditions. Although some who think along these lines will allow that human individuals whom they regard as “not yet persons” deserve a certain limited respect by virtue of the purely biological fact that they are living members of the human species, they nevertheless insist that “pre-personal” humans do not possess a right to life that precludes them from being killed to benefit others or to advance the interests of society at large. Only those human beings who have achieved and retain what are regarded as the defining attributes of personhood—whether those are considered to be detectable brain function, self-awareness, or immediately exercisable capacities for characteristically human mental functioning—possess a right to life.

52 The trouble with this position is that it makes nonsense of our political, philosophical, and, for many of us, theological commitment to the principle that all human beings are equal in fundamental worth and dignity. It generates puzzles that simply cannot be resolved, such as the puzzle as to why this or that accidental quality which most human beings eventually acquire in the course of normal development but others do not, and which some retain and others lose, and which some have to a greater degree than others, should count as the criterion of “personhood.” The superior position, surely, is that human beings possess equally an intrinsic dignity that is the moral ground of the equal right to life of all. This is a right possessed by every human being simply by virtue of his or her humanity. It does not depend on an individual’s age, or size, or stage of development; nor can it be erased by an individual’s physical or mental infirmity or condition of dependency. It is what makes the life of even a severely retarded child equal in fundamental worth to the life of a Nobel prize-winning scientist. It explains why we may not licitly extract transplantable organs from such a child even to save the life of a brilliant physicist who is afflicted with a lifethreatening heart, liver, or kidney ailment. In any event, the position that all human beings equally possess fundamental human rights, including the right to life, is the definitively settled teaching of the Catholic Church. It is on this basis that the Church proclaims that the taking of human life in abortion, infanticide, embryo-destructive research, euthanasia, and terrorism are always and everywhere gravely wrong. And there is more. For the Church also teaches that it is the solemn obligation of legislators and other public officials, as servants of the common good, to honor and protect the rights of all. The principle of equality demands as a matter of strict justice that protection against lethal violence be extended by every political community to all who are within its jurisdiction. Those to whom the care of the community is entrusted—above all those who participate in making the community’s laws—have primary responsibility for ensuring that the right to life is embodied in the laws and effectively protected in practice. Notice, by the way, that the obligation of the public official is not to “enforce the teaching of the Catholic Church,” it is, rather, to fulfill the demands of justice and the common good in light of the principle of the inherent and equal dignity of every member of the human family. Yet, today many Catholic politicians, including the Democratic leaders of both houses of the United States Congress and the Republican governor of New York and the former Republican governor of Pennsylvania, are staunch supporters of what they describe as a “woman’s right to abortion.” Most of these politicians also support the creation and government funding of an industry that would produce tens of thousands of human embryos by cloning for use in biomedical research in which these embryonic human beings would be destroyed. Catholic politicians in the United States and in other nations who support abortion and embryo- destructive research typically claim to be “personally opposed” to these practices but respectful of the rights of others who disagree to act on their own judgments of conscience without legal interference. Former New York Governor Mario Cuomo famously articulated and defended this view in a speech at the University of Notre Dame in 1984. Recently, Cuomo revisited the issue, speaking inWashington at a Forum on Politics and Faith in America. He offered an argument which, if successful, not only justifies Catholic politicians in supporting legal abortion and embryo-destructive research, but requires them to respect a right of people to engage in these practices despite their admitted moral wrongfulness. Cuomo asserted that holders of public office—including Catholic office-holders—have a responsibility “to create conditions under which all citizens are reasonably free to act according to their own religious beliefs, even when those acts conflict with Roman Catholic dogma regarding divorce, birth control, abortion, stem cell research, and even the existence of God.” According to Cuomo, Catholics should support legalized abortion and embryo-destructive research, as he himself does, because in guaranteeing these rights to others, they guarantee their own right “to reject abortions, and to refuse to participate in or contribute to removing stem cells from embryos.” But Cuomo’s idea that the right “to reject” abortion and embryo-destructive experimentation entails a right of others, as a matter of 53 religious liberty, to engage in these practices is simply, if spectacularly, fallacious. The fallacy comes into focus immediately if one considers whether the right of a Catholic (or Baptist, or Jew, or member of any other faith) to reject infanticide, slavery, and the exploitation of labor entails a right of others who happen not to share these “religious” convictions to kill, enslave, and exploit. By the expedient of classifying pro-life convictions about abortion and embryo-destructive experimentation as “Roman Catholic dogmas,” Cuomo smuggles into the premises of his argument the controversial conclusion he is trying to prove. If pro-life principles were indeed merely dogmatic teachings—such as the teaching that Jesus of Nazareth is the only begotten Son of God—then according to the Church herself (not to mention American constitutional law and the law of many other republics) they could not legitimately be enforced by the coercive power of the State. The trouble for Cuomo is that pro-life principles are not mere matters of “dogma,” nor are they understood as such by the Catholic Church, whose beliefs Cuomo claims to affirm, or by pro-life citizens, whether they happen to be Catholics, Protestants, Jews, Muslims, Hindus, Buddhists, agnostics, or atheists. Rather, pro-life citizens understand these principles and propose them to their fellow citizens as fundamental norms of justice and human rights that can be understood and affirmed even apart from claims of revelation and religious authority. It will not do to suggest, as Cuomo seems to suggest, that the sheer fact that the Catholic Church (or some other religious body) has a teaching against these practices, and that some or even many people reject this teaching, means that laws prohibiting the killing of human beings in the embryonic and fetal stages violate the right to freedom of religion of those who do not accept the teaching. If that were anything other than a fallacy, then laws against killing infants, owning slaves, exploiting workers, and many other grave forms of injustice really would be violations of religious freedom. Surely Cuomo would not wish to endorse that conclusion. Yet he provides no reason to distinguish those acts and practices putatively falling within the category of religious freedom from those falling outside it. So we must ask: If abortion is immunized against legal restriction on the ground that it is a matter of religious belief, how can it be that slavery is not similarly immunized? If today abortion cannot be prohibited without violating the right to religious freedom of people whose religions do not object to abortion, how can Cuomo say that the prohibition of slavery by the Thirteenth Amendment to the United States Constitution in 1866 did not violate the right to religious freedom of those in the nineteenth century whose religions did not condemn slaveholding? Cuomo says that the Catholic Church “understands that our public morality depends on a consensus view of right and wrong,” but it would be scandalous to argue that Catholics should have opposed a constitutional amendment abolishing slavery in the nineteenth century, or legislation protecting the civil rights of the oppressed descendants of slaves in the mid-twentieth century, on the ground that “prudence” or “realism” requires respect for “moral pluralism” where there is no “consensus” on questions of right and wrong. At one point at the forum on Politics and Faith, Cuomo suggested that laws against abortion and embryo-destructive research would force people who do not object to such things to practice the religion of people who do. But this is another fallacy. No one imagines that the constitutional prohibition of slavery forced those who believed in slaveholding to practice the religion of those who did not. Would Cuomo have us suppose that laws protecting workers against what he, in line with the solemn teaching of every pope from Leo XIII to Benedict XVI, considers to be exploitation and abuse have the effect of forcing non-Catholic factory owners to practice Catholicism? At another point, in denying that there was any inconsistency between his willingness as governor to act on his anti-death penalty views but not on his antiabortion views, Cuomo denied ever having spoken against the death penalty as “a moral issue.” He claimed, in fact, that he “seldom talk[s] in terms of moral issues” and that, when he speaks of the death penalty, he never suggests that he considers it a moral issue. Then, in the very next sentence, he condemned the death penalty in the most explicitly, indeed flamboyantly, moralistic terms: “I am against the death penalty because I think it is bad and unfair. It is debasing. It is degenerate. It kills innocent people.” He did not pause to consider 54 that these are precisely the claims made by pro-life citizens against the policy of legal abortion and its public funding—a policy that Cuomo defends in the name of religious liberty. The fact is that Catholics and others who oppose abortion and embryo-destructive research oppose these practices for the same reason we oppose postnatal homicide. Pro-life citizens of every faith oppose these practices because they involve the deliberate killing of innocent human beings. Our ground for supporting the legal prohibition of abortion and embryo-destructive research is the same ground on which we support the legal prohibition of infanticide, for example, or the principle of noncombatant immunity even in justified wars. We subscribe to the proposition that all human beings are equal in worth and dignity and cannot be denied the right to protection against killing on the basis of age, size, stage of development, or condition of dependency. One cannot with moral integrity be “personally opposed” to abortion or embryo-destructive research yet support the legal permission of these practices and even, their public funding as so many Catholic politicians do, including most Catholic Democrats and some Catholic Republicans in the United States. For by supporting abortion and embryo-destructive research they unavoidably implicate themselves in the grave injustice of these practices. Of course, it is possible for a person wielding public power to use that power to establish or preserve a legal right to abortion, for example, while at the same time hoping that no one will exercise the right. But this does not get such a person off the moral hook. For someone who acts to protect legal abortion necessarily wills that abortion’s unborn victims be denied the elementary legal protections against deliberate homicide that one favors for oneself and those whom one considers to be worthy of the law’s protection. Thus one violates the most basic precept of normative social and political theory, the Golden Rule. One divides humanity into two classes: those whom one is willing to admit to the community of the commonly protected and those whom one wills to be excluded from it. By exposing members of the disfavored class to lethal violence, one deeply implicates oneself in the injustice of killing them—even if one sincerely hopes that no woman will act on her right to choose abortion. The goodness of what one hopes for does not redeem the evil—the grave injustice—of what one wills. To suppose otherwise is to commit yet another fallacy. If my analysis so far is correct, the question arises: What should the leaders of the Church do about people like Cuomo and his successor as New York’s Governor, Republican George Pataki who evidently takes the same position? What should they do about those who claim to be in full communion with the Church yet promote gravely unjust and scandalous policies that expose the unborn to the violence and injustice of abortion? In the run up to the last election, St. Louis Archbishop Raymond Burke offered an answer. He declared that public officials who support abortion and other unjust attacks against innocent human life may not be admitted to Holy Communion, the preeminent sacrament of unity. Pro-life citizens of every religious persuasion applauded the Archbishop’s stand. Critics, however, were quick to condemn Archbishop Burke. They denounced him for “crossing the line” separating church and state. But this is silly. In acting on his authority as a bishop to discipline members of his flock, who commit what the Church teaches are grave injustices against innocent human beings, Archbishop Burke is exercising his own constitutional right to the free exercise of religion; he is not depriving others of their rights. Freedom is a two way street. No one is compelled by law to accept ecclesiastical authority. But Archbishop Burke—and anyone else in the United States of America or other freedom-respecting nations—has every right to exercise spiritual authority over anyone who chooses to accept it. There is a name for people who do accept the authority of Catholic bishops. They are called “Catholics.” In many cases, the charge that Archbishop Burke and other bishops who adopt the policy of excluding pro- abortion politicians from Communion “are crossing the line separating church and state” is also hypocritical. A good example of this hypocrisy comes from the Bergen Record, a prominent newspaper in my home state of New Jersey. John Smith, the Bishop of Trenton, did not go as far as Raymond Burke had gone in forbidding pro-abortion Catholic politicians from receiving communion. Bishop 55 Smith did, however, in the words of the Bergen Record, “publicly lash” Governor James McGreevey, a pro-abortion Catholic, for his support of abortion and embryo-destructive research. For criticizing the Governor on these grounds, the Record lashed the Bishop in an April 25th editorial. The paper accused him of jeopardizing the delicate “balance” of our constitutional structure, contrasting Bishop Smith’s position unfavorably with President John F. Kennedy’s assurance to a group of Protestant ministers in Houston in 1960 that he, as a Catholic, would not govern the nation by appeal to his Catholic religious beliefs. Since the Record had seen fit to take us back to 1960 for guidance, I thought I would invite its editors to consider a case that had arisen only a few years earlier than that. In a letter to the editor, I proposed a question that would enable readers to determine immediately whether the editors of the Bergen Record were persons of strict principle or mere hypocrites. I reminded readers that in the 1950s, in the midst of the political conflict over segregation, Archbishop Joseph Rummel of New Orleans publicly informed Catholics that support for racial segregation was incompatible with Catholic teaching on the inherent dignity and equal rights of all human beings. Archbishop Rummel said that “racial segregation is morally wrong and sinful because it is a denial of the unity and solidarity of the human race as conceived by God in the creation of Adam and Eve.” He warned Catholic public officials that support for segregation placed their souls in peril. Indeed, Rummel took the step of publicly excommunicating Leander Perez, one of the most powerful political bosses in Louisiana, and two others who promoted legislation designed to impede desegregation of diocesan schools. So I asked the editors of the Bergen Record: Was Archbishop Rummel wrong? Or do Catholic bishops “cross the line” and jeopardize the delicate constitutional balance, only when their rebukes to politicians contradict the views of the editors of the Record? To their credit, the editors published my letter—but I am still waiting for them to reply to my question. Now, some good and sincere people have expressed concern that Archbishop Burke and bishops of similar mind are guilty of a double standard when it comes to demanding of politicians fidelity to Catholic teaching on justice and the common good. They point out that the bishops who would deny communion to those who publicly support abortion and embryo-destructive research do not take the same stand against politicians who support the death penalty, which Pope John Paul II condemned in all but the rarest of circumstances, and the U.S. invasions of Iraq, of which the Pope and many other Vatican officials were sharply critical. The Catechism of the Catholic Church indeed teaches that the death penalty should not be used, except in circumstances so rare these days as to be, in words of the late pope, "practically non-existent." However, two points must be borne in mind in considering the obligations of Catholics and the question whether Catholic politicians who support the death penalty have in fact broken faith and communion with the Church. First, neither the Pope nor the Catechism places the death penalty on a par with abortion and other forms of direct killing of the innocent. (Indeed, the Church will probably never equate the death penalty with these forms of homicide, even if it eventually issues a definitive condemnation of the practice.) Second, the status of the teaching differs from the status of the teaching on abortion. As John Paul II made clear in the great encyclical Evangelium Vitae, the teaching on abortion (as well as on euthanasia and all forms of direct killing of the innocent) is infallibly proposed by the ordinary and universal magisterium of the Church pursuant to the criteria of Lumen Gentium 25. The same is plainly not true of the developing teaching on the death penalty. Moreover, Cardinal Avery Dulles and others have interpreted the teaching against the death penalty as essentially a prudential judgment about its advisability, not a moral prohibition following from the application of a strict principle. As it happens, I don't agree with their analysis, but no one will be able to say with confidence from a Catholic point of view which side in this debate is right until the magisterium clarifies the teaching. So, it cannot be said that supporters of the death penalty are “obstinately persisting in manifest grave sin,” and may or should be denied Holy Communion pursuant to Canon 915 of the Code of Canon Law. No one can legitimately claim for opposition to the death penalty the status of a definitively settled moral teaching of the Church. (Nor can one claim that the Church teaches or will ever teach that the death penalty—except in cases where 56 it is applied unjustly—involves the grave intrinsic injustice attaching to any act involving the direct killing of the innocent.) Regarding the question of the U.S. invasions of Iraq, it is important to understand the precise terms of Catholic teaching on just and unjust warfare. These terms are set forth with clarity and precision in the Catechism. In line with the Church’s historic teaching on the subject, neither Pope John Paul II nor Pope Benedict XVI has asserted that opposition to the war is binding on the consciences of Catholics. John Paul II’s statements opposing the use of force in the run up to both invasions plainly questioned the prudential judgments of political leaders who, in the end, had and have the right and responsibility (according to the Catechism and the entire tradition of Catholic teaching on war and peace)) to make judgments as to whether force is in fact necessary. That is why the Pope and the bishops have not said, and will not say, that Catholic soldiers may not participate in the war. This contrasts with their clear teaching that Catholics may not participate in abortions or other forms of embryo-killing or support the use of taxpayer monies for activities involving the deliberate killing of innocent human beings. I wish to close with a word to those in politics and the media—Catholics and non-Catholics alike—who have expressed anger, even outrage, at the world’s Catholic bishops for teaching that the faithful must never implicate themselves in unjust killing by supporting legal abortion and embryo-destructive research. In scolding the bishops, the editors of the New York Times, for example, have insisted that “separation of church and state” means that no religious leader may presume to tell public officials what their positions may and may not be on matters of public policy. But if we shift the focus from abortion to, say, genocide, slavery, the exploitation of labor, or racial segregation we see how implausible such a view is. When Archbishop Rummel excommunicated the segregationist politicians in the 1950s, far from condemning the Archbishop, the editors of the New York Times praised him. They were right then; they are wrong now.

57 LUKE GORMALLY

Personal and social responsibility in the context of the defence of human life: the question of cooperation in evil

1. Introduction

Questions about whether one should cooperate with the wrongdoing of a principal agent are certainly questions for conscience, if by conscience one means the exercise of judgment about the choices one should make in the light of moral truth.2 Such exercises of judgment are for a Catholic necessarily informed by the Church’s teaching of moral truth, since a Catholic is committed to acceptance of the Church’s authority to teach what is required in the conduct of one’s life if one is to be faithful to the way of the Lord Jesus. Since in regard to the defence of human life in the field of healthcare the Church has definitive teachings that the intentional killing of innocent human beings, including direct abortion and euthanasia, “is always gravely immoral”3, a conscientious Catholic will be guided by this teaching in the choices about cooperation he or she makes. The distinction between formal and material cooperation, central to the teaching about cooperation in evil, derives its significance from the fact that it is certain types of act, identified in terms of intention rather than physical causation, that are absolutely impermissible. Since our topic in this conference is the defence of human life, particularly as that defence is required in the field of healthcare, it will be the Church’s definitive teaching on the wrongness in all circumstances of intentionally taking innocent human life that will be a central determinant of our analysis.

2. Formal and material cooperation

Nearly all of us are involved in collaborative relationships without which we could not secure a range of goods which are ingredient elements of human flourishing. Teamwork is characteristic of the life of healthcare professionals, whose proper concern is the good of health, and legislators, whose proper concern is the just ordering of social relationships, depend on political alliances to secure passage of legislation. Notoriously, however, human lives are rendered vulnerable by unjust legislation accommodating the practices of abortion, embryo experimentation and euthanasia, and all these practices are characteristically carried out by healthcare professionals often relying on the collaboration of colleagues. Because cooperative or collaborative relationships are necessary to human well being one cannot insulate oneself from the dangers of wrongful collaboration by the choice completely to opt out of such relationships. Hence it becomes important to specify both when cooperation can never be one’s choice because it is an intrinsically evil choice and when, though one’s contribution to another’s wrongdoing does not involve one making an intrinsically wrongful choice, one’s cooperation should nonetheless not be provided because it is contra-indicated by other considerations.

2.1 Formal cooperation

Cooperation is never to be provided when the course of conduct one would be choosing in cooperating is specified by the very same object as the principal agent’s chosen course of conduct and choice of that object is intrinsically evil (intrinsice malum). To have the same chosen object in acting is to share the

58 same intention4: for a cooperator to share the same intention as a principal agent is to formally cooperate with that principal agent. It is important to emphasise that having the same object as the principal agent does not necessarily mean desiring that object. All that is required is that one’s practical reasoning leads one to a choice that is aimed at achieving that object. (As we shall see, the notion of a choice that is aimed at achieving an object X admits of conflicting interpretations. See 2.3 below.) A nurse who finds herself ordered to assist at an abortion may find the abortion morally repugnant but if what she does is directed precisely to helping bring about the abortion then she is formally cooperating in abortion. What she chooses to do may be for her simply a means to avoid losing her job or to avoid displeasing a powerful colleague. In those respects her practical reasoning will differ from that of a nurse who directs her assistance to bringing about an abortion as something worthy of choice because it satisfies what she thinks to be “a woman’s right to choose”. But while ulterior objects of choice differ in these cases, the ‘proximate object’ of bringing about the abortion is the same. The choice of formal cooperation in the procurement of abortion is in all circumstances excluded for the same reasons that procurement of abortion qua intentional killing of the innocent is excluded. They are that such a choice is a choice of what is intrinsically evil, a grave injustice to the one killed, and as such the kind of choice which, if unrepented, serves to dispose one to grave injustice, i.e. it makes one vicious. This is so because our choices do not merely bring about states of affairs external to us but simultaneously shape what we are disposed to choose. Vice contrary to the good of human life in its most vulnerable phases tends, however, in many contemporary societies to wear a mask of eminent respectability, which is one reason why refusing to be party to it can be difficult. In talking about formal cooperation I have spoken about courses of conduct specified by reference to their chosen objects. The reason for using the locution ‘courses of conduct’ is to avoid the impression that formal cooperation always consists in doing something. One may formally cooperate with a wrongdoer by refraining from doing what one could and should do to prevent the wrongdoing precisely in order to facilitate the wrongdoing. Thus a bishop who has a right in the constitution of a Catholic hospital to determine what practices it is ethically acceptable for the hospital to accommodate, may collude with the Board of the hospital, which is intent on accommodating a lucrative but ethically objectionable practice, by refraining from giving a judgment on the objectionable character of the practice. His choice is precisely that of not preventing a practice with the ulterior motive of assisting the hospital to achieve its financial targets. But the choice not to prevent is here a choice to facilitate what is morally objectionable. This last example illustrates the fact that the ‘modes’ of cooperation in wrongdoing are quite various. St Thomas Aquinas identifies a number5, which I shall describe schematically: 1. By being an accomplice of A in carrying out X. 2. By agreeing to X being carried out by A, where prior agreement is required. 3. By advising A to do X. 4. By failing to advise A against doing X when one could and should (i.e. when one has an obligation to give such advice). 5. By failing to require/order A not to do X when one could and should. 6. By providing support/aid/concealment of a kind without which A could not do X. 7. By failing to provide help/support of a kind which would have prevented A from doing X when one could and should.

2.2 Material cooperation6

One may assist another’s wrongdoing without it being the case that the character of one’s choice - what one intends in acting - is intrinsically evil. But the character of a proposed course of action is not the

59 only kind of reason one can have for refraining from it. We are answerable not only for what we directly intend but also for the foreseeable, unintended consequences of our choices. If it is clear that what one has in mind to do is not formal cooperation, and furthermore that one’s ultimate object in cooperating would be the realization of some instantiation of one of the basic goods constitutive of human flourishing (rather than a merely instrumental good7), then the question that confronts one who foresees undesirable side effects of his material cooperation in wrongdoing is: Does my reason for doing what I have in mind to do warrant making a causal contribution to the foreseeable undesirable effects? This question for conscience properly arises whatever the type of material cooperation that best describes one’s prospective choice of conduct.8 The answer to this question depends on comparing the reasons that count for acting with the reasons that count in favour of refraining from acting. It is important to recognise that the reasons which may count in favour of refraining from acting may be quite various in character: 1. The seriousness of the character of the wrong one materially facilitates, possibly involving grave injustice to the person(s) wronged. 2. The danger that repeated cooperation can have the effect of making one progressively indifferent to the wrong being done to others, can result in one becoming insensitive to their claims upon one, and may eventuate in one being disposed to formally cooperate. 3. One’s material cooperation can be perceived by the wrongdoer as an endorsement of his behaviour and may therefore reinforce his inclination to engage in such behaviour. 4. One’s material cooperation can be a source of scandal to others, leading them to wrongly cooperate either materially or formally in the wrongdoing, whereas a refusal on one’s part to cooperate materially might have helped them to resist any such involvement. 5. Victims of the principal agent’s wrongdoing may reasonably construe one’s cooperation as itself wronging them and in consequence the good relationship one should perhaps maintain with them is damaged. 6. Material cooperation with wrongdoing can make impossible the witness one may have an obligation to bear against the wrongdoing by undermining one’s credibility as a witness. 7. Material cooperation tends to help entrench bad practices which should be eliminated. The weight the above types of consideration may carry as reasons against cooperating will differ from individual to individual, depending on whether or not one’s cooperative contribution is to the actual carrying out of the wrongdoing9, on what one’s responsibilities are, on the availability of alternative courses of action to achieve the goals one had in cooperating, on the likelihood that refraining from cooperation will be a deterrent to the principal agent, and on the degree of confidence one has that foreseen possible consequences of cooperation will eventuate. The judgment that an individual has to make in a particular case in taking account of the reasons favouring cooperating compared with the reasons favouring refraining from cooperating is not based on an impossible proportionalist comparison of the incommensurable goods at issue but is rather a prudential assessment of the course of conduct best ordered to “the whole of living-in-a-good-way”.10

2.3 Drawing the line between formal and material cooperation

Since formal cooperation with evil is always wrong, because a choice intentionally to help bring about that evil, it is important to have a defensible view of the scope of intention, if one is to distinguish between intended and foreseen but unintended effects of what one does. Here some philosophical claims are unavoidable. There are at least three positions one can find in the contemporary literature on cooperation:

60 1. What an agent intends is to be identified in terms of the description of what his practical reasoning specifies as the ultimate purpose/end of a chosen course of conduct. 2. What an agent intends is to be identified in terms of the description of what his practical reasoning specifies as required for the achievement of his end (i.e. his means) and includes no effect of acting that is not logically entailed by that description. Here the idea of logical entailment has a different interpretation from the interpretation it has in the third position on the scope of intention. 3. What an agent intends is to be identified in terms of the description of what his practical reasoning specifies as required for the achievement of his end, which includes any effect logically entailed by that description. The first understanding of intention may seem implausible in that it eliminates reference to proximate objects of choice, but despite its implausibility it shows up in contemporary discussions of cooperation. The difference between 2 and 3 identifies the arena of an important debate in contemporary moral theology, which I can deal with here in only a summary fashion.11 The difference between positions 2 and 3 hangs on differing understandings of the notion of logical entailment as it applies to act descriptions. The notion of logical entailment employed in 2 is construed in terms of what necessarily obtains across all possible worlds. An effect of an agent’s chosen action is said to fall outside the scope of intention if the description of what is identified in his practical reasoning as strictly required for the achievement of his end does not logically entail that one brings about that effect, meaning that one can conceive of a possible world in which that effect does not obtain as a result of the agent’s chosen way of acting. This position on the scope of intention is well illustrated by an example which is famous in the literature, that of craniotomy. Craniotomy to save the life of a mother in obstructed labour standardly involves removing the contents of the child’s cranium before crushing it, and in any case generally involves crushing it in a way that directly causes the death of the child. About this procedure it has been said that “A surgeon who performs a craniotomy and could soundly analyse the action, resisting the undue influence of physical and causal factors that would dominate the perception of observers, could rightly say ‘No way do I intend to kill the baby’ and ‘It is no part of my purpose to kill the baby’ ... Our contention ... is that when someone chooses to do a craniotomy on a baby to save his or her mother’s life in an obstetrical predicament, the morally relevant description of the act would not include killing the baby.”12 The causal sequence leading to death is irrelevant to determining intention, the authors of this quotation argue, because it is no part of the significance of the act as that is determined by the practical reasoning of the doctor who carries out the emergency craniotomy. One of these authors had earlier argued that “It seems to be logically possible that the craniotomy be performed and the fetus not be killed.”13 It is made clear that ‘logically possible’ means ‘possible in some conceivable world’ - as distinct from the actual set-up of this world - when it is explained that “The fetus’s death is entailed by the craniotomy and the relevant physical laws and the present state of medical technology” - but not by the description under which the procedure is chosen, viz. that of altering the dimensions of the baby’s head to remove it from its obstructed position in the birth canal. Lying behind the difference between this understanding of the scope of intention and the third interpretation of the notion are opposed understandings of causality, one Humean, the other Aristotelian. For Hume, causal laws simply describe constant conjunctions of cause and effect, and cause and effect are conceptually unrelated. The connection is simply a contingent, empirical connection, and there can be no a priori reason for excluding the conjunction of any kind of cause with any kind of effect and no reason, therefore, to speak of essential causal effects. For Aristotle, by contrast, there is a logical or conceptual relation between a cause and its effect, it being part of the definition of a cause that it has a tendency to produce such-and-such kind of effect. It

61 is because a cause is defined as a tendency to produce such-and-such an effect that we can distinguish between essential and accidental effects. Just as there are essential effects of natural causes so there are essential effects of intentional acts, effects that a particular kind of intentional act tends to produce. And such effects are part of the significance of what one chooses to do in choosing to do that type of act. It may be that what is of particular significance for an agent in what he chooses to do does not make explicit all that belongs to the essential meaning of his chosen action, but if the description of the act under which he chooses to perform it identifies an aspect of its efficacy which essentially determines another effect then that other effect belongs to the essential meaning of what he does. The essential determination to which reference is made here belongs to the essential character of the type of causal efficacy chosen to achieve the precise effect the acting person seeks to achieve. It is ‘essential determination’ which establishes conceptual or logical entailment, such that if it is intrinsic to the meaning of a doing of X that it is a doing of Y one cannot say that one is not choosing to do Y in choosing to do X. It is important to recognise that the conceptual entailment belongs to the character of one’s intention. It is true that what explains the essential determination which establishes conceptual entailment are truths about human causal activity and truths about the objects on which that activity is exerted. But these are truths which properly enter the perspective of the acting person not by way of informing foresight of consequences but by way of characterising intention. For the deliberations of the acting person in settling upon what is causally efficacious for the achievement of his ends make intrinsic to the character of his choice what belongs essentially both to that mode of efficacious action and what belongs essentially to its impact on the object on which the action is exerted. What does this mean for the craniotomy example? What is chosen as the efficacious means of altering the dimensions of the child’s head is evacuation of the contents of his brain and the crushing of the cranium. Evacuating the contents of an unborn child’s head and then crushing it essentially determines the death of that child; there is hardly a more important vital organ than the brain. Performing a craniotomy conceptually entails killing the baby; the killing of the baby is part of the essential meaning of what one chooses to do, even if one can imagine a possible world in which one could re-assemble the baby in such manner that it would continue to be alive. The significance of human action is in part determined by the natural constitution of things in the world in which we actually live. If the essential nature of modes of causal efficacy and the natural constitution of things places constraints on the character of human action we may ask whether the conventionally established nature of certain procedures places similar constraints on the nature of human action. The question can perhaps be best explored by reference to a particular kind of case, that of the participation of Catholic agencies in Germany in providing ‘social counselling’ to women seeking abortions, a case that exercised the Holy See throughout the last decade of the twentieth century. German Federal law required, as a condition of obtaining an abortion, that one should have received counselling from counsellors in centres approved for this purpose. To ensure this requirement was met State laws required that a woman should obtain a certificate duly signed by a counsellor testifying that she had received counselling, and presentation of this certificate to a doctor carrying out abortions was necessary in order to obtain an abortion. Within the framework of the law, therefore, a function of the certificate was that of facilitating access to abortion. This was true despite the fact that the law’s requirement that a woman should receive counselling was intended to ensure that women were made aware of alternatives to abortion. The Church in Germany decided to establish approved counselling centres within the framework of the law with the clear intention of taking the opportunity offered by the law to dissuade women from having abortions. But if women were to be induced to come to these centres they had to know that the counsellors had committed themselves in advance to signing and issuing certificates of attendance to any woman who continued to want an abortion, as the majority attending did. The need the certificates met was that of women who persisted in wanting an abortion. It was precisely the function of the 62 signed certificates as providing testimony that a woman had fulfilled a necessary legal condition of abortion that served the purpose of ensuring that women came for counselling. So the choice to undertake to provide certificates qua inducement to receive counselling entailed that it was a choice to undertake to provide certificates qua facilitating access to abortion. In other words, the formality under which the pro-life counsellors were committed to undertaking provision of certificates was qua documents facilitating procurement of abortion. If that analysis is correct, one would have to say that formal cooperation in women’s advance plans to obtain an abortion became the chosen means to the very worthy end of dissuading women from having abortions. If one considers that to have been the case, there is no reason to be surprised that numbers of counsellors in Catholic centres were corrupted in their attitude to abortion, taking a permissive view of it in their counselling of women.14 What is decisive for my argument that counsellors signing certificates of attendance were not merely foreseeing but intending the facilitation of abortion is one of the roles in law of the signed certificate, which meant that a commitment to producing a signed certificate could entail a commitment to facilitating abortion.15 In general, the conventional as well as the natural significance of forms of causal efficacy can determine descriptions of the formal character of action, bearing in mind that a course of conduct can have a number of formal objects. In the next three sections I will explore the application of the teaching on formal and material cooperation to a select number of questions of cooperation which arise in different institutional settings in which the defence of human life may be at issue. Each type of case chosen might warrant paper- length treatment on its own, so it should be emphasised that the treatment offered here is both selective and, given the inherent complexity of the type of matter under consideration, liable to provoke disagreement.

3. Dealing with suicidally motivated refusals of life-prolonging treatment.

A suicidally motivated refusal of treatment by a patient is a refusal which is intended precisely to hasten the patient’s own death. Such refusals are themselves motivated by a variety of factors which lead the patient to believe that his life is no longer worth living; he judges that he would be ‘better off dead’ and seeks to bring about his own death by insisting that life-prolonging treatment be withheld or withdrawn. Such refusals of treatment should be distinguished from refusals based on the belief that treatment is futile, in the sense of being no longer therapeutically beneficial, or on the sense a patient may have that the treatment would, for one or other of a variety of possible reasons, be excessively burdensome. The latter kinds of refusal are not based on a patient’s belief that his life is no longer worthwhile but rather on the belief that treatment in the patient’s circumstances is not worthwhile. In the interests of simplifying the discussion I shall assume that a patient’s motivation is both unambiguous and discernible.16 Suicidal refusals may be expressed by a competent patient in regard to contemporaneous treatment (‘Stop giving me my insulin injections now so that I can lapse into a coma and die’) or in regard to future treatment when the patient anticipates that he may be no longer competent. The latter type of refusal typically finds expression in a written advance directive. I shall discuss the problems of cooperation that carers confront in face of such refusals in the context of the law of England and Wales. Competent patients have an apparently unqualified right in law to refuse treatment.17 Moreover, it should be noted that ‘artificial nutrition and hydration’ are classified in law as ‘medical treatment’. A doctor who overrode such a refusal of treatment might be exposed to civil liability for damages for a tort such as battery or exposed to criminal prosecution.

63 A valid advance refusal of treatment which is applicable in the circumstances which obtain in the life of a now incompetent patient has the same status in law as a contemporaneous refusal of treatment by a competent patient. Failure to respect such a refusal exposes a healthcare professional to the same actions in law. Healthcare professionals who have conscientious objections to complying with suicidal refusals of treatment appear to have strictly limited room for manoeuvre. According to the (draft) Code of Practice for the implementation of the Mental Capacity Act 2005 (which comes into force in April 2007) they should make arrangements for the care of the patient to be transferred to another healthcare professional. What choices is it reasonable for a healthcare professional to make in face of suicidal refusals of treatment and in the context of the law’s specification of the doctor’s obligations? To begin with, could a doctor acceptably reason that he may respect a contemporaneous suicidal refusal of treatment precisely with a view to complying with the law’s requirement that he must respect all competent refusals of treatment? If we begin with the question would compliance involve formal cooperation in suicide the answer, I think, must be different in respect of the two examples I have quoted - omitting insulin and omitting tubefeeding. Insulin is indubitably medical treatment and it is reasonable that the law prohibits the giving of medical treatment to a competent patient who refuses it and that it does so without seeking to specify what would and what would not be acceptable motives for refusal. There would be intractable difficulties for healthcare professionals in applying a law which sought to discriminate between acceptable and unacceptable motivations for refusal. That being so, it cannot be judged to be a wrongful intention on the part of a doctor to comply with such a law qua law protecting the right of patients to refuse medical treatment. The point of the law is to protect a reasonable sphere of self-determination for competent patients, and there is nothing in the nature of respecting the legal requirement so described that determines that one is formally cooperating in suicide. But if failing to override a patient’s suicidal refusal of insulin injections need not amount to formal cooperation in suicide would it amount to material cooperation, given that the hastening of the patient’s death consequent upon his refusal of injections is entirely foreseeable? In answering this question one has to bear in mind that the doctor may reasonably think18 that he cannot physically override the patient’s refusal in the sense of injecting the patient against his will. On the other hand he cannot simply acquiesce in what the patient is determined upon, for to do so would be to provide material cooperation. A number of considerations count against such cooperation: the gravity of what the patient proposes to accomplish; the moral danger to the doctor himself of any policy of acquiescing in such refusals; the encouragement given to the patient by merely acquiescing in his decision; the scandal given to others by a policy of acquiescing; and the loss of the ability to give credible witness against suicidal behaviour consequent on such a policy. All these considerations suggest that a doctor confronted with a suicidal refusal should in the first instance make determined efforts to alter the patient’s mind. If he is unsuccessful in this he should make it clear to the patient that he cannot continue to care for him. Then in carrying out his legal obligation to transfer the patient to the care of another doctor he should not seek to find a doctor who will readily agree with the patient’s suicidal will. The moral character of the available options changes, I think, if we consider a suicidal refusal of established tubefeeding, that is, a demand by a patient that one stop tubefeeding.19 On the assumption that tubefeeding is not medical treatment but medically assisted basic care of a patient, it ought not to be covered by any law giving competent patients an unqualified right to refuse medical treatment. It is widely thought, though not indubitably established, that suicidal refusal of tubefeeding is covered by the right to refuse medical treatment. One certainly cannot acceptably intend to comply with a law which is considered to accommodate suicidal refusals of tubefeeding when suicidal refusal of 64 tubefeeding is at issue,20 if one’s compliance with it is qua law accommodating suicidal refusal of basic sustenance. To comply with it qua facilitating suicide would be formally to cooperate in suicide. That is not, however, the only formality under which one might choose to comply with the law. One may comply with it qua law threatening penalties for non-compliance. One would then be involved in material cooperation in suicide. Both because of the gravity of the consequences for the patient, and because it is not clearly established that there is a right suicidally to refuse tubefeeding, the doctor would have strong reasons for seeking to challenge in the courts the view that he is obliged to comply with such a refusal. It is possible that the court would agree with him. On the other hand, it may simply order the transfer of the patient to another doctor. Finally, let me remark on the challenge that suicidal advance refusals of treatment present for Catholic healthcare facilities. Their policy should be that of ascertaining if at all possible in advance of admission whether an incompetent patient has an advance directive with that kind of clause in it. If the directive has, then where possible the patient should be refused admission. If such a directive is found subsequent to admission, then relatives and/or those having lasting powers of attorney in respect of the patient should be told that care of the patient can be continued only on condition that no attempt is made to enforce the suicide clause in the advance directive.

4. The use in research of cell-lines derived from embryos or aborted fetuses.

The very specific type of scenario I have in mind to discuss here is that of biomedical researchers who are asked to use cell-lines derived from embryos or fetuses who have been deliberately aborted. I exclude from consideration those who arranged to obtain the tissue with a view to developing the cell- line: since they are generally intimately involved in planning to receive fresh tissue they cannot but want the abortion performed, intend that it should be performed, and certainly will not be persons who speak against the planned abortion.21 In considering possible complicity with abortion on the part of researchers using cell-lines one should distinguish between those using cell-lines obtained long ago22 and those needing contemporaneously developed cell-lines. The latter in so far as they want those who develop and market cell-lines to provide them, and know that provision depends on derivation from tissue obtained from procured abortions, are in the position of people who want the abortions to occur, and are rewarding, through their demand for such cell-lines, the developers who are likely involved in the actual planning of abortions. The intentions of such researchers are describable in terms requiring de facto a set-up in which ongoing procurement of abortions is a condition for obtaining cell-lines.23 So they may be said to formally cooperate in the maintenance of such a set-up. Researchers using cell-lines with a decades-long ancestry are certainly not committed to maintaining a set-up requiring ongoing procurement of abortions. Could they be involved in any complicity with abortion? The mode of carrying out the abortions from which the early cell-lines were derived suggests that the planning of those abortions was in part aimed at deriving those cell-lines.24 It would seem, then, that part of the purpose in carrying out those specific abortions was the derivation of usable cell-lines. If this is so, it would follow that subsequent users of the cell-lines are materially helping to achieve part of the purpose of the original wrongdoers. If the original carrying out of the abortions was in part aimed at obtaining the now decades-old cell- lines, the obtaining of those cell-lines for research purposes was part of a gravely wrong plan. The proper response to plans of that kind is not to act with a view to them succeeding but rather to frustrate them. There will not in most cases be reason to think that a researcher uses the cell-lines precisely with a view to fulfilling the plans of the original wrongdoers, but materially he will be contributing to the fulfilment of those plans and so frustrating what justice would normally require.25

65 There are other reasons which can count against the use of cell-lines derived from the tissue of deliberately aborted embryos and fetuses. One reason is that, as with other kinds of case in which people take advantage of someone else’s wrongful act to promote some worthwhile end, the value of the original act in facilitating their ends can lead them to endorse the original act precisely in so far as it facilitated achievement of their ends. But in reality it did so by being the wrongful act it was. One can, of course, resist the temptation to endorsement, but if one fails to then one’s own dispositions are corrupted.26 Two other reasons which can count against use of cell-lines derived from tissue obtained from abortions are, first that one’s use can be a source of scandal to colleagues (i.e. an obstacle to their recognising the moral truth about procured abortion), and secondly one’s use even of old cell-lines can undermine the credibility of the witness one should give against the continued derivation of cell-lines from aborted embryos and fetuses. Those best placed to object to obtaining cell-lines in that way are researchers who are familiar with the nature of their production. Failure to object leaves undisturbed the present practice of pharmaceutical companies and research institutes. None of the reasons mentioned here are trivial considerations when a researcher comes to make a prudential judgment about whether he could justify using cell-lines derived from tissue obtained from aborted embryos and fetuses. The potential value of his research would have to be both very considerable and very urgent to provide such justification.

5. Legislators and restrictive legislative proposals bearing on the protection of human life: the debate about the implications of Evangelium Vitae §73.3

A legislator who votes in favour of legislation which is aimed precisely at permitting the practice of abortion formally cooperates in the procurement of abortions, and the gravity of his wrongdoing is in no way mitigated by any declaration that he is “personally opposed” to abortion. This moral truth has given rise to a debate about the permissibility of proposing or voting for legislation which has the effect of restricting abortion to a shorter gestational period than the period during which abortion was previously permitted but which allows abortion to take place during the shorter gestational period. The resolution to this debate hinges, I believe, on the way conventions about the correct interpretation of legislation clarify the efficacy - what is actually effected - by the passage of such legislation and what may therefore be intended in voting for such legislation. It is objected that one should not vote for any restrictive proposal (bill or law) which protects some people from the injustice of an existing law while leaving others exposed to that injustice. This is most clearly impermissible (it is argued) when the proposal in question is so phrased as to restate part of the existing law’s unjust provisions. Such a proposal seems to be contrary to Evangelium Vitae §73.2: “In the case of an intrinsically unjust law, such as a law permitting abortion or euthanasia, it is therefore never licit to obey it or to ‘take part in a propaganda campaign in favour of such a law, or vote for it’.” A vote to permit abortions up to 14 weeks in circumstances in which abortion has hitherto been prohibited is clearly a vote to introduce an intrinsically unjust law, in the sense of a law permitting the violation of a fundamental human right, i.e. a right that should never be violated. But if it is never right to vote for such a law how could it be right to vote for an identically worded proposal even if the context in which voting was taking place was one in which the existing law permitted abortion up to 24 weeks? For the wording of the proposal expressly permits abortion up to 14 weeks, that is, it permits to occur what should never be allowed to occur. Context, however, and the conventions which characterise that context, do make a difference. In the context in which a proposal to permit abortion up to 14 weeks is a restrictive proposal, the effect of passing such a proposal into law is to enact a prohibition on abortion between 14 and 24 weeks. No

66 new permission of abortion up to 14 weeks is being introduced: that part of the law as it was is left intact. And it is left intact simply because it is not politically possible to remove it. Conventions of legal interpretation oblige one to distinguish between the form of enactments and their legal meaning or ‘juridical effect’ i.e. the propositions of law which these enactments, properly interpreted, make legally valid. The legal effect of some permissive formulae is in context not permissive but restrictive, i.e. the propositions of law which are made legally valid by a successful vote in favour of them are prohibitive. A law restricting abortion to a shorter gestational period than the period during which abortion was previously permitted comprises, as Professor Finnis puts it, “two (or more) distinct propositions of law ... One is a proposition of law that certain abortions are prohibited. The other ... is the proposition of law that other abortions are permitted.”27 This point is essential to making sense of Evangelium Vitae 73.3: “A particular problem of conscience can arise in cases where a legislative vote would be decisive for the passage of a more restrictive law, aimed at limiting the number of authorised abortions, in place of a more permissive law already passed or ready to be voted on. Such cases are not infrequent. It is a fact that while in some parts of the world there continue to be campaigns to introduce laws favouring abortion, often supported by powerful international organizations, in other nations - particularly those which have already experienced the bitter fruits of such permissive legislation - there are growing signs of a rethinking in this matter. In a case like the one just mentioned, when it is not possible to overturn or to completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to procured abortion was well-known, could licitly support28 proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not in fact represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects.” What Evangelium Vitae §73.3 regards as “licit” is a vote for a restrictive proposal aimed at making effective a proposition of law that certain abortions are prohibited. Even if the wording of the proposal is in terms of a permission, the effect cannot be to introduce a permission for the abortions in question, since that already exists29, but rather its effect is to introduce a prohibition of some abortions which previously were permitted. It is because that is the effect of the restrictive proposal that, when in §73.3 Evangelium Vitae envisages a legislator voting for such a proposal precisely with the aim of “limiting the number of authorized abortions”, it is consistent with its prior subsection §73.2 which teaches that it is never licit to vote for “an intrinsically unjust law, such as a law permitting abortion or euthanasia”; for to vote for restrictive legislation qua restrictive has the effect of prohibiting, to the degree politically feasible, the practice of abortion, and as such has no tendency to bring into effect permission for abortion. The law of the State will remain “intrinsically unjust” to the extent that it continues to permit abortion. But legislators who succeed by their votes in restricting a more extensive permission of abortion have brought into effect a just prohibition of some abortions. Attention to the precise formality of the legislators’ intention as that takes effect within the conventions of the law makes clear that voting for a restrictive legislative proposal need involve no formal cooperation with the procurement of abortions.

6. Conclusion

The casuistry of cooperation in wrongdoing is not a straightforward topic. In this paper I have offered an interpretation of the notion of formal cooperation which suggests that what some would identify as material cooperation (and even defensible material cooperation) should be classified as formal cooperation, and choices that others would regard as formal cooperation in wrongdoing should not be

67 thought to embody an intention which can be so characterised. It is clearly important to have a true understanding of formal cooperation because of what is at issue in choices that count as formal cooperation in grave wrongs against human life: one’s acting on reasons which should never characterise one’s choices, and which, if they do, will seriously corrupt one’s character.30 The complexity that attends discerning what is the right choice when material cooperation is at issue arises from the range of considerations which one needs to take into account in reaching a prudential judgment about one’s responsibility. Errors of judgment can arise from failures to take into account all the considerations relevant to choice. Conscientious judgments about what would be formal or wrongful material cooperation can place healthcare workers in particular in situations in which they are obliged not to meet expectations of them, whether they are the expectations of patients, of colleagues, of institutions or of the law. In some of those situations refusal to meet those expectations may not be costly; but there are situations in which conscientious objection to cooperation in wrongdoing may cost a person dear, in ways he cannot avoid. In such situations he may recall that the defence of innocent human life is integral to the proclamation of the Gospel. “In the proclamation of this Gospel”, Pope John Paul II wrote, “we must not fear hostility or unpopularity, and we must refuse any compromise or ambiguity which may conform us to the world’s way of thinking (cf. Rom 12: 2). We must be in the world but not of the world (cf. Jn 15:19; 17:16), drawing our strength from Christ, who by his death and resurrection has overcome the world.”31

68 1 Senior Research Fellow, The Linacre Centre for Healthcare Ethics, London, UK; Research Professor, Ave Maria School of Law, Ann Arbor, Michigan, USA. I am very grateful to Professor Kevin Flannery SJ, Dr Mary Geach, Professor John Keown, and Dr Helen Watt for their substantial comments on a first draft of this paper which they generously provided at short notice. Since I did not take all the advice they gave me they are not to be held responsible for errors in the paper. 2 See the clarification of the concept of conscience in the paper by Bishop Anthony Fisher OP, ‘The moral conscience in ethics and the contemporary crisis of authority’. 3 See the solemn confirmation of this teaching by Pope John Paul II in Evangelium Vitae at §57.4, and its specification in respect of abortion at §62.3, and in respect of euthanasia at §65.4. 4 I use the term ‘intention’ to refer to both proximate and further ends of action. This usage (common in Anglophone philosophy) differs from that of Veritatis Splendor which reserves the term ‘intention’ to refer to a person’s further or ultimate end in acting. 5 St Thomas Aquinas, Summa theologiae 2a 2ae, q.62, art.7 6 This section 2.2 is particularly indebted to the treatment of the topic in Germain Grisez, The Way of the Lord Jesus. Vol.3: Difficult Moral Questions, Appendix 2: Formal and material cooperation in another’s wrongdoing, pp.871-897, esp. 876-889. See also Bishop Anthony Fisher OP, ‘Cooperation in evil: understanding the issues’, in Helen Watt (ed) Cooperation, Complicity and Conscience: Problems in healthcare, science, law and public policy (London: The Linacre Centre, 2005), pp. 27-64. 7 I assume here that the relation ‘instrumental for’ is a transitive relation: if X is instrumental for the realization of Y and Y is instrumental for the realization of Z then X is instrumental for the realization of Z. 8 It is traditional to distinguish immediate from mediate material cooperation: cooperation is immediate if one’s contribution is to the actual performance of the principal agent’s wrongdoing; it is mediate if it is preparatory to or in some other way facilitating of the performance. Mediate cooperation may be proximate or remote: it is proximate if one is closely involved in facilitating the actual wrongdoing, remote if one simply contributes to maintaining or securing the conditions that make possible the carrying out of the kind of wrongful act that is at issue. 9 See the previous footnote 8. 10 Grisez, op.cit. p.885, quoting St Thomas, Summa theologiae 2-2, q.47, a.2, ad 1. 11 I have dealt with it more fully in an unpublished lecture on ‘The scope of intention in the doctrine of double effect’ [The 2002 Linacre Lecture at Ave Maria School of Law, Ann Arbor, Michigan]. 12 John Finnis, Germain Grisez, Joseph Boyle, ‘”Direct” and “Indirect”: A Reply to Critics of our Action Theory’. 63 (2001) The Thomist: 1-44, at pp.24, 29. 13 Joseph M Boyle Jr, ‘Double-effect and a certain type of embryotomy’, Irish Theological Quarterly 44 (1977): 303-18, at p.308. 14 Professor Spaemann spoke at the time of counsellors in Catholic centres who had “fallen prey to an abortion mentality”. I am grateful to Dr Helen Watt for observations which helped to make more precise my analysis of the formal cooperation I believe existed in the situation discussed here. 15 No claim is being made here that this was the basis on which Pope John Paul II required the German bishops to desist from maintaining counselling centres, for one might deny that formal cooperation was involved. while insisting that the centres were engaged in unacceptable material cooperation. 16 So I ignore situations in which in varying degrees patients exhibit mixed motivation, partly suicidal and partly repugnance at the burdens of treatment. Such complex motivations and their relevance to the decisions a carer has to take are discussed by Helen Watt in ‘Cooperation problems in care of suicidal patients’, in Helen Watt (ed) Cooperation, Complicity and Conscience. Problems in healthcare, science, law and public policy (London: The Linacre Centre, 2005), pp. 139-147. 17 The position of the law is not completely clear. The courts have used sweeping language which makes it appear that the right of competent patients to refuse treatment is absolute, and this is certainly the prevailing view among academic medical lawyers. But Professor Keown has pointed out to me that 69 there is a good argument in principle that this right is not absolute, and that competent patients do not have a right to refuse treatment to commit suicide. The courts have not yet held that the right to refuse treatment extends to suicidal refusals. Even in the case of Re B (a ventilator-dependent woman who wanted ventilation discontinued) the point was not argued and adjudicated. See further John Keown, Euthanasia, Ethics and Public Policy (Cambridge: Cambridge University Press, 2002), pp.227-30. 18 Given the language of the courts; see footnote 17 above. 19 To be distinguished from initiating tubefeeding of the kind requiring a procedure such as gastrostomy. Refusal of a gastrostomy may, depending on the doctor’s intention in complying with it, be classified as refusal of a medical treatment and aa not involving formal cooperation in suicide. 20 This should not be taken to imply that there cannot be reasonable refusals of established tubefeeding: refusals can be reasonable if the mode of delivering the tubefeeding has become excessively burdensome or the tubefeeding is declined when a patient is in the terminal phase of dying. 21 Sometimes the involvement of those requiring fetal tissue can be so direct that it is the procedure for collecting the tissue which itself kills the child in utero. Madraza, I. et al., ‘Fetal Homostransplants (Ventral Mesencephalon and Adrenal Tissue) to the Striatum of Parkinsonian Subjects’, Archives of Neurology 47 (1990): 1281-2, describe a procedure in which women were first cervically dilated, a tube attached to a plastic cannula was then inserted into the uterus, and ultrasound was used to guide the open end of the tube to the head of the fetus where suction was applied from the syringe to slowly aspirate the baby’s brain, tissue from which was transplanted to patients with Parkinson’s disease. 22 WI-38 was developed in July 1962 from lung tissue from a 3 month old deliberately aborted fetus; MRC-5 was developed in September 1966 from lung tissue of a 14 week old deliberately aborted fetus. HEK 293 (discussed by Alvin Wong, ‘The Ethics of HEK 293’, The National Catholic Bioethics Quarterly 6 (2006): 473-95) was developed in 1972. 23 The de facto set-up is not a necessary requirement for obtaining cell-lines: it might be possible to develop lines from spontaneous abortions (miscarriages). 24 See the evidence adduced by Rene Leiva, ‘A Brief History of Human Diploid Cell Strains’, The National Catholic Bioethics Quarterly 6 (2006): 443-51. 25 This paragraph is indebted to Alexander Pruss, ‘Cooperation with past evil and use of cell-lines derived from aborted fetuses’, in Helen Watt (ed) Cooperation, Complicity and Conscience. Problems in healthcare, science, law and public policy (London: The Linacre Centre, 2005), pp.89-104. See also Alexander Pruss, ‘Complicity, Fetal Tissue and Vaccines’, The National Catholic Bioethics Quarterly 6 (2006): 461-70. 26 The phenomenon briefly referred to here has been studied by M Cathleen Kaveny, ‘Appropriation of Evil: Cooperation’s Mirror Image’, Theological Studies 61 (2000): 280-313. 27 John Finnis, ‘Helping enact unjust laws without complicity in injustice’. American Journal of Jurisprudence 49 (2004): 11-42, at p.14. The whole of section 5 of my paper is heavily indebted to this article. 28 “Support” in the English of Evangelium Vitae §73.3 translates “suffragari”, which echoes “suffragiis sustinere” of §73.2 which is translated as “vote for”. 29 Evidently a proposal should not extend a permission which otherwise would have lapsed. 30 The moral significance of formal cooperation is discussed in Luke Gormally, ‘Why not dirty your hands?’, in Helen Watt (ed) Cooperation, Complicity and Conscience. Problems in healthcare, science, law and public policy (London: The Linacre Centre, 2005), pp.12-26. 31 Pope John Paul II, Evangelium Vitae §82.3

70 JEAN LAFFITTE

A History of Conscientious Objection and Different Meanings of the Concept of Tolerance

The most ancient writings from Greek literature, philosophy and dramaturgy, the philosophical writings of the Roman Stoics, and the books of the Old Testament give us the witness of men and women who at a decisive moment in their lives, required to make a personal choice of religious or moral importance, found themselves in the position of having to disobey the law of their country. Even if the concept of conscientious objection did not exist yet (we know that conscientious objection, in a strict sense, was theorized recently, just a little over a century ago, in relation to bearing and using arms in a military context), the reality of the act—to refuse to obey a civil law believed in conscience to be gravely unjust—appears to have always existed. One of the objectives of this report is to show the permanence over the ages of an inner human need that sometimes leads to risking one’s life and judging that respect for divine laws and moral honor are values that prevail over one’s own survival. Today recourse to conscientious objection has gone beyond the framework of the pacifist struggle to which it had been limited, not always without ideological influence, and been asserted in the areas of medicine and political activity. This undoubtedly calls for a differentiated, in-depth study, but also an analysis of the cultural and social conditions in which it is exercised. The witness of past centuries, at least until the end of the Middle Ages, seems linear and its contents easy to list. A general agreement existed regarding the values which were considered essential that gave foundation to political authority and social equilibriums: acceptance of duties to one’s country and God, personal rules of behavior, the dignity of work, care for the family unit, filial piety, paternal authority, and many other aspects of life in society. It would be exaggerated to say that all these values have disappeared today, but realism compels us to note that they are no longer the object of unquestioned agreement; on the contrary, they are subject to continuous theoretical and practical questioning. Obviously, the attenuation and, in some cases, the disappearance of certain values necessarily elicits new social norms of behavior. We are in the presence of social and political reference points that come from alternative philosophies and currents of ideas that have become more and more transversal to the cultures in a globalized world. These ideas generate unusual judgments and behaviors insofar as they are based on truly revolutionary concepts of human nature marked by a kind of cultural relativism. We will take a look at some aspects of this.

Ideological tolerance and conscientious objection One of these innovations is surely the current concept of tolerance which thrives because of a real ambiguity that will be seen later. To give a first idea of it, let us say that whereas the idea of patiently tolerating a temporary evil that is unavoidable for the moment without causing even greater damage, or calmly confronting contrary opinions has always signified a classic expression of the virtue of prudence and its reasonable expression, today tolerance has ceased to be a practical virtue because it claims to be on the level of a theoretical virtue. This claim is of a political essence, even if it has countless consequences in the order of ethos The concept of tolerance, like that of conscientious objection, also has a relatively recent history. It can be dated to the time of the Protestant Reformation. From Erasmus1 to Locke2 and Spinoza,3from Bayle4 to Voltaire5 in the age of the Enlightenment,6 it has been the subject of many subsequent, in-depth studies and given different nuances. It would not be fair not to try and list these precisely, but the semantic evolution of the term since Locke’s Essay on Toleration in 1667 until our times shows that it has become a real political instrument that paradoxically contains some frightening forces of totalitarianism and exclusion.

71 While the nature of the subject matter obliges us to consider simultaneously the two very distinct questions of conscientious objection and tolerance, we have to understand that the act of refusing in conscience to obey an unjust law is made today in a context of ideological tolerance which, by its nature, is not willing to support it. Our thesis is that an ideologically tolerant society cannot tolerate conscientious objection because in some way it escapes its control. This preliminary statement may be surprising: that is, stating that tolerance is intolerant is a paradox whose formulation may seem provocative and simplistic. However, an ideologically tolerant person is a little like Epimenides, the thinker whose fame has been handed down over the ages in the form of a paradox known as the Paradox of Epimenides: Epimenides the Cretan said: All Cretans are liars. Epimenides is a Cretan. So Epimenides is a liar. So Cretans tell the truth So Epimenides tells the truth because he is a Cretan Since he tells the truth, all Cretans are not liars… We can see that there is no end to this seesawing from one affirmation to its opposite. The reason is that when Epimenides makes the affirmation, he destroys the validity of the act of affirmation through its content. By saying that all Cretans are liars, he calls himself a liar and therefore destroys the validity of his own affirmations. An ideologically tolerant person is a little bit like Epimenides. Why? By saying that all opinions are valid; he affirms as a general rule what is never more than one opinion among others, according to his own affirmation. How can he get out of this deadlock? Only through the force of the reply: If you contradict me when I say that all opinions are valid, you are a dangerous, intolerant person, to be fought by every means. In fact, the alternative--which would consist in saying: My tolerance is only one opinion among others--is not bearable for him. Ideological tolerance is meant to be imposed on everyone. For this reason we said it is of a political and not a moral essence, even if it makes an improper moral claim. Since such intolerance is really unconscious, it is exercised with even greater force.

What tolerance cannot tolerate The paradox of the ideologically tolerant person is not a rhetorical exercise. It makes us understand that a society that declares itself, loud and clear, to be a tolerant society cannot bear or tolerate anything that endangers its unstable and contradictory equilibrium. In particular: - it does not tolerate the idea that there is a truth to be sought; - it does not tolerate that such a truth can have a universal character; - it calls for eliminating any in-depth discussions; in fact, in an in-depth discussion, the interlocutors may not be in agreement, but they have the common desire for a truth that is valid for all the parties in the discussion. In the ideologically tolerant society, the question of the search for truth is eliminated, and in doing this, an in-depth discussion is transformed into an exchange of relative ideas. Each interlocutor informs the other about his ideas and is forbidden to consider them possibly valid for the others. They cease to be in-depth ideas. There are no stakes in the discussion; - it does not support the ethical implications of in-depth ideas; - it always puts itself above in-depth discussions and demands the right, its own right, to judge the parties involved in their presence; in so doing, moreover, it does not exercise any real arbitration— which would be expected from an authentic political power—because its tolerant positions will always put it practically on the side of the positions of the more theoretically tolerant interlocutors, positions that are surely less disturbing for the consensual equilibrium which it intends to maintain.

72 In a word, the tolerant society imposes a ‘single thought’. It is in this sense that it is totalitarian and, without knowing it, paves the way for forms of totalitarianism, sometimes in very brief periods of time. For example, the proclamation of the revolutionary ideals of tolerance among the theoreticians of 1789 prepared the way in just three years for setting up a real regime of terror.7 Shortly afterwards, some priests tried in vain to make a form of conscientious objection understood that would have prevented them from taking an oath to the Constitution civile du clergé. The refusal of those who are called in a rather eloquent way the réfractaires earned them their death and, at best, exile with the loss of all their civil rights and possessions. The ideology of tolerance is not free from philosophical prejudices. It has been rightly stressed that the great theoreticians of tolerance at the time of the Protestant Reformation were for the most part skeptics. This was particularly obvious for Bayle. The philosopher was not content with demanding the same rights for those who were in error as for those who were not. He went as far as to want to recognize the same status for erroneous doctrine as for expressions of truth: A conscience that errs ought to be able to assure its erroneous convictions the same privileges as those which an orthodox mind obtains for truth, he wrote in his Dictionary. To the objection that in this case one might be exposed to the torments of those whose consciences would oblige them to persecute others, Bayle could only respond by referring to the rational character of the moral conscience.8 He does this in a somewhat incantatory way without realizing the contradictio terminorum present in his theses: if conscience must obey reason, it is right for the latter to offer it some criteria of truth. It is for this reason that Bayle encountered the greatest opposition among the very ranks of his first partisans, for example, Jurieu. We have to be fair: Pierre Bayle was perfectly sincere in his desire to fight against the real intolerance of his time. He proved it by dedicating several chapters of his work to the abuses committed by his own Huguenot brothers against the Anabaptist minorities, the Catholics and also the Jews (the murder of Nicolas Antoine, who was strangled and burnt in Geneva in 1632). The position of Locke, the father of modern tolerance, is much more problematic than Bayle’s. His concept was rather vast: he intended to open civil society up not only to the Jews, but also to the Muslims and even the pagans. However, he attached two reservations to this: Catholics and atheists were excluded from tolerance.9 Let us leave aside the exclusion of Catholics, which was undoubtedly conditioned very much by the prejudices that structured English society under James II. Let us note with interest, however, that the exclusion of atheists was based on Locke’s idea that an atheist, even a virtuous one, cannot be committed either in relation to himself or in relation to others to remain virtuous; it is an inconsequential virtue because it denies the need for punishments or rewards in another world.10 So Locke’s tolerance, which is sensitive to the role of civic bond exercised by religious beliefs, is not based on a nihilist, or even just a neutral concept of human society. In this it is distinguished from the ideological tolerance of contemporary secularized societies. If we want to find an answer now to the legitimate concern of Bayle, Locke and many others regarding the danger of forms of totalitarianism, we see that it cannot be found in a theoretical need for tolerance. Ideological tolerance is a false response.11 To say, in order to escape the totalitarian stranglehold, that all opinions are valid, would legitimize precisely what one would hope to avoid. The only truly realistic response from the philosophical standpoint is the positive affirmation of human dignity as a truth valid for all. This makes a real discussion possible because the interlocutor in any case is considered worthy: that is, he is the respected holder of this fundamental freedom that one intends to recognize in him. This attitude is really tolerant, we might say in the classic sense, respectful and patient, but it is not found in ideological tolerance because it supposes and affirms a universal truth. If we avoid the search for a truth about man which, by its nature, is universal and can thus give foundation to the unconditional respect that should be given to his life regardless of its state, then concrete behaviors regarding man would no longer be regulated by the acceptance of a truth concerning

73 his dignity, a truth that protects him. In reality, they would be regulated by a balance of ideological, political and financial forces. In actual fact, we can see that ideological tolerance abolishes the only viewpoint that respects human dignity. How, then, can we be surprised when, in the name of tolerance, the lives of children in their mothers’ wombs are threatened and human embryos are manipulated? Anything becomes possible without unconditional respect for man. Invective, being a short circuit of reason, will overstep well- argued and fair discussion.12 Human dignity is found on a philosophical level; it is a fundamental fact that can contribute socially to bringing many different philosophical concepts closer, but at one condition: namely, the indifference that reduces fundamental choices to simple expressions of different opinions must be avoided. Human dignity, especially with regard to respect for human life, would call for a kind of prudence on the part of a politician who cannot morally legalize what many citizens consider an action unworthy of man. On the religious level, the concept of dignity also includes a vision of man as a created being. So from the Christian perspective, man finds his ultimate consistency in his nature as an image of God. He thus takes into consideration a certain design of the Creator that is readable in the facts of nature (with regard to life, these facts include, for example, the growth of the human being, the purposes of biological phenomena in the formation of the body). Believers cannot impose an understanding of vital phenomenon that explicitly includes a faith perspective. However, the contribution of faith is not inconsequential for human society. To stay with the example of human life, Christian faith and culture have certainly contributed to thinking about the coming into existence of a new human being as an event (or better, an advent). The rejection a prior by an ideologically tolerant society of the expression of this kind of sensitivity,13 can only lead to impoverishing the social awareness that human life, even in its very first instants, is a good to be respected unconditionally, protected and served. It is understandable that in this context life is trivialized and reduced more and more to a simple biological fact. In reality, ideological tolerance deprives the society of the specific contribution of philosophical and religious approaches which it refuses to include by preventing them from making their contributions to the common good.

The loss of meaning of the objectivity of a judgment in conscience Ideological tolerance is always linked to an individualistic conception of the moral conscience whereby an individual who decides to act and adopt a particular behavior is seen as a kind of totally autonomous monad in his choices. The moral norm becomes a threat to freedom. At best, the norms from the moral authority, social tradition and magisterial instructions from a religious authority will be received as indicators that are no doubt interesting or stimulating opinions for reflection, but will not in any case be binding for the subject. From a perspective of this kind, the idea goes unheeded that a law, whether written or not,14 can be imposed on the subject because of the sheer force of the certain truth which that law can bring. The unwritten laws, to which Christian thought will refer with Saint Paul following Socrates and Sophocles, make it possible to integrate the rational requirement and divine law in a harmonious way. On the other hand, since the very idea of unwritten laws present in the human heart is rejected a priori, any connection is irremediably excluded between God and conscience. In other words, God is chased away from the moral sphere and no longer granted the possibility to intervene in human action. Far beyond the ethical problem, we can see that for Christians, a whole concept of divine grace, its efficacy and power of justification of the spiritual being is put up for question. The individualistic conceptions, which are also by definition necessarily relativist, cannot leave the foundations of the faith intact. This relation between freedom and moral truth is not the only one to raise a problem in the tolerant view of conscience. All the problems of an erroneous conscience are also evaded; or the error of conscience is opportunity that makes it possible to act ordinarily without committing a moral fault;15 or 74 the reality of moral error itself is denied by the very fact that the moral conscience is granted an infallible status thereby creating confusion between the two levels of conscience classically designated by the terms synderesis and conscientia.16 Since many of these aspects are treated extensively in Anthony Fisher’s report, I will not develop them here. I will only stress one important dimension of the delicate and widely discussed question of the autonomy of the moral conscience: namely, there is a kind of sovereignty of the moral subject who, through his actions, decides about himself and his becoming as a man, whether virtuous or not, that has always been at the heart of classic thought. Only the reasonable character of a judgment in conscience17 gives freedom the means to achieve its true autonomy by following the truth written into the moral good (in this sense, one commonly speaks about the freedom of the saints). A reasonable man, subject to Divine Providence, shares in this in some way. He has the ability to govern himself and to govern other beings. However, autonomy is often seen as an ability of the conscience to decide about the good. It affirms in this sense a kind of primacy of the subject’s moral opinions, who can never err morally if he is sincere. At most, the possibility is admitted that he may make errors, but they are only considered errors of knowledge, in short, very comprehensible errors; and the moral conduct that follows is no longer blameworthy; it is described as inadequate or inappropriate. So the shift in meaning of the concept of autonomy of conscience is expressed in the semantic sliding of the language of ethics, which often impedes the formulation of value judgments about human behaviors. By way of example, and to stay in the area of autonomy, Carlo Caffarra has demonstrated well how speaking about a decision in conscience instead of the traditional term, judgment in conscience, contributes to eliminating any possibility of referring to criteria of truth in the sphere of action.18

The dual stakes of conscientious objection The inner discussion that proceeds any subsequent moral decision is, upon its visible and public manifestation, a deliberation, a practical judgment that refers to what one proposes to do (or with regard to conscientious objection, not to do). To choose not to do something is also a moral act with regard to the well defined object: to object is to perform an act of refusal by reason of convictions that are sufficiently important to be referred to the personal conscience.19 We do not object to obeying a positive law only because we do not like that law or because we are of a different opinion than the lawmaker. Positive laws are binding when they come from the legitimate authority to which we are subject. They make up the legislative order that must assure justice among the citizens, regulate their relations and the proper organization of their roles and functions in all areas of social life: economy, education, health, culture, information. Laws are binding because they are supposed to protect goods and rights in a perspective, in principle, of protection and promotion of the common good. The reasons for disobeying a positive law must be capable of being referred to the solicitation of the conscience where laws other than the positive law enter into play. They are distinguished from positive law insofar as they are not subject to change like human laws; they are immutable laws and commit the totality of the person. Here are some examples that posterity has left us: a) Socrates’ condemnation to death. We can ask the question: How could putting the philosopher to death have been the work of the first democratic government in history? It is not without interest to look at the political and cultural context of this trial because it does not lack similarities with the Western context at the beginning of the twenty-first century. Athens was left battered and bloodless after a war that cost the lives of nearly a quarter of its population (the Peloponnesian War). Although two attempts to overturn the democratic power failed, the intellectual discussions were still animated by the Sophists’ paradoxes. Their art, inherited from Ionian rationalism, consisted in putting up for question all the foundations of the city, in particular, the gods and the laws. By introducing doubt about everything that had contributed to the glory of Athens in the age of Pericles, they were considered a threat. By playing on Socrates’ original 75 character and the impact of his teaching, his accusers managed to formulate two charges against him-- corruption of youth and belief in gods who were not those of the city--and have him condemned to death after a trial from which the condemned’s admirable plea has passed on to posterity. His death was voted by a majority of 280 votes to 221: a first democratic consensus for a work of death! In his defense, the philosopher put forward the rectitude of his own conscience and said that in death he had a more enviable destiny than those who condemned him unjustly: “I would have you know, that if you kill such a one as I am, you will injure yourselves more than you will injure me. Nothing will injure me, not Meletus nor yet Anytus, they cannot, for a bad man is not permitted to injure a better than himself”. Earthly goods and life itself did not seem to him to have the dignity of a pure conscience: “I do not deny that Anytus may, perhaps, injure me; and he may imagine, and others may imagine, that he is inflicting a great injury: but there I do not agree. For the evil of doing as he is doing, the evil of unjustly taking away the life of another is greater far”.20 We can ask what made death in Socrates’ eyes a more enviable fate than the injustice of condemning someone who is innocent. Here religious sentiment joins moral conviction and gives it all its perspective. This involved the judgment of the gods and all those who preceded us in Hades: “If indeed when the pilgrim arrives in the world below, he is delivered from the professors of justice in this world, and finds the true judges who are said to give judgment there…that pilgrimage will be worth taking. What would not a man give if he might converse with Orpheus and Musaeus and Hesiod and Homer? May, if this be true, let me die again and again!21 b) The confrontation between Creon and Antigone This unity between moral requirements and religious duties is found in Sophocles’ character, Antigone. The drama opposes two wills: that of Antigone, who intended to bury her brother Polynices, and that of Creon, the King of Thebes, who thus incarnated the positive law. The context is a fratricidal war that set his two sons against one another: Eteocles, who was destined to reign, and Polynices, exiled by Creon, who attacked the city. The two brothers are killed. The king decides to honor the younger as a hero and refuse burial to the elder. The order becomes law: his body is abandoned to the dogs; anyone who tries to bury him will be condemned to death. Antigone is surprised by the guards as she covers her brother’s body, and so she is brought before Creon, who actually has her imprisoned while waiting to put her to death. It is only through the intercession of his forecaster with his dark predictions because the gods are angry about the situation that Creon withdraws, gives a burial to Polynices and decides to let Antigone free. But his remorse comes too late: Antigone hangs herself in prison. Haemon, the son of Creon and fiancé of Antigone, puts an end to his days. Eurydice, Creon’s wife and Haemon’s mother, commits suicide too when she learns of her child’s death. In this way Creon loses everything. All he can hope for is a liberating death. The dialogue between Creon and his daughter merits attention. Before the blind, unjust force of the law, she makes herself the advocate of the rights of the Phusis, the demands of nature, which express the will of the gods. The dialogue presents with great clarity the opposition between the two concepts of duty and in this sense it is strikingly up-to-date. Creon expresses a viewpoint that pertains to all positivists: “No. We must obey whatever man the city puts in charge, no matter what the issue—great or small, just or unjust. For there’s no greater evil than a lack of leadership. That destroys whole cities, turns households into ruins, and in war makes soldiers break and run away. When men succeed, what keeps their lives secure in almost every case is their obedience. Until one dies the best things well may be to follow our established laws”. Before the king, Antigone presents her views in this way: “I did not think anything which you proclaimed strong enough to let a mortal override the gods and their unwritten and unchanging laws. They’re not just for today or yesterday, but exist forever, and no one knows where they first appeared”. The antagonism is complete: divine laws against human laws, temporal decrees and unwritten, eternal laws. Note that Antigone, in referring to the gods, also evokes the precept of a law of nature: Under no 76 pretext can a man’s body be left unburied. Here nature reflects the will of those to whom it is subject, the gods. Conscientious objection joins religious duty in a natural way because the latter rightly imposes itself on the conscience: it is good, it is right, it is just to obey the gods. Antigone puts in parallel the physical and moral sufferings of the conscience that disobeys the gods: “And so for me meeting this fate won’t bring any pain. But if I’d allowed my own mother’s dead son to just lie there, an unburied corpse, then I’d feel distress”.22 c) Seneca or the sacred character of the duty in conscience Despite the justification of suicide that we find in Rome among the Stoics--an action that was condemned by minds as different as Pythagoras, Plato, Cicero and Plotinus--the conviction is present that men are destined to respond for their actions one day before the gods. For Seneca, there is no possibility for man to be elevated above his destiny without a god, and, without him, to become really good. The conscience’s need to act well enters into the perspective of having to make an account to the divinity one day.23 Once again we find the unity between the two dimensions, religious and moral, of the need to lead a virtuous life, regardless of the cost. d) The witness given to the one God as a reason for religious conscientious objection: the seven brothers of the Book of Maccabees From a directly religious perspective since it takes place in the ritual act par excellence, the seven brothers of the Book of Maccabees offer the perfect example of conscientious objection. While of religious essence, their approach is also profoundly moral. Their refusal to eat sacrilegious meat offers them the occasion to give the witness of martyrdom. Before dying, each one of the seven brothers expresses his submission to the laws of his country and his certainty that he will receive compensation from God. God will bring about all justice in chastising the unholy persecutors. Observe that in their case, as in that of Eleazar who proceeded them in death, there is also witness to the one God as the youngest of the brothers expresses in accepting the torment: “I too, like my brothers, surrender my body and life for the laws of my ancestors, calling on God to show his kindness to our nation”.24 To give witness to God is a requirement of their conscience. It is also interesting to note the elderly Eleazar’s concern to not give bad example to the young who could be confused if it appeared acceptable to eat the sacrilegious meat, as he was being persuaded to do. In this example, conscientious clearly includes a responsibility for others. This is added to the perfection of wanting to keep oneself personally pure from all compromise of principle. e) The structure of believers’ freedom From the beginning, Christians have found themselves in an awkward position in relation to the Jewish and then the Roman law. Obviously, their witness is first and foremost of a religious essence, which explains the outbreak of the persecutions. It was through Gamaliel’s intervention that the Apostles around Peter escaped the anger of the Sanhedrin that wanted to put them to death. The crime was disobeying the order to not teach in the name of Jesus any more. Peter answers by giving one absolute rule of discernment: It is better to obey God rather than men, a principle that would accompany all baptized persons after him. Then, the Apostle adds, this formulates the kerygma whereby he and his companions are witnesses with the Holy Spirit whom God gives to those who submit to Him. These words recounted by the Acts of the Apostles provide the structure of what would become for Christians the specific conscientious objection that can lead to martyrdom. It expresses the believer’s freedom.25 The following elements make up its structure: 1. The divine laws take precedence; 2. Only when a human law formally contracts divine law a believer can be in a situation to disobey; 3. The witness transmits a precise truth about God:26 to teach in the name of Jesus; 4. The witness is made possible through the power and help of the Holy Spirit; 77 5. A believer cannot shrink back: objection is a duty in conscience precisely because the Gift of the Holy Spirit is given to him.

78 f) To not sacrifice to idols, to not recognize false gods: Saint Philias and Saint Cyprian By now, the witness given by the Christians ready for martyrdom will include all the same elements. There are plenty of examples: under the persecution of Diocletian, in the year 304, Saint Philias was interrogated by the President of the Court, Culcien, who ordered him to sacrifice to the gods. - I will not make the sacrifice, Philias answers. - Are you acting in this way because of a scruple in conscience? - Precisely for that reason. - Why then don’t you observe with the same scruple in conscience the duties to your children and your wife? Philias responds: - Because the duties to God are more important than the others. To give witness to the true God by refraining from worshiping idols is indeed a duty in conscience for Philias.27

The martyrdom of Saint Cyprian is well known. What is known less is that the bishop of Carthage had to suffer exile following a previous appearance before the court. During that first interrogation, the future martyr relates doing God’s will to the rectitude of the one to whom God has revealed himself. To the Proconsul Paternus who asks him, Do you persist in this will (= to not make sacrifice to the gods)? Cyprian responds, The upright will that knows God cannot change. Sometimes it has been stated, as Voltaire did in his times, that these persecutions really came from the Empire’s need to keep the spread of Christian doctrine from weakening the unity of the Empire. The philosopher even adds that this was not a sign of intolerance. Here we find an illustration of what we said in the beginning about eliminating the real questions. If the Christians had not claimed a universal doctrine of salvation, their religion would have taken its place with the other religions that were tolerated in the Empire. For this reason, it would have been sufficient for them to recognize the Roman rituals while practicing their religion. This is precisely what is unacceptable for real Christians and hence what Cyprian and the others rejected. In the interrogation before his exile, Cyprian formulated what was expected of him in this way: - The three holy emperors Valerian and Gallienus have deemed to send me a letter in which they ordered that all those who do not practice the Roman religion should recognize its rituals. What do you answer to me? - I am a Christian and a bishop, said Cyprian, I do not know any other god than the one true God who created heaven and earth, the sea and everything contained in it.28 We note that the martyrs’ witness on which the Church of the first centuries was founded, makes it possible to understand the opposite act of counter-witness represented by apostasy and the idolatrous worship of the Roman gods. Note that among the lapsi in the Christians’ eyes there were not only those who abandoned the one God, but also those who seemed to do so by making sacrifices to the gods of the Empire. Cyprian’s attitude raises a question that is very up-to-date and worthy of an ideologically tolerant society. It is precisely the subject of the famous controversy that put Saint Ambrose in opposition to Symmachus: Why wouldn’t the Christians recognize the Roman gods since Rome allowed them to practice their own religion?29 Voltaire did not hesitate to say, in his A Treatise on Tolerance, that in his eyes, the Roman Empire proved to be tolerant towards all, and added that it was the Christians who proved to be intolerant,30 by not abiding with the gods of the city. After these pages, which have never been the subject of a critical, coherent examination by historians and philosophers, the accusation against Christianity of being intolerant has been taken up continuously down to our own times. According to the Enlightenment philosopher’s thinking, the Christians could and should have tolerated the Roman gods. We can extrapolate, without going too far, that in this way they would not have disturbed the tolerant order of imperial society.

79 In spite of the specious character of the reasoning, this kind of accusation shows in the least that from the rise and spread of its ideas, ideological tolerance saw an adversary in Christianity to be fought from the outset. As we shall see later, this observation does not prejudge other positive aspects in the reflection on the theme of tolerance. The fact remains, however, that in its exaggerated expression, it is indeed with regard to Christian thought that the tolerant ideology will reserve its most violent attacks. g) The Letter to Diognetus or the moral coherence of the Christian faith In any case, the faithful defense of doctrine and the limpid witness of the martyrs will allow Christians to give coherent and credible example of a rule of life that excludes some practices. Moral uprightness and rectitude of will are inseparably linked to the witness given to the true God. Some of them will raise objections to carrying out certain activities (for example, bearing arms, as will be the case for the Christian apologist Lactantius and for Tertullian). But all show respect for the laws of the city as long as they do not contradict the moral requirement. This is the description of the disciples of Christ made by the Letter to Diognetus:” As citizens, they share in all things with others, and yet endure all things as if foreigners…They marry, as do all; they beget children, but they do not destroy their offspring. They have a common table…They obey the prescribed laws, and at the same time surpass the laws by their lives”.31 h) Fidelity to the Church as the content of a Christian’s conscientious objection: the case of Thomas More Christians know by now that they can be compelled by the pressure of events to choose the narrow way that leads them to not deny their faith. Saint Thomas More undoubtedly constitutes the most striking example in early modern times of conscientious objection for religious reasons, and more particularly, religious belonging. After abandoning his wife, as we know, to marry Anne Boleyn, King Henry VIII needed to have his marriage annulled under pain not only of excommunication, but also of having to face insoluble problems of succession. When Rome, solicited by Catherine of Aragon, rejected the annulment of his marriage (March 23, 1534), the legitimacy of the royal succession of any children that would be born from the king’s marriage to Anne Boleyn was immediately put up for question. The king reacted by having his Parliament adopt a new law regarding the succession of the English Crown. Anyone who rejected its content would be declared a felon (traitor). Every high functionary had to take an oath: the members of the Communes as well as those of the House of Lords. Only bishop Fisher refused to do this among the Lords. As a matter of fact, there were two different oaths: one had to do with the royal succession and was addressed to the laymen; the other was destined to the clergy on whom abolition of all papal authority in England was imposed. When More is judged, he raises the invalidity of the law of succession with regard to natural law. But the question of succession was not the only one raised to Thomas More. In fact, when he was presented the text of the oath, he discovered that he was compelled not only to approve the royal succession, but also the king’s authority over the Church of England. We know from his son-in-law Roper how difficult his inner struggle was. Thomas, in fact, had to resist the affection of his loved ones until the moment he was summoned to take the oath in Lambeth. He had the courage to contest the illegal character of the dual oath that was expected of him. He was explicitly asked to favor his duty of obedience to the sovereign over his doubts and his conscience. He answered that he was compelled to obey his conscience rather than the king, but that he did not wish to condemn anyone. The episcopate, in fact, had already renounced its tie to Rome, with the exception of Fisher. Thomas was later imprisoned for contumacy. The firmness he demonstrated until the end was accompanied by a very keen sense of his own weakness. In this way, the example he gives of conscientious objection, which is profoundly Christian in its motivations, is first of all the expression of a divine gift: I can only hope that recourse will not be made to violent means of coercion and, 80 moreover, if that was the case, that God with the help of his grace as well as that of the many prayers of faithful people will give me the strength to stay firm…For of this I am entirely certain: if ever I would make an oath, I would act entirely against my personal conscience.32 More demonstrates that the right to object to an unjust law is not the fruit of a haughty decision on the part of someone who puts himself above the law. Moreover, the difficulty, as in the previous case, in exercising it in stages, so to speak, proves that martyrdom is never chosen a priori. It represents the arrival point of a course of action that is careful at every stage to find a solution that safeguards the rights of conscience and, if possible, at the same time, respect for authority. Thomas More was not a revolutionary. His actions were not first of all political in nature. Thomas More did not escape from any of the obligations that were made on him: he went to Lambeth when he was convoked, he gave witness to respect and deference to his sovereign, and he did not avoid any of the formal obligations required of him, except for the precise subject of his objection: the rejection of the pope’s authority. At no time did he contest the legitimacy of the legislator as such: the objection only has bearing on the subject of the law that is considered unjust. As for every authentic conscientious objector, his passivity and docility with regard to the sanctions incurred impede considering him a traitor or a rebel. Only his assumed impotence attests to his attachment to the State whose sovereign authority and power to legislate he recognizes.33 The refusal to act against one’s conscience has naturally developed over the ages in a Christian compost. As we have seen, it has concerned subjects as different as bearing arms, denial of faith, and laws against the Church on the part of the temporal authority. Behind the rejection of a law or disobedience to an immoral order, a force is always present which, beyond the firmness of personal witness, is undergone and interpreted by the civil authority as a potential threat. The refusal of the adolescent martyrs of Uganda, for example, not to bend to the king’s immoral whims was interpreted and judged as a crime of lese-majesty (a crime against royalty or a sovereign power).

The secularization of conscientious objection: modern times By its nature, conscientious objection is exposed to retaliation and sanctions unless it is codified by the law. Conscientious objection in modern times has become secularized and taken definitive shape around two specific themes. The first is military service, the civil obligation required by most legislations which calls for all young adults to serve a certain period of time in the armed forces. Such service involves learning to use arms in the event that the country will be exposed to an armed conflict. The refusal of this possibility by those who are called conscientious objectors has given rise to a codification that was the result of a long evolution over more than a century. The status of conscientious objection, the cultural and political context in the West where this action has been legitimated by law, and the object of what has often become a demand of a political nature, requires us to compare it with traditional conscientious objection. The second area of application is recent and for less than half a century has concerned the issue of the practice of decriminalized and then legalized abortion. The fact that procured abortion is not only tolerated but also recognized as a right and an individual freedom creates a totally unprecedented situation in the history of public expressions of the demands of personal conscience: it is the subject of a positive right that becomes the object of conscientious objection. Let us examine two more recent forms of conscientious objection: a) Military service: Christian objectors have found the foundations of their position in Scripture: the Fifth Commandment, the teaching about loving one’s enemies, Jesus’ order to Peter to put the sword back in the sheath (Cfr. Jn 18:11). The prospect of performing an action, shedding blood, against their own conscience has convinced them that they will incur the severity of divine justice on Judgment Day, according to the 81 saying of Pope Gelasius in his letter to Emperor Anastasius: Quicquid fit contra conscientiam adeificat ad gehennam.34 However, refusing to bear arms has never been an attitude shared by all Christian consciences. With the reign of Constantine, the legitimate character seems to be affirmed of the State’s need to use all means —and hence the force of soldiers—to safeguard the common good. The sovereign’s authority comes from God and there is no opposition in principle between the evangelical precepts and the citizen’s duties. The protection of the common good is the responsibility of every citizen and a Christian is also a citizen. In no place in the Gospel can we see, for example, Christ reproaching the Roman centurions (and yet, they were the occupants) for the nature of their service. We know that only a contemporary, ideological re-reading of the Constantine era interprets, as a compromise of principle with the Empire, Christian thought on the temporal authority, which began to be systematized then, following Saint Ambrose and Saint Augustine. Medieval reflection will strive to show that circumstances exist in which war conducted by a sovereign State can prove to be just.35 The protection of its subjects, and the integrity of its territorial limits in the event of unjust aggression are two examples of this. In actual fact, the refusal to bear arms among Christians has had more to do with currents in the Anglo- Saxon countries that came from churches which sprang from the Reformation: Anabaptists, Mennonites, and Quakers. Dispensation from military service for religious reasons existed in the sixteenth century in some European regimes. For example, the Dutch Mennonites and later those in Russia enjoyed freedom of worship accompanied by a dispensation from the duty to serve in the armed forces. However, this concession was not, strictly speaking, inspired by philosophical reasons. It was part of the usual exemptions granted as privileges in different juridical, civil and religious areas. These communities ran their own religion, courts and schools. So it was in favor of the Mennonites that the first civil service to substitute military service was granted and created in Russia in 1875. The objectors had to take part in forestry work. Their number never exceeded a thousand. It was only in the beginning of the twentieth century that provisions in favor of objectors were made in different countries, but on the condition that their requests would be presented individually. We mention Sweden (1902), Australia (1903), South Africa (1912), Great Britain (1916), Canada, the United States and Denmark (1917), Norway in 1922, and the Netherlands in 1923. The interested parties had the choice between unarmed military service and civil service. Very soon a considerable part36 of the objectors refused any assignment at all and made an absolutist choice. The same phenomenon could be seen all over. In some countries, the lawmakers were very late in providing a statute. This is the case of France which waited until December 21, 1963 to vote on an original status for objectors. Previously, the refusal to do military service was harshly sanctioned by law and punishments of imprisonment were usually inflicted. The country had to confront the question because of the rapid development of the objection movement, which was favored, among other things, by the Jehovah’s Witnesses in the difficult context of the Algerian War. The 1963 law was equivocal: on the one hand, it recognized the right to objection demanded by a part of the population (it was in fact a small minority at the time) and resolved the questions of the objectors who were still in prison; on the other, it surrounded this right with such constraining administrative conditions that it made it a shameful right, we might say, through very dissuasive measures (doubling the time period of civil service in relation to military service, prohibition of making publicity about it; moreover, the request was not accepted if it was not presented many months before the date of induction). The abolition of compulsory military service as a result of creating professional armed forces has made the question less acute in many countries. It has shifted to other areas of social life and become more and more politicized.

82 In reality, these difficulties in making laws express the fact that the secularization of conscientious objection at the end of the nineteenth century often brought a deviation in the meaning of this course of action. To obvious cases of refusal authentically inspired by scruples in conscience of religious origin, motivations of a philosophical and especially a political order were soon added. It is commonplace to say that conscientious objection has found in the antimilitarism linked to the anarchist current37 a matrix that contributes to making it an issue of political action. Hard-line pacifism, the theory of non- violence and civil disobedience have given rise for some decades to the creation of a host of movements, associations and publications in the West that share the demand for a more and more extended recognition of the right to objection. The demands of conscience sometimes pave the way for political and ideological convictions and turn quite simply into opinions. Today, most objectors invoke non-violence and are involved in causes that have become public issues in political life: the struggles against the arms industry, against nuclear energy, against internationalization. Conscientious objection has become pure political objection: it is no longer a question of refusing, for reasons of conscience, personal participation in military activities that would require bearing arms, but rather of militating— and sometimes not without violence—against a whole political and economic system in force in the Western countries. In the most extreme cases, the mere fact that constituted bodies—the army, Civil Service, the Church—are hierarchized, is sufficient to consider them enemies to be defeated. Then the political choice becomes, in Cattelain’s words, a libertarian choice.38 The ambiguity of the concepts used explains the difficulties encountered by the legislator in setting down the objective criteria of the status of objectors. Can the refusal to do military service be based on adherence to somewhat imprecise values (non-violence, for example), or even philosophical opinions? Where is the limit? We know that in many countries legislators have made a limitation that only recognizes objection inspired by religious requirements. This fact constitutes a paradox in the sense that, in the final recourse, it is indeed personal conscience that ought to inspire the attitude of objection. To obey religious prescriptions is also a moral duty, but to limit the right to religious motivations would come back to exclude those who may be very sincerely motivated by moral reasons. Having said this, the development of ideologies illustrated earlier and the tribunal they find in many media show how necessary the distinction was between moral requirements and simple political opinions, which was expressed in the beginning by the severity of the law. This makes it possible to understand the animated discussions that have surrounded the consideration of the second modern form of conscientious objection regarding questions in biomedical ethics directly related to the problems of respect for human life and different health care actions. b) The recent development of conscientious objection in health care The current discussions on conscientious objection in medicine have taken shape first around the decriminalization and legalization of abortion, and then extended to many question raised today in very different contexts. The problems taken up are many. Among these problems giving rise to objection besides abortion, we find the question of some patients’ refusal to undergo certain treatments (the case of blood transfusions for Jehovah’s Witnesses, for example), the refusal to take part in acts of euthanasia, sterilization and capital punishment, research that involves the destruction of embryos, assisted procreation techniques, and many other questions. They all concern medicalsurgical practice on the one hand, and biomedical research on the other. Since these two precise areas are the subject of two specific studies in our Congress, I will only deal with them in this report from the particular viewpoint of what has characterized this kind of conscientious objection: - From the viewpoint of the State’s authority, it is a concession granted to a citizen exactly like the license granted to the objector who refuses to bear arms. Note that this right to refrain from taking part in “medical” acts (or pseudo-medical acts since it involves abortion and anything that threatens human life), or from acts of research involving manipulations which the persons judges as morally unacceptable, is based both on ethical requirements (the Hippocratic tradition) and on religious reasons. 83 Many times the two coincide, moreover, for the reasons already shown with regard to the witness of the Christian martyrs. - From the viewpoint of the objector, these new areas of application, compared to the area of military involvement, give the conscientious objection, at least whenever a human life is at stake, an objectively higher moral consistency. To refuse to serve in the framework of the armed forces of one’s country is a recognized object of conscientious objection; however, from a moral standpoint, no one can question a country’s right to take proportioned means to defend its territory and protect its citizens. On the other hand, the certain endangerment of the life of an innocent human being through a deliberate act justifies not only conscientious objection, but absolutely requires it. Observe that international law does not ignore the existence of a right of this kind because in some cases it has reproached subordinates for carrying out orders, in a context of war, which they should have disobeyed (participation in war crimes), even when these acts were falsely covered by scientific research. This was the case during the second trial at Nuremberg against the Nazi doctors in 1946- 1947. In a recent work, Michel Schooyans, in considering the accusation against the latter, notes that at the time, the Nuremberg judges went much further than many classic Catholic moralists go today.39 In fact, canon law only considers the materiality of the act, while military law, as expressed at Nuremberg, also took the intention into consideration in order to condemn it. From these observations, let us keep in mind the chain of responsibilities in the evil committed. We find this in a particularly developed way in the question of abortion: preparation of the law, lobbying with the mass media, the lawmaker’s work with different contributions from jurists, the participation of MPs who vote on the laws, setting up the material conditions (hospital establishments, social services, “medical” prescriptions) that encourage and orient persons, and finally the performance of the act, with all the aspects of immediate and mediate cooperation in the act of abortion. The decriminalization laws have been a politically subtle way of presenting to public opinion what was already dictated by an intention to legalize purely and simply. In this sense, the Weil Law of 1975 in France was the first of a long series in Western Europe. To negotiate it, it had to be presented using a technically neuter term that was, we daresay, morally sterilized (voluntary interruption of pregnancy), and better yet, only its initials (VIP). For some years the term MIP (medical interruption of pregnancy) has also been used to designate procured abortion performed in the framework of medical treatments for the mother. The recent history of the past thirty years has just expanded a movement that is presented not only as an individual right (a woman’s right to have control over herself), but has laid down the conditions for real eugenics by including so-called therapeutic abortion in the usual procedures of selecting healthy embryos and eliminating sick embryos (for example, in the context of a prenatal diagnosis). Conscientious objection in this context is raised on different levels: that of the health care professions and that of politicians. We will take the example of the French law to illustrate this. The law in France provides for a right to conscientious objection for the health care professions, but the possibility to exercise it is so restricted that it establishes a real right to abortion system. Everything is articulated around the distinction between public and private establishments. Since objection is not recognized for establishments, only persons—a problem, moreover, which has been raised recently in other countries, Argentina, for example— all the public establishments must provide services where abortions can be practiced. The obstetricians who work in these establishments cannot refuse the fact that abortions are practiced in their department. If they do, they will be asked to leave the public structure. In the private sector, the doctors are not held to practice them or to accept them if they are in charge of an establishment. However, they have to indicate an alternative structure to patients who so desire where they can undergo the interruption of pregnancy. Refusal to do so would mean to incur grave sanctions if the patient decides to press charges (for example, by invoking medical reasons such as infections or others).

84 Nurses that have been assigned to a department where VIPs are practiced certainly have the freedom to ask for a change of duty, which is granted, but not without difficulties at times. This system calls for many observations. The first is that with conscientious objection, we really have a theoretical right, not a practical right. It does not have the same status at all as the right to abortion: it is accompanied by such limitations and conditions for its applications that its public exercise marginalizes those who use it and sometimes exposes them to sanctions. What is true for obstetricians in the public sector is true a fortiori for the profession of pharmacists. They cannot refuse to sell products that are considered and classified as contraceptives when they are not in fact abortifacient. So in the area of conscientious objection to abortion, we find the same limitations as the restrictive arrangements we indicated in the area of objection to military activity. The second observation is an implication of the preceding one: the higher values--which are the only ones in principle that justify someone’s objection in conscience to taking part in an action that is considered morally unacceptable--are not really considered by the State authority as higher, or in fact even equal to the values judged to be politically consensual (such as freedom of the individual, tolerance). A third observation: obstetricians and gynecologists are no longer in a position to exercise their profession in serene conditions. They are exposed to possible sanctions if, in the framework of prenatal diagnosis, they commit an error of evaluation that would under evaluate the infirmity of a fetus, thus influencing the mother’s decision to let it live. But here we note the imbalance: when, on the contrary, a doctor’s error leads to the death of the fetus when the mother wants the birth of the child, the doctor cannot be prosecuted.40 The developments in the recent history of abortion in France make it possible to understand a deviation which, following in the example of what is happening in more and more countries, marginalizes the conscientious objector increasingly. The fact that since 1982 (Roudy Law) abortions have been reimbursed by Social Security shows that the act of aborting is no longer considered the negative action which the initial law of 1975, despite its remote intentions, wanted to dissuade mothers from committing. The act of aborting has practically become the alternative of an iniquitous choice because it no longer incurs more disapproval than deciding to give birth to a child. The State itself facilitates the conditions for its execution and the fact that it reimburses it is its spectacular and sad material expression. Conscientious objection is also limited in the choice of its action. Analogous to what happened before 1963 for actions against military service, the law sanctions some militant actions which are interpreted as disrespectful of the law and intolerant. Since 1993, a new crime has even been created: obstruction of VIP. The parallel with the crime of disobedience (insubordination) in the military area of the past is instructive: obstruction of VIP incurs comparable prison punishments (from two to three years of prison); but the wording of the crime seems to indicate that VIP designates an objective social good, not an evil that the State would refrain from sanctioning by decriminalizing it. Insubordination, on the other hand, only indicated a subjective attitude (the action of not submitting to the obligation of military service). So we have understood this: in contemporary culture, the VIP has become a good, not only for the person who is free to practice it, but also for the society itself that permits, encourages, promotes and finances it. Historically, this kind of approach can only increase the practice of abortion more and more by trivializing it. In July 2001, the conditions for access to this procedure were the subject of new measures, some of which, without being unfair, could be described as incitation: the legal cutoff time is brought to twelve weeks, parental authorization is abolished for minors, and even the conversation, which was compulsory up until that time for women of legal age, has disappeared. The crime of obstruction is extended to moral and psychological pressures. Regarding the conscience clause for doctors, this has been greatly undermined and even abolished for heads of hospital service. In November 2004, a decree authorizing medical abortion at home was signed by the Minister of Health (!). 85 The case of abortion is paradigmatic: the ideology that has established and encouraged it by presenting it as a personal right of pregnant women, has deprived society of any possibility of reflecting serenely on the fundamental question of the status of the embryo precisely out of fear that this legislative choice will be put up for question again. By doing this, society is no longer able to face the challenges ethically that are represented by some medical-surgical practices and manipulations related to biomedical research. How, and by virtue of what, could society express a reservation in principle to procedures involving the destruction of many embryos if, until now, it has not accepted to confront the problem objectively related to the act of aborting?. It has taken away from any future reflection on these themes the essential criteria that would have enabled it to look at them serenely. Such political action has an immediate effect on the possibilities that citizens will have in the future to exercise a right to conscientious objection with regard to scientific procedures that threaten human life. This political action lays down the conditions for an immediate limitation and, in the end, the abolition of the right to conscientious objection in the area of respect for human life. A legal intentions is already expressed to evolve towards the abolition of this human right, even though it is linked to the most fundamental requirements of the human moral conscience. The reason invoked is classic: the objection would express a means of escaping from the law and violate the principle of everyone’s equality before the law. It will be then that our starting thesis will come about: a tolerant society cannot tolerate that a right of conscientious objection is exercised in it because it is no longer in a position to accept it by honoring the higher values expressed therein. So it chooses consensual values, some of which will unfailingly lead it to death.

1 Despite his break with Luther, who had been his friend and whose seditious action he deplored, Erasmus became involved publicly so that violent methods would be avoided in the fight against the Reformation. He recommended a kind of political compromise that aimed at letting the regions practice their faith while waiting for an agreement to be made between the different parties. This is what earned the one who became the best friend of Thomas More a reputation for tolerance. In Erasmus, rather than a religious attitude, tolerance was the fruit of a kind of relativism, as has often been wrongly interpreted. 2 The Essay on Toleration (1667) is the first philosophical work on the subject of tolerance. In the period marked by the crises of the Reformation, Locke’s position consists essentially in putting the parties back to back that had been confronting one another for more than a century, for reasons of civic peace inspired for him by Gospel teachings. In a second Letter on tolerance, published in 1686, the English philosopher wrote the following: “Since you are pleased to inquire what are my thoughts about the mutual toleration of Christians in their different professions of religion, I must needs answer you freely that I esteem that toleration to be the chief characteristic mark of the true Church. For whatsoever some people boat of the antiquity of places and names, or of the pomp of their outward worship; others, of the reformation of their discipline; all, of the orthodoxy of their faith—for everyone is orthodox to himself—these things, and all others of this nature, are much rather marks of men striving for power and empire over one another than of the Church of Christ. Let anyone have never so true a claim to all these things, yet if he be destitute of charity, meekness, and good-will in general towards all mankind, even to those that are not Christians, he is certainly yet short of being a true Christian himself”. (English text: http://oregonstate.edu/instruct/phl302/texts/locke/locke2/locke- t/locke_toleration.html) An important step is taken in relation to Erasmus: orthodoxy is not granted to any religion. Locke, like every theoretically tolerant person, puts himself above the interested parties and gives some criteria that are authentic for him of true orthodoxy: someone who is tolerant is truly Christian. 3 Baruch Spinoza’s tolerance, in his Tractatus theologico-politicus (1670), enounces an approach that is totally centered on individual freedom. In this sense, Spinoza is a great inspirer of current 86 subjectivist philosophies, many of which make reference to him. His idea is as follows: States must only be constituted on the basis of the freedom of individuals; this in turn gives grounds to the State’s fundamental duty to safeguard it. No religious consideration should intervene in this because on this subject complete freedom of conscience prevails. Everyone has the right to judge and interpret religion; it is a personal matter. In this position, a philosophical origin can be found of the strict laicism that exists today in some Western democracies (France, Spain in particular). 4 Pierre Bayle (1647-1706), a French Calvinist, is considered one of the theoreticians of tolerance. His work entitled, Commentaire philosophique sur ces paroles de Jésus-Christ: Contrains-les d’entrer, unleashed a controversy around the idea of tolerance. The Huguenot Pierre Jurieu responded in his Traité des deux souverains…contre la tolerance universelle (1687). If Bayle has continued to be famous, it is because of his Dictionnaire historique et critique that defended the totally relativist thesis (or, more exactly, skeptic thesis according to which men are incapable of arriving at an absolute certitude. Hence an appeal for tolerance based on the primacy of personal conscience. In the event that this might be the pretext to carry out a persecution, it would have to be subject to reason. So Bayle grants reason the ability to judge the whole sphere of Revelation. His system thus develops an extreme rationalism. 5 6 Starting from the Enlightenment, tolerance has been at the heart of the message spread in political and economic elites by Masonic lodges. “Tolerance in the seventeenth century was conceived of as a conquest of human freedom vis-à-vis a religious position that would presume to legislate on good and evil. Roman Catholicism was the first to be targeted: faith approached in a negative way, in the eyes of a Mason as well as an Enlightenment philosopher, is that kind of blinding that allows suspicious minds to adhere naively to certain facts which reason cannot be kept from rejecting…Interpreted in this way, faith can only give rise to a kind of sectarianism and fanaticism that has very often generated terror, which the Masons have no difficulty proving. Therefore, this exemplary virtue, tolerance, appears to be superior to faith”. (N. Heamont, La Franc-Maçonnerie, Plon/Mame, Paris 1995, pp. 231-232.). 7 We will refer to the small critical synthesis, La Révolution ou la mort, which makes up Chapter 9 of the work by J. Sevillia, Le terrorisme intellectual, Perrin, Paris 2004 (2), pp. 156-167. 8 Cfr. H. Kamen in L’eveil de la tolérance (transl. J. Carlander), Hachette, Paris 1967, pp. 236-241. 9 Cfr. P. Thierry in La Tolérance, Société démocratique, opinions, vice set vertus, Puf, Paris 1997, pp. 35-57. 10 Ibid., p. 38. 11 We live under the grip of a kind of moral terrorism…a morality of convenience. The single thought, the single morality, moreover, are most often reactions of convenience. Once this was called conformism…In a despotic regime, conformism can go in the direction of violence. In a democracy, it always goes in the direction of moderation. The problem is that moderation can become despotic. Tocqueville explained it very well…There is something totalitarian in the soft thought that governs us today”. (P. Tesson in Un terrorism intellectual assez bienveillant. A subject taken up by D. Lensel in J.M. Chardon and D. Lensel, editors, La pensée unique. Le vrai process, Economica, Paris 1998, pp. 34-35. 12 This is what we observed at the time of the recent controversy over Telethon in France. Until the present, a real, serene and fair discussion has not taken place on the question of the ethics of the means used in biomedical research to make progress in the treatment of some diseases (in the case of Telethon, muscular dystrophy). 13 The public expression of a culture’s sensitivity to the traditions of a country is no longer completely guaranteed in Western societies, as two recent incidents sadly show. In London, in December 2006, it was decided to abolish any mention of Christmas in the public celebrations for the end of the year to not offend the immigrant communities. In the North of Italy, a schoolteacher decided to not allow the children to sing the traditional Christmas carols for the same reason: to not offend the children 87 attending that school. Beyond the act of violence of depriving the citizens of a country of legitimate an access to their traditions, which are part of the common good, a totally deficient anthropology can be found behind this: namely, the importance is overlooked for the civic bond of safeguarding the festive aspects that have brought all the generations together for centuries. Moreover, this unconsciously hides a deep misunderstanding of the immigrant peoples by prejudging that they, as a whole, could take offence from the joyful celebration in their host country of a traditional festivity. 14 Second Vatican Council, Pastoral Constitution Gaudium et Spes, 16. 15 “The erroneous conscience, which makes it possible to live an easier life and indicates a more human way, would thus be the real grace, the normal way to salvation. Non truth, remaining far from truth, would be better for man than truth”. (J. Ratzinger, Coscienza e Verità in La Chiesa. Una comunità sempre in cammino, Paoline, Cinisella Balsamo 1991, pp. 113-137.). 16 Note that in the article mentioned earlier, J. Ratzinger proposed to substitute the first of these terms, which is rather obscure and somewhat accessible in his opinion, with anamnesis, which has the merit of being clearer and deeper, and also particularly suited to the language of biblical anthropology (Ibid., pp. 122ss). 17“Rationalis creatura (…) sic divinae providentiae subditur quod etiam similtudinem quondam divinae providentiae participat, inquantum se in suis actibus et alia gubernare potest. Id autem quo aliquorum actus gubernantur, dicitur lex. Conveniens igitur fuit hominibus a Deo legem dari” (St. Thomas Aquinas, Contra Gentes, III, 114). 18 Carlo Caffarra, L’autonomia della coscienza e la sottomissione alla verità in AA.VV., La coscienza, International Conference sponsored by the Wethersfield Institute of New York, Orvieto, May 27-28, 1994, Libreria Editrice Vaticana, Vatican City 1996, pp. 142-162. 19 J. Ratzinger, art. cit. 20 Plato, The Apology of Socrates, 30c and 30d (English translation:http://www.wsu.edu/dee/GREECE/APOLOGY:HTM). 21 Ibid., 41a. 22 Sophocles, Antigone, II, Sc. 3, 462-470. 23 Seneca, Ad Lucilius, IV, XII, 41. 24 2 Mac 7:37. 25 M. Schooyans, Le terrorisme à visage humain, F.X. de Guibert, Paris 2006, p. 112. 26 See in this regard the opposing positions of J. Assmann and J. Ratzinger, regarding the former’s affirmation that religious intolerance dates back to the Exodus when Moses affirmed the existence of the One True God. Assmann sees in this the origin of ethical intolerance because this God gives instructions to men (Decalogue). The latter shows that the question of truth was not invented by Moses. It inevitably arises when the conscience arrives at certain maturation (J. Ratzinger, Fede, Verità, Tolleranza, Cantagalli 2003, pp. 223-275). 27 Martyrdom of Saints Philias and Philorome (in Actes des Martyrs, Italian ed.: Atti dei Martiri, Paoline, Milan 1985, p. 753). 28 Ibid., p. 467. 29 The controversy had to do with the question of knowing if it was fitting, beyond the restoration of the Altar of Victory, to re-establish the pagan religions. Symmach preached tolerance on this point, while Ambrose proved to be intractable on the grounds that a Christian cannot recognize false gods (St. Ambrose, Letters XVII and XVIII; Symmachus, Relation III, in Ital. ed., La maschera della tolleranza, Bur, Milan 2006). 30 “What! The Romans would have suffered because the infamous Antinoü was put on the level of the second gods, and would have torn and handed over to the beasts all those who were only reproached for having peacefully adored a just man! What! They would have recognized a supreme God, a sovereign God, the master of all the secondary gods, affirmed by this formula: Deus optimus maximum; and they would have sought those who adored only one God! It is unbelievable that there 88 was an inquisition against the Christians under the emperors: that is, that someone went to their homes to question them about their religion. Neither Jew, nor Syrian, nor Egyptian, neither Bards, Druids nor philosophers were ever troubled about that article. So the martyrs were the ones who rose up against the false gods. It is a very just, very pious thing to not believe in them; but in the end if they were not content to adore a God in spirit and truth and manifested violently against the religion received, as absurd as it could have been, we are obliged to admit that they themselves were intolerant” (Voltaire in Traité sur la tolérance, Ed. Garnier-Flammarion, Paris 1989, Chapt. IX, pp. 70-71). 31 Letter to Diognetus, V, 6-10. 32 Quoted by E.M. Ganne, Thomas More. L’homme complet de la Renaissance, Nouvelle cité, Coll. Historiques, Montrouge 2002, p. 216. 33 Cfr. M. Broc - R. Pietra in L’objection de conscience, Esprit 10 (October 1963), 375. 34 PP. Gelasius, Epistola VIII, Ad Anastasium imperatorem, PL LIX, col 42. 35 Extrapolating the Roman idea of just war (justum bellum)--a purely formal idea inasmuch as war was considered just that was declared according to the well-known rituals carried out by magistrates empowered to do so--Christian thought with Saint Augustine and later with Saint Thomas would specify the conditions of just war: it can only be declared by the competent authority, there must be a just cause (requirement of punitive justice), and, lastly, it must have an upright intention: war cannot have any other purpose than the reestablishment of peace and justice. 36 According to J.P. Cattelain, the absolutist choice concerned, by way of example, 6,261 objectors out of a total of 15,925 in Great Britain for the period 1916-1918. The statistics that we give are taken from his historic work on the subject (J.P. Cattelain, L’objection de conscience, PUF, Coll. Que saisje?, Paris 1973, pp. 50ss). 37 All the organized movements of conscientious objectors refer to historical figures of anarchism for which any demand on the part of a State is inadmissible. 38 Cf. J.P. Cattelain, op. cit., p. 76. 39 M. Schooyans, Le terrorism à visage humain, op. cit., pp. 121ss. The author adds that the judges “accepted the idea of the inalienable responsibility of those who institutionalize crime. They condemned the organization of eugenics, immoral and cruel medical experiments, and death en masse” (Ibid.). 40 Cf. Gènéthique 72 (December 2005).

89 GERARD MEMETEAU

CONSCIENCE CLAUSE AND INSTITUTIONS

What is at stake therefore is an essential right which, precisely as such, should be acknowledged and protected by civil law. In this sense, the opportunity to refuse to take part in the phases of consultation, preparation and execution of these acts against life should be guaranteed to physicians, health-care personnel, and directors of hospitals, clinics and convalescent facilities. Those who have recourse to conscientious objection must be protected not only from legal penalties but also from any negative effects on the legal, disciplinary, financial and professional plane. John Paul II, Evangelium Vitae, 74 (and Cf. Veritatis Splendor, August 6, 1993, 56)

It is a difficult undertaking to not be able to protect honor except by going against the law and accepting to become suspicious. Jean Guéhenno Journal des années noires (Preface)

The so-called conscience clause is analyzed in a faculty to refuse to perform services, which in principle are professional, even if it can be envisaged in a private context (e.g., in marriage, a condition to educate future children in a certain religion; compare Canon 1125-1), perhaps in a marginal way. Such refusal is provided for and even sanctioned by positive law, especially penal or business law, which forbids the refusal to sell or provide a service to a consumer, or discriminatory refusal, illicit agreements, some non-competition clauses…Should these be described as conscience clauses? If their cause is economic, certainly not. They are business games. If it is racial, ethnic, political, sexual, etc., in the terms, for instance, of article 225-1 of the (French) Penal Code, there would not appear to be a positive movement of the conscience; quite the contrary, but some cases are on the borderline. So it is with the refusal by reason of belonging to a “given religion”, motivated by what appears to the subject to be an imperative of his own religion. It will be answered that it is a religion of exclusion, but whether or not he is aware of it, the interested party will adopt his position according to his conscience. By its cause the refusal merits being described as an exercise of a conscience. clause. The one who refuses invokes values higher than those of his partner or of a group. There is a conflict of values such that it causes rebellion against an act that is requested, if not ordered, because it conforms to the values of the group or co-contractor, which may even be written into positive law. There is no conscience clause if values are not involved and a conflict, because if there is no conflict, the person continues to act within a legal and social framework that leaves him/her free to protest. The person is simply exercising a right. There must also be a situation of possible refusal, which presupposes a previous request or order. A “neutral” situation would only open the subject to a theoretical, doctrinal contestation that may be dissimulated in a totalitarian environment, an act of resistance, but not a conscience clause stricto sensu. Having stated these preliminary conditions, we add that the term “clause” should not be taken in its contractual meaning. The conscience “clause” is not necessarily a stipulation of a contract. On the contrary, if it appears in a convention, its difficulty would vanish by that very fact. Instead, the word has more to do with the antiphrasis because said clause is part of the opposition and not the contractual agreement. Whether or not it is a contractual relation, it is an assertion of opposition. “Clause” is a common language facility1.

90 It can be inferred at this first stage of the presentation that there is a search, an assertion of a rebellion that lets a negative aspect of this behavior be seen. First of all, isn’t there a risk of destabilizing the social body in the name of individual values that may be different? Second, isn’t the clause an instrument of anarchy (“It is forbidden to forbid”) that will bring the group to worse evils than those expressed in the name of natural law? Its study, if not its defense, cannot escape the criterion of proportionality in its implementation so that it can stay oriented to the common good,2 the measure of which will come from the virtue of prudence. Not only disorder should be avoided, which, according to Goethe, implicitly produces injustices and not only, but also a drift towards the recognition of might.3 Lastly, if there is rebellion, it is with regard to a prescription. The subject who protests in speech or writing against an order or an iniquitous law when he has still not been enjoined to cooperate in its application is not making use of a conscience clause in the proper sense, even if he exercises a liberty—sometimes restrained and dangerous—of expression and criticism. The clause will only appear if he is warned about his expressions and receives an order or even advice to put an end to or moderate them. This is why the journalist’s so-called “conscience” clause in French law is improperly termed…It pertains to situations of resistance close to the conscience clause, but which, strictly speaking, are not fully comparable to it. In any case, said clause supposes that an institution imposes its (counter) values on the one who protests. This institutional phenomenon delimits the clause’s field of application: a dispute of “Docteurs graves” is only a doctrinal controversy. This is how we see the clause at first, but forgetting that the institution itself can claim its freedom before an overall order that deprives it of its values. It is to this aspect that we will link—and limit— our reflection.4 In the area of life, which admittedly covers the environment, veterinary law that is all too often neglected,5 food law, city planning law, etc., the word “institutions” refers instinctively to health care institutions, mainly the public and private health care establishments. It can also be a reference to the State, the first institution within which the others act, but it too is interlinked with unions or federations.

I. THE HEALTH CARE INSTITUTIONS Their juridical forms vary according to the health care systems and the material means. Here it is not a matter of presenting a comparative law of these institutions. Quite simply, and based on the system we know less poorly, we will try to take out some main ideas that could, all particularism aside, be common ideas.

A. Variable fundamental principles 1) The published principles The public hospitals established by the State or territorial groups that are run with public funds and employ public agents (including doctors) are called to accept all patientsregardless of their opinions or beliefs. This is a mark of public service. Even though the law in France requires them to reflect on the ethical questions raised by accepting and taking medical responsibility for patients (art. L. 6111-1 C. public health)--which is not a reflection on medical ethics or the values of the health system--, and while in other countries the law requires them to create ethics committees (most often of a clinical kind), they have the duty to display an ethical neutrality, the counterpart of accepting a public of citizens—or foreigners—with varying convictions. This does not mean that they are not confronted with requests from patients, as observed in the cases of strictly observant Muslim patients. It is not that the patients’ beliefs are not recognized there; on the contrary, they are all treated, protected and regulated in their expression equally. The last version of the Charter of the hospitalized person (circular DHOS/E1, 2006/90, March 2, 2006) attests to the principle of respect and the principle of neutrality: “The health care establishment must respect the beliefs and convictions of the persons accepted. In the public health care establishments, everyone must be put in a position to take part in the practice of his religion (recollection, presence of a minister of his religion, diet, freedom of action and expression,

91 funeral rites…). “However, the expression of religious convictions must not harm the functioning of the service, the quality of the care, the rules of hygiene or the tranquility of the other hospitalized persons and their close relatives and friends. “All proselytism is forbidden, whether by a hospitalized person, a visitor, a member of the personnel or a volunteer”. However, these public establishments function in respect for the fundamental principles of the health care system taken as a whole, hence respect for the dignity of the sick (art. L. 1110-2 C public health) and the prohibition of forms of discrimination (art. L. 1110-3 C. public health). Having said this, the subject does not expect respect from the public hospital for particular values beyond the basic principles of deontology and medical law which, I might add, can lead very far and suggest a dialectic of protection of the patients’ rights and demands for means to ensure this protection; and the institution’s clause appears on the horizon if norms of objective law impede this, for example, by restricting the principles of the freedom of prescription, free choice, secret…Moreover, the neutrality of the public service already guarantees the person that his convictions will not be offended if they are not contrary to public order. The private hospitals are not held to this neutrality. In fact, many do not display any particular ethic or philosophical or religious orientation; they are “simply” commercial enterprises that may or may not be grouped into “chains”, with their own clientele making the “global” or even a “dismembered” hospital contract, and they function with a main, legitimate concern for profitability. Others, on the other hand, present a precise a priori orientation. In France, regardless of their juridical status, these are Christian, often Catholic, but possibly Jewish or Muslim religious institutions (we lack information on how these are distributed). The sign seems precise, or at least unambiguous, and gives the patient making his choice some first information: this is a Jewish or a Catholic clinic, and it presents itself as such! If it can be said in this way, the “religious fact”, which P. Coulombel speaks about, turns into an advertising instrument--let’s say the word-- publicity, just like advertising the treatments offered and specialties.6 This constitutes a decisive element in the conclusion of the hospital contract by the sick person if he himself belongs to the denomination advertised. The statement that it is a Catholic establishment enters, in the words of J.-L. Aubert, “into the contractual area”. The same holds for advertising a private teaching establishment when it says it is denominational. The clients (the parents of the students) expect a pedagogy in conformity with the precepts of the Church, not indifference and catechetical vacuity, a gap between what is advertised and what is taught. The advertisement can constitute willfully misleading publicity given that the public that chooses a clinic for a denominational reason is not an “average consumer” imagined in abstracto, but a particular consumer whose confidence is captivated by an essential element of the contract and appreciated in concreto.7 There is deception regarding one element of the service offered; the user-consumer believes legitimately that only medical services in conformity with the requirements of the Magisterium—and which neither the direction nor the doctors of the clinic can be presumed to not know—will be carried out. If this is not the case, and if, for example, the establishment lets abortions, research on embryos and MAPs be practiced within its walls, the client who is not involved in these activities will have been deceived and can ask about the real ethics of the health care center. Without going as far as to sue for the crime of fraud, which makes the action penal, he can be inclined to annul the contract for willful misrepresentation (we will leave aside the practical usefulness of this strategic choice for possible discussion later), because the deception takes on this civil tendency, or simply by mistake regarding the person if it is to be thought benevolently that the directors were not aware of this misrepresentation. In fact, the contract with the clinic is full of intuitus firmae,8 and the error regarding the (religious) references of this contractual partner generates the relative nullity. Admittedly, proceedings for false advertising and the annulment of the hospital contract are matters for scholastic hypothesis, but we can

92 see that business law pushes the denominational clinic towards a kind of coherence on which it can more solidly base claims in relation to third parties of its conscience clause.

2) The margin of freedom

The duty to show coherence between the health care institution’s well-considered principles and action enjoys in compensation the freedom to give witness to this coherence, even if the supports we have discovered are only slightly doctrinal. If we look, first of all, at the case of the establishment as such, before imagining the individual case of its agents, it must be considered that in French law some acts are reserved for authorized clinics (e.g., biomedical research, art. L. 1121-3 C. public health; PMA, art. L. 2142-1 C. public health; prenatal diagnosis, art. L. 2131-1 C. public health). Abortion can only be practiced by a doctor in a health care establishment or in the framework of a convention between the practitioner and an establishment of this kind, which allows a doctor to come from outside the establishment both to respect the principle of free choice and to compensate for the hypothetical refusal of all the personnel of the clinic (art. L. 2212-2 C. public health). But all the public hospitals with surgical or maternity services must be equipped with ad hoc means.9 The fact is that abortion is presented as a public health service that cannot be interrupted.10 If it is a public service, there is a public need; hence the duty to respond to it and the prohibition to oppose it. We can also read a skillful balancing in the law. On the one hand, the private establishment can refuse to practice abortions on its premises. On the other hand, if it asked to take part in carrying out the public service or has made a contract conceding such service, it can only express its opposition “if other establishments are capable of responding to the local needs” (art. L. 2212-8 C. public health). It could not have been written better, even if the word “need(s)” is common in health care law, which the legislator intends to satisfy as a priority, and it is a “need” because it responds to the exercise of a “right” of a woman or of women. From the law of exception of January 17, 1975, we have gone with the July 4, 2001 law to a one of promotion and demand, which the preparatory work for this law demonstrates. It should be pointed out that at the beginning of 1985, the woman who was the Minister of Social Affairs answered that “abortion remains juridically an offense undermining respect for life except in two cases based on the state of need”.11 In 1987, she repeated: “This law was conceived of for difficult situations. I shall not return to everything we have already said on this subject”.12 Since then, an institution’s refusal is necessarily limited, while its display of catholicity makes it its duty. Here we will not repeat what everyone knows: namely the teaching of the Magisterium regarding abortion. To confine ourselves to our subject, we will quote from some precise texts. In his letter of November 1986 to doctors, Cardinal Lustiger wrote the following:13 “The Catholic hospitals and clinics must thus be in the forefront in the fight for respect for human life. With the greatest rigor, no deliberate act of death must be made in the Catholic institutions. No regular ease in practice must be introduced into them, even if there are situations in which the conscience is tempted to flinch. “This lofty requirement can seem heavy, and in some cases unbearable. However, I remind you that you have to give it its central place in your consciences and in the deontological rules you make in order to follow them in the Catholic establishments for which you share responsibility. This constitutes a moral condition of the truth of your position before humanity and before God, and a requirement of your common witness as care-giving Christians”. In Evangelium Vitae, Pope John Paul II conferred universal value on this requirement before calling for the exercise of conscientious objection to procured abortion and euthanasia (No. 89): No. 73 - “Abortion and euthanasia are thus crimes which no human law can claim to legitimize. There is no obligation in conscience to obey such laws; instead there is a grave and clear obligation to oppose them by conscientious objection” (etc.).

93 No. 74 - “In order to shed light on this difficult question, it is necessary to recall the general principles concerning cooperation in evil actions. Christians, like all people of good will, are called upon under grave obligation of conscience not to cooperate formally in practices which, even if permitted by civil legislation, are contrary to God's law. Indeed, from the moral standpoint, it is never licit to cooperate formally in evil. Such cooperation occurs when an action, either by its very nature or by the form it takes in a concrete situation, can be defined as a direct participation in an act against innocent human life or a sharing in the immoral intention of the person committing it. This cooperation can never be justified either by invoking respect for the freedom of others or by appealing to the fact that civil law permits it or requires it. Each individual in fact has moral responsibility for the acts which he personally performs; no one can be exempted from this responsibility, and on the basis of it everyone will be judged by God himself (cf. Rom 2:6; 14:12)”. No. 82 - “We need to make sure that in theological faculties, seminaries and Catholic institutions sound doctrine is taught, explained and more fully investigated. May Paul's exhortation strike a chord in all theologians, pastors, teachers and in all those responsible for catechesis and the formation of consciences. Aware of their specific role, may they never be so grievously irresponsible as to betray the truth and their own mission by proposing personal ideas contrary to the Gospel of life as faithfully presented and interpreted by the Magisterium”. In reality, as John Paul II explains, to disobey these civil laws is not disobedience because these texts are illegitimate and have no binding force. They are unjust laws.14 On February 22, 1987, the Instruction Donum Vitae, signed by Cardinal Ratzinger, called for recognition of the conscience clause with regard to the “morally unacceptable civil laws”.15 In the meantime, on August 6, 1993, Veritatis Splendor offered an unambiguous teaching (aiming at Canons 803 and 808) in paragraph No. 116: “A particular responsibility is incumbent upon Bishops with regard to Catholic institutions. Whether these are agencies for the pastoral care of the family or for social work, or institutions dedicated to teaching or health care, Bishops can canonically erect and recognize these structures and delegate certain responsibilities to them. Nevertheless, Bishops are never relieved of their own personal obligations. It falls to them, in communion with the Holy See, both to grant the title ‘Catholic’ to Church-related schools, universities, health-care facilities and counseling services, and, in cases of a serious failure to live up to that title, to take it away”. Of course, it is not within the power of the Church or a secular “moral authority” to put an end in practice to the behaviors in question. On the other hand, the Church has the faculty to make known the incoherency of the behavior of the concerned clinics. In the present state of (French) law, the establishment would only regain its freedom by renouncing to take part in the public hospital service, which would not be free from restraints. As to the hospital directors, they are not held by law. And yet, when the first version of this law was being prepared, their fate seemed to be reserved. The conscience clause seemed to be provided expressly in their favor,16 but it was abandoned for an “editorial reason” that was not explained further, but on which Minister Jean Foyer might be able to shed some light. In the end, the health care professionals only keep their right to withdraw on a personal basis (art. L. 2212-8 C. public health), and cannot oppose the creation of an autonomous VIP service, as the State Council judged, which obviously does not cover an institutional clause. It will not be without interest to see how certain conflicts are settled: in a private clinic, an anesthetist invokes his conscience clause, which in fact impedes a gynecologist-obstetrician colleague from practicing abortions. The second doctor is compensated by the clinic, which did not put at his disposal the means needed to perform actions.17 Here we have a technique for getting around the clause which attests, on the one hand, to a lack of reflection on natural law in this case, and on the other, the decidedly individual character of the right to reserve. It is true that the gynecologist-obstetrician would not have been able to sue the clinic if it had used its own clause.

94 Lastly, we cannot fail to recognize the situation of one important health care institution: namely, the Order of Doctors. When this body prepares the deontology Code, it has to conform to the legislative provisions in force, since the Code is only a decree (now contained in the regulatory part of the Code of public health). This does not prohibit it from publish its own opinions. It is well known that when the law of January 17, 1975 was being drawn up, the National Council of the Order of Doctors in France took a position against the legislative bill. This was held against it when two legislative proposals were deposited in the fall of 1978 aimed at its abolition, and when the phenomena of refusing to pay dues grew. The sanction had to be heavy for those who did not want to share the “single thought”: it had to disappear. Would institutions in the biomedical area and ethical committees have been more reserved? Without retracing their history here, let us remember that they are established on the two principles of pluri- disciplinarity and (ethical) pluralism and must allow respect for the freedom of choice of each group or individual according to his private conscience, with practical life only being the result of a consensus. This, which necessarily leads to a procedural ethic, is not without links to the North American philosophy whereby a group of “people in good taste”, observing strict formal rules, come to define a truth.18 But it also implies that the members of the group accept beforehand to back down on the terrain of their principles and to nuance them in order to let the adverse opinion be expressed. Pluralism requires the theologian-ethicist to renounce his “heritage” in part,19 and it is admitted that the resolution of ethical problems presumes that individuals will radically revise their own convictions to the benefit of a personal or collective conversion, with the compromise saving only social coherence.20 This requirement, whose realization is facilitated by the committee’s lack of vote and the (relative) lack of published dissident opinions, is the opposite of the conscience clause, and a totalitarian process. The paradox (Is it a paradox or a logic?) is that the ethical committee needs a conscience clause! Today the issue is mainly about abortion and research on living embryos. We do not know if it is prudent to focus the reflection on these two behaviors. Euthanasia is also on the agenda, as well as the sterilization of the institutionalized mentally ill (art. L. 2123-1 sq C. French public health). Admittedly, the texts recognize the individual conscience clause of doctors.21 The (modified) Dutch law on the interruption of life on demand, the Argentinean law 26.130 on surgical contraception…keep individual objection. But all the manipulations of the human being are to be dreaded again, and since they are dressed in therapeutic pretexts, they call for and will call for the cooperation of the health care institutions. An expanded, non-hypocritical conscience clause must be demanded in their favor. You can be sure the State will not force a hospital manu militari to let its personnel perform revolting acts such as those condemned at Nuremberg in 1947. It will not run the risk of a breakdown in the health care system, but it will use effective, indirect forms of coercion of an administrative or financial nature that impede disobeying at the risk of closing the services. The state of war of the powerful against the weak denounced by Cardinal Ratzinger,22 who was already thinking of “a possible document on the defense of human life”, is not for tomorrow and beyond! We are already at war.

II. THE STATE The contemporary mindset reproaches States for not being able or not knowing how to protest against abominable measures described in tragic times. These States are summoned to repent and…to make compensation.23 Who cannot guess the logic, or at least one of the logics of these political demands? It holds in the retrospective affirmation of a conscience clause of the States, which they would have been unaware of, in the affirmation that a State cannot order everything, and, as decided at Nuremberg, that a citizen has the duty to disobey iniquitous laws (an aspect of the decisions that is not highlighted very much). The State cannot cut itself off from the demands of natural law. It can be forced into doing this through its belonging to a group in whose hands it delegates the choice of its values. Within the State itself, some very classical political difficulties can be found.

95

A) The State in a group The phenomenon of bioethical statements by the World Medical Assembly, the CIOMS, UNESCO, establishes that belonging to groups (the AMM is juridically a world “group” of doctors) supports an ethical claim and enables it to write up its principles that could pass into international practice. But when the State is part of a collectivity by federation or confederation, isn’t it held to bend to the collective wishes?

1) The integrated State

The hypothesis is that of the State Member—regardless of the juridical status—of a group of States from which a collective body through the delegation of sovereignties, gets the power to enact ethical norms in particular, directives or rulings with supranational jurisdiction. If we assume that the values of respect for life are predominant in the State— which is not necessarily compatible at all with bioethical laws or an organized development of this discipline—and if we presume that the enacting body contradicts these values or even tries to impose them on those who are contrary to them, can the State invoke a conscience clause that will enable it to not apply the norms imposed? Of course, one may think that it is easy for the State to denounce the treaty and leave the group that has gone beyond its powers and acts like a totalitarian body. But this response overlooks the multiplicity and indivisibility of the respective interests of the group and the State beyond the particular difficulty that has come up. The solution could be laden with negative consequences for the State targeted, which risks becoming even more so following its isolation.24 The hypothesis raised is not scholastic. Lastly, the European Court of Human Rights, the interpreter of the humanistic values of the Europe “of Strasbourg”, was able to open the ways for the French Court of Cassation to return to its very controversial “Perruche” decision of November 17, 2000 by indirectly imposing the counter values of that decision, helpful to the Court of Cassation that persisted in its first opinion. The technique was to find in the law of March 4, 2002, which limited the perverse effects of the November 17, 2000 sentence, a contradiction to the right to a debt considered as an (immaterial) asset of the victims, the parents of children born handicapped. France had caused property damage, according to article 1 of Protocol No. 1 of the European Convention,25 which avoids bringing a moral judgment while actually tearing down a part of the wall panel raised against this decision of “wrongful life”. And the Court of Cassation, as well as the Council of State, could transpose this interpretation into internal law—apparently as damage to property—to revive the action of wrongful life,26 even if only on a transitory basis. The commentators mentioned earlier write at the end: “…an observation that stresses once again, if it was necessary, the considerable influence that article 1 of Protocol No. 1 of the Convention can exercise on our internal law of responsibility”. And we dare to add, on the dangers of undermining human dignity that threaten it.27 The reasoning delights the specialist in property law. To the specialist in medical law it reveals the subtlety of reversals of principles. And that is not all. First, an EEC Resolution of March 12, 1990, regarding the voluntary interruption of pregnancy, aimed at requiring Ireland to legalize abortion; later the sentence of October 4, 1991 of the CJCE put the discussion in the area of the free performance of services: “The interruption of pregnancy, as legally practiced in many State Members, is a medical activity normally provided for payment”, and it refused to moderate this description through a moral judgment. While the State that is judged is recognized as being entitled to forbid the dissemination of information about the VIPs practiced in other States, on the contrary it would not be so entitled if the publicity had come from service providers themselves. Mr. Dubouis interprets the sentence in this way: “an implicit stand in favor of the freedom recognized to the State to forbid or regulate the practice of VIP on its territory”, but it also obliges it to accept certain publicity contrary to its national principles. While not going as far as the Resolution, the ruling

96 is sensitive to the strict freedom with which a State can keep control within a community or an alliance, even when some fundamental lines of its ethics are in discussion. Building an international ethic is both a delicate and a desirable task, but the concurrence of markets and values is difficult. “The EEC treaty has the objective to create a common market, not a common morality. Ethics concerns it as an economic activity” (L. Dubouis). Of course, the European Community Law includes that of the European Convention of Human Rights, but it is very easy to imagine the influences that pull a State on all sides out of its ethical strongholds and risk deforming the medical act into an economic act. As to this law of the convention, it permits the sentence mentioned earlier of October 29, 1992 to censure Ireland (which spoke out through a referendum on VIP), surely with more nuances, and reflection on the right to life of the conceived child by invoking the principle of proportionality (art. Convention). As to the European Court of Human Rights, its sentence B/France of March 25, 1992 censured France for putting the interested party—a transsexual—in an overall situation incompatible with the respect due to private life. Subsequently, and subject to better authorized commentaries, it seemed to require the State to remedy this violation of private life when our law does not make these questions a problem of private life, but of human bodily integrity and personal status. Mrs. Leonoir, like other authors, noted this divergence between the privacy sustaining the doctrine of the court and the elements of our civil law tradition. There again, and even if the sentence grants the States a margin of autonomy, a supranational order undermines this base of public order and must raise to the States—and their judges —the problem of choice when norms are confronted in this way that more or less protect the integrity of the human being. We can see that on this level there is a choice in the conscience clause between two rules in favor of the one that protects the subject the most, and an international Convention no longer fulfills its role when it is oriented towards less protection: “As to the fundamental solutions, unification is neither possible nor desirable if it must lead to an alignment on the smallest common denominator”. In the Charters and Treaties, must the State’s right to its bioethical public order be affirmed? Withdrawal from the community or the alliance must not constitute the only way to safeguard the States’ values. A kind of express or implicit protection clause needs to be thought up while remaining within the group. So documents in the spirit of the “Luxembourg Compromise”, for example, would be useful. Different techniques can be imagined. We know that the “reservations” that go along with signing a convention constitute one of these. When France ratified the International Convention on the Rights of the Child, she felt she had to make the reservation to not put her legislation on abortion up for question (which protects the child less by hypothesis)…And the opposite? To date, no one has recommended the institutionalization of ethical committees in black Africa, which was proposed before the XVI World Congress of Medical Law (Toulouse, August 7-11, 2006). This is not to suggest invoking a conscience clause; it is to encourage a new triangular trade, a new colonization,28 a response given to the objection that the State which is the subject of research will profit overall from its consequences, which may not be impossible, but it subjects the State to the economic forces of the West and requires it to qualify its citizens as subjects of research without protecting them from it (on this point, the opinion formulated is personal and does not commit the Academy). It is true that a conscience clause of a State cannot have meaning unless it is oriented towards greater respect for the dignity and life of its subjects. It cannot be used as a curtain to hide the inhuman activities committed on its territory with the tolerance or even the authority of the State. The paradigm is that of the dealings that had their epilogue in Nuremberg and had been foretold not only in Mein Kampt, but also in the publications, for example, of Binding and Hoche,29 the 1932 proposal of the Prussian Regional Health Council, the law of July 14, 1933, the decision of September 1, 1939… Would the free nations have felt the need for an intervention only in the name of protecting ethical 97 values that were radically jeopardized by these measures and the exterminations that followed, if they had had a fully enlightened conscience before 1945, which in itself continues to be a subject of controversy? We have never really seen a war declared for the defense of values! And yet, the subject of the somewhat totalitarian State (we mean that substantially the State was formally democratic) to compromise the dignity, integrity and life of its citizens through forms of discrimination according to their stage of development, quality of life, and social belonging, is entitled to expect some assistance from the international community. There will be sensitivity to this in times when some denounce “a new eugenics…that is at the same time mild, soft and insidious” (J. Testard), and when satanic doctrines are not necessarily making a comeback through the ways in which one pretends to see them. Müller-Hill writes, “Perhaps the reification of human beings in the Western democracies has already gone rather far…”. In any case, “the recognition of human rights as a principle of international law involves a restriction of the States’ right to self-determination” (T. Mertens). The simplest and most peaceful technique is jurisdictional recourse, which we suppose will be international presuming the insufficiency of internal conflicts. But this supposes that the State of origin has agreed to include a system of this kind, and it is only effective if the State bends before the sentence, which can only come about under the pressure of a very strong international public opinion. Now the difficulty looks like it will be in terms of an infringement on State sovereignty. A State can limit this voluntarily through accession to conventions regarding bioethics or the protection of human rights or against torture. It can also commit itself to what Prof. Torrelli calls “the normative offensive in the name of humanity”, by accepting the principles of humanitarian law jus in bello. Lastly, it can authorize humanitarian interventions by NGOs or private organizations on its territory, but it is not very likely that the kind of State we are concerned with will agree to do this willingly, and the problem does not lie in these forms of self-limitation, but in interference in the affairs of a State against its will. In short, do bioethics invite humanitarian interference? (Aid to the victims of natural catastrophes or emergency situations of the same kind, the object of Resolutions from 1988 to 1990, does not come within this discussion.) Together with the problem in principle of allowing interference without political stakes and the imposition at bayonet point of our conceptions of freedoms in other countries, the problem of useful measures is raised. How can a guilty State be brought to abrogate, for example, a eugenic or an eliminatory law? How, and through what court of law can the offenses to the person be sanctioned? The procedure of public disapproval by the scientific or juridical Community is not insignificant. For example, on February 8, 1995, the International Conference of Orders reproved cruel and degrading corporal punishment. But what is the repercussion of this? Isn’t there a risk of “blocking” the receiver of the critical message on his positions, who, in turn, believes or pretends to believe that his “values” are attacked? We in turn quote Pascal: “Justice without power…”. In the present state of the international conscience, we look poorly on armed intervention invoking fundamental bioethical principles. The participation of international forces to protect threatened peoples has shown its limits, and, I might add, a rule of proportioned reason exists here too: namely, to begin a conflict, even based on “good” reasons, causes new evils and difficulties whose progression we are unable to gauge. The remedy that multiplies the perverse effects is always by right inadvisable. And here these effects are only too obvious! This particular research stops at the very limit of the efficacy of public international law itself, and the practicable ways are principally awakening the conscience by teaching medical law and ethics, and encouraging participation in drawing up and implementing international bioethical Conventions, but, and we return to our departure point, with the imperative condition that these will rise to the highest common denominator. Otherwise, they will be of no use at all.

Isn’t a State dependent above all on its leaders? 98

99 B - Statesmen

Monsignor Schooyans has reminded politicians about the rules of action in conformity with Evangelium Vitae, in particular, the moral rule in general,30 and he has even raised the hypothesis of their cooperation in the crimes of euthanasia and abortion. It is well known that eminent statesmen have invoked their conscience clause to not be associated with the promulgation of texts that clash with their convictions. The most famous example was that of King Baudouin I in 1990 when he refused to sign the law regarding the interruption of pregnancy at the risk of creating a new constitutional crisis.31 The head of State invoked the right that belongs to every citizen. In France, in 1996, the President of the Republic opposed the promulgation of ordinances of social law in the name of his conscience. The stakes were not that of the Belgian law. The alleged ethics were political. In any event, we see a head of State put forward his innermost convictions in order to refuse to recognize a text of “law”. The conscience clause could come into play again logically and, in any event, serve as an example for other politicians.32 This is not only of interest to Catholic politicians. It is for all those who are disturbed by the multiplication of “supra-Nazi” texts.33 Some members of parliament who write without reference to a theology suggest the conscience clause, even if it has to be erased later from the legislative bill.34 And this interest is not doctrinal. On the occasion of the preparation and then the signing of the French law of July 17, 1975 (VIP), we heard and read about officially Catholic, high ranking politicians (Minister of Justice, Prime Minister, President of the Republic) who presented and made a text official to which they had proclaimed their consciences rebelled. Their signatures are engraved in letters of fire and recall the judgment of Pius XI (in Casti Connubi, December 31, 1930): “Those who hold the reins of government should not forget that it is the duty of public authority by appropriate laws and sanctions to defend the lives of the innocent, and this all the more so since those whose lives are endangered and assailed cannot defend themselves. Among whom we must mention in the first place infants hidden in the mother's womb. And if the public magistrates not only do not defend them, but by their laws and ordinances betray them to death at the hands of doctors or of others, let them remember that God is the Judge and Avenger of innocent blood which cried from earth to Heaven”. Would electoral counts prevail—and God knows in what inconsequential short term!—over the affirmation of some values (which is surely almost heroic in the information from opinion polls and councilors’ suggestions)? And yet it is the conspicuous affirmation of these values that gets these people their votes and their election, to be followed by an opposite policy in the facts. This deceit regarding the quality of the elected goods can proceed with dignity based on the distinction between the ethics of conviction and the ethics of responsibility, or, to borrow from Max Weber, without dwelling on the consideration of the goodness of the ends, which makes it possible, in this analysis, to go beyond the reflection on the means. It is not a question in Western bioethical politics of orienting the reflection on this possible goodness or malfeasance. Some important authors give their opinions in favor of the ethic of responsibility and reproach the ethic of conviction for not taking into consideration “potential consequences of its choices”.35 The formal artifice of the therapeutic description of legalized acts involves this goodness of the end and dispenses with examining it. This allows the grandiloquent affirmation of one’s convictions in order to seduce the electors fraudulently, and then virtuous, democratic reservations that put them back on the tattered poster before presenting the unjust texts with their hands on their hearts. It will not be necessary, even if references exist, to specify any further the existing facts of French law.36 This behavior constitutes the antithesis of invoking the clause and exemplifies submission to the “single thought”, or perhaps to a group discipline in itself very legitimate. The clause in question requires getting out of this discipline at the risk of political marginalization. And what marginalization is it? Only the marginalization decreed by a party or a

100 government because the mass of electors “will recognize their own” and give back their confidence to the coherent homo politicus. Evangelium Vitae confirmed as a declared need the principles of political action. Paragraphs 72, 73 and 74 are known which invoke conscientious objection (Cf. above). They only give a suggestion regarding action to build dykes against evil to the extent specified in paragraph 73, which is authentically interpreted by the “Doctrinal Note on Some Questions Regarding the Participation of Catholics in Political Life” of November 24, 2002, of which paragraph 4 addressed to citizens cannot be omitted: “As John Paul II has taught in his Encyclical Letter Evangelium Vitae regarding the situation in which it is not possible to overturn or completely repeal a law allowing abortion which is already in force or coming up for a vote, «an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. “In this context, it must be noted also that a well-formed Christian conscience does not permit one to vote for a political program or an individual law which contradicts the fundamental contents of faith and morals”. We do not know if this injunction has been brought to the knowledge of “the rank and file” in terms to which it is sensitive. For a politician, this means refusing to cooperate in drawing up or putting into practice iniquitous laws without giving in to making laws of compromise.37 Otherwise, he exposes himself, or should be exposed to canonical sanctions, as excellently deduced by Msgr. Schooyans.38 To the example given by M. Schooyans (Msgr. Weigand, January 22, 2003), we add that of Msgr. Levada,39 if I am not mistaken. Now, we observe in many, and without exception, the opposite phenomenon in the name of political or parliamentary neutrality which, moreover, is a contradiction of democratic principles. Besides, surprising turnarounds come about. We are thinking of the case of a Deputy, a well known opponent of abortion, who after becoming the Secretary of State, supported vehemently correctional proceedings with regard to members of the “anti-VIP commandos” (we express very respectful reservations about their action) and stated: “I have never had the least intention to put the so-called Veil law of 1975 up for question, and I will not”.40 The implementation of the clause by the homo politicus is easy and will only be judged by the electors presumed to be aware of this need for coherence. It is only a matter of not giving in to short-term temptations, without fearing anything for a lasting situation. Xavier Dijon writes, “Who will agree to be ‘the other’ of the majority, thereby permitting the democracy to go forward without its primary purpose?”41 Some others are content to say that the laws of the republic are applicable… Is it begging the question of democracy, an a priori principle, support for the free expression of thought, only if it is against the dominant thought? If a lay reference is needed, Hayek clearly understood its practical insufficiency and its totalitarian potentialities. Alas, the “Social Contract” is filled with them. This is not a question of political choice but, in the political order, of individual resistance. The Nuremberg decisions concealed this teaching while condemning juridical positivism.42 It has been taken to a higher level: “It is thus essential for the States to create, regarding these complex questions, organic and clear laws, based on solid ethical bases, to protect the inestimable good of human life”.43 The difficulty is not one of principle. It is political, which means that in the present state of dominant Western thought, we have to be content—somewhat— with waiting.44 It is true that in expressing the sentiment of many jurists Christian Atias wrote: “French jurists, we have seen the law recoil under the blows of false reforms; and we had doubts. These laws presume to authorize unhappy spouses to ‘remake their lives’. On the one hand, they put on the good side ‘the wanted child’, and, on the other, ‘that which’ a woman, who is ultimately ‘responsible’ for her pregnancy, would have the ‘choice’ to annihilate. We have heard judges put on the scale the life received and the sufferings that accompany it; they have thought of making reparation to the child

101 whose mother would have been ‘deprived’ of the legal possibility to not treat him as a child and deny him his life. These laws teach that spouses have the choice between fidelity and adultery, that they are masters of forming in one and through the other equivalent ‘families’. What do these quotation marks say behind which the meaning of the words must be protected? They denounce the lies of these miracle workers who have not even wanted to absolve us for our sins, but transform our failures into victories”. “A voice was raised and the desert receded”.45

∗The opinions expressed in this report are the author’s and not those of the institutions to which he has the honor to belong. G.M. 1 See the remarkable thesis by Mrs. Laszlo-Fenouillet, La conscience, LGDJ ed. 1993, preface G. Cornu. 2 St. Thomas Aquinas, STh, Part II, sect. 1, quaest. 96. 3 L. Labrusse-Riou, “Conflits de conscience” in Ethique et soins hospitaliers, AP-HP ed. 2001, p.88. 4 Regarding the clause of the individual, we take the liberty of referring to: “Bioética y objección de conciencia” in Vivir y morir con dignidad, temas fundamentales de Bioética en una sociedad plural, EUNSA ed. 2002, Prologue A-M Gonzalez, p. 131, and ref. 5 Cep. C. Halpern, B. Pietcho, Le droit vétérinaire, Eska ed., 2006. 6 Cass. Civ. I, 14 Oct. 1997, Dalloz 1999, somm. 391, obs. J. Penneau; RDSS 1998, p. 336. 7 See in Lamy, Droit économique, No. 3117, 3118. 8 Cep. G. Kostic, L’intuitus personae dans les contrats de droit privé, Thesis in Law, Paris V, Oct. 14, 1997, No. 239. 9 Decree of Sept. 27, 1982, JO 29 Sept. 2982, p. … 10 Circular DGS, June 26, 1991; circular Ministry of Employment, November 17, 1999; Mrs. Guigou, Ass. Nat. November 29, 2000, CR. Analytique 3e séance, p. 6. 11 Response, JO Ass. Nat. January 28, 1985, p. 346, No. 57606. 12 JO Senate, October 10, 1987, p. 3099. 13 See L’Homme nouveau, No. 913, December 7, 1986. 14 St. Thomas Aquinas, Summa, Part. II, sect. I, quaest. 96. 15 Donum Vitae, LEV 1990. 16 Cf. Mézard, JO Senate, December 14, 1974, p. 2859; Mrs. Veil, JO. Senate December 15, 1974, p. 2949. 17 C. Appel Poitiers, November 23, 2004, Rev. Gen. Dr. Med. 20/2006, p. 358. 18 See J. Cerdras, La justice pénale aux Etats-Unis, 2nd ed., Economica, 2005. 19 G. Durand, Introduction générale à la bioéthique, histoire, concepts et outils, FIDES/Cerf 1999, p.44. 20 D. Roy, I. Williams, B. Dickens, J.-L. Baudoin, La bioéthique, ses fondements et ses controverses, ERPI Ed. 1995, p. 36. 21 Art. L. 2123-1 cited earlier; art. 14, Belgian law of May 28, 2002, holding “no other person” other than the doctor; Cf. G. Schamps, La réglementation belge relative à la fin de vie: l’euthanasie, les soins palliatifs, Rev. Gén, Dr. Méd. 20/2006, p. 291. 22 Osservatore Romano, French edition, April 9, 1991, p. 6. 23 E.g. Trib. Adm Toulouse, June 6, 2006, Dalloz 2006, IR p. 1773: SNCF and transports of deported Jews. V.P. Bruckner, La tyrannie de la penitence; essai sur le masochisme occidental, Grasset ed. 2006, with some reservations. 24 This paragraph is inspired by our report: “La clause de conscience de l’Etat en bioéthique” in La bioéthique au pluriel. L’Homme met le risque biomédical, J. Libbey/Assoc. Descartes ed. 1996, Budapest Symposium, p. 45 and ss.

102 25 CEDH, October 6, 2005, JCP 2006, 10061, Note A. Zollinger. 26 Cass. Civ. I, January 24, 2006, 10062, Note A. Gouttenoire and S. Porchy-Simon. 27 See Card. B. Panafieu, “Les racines éthiques de l’Europe: l’héritage chrétien” in Les raciness éthiques de l’Europe, Libr. Univ. Aix-en-Provence ed. 2006, p. 83. 28 See in general, B. Lugan, God Bless America, Carnot ed. 2003. 29 As we know, these were translated by M. Schooyans and K. Shank, Le Sarment ed. 2002. 30 M. Schooyans, L’objection de conscience en matière de santé: Le cas des hommes politiques, Rev. Rech. Jur. 2005-1, p. 505 et ss.; Le terrorisme à visage humain, Coll. A.-M. Libert, Preface Card. L. Trujillo, F.-X. de Guibert ed., 2006, especially p. 116 and ss. 31 See the text of the royal letter in X. Dijon, Droit naturel précité, p. 153; X. Dijon, Baudouin Ier et l’enfant à venire in Liber Amicorum Marie-Thérèse Meulders-Klein, Bruyland ed. 1999, p. 181. 32 E. Sgreccia, Manuel de bioéthique. Les fondements et l’éthique biomédicale, Mame-Edifa 2005, Preface Card. Barbarin, transl. R. Hivon, p. 499 and ref.; See also M. Casini, Il diritto alla vita del concepto nella giurisprudenza europea, CEDAM ed. 2001, Pres. F. Mantovani and ref. 33 The term “supra-nazism” belongs to Msgr. M. Schooyans; See Maîtrise de la vie, domination des homes, Le Sycomore ed. 1986, and La derive totalitaire du libéralisme, Ed. Univ. 1991; especially Bio°thique et population: le choix de la vie, Fayard ed. 1994, p. 116 and ss. 34 See A. Claeys and C. Huriet, The application of law No. 94-654 of July 29, 1994…Report Ass. Nat. No. 1407, Senate No. 232, February 18, 1999, p. 139: “It would be necessary moreover to allow the conscience clause to come into play for the doctors who would refuse to carry out research that goes beyond the direct interest of the unborn child”. 35 Sic. N.-J. Mazen, La démarche d’éthique appliquée, contribution à l’analyse du processus de décision, Et. Hosp. -EPHE ed. to appear in 2007, p. 51). 36 Some are in our report, “Il y a des lois bioéthiques!” in Rev. Gén. Dr. Méd. No. special Dix ans de lois de bioéthique en France, 2006, p. 49 and ss. 37 A. Rodríguez Luno, “Lois imparfaites et lois iniques” in Lexique des termes ambigus et controversies sur la famille, la vie et les questions éthiques, Conseil Pontifical Famille, Téqui ed. (French edition), Preface Card. L. Trujillo, 2005, p. 711. 38 Op. et loc. cit., Rev. Rech. Jur. 2005-1. 39 In La NEF, No. 164, June 2005, p. 12. 40 Le Monde, July 19, 1995, p. 8 with the description of abortion as “a woman’s right”. 41 In “L’objection du roi des Belges à la justification de l’avortement”, unpublished. 42 J.-M. Aubert, Loi de Dieu, lois des hommes, Désclée ed. 1994, p. 65 and ss. 43 John Paul II, Exhortation, February 2, 2003. 44 E.g., Msgr. V. di Muro, “La société en conflit entre la culture de la vie et la culture de la mort, Dolentium Hominum, 62/2006, p. 44. 45 By a French jurist in: Giovanni Paolo II, la via della giustizia, Bardi & Lib. Ed. Vaticana ed. 2003, p. 395.

103 CARL ANDERSON

THE CHRISTIAN CONSCIENCE IN SUPPORT OF THE RIGHT TO LIFE Respect for Conscience in Common Law Countries

St. Thomas More is recognized in our time as one of the great defenders of human dignity and the rights of human conscience. We are all familiar with the famous lines from A Man for All Seasons regarding the role of conscience: in his refusal to sign the Oath, More says “what matters to me is not whether it’s true or not but that I believe it to be true, or rather, not that I believe it to be true, but that I believe it.”1 St. Thomas More is also rightly regarded as the model Catholic government official when he says earlier in the play, “when statesmen forsake their own private conscience for the sake of their public duties…they lead their country by a short route to chaos.”2 And how simply, yet profoundly, he set the standard for all those of the Christian faith who serve in government when he said at the end, “Tell the King, I die the King’s loyal servant, but God’s first.” Perhaps we might do well to regard Thomas More as a sure guide for politicians, reminding them of his approach to government service. As A Man for all Seasons recounts More as saying of his work as Chancellor of England, “I wish no man harm, I speak no man harm, I do no man harm and if this be not good enough then….” We might also regard St. Thomas More as a patron of husbands and fathers. We may recall the way in which More is depicted at the end of his trial in A Man for All Seasons. He declares to the court which has just condemned him that “It was not for the Oath but because I would not consent to the marriage….” Everything we know about St. Thomas More tells us that he cared deeply for his family and that one of the reasons why he sought so desperately to avoid a confrontation with the King was to protect his family. Yet, finally, More was to sacrifice both his life and his family’s security for a principle that gave an eternal meaning and an eternal unity to his family; that is, the sacramental nature of marriage. Unquestionably, in agreeing to the dissolution of the king’s marriage there was also an implicit acceding to the possible dissolution of any marriage. This was a point that could not have been lost on the Chancellor of England and a lawyer of the brilliance of Thomas More. Thus, one of history’s great statesman and men of conscience went to his death for a principled defense of the sacramental unity of marriage. Having said this we should remember the observation of Clarence Miller, one of several editors of the Complete Works of St. Thomas More. He enumerates what scholars give as the various “grounds for More’s martyrdom: the integrity of the self as witnessed by an oath, the irreducible freedom of the individual conscience in the face of an authoritarian state, papal supremacy as a sign of the supra- national unity of Western Christendom, past and present.” Then Miller writes, “All of these are true as far as they go. But in the last analysis More did not die for any principle, or idea, or tradition, or even doctrine, but for a person, for Christ. As Bolt himself make More say in the play: “Well…finally…it isn’t a matter of reason; finally it’s a matter of love.”3 And so, I think it is entirely appropriate to remember St. Thomas More as we explore the richness of the encyclical Evangelium Vitae and its call to the Catholic people to build a culture of life and a civilization of love. We should begin with recognition that Evangelium Vitae rests, to a considerable extent, upon the foundation provided by John Paul II’s great encyclical on the “Splendor of Truth” and the moral conscience. Veritatis Splendor takes up the question of the obligations which truth imposes on Catholics in democratic societies. It observes that the demands of universal and unchanging moral laws may seem to contradict “the uniqueness and individuality of the person” and even “represent a threat to his freedom and dignity” (no. 85). The encyclical also admits that “in a widely de-Christianized culture,

104 the criteria employed by believers themselves in making judgments and decisions often appear extraneous or even contrary to those of the Gospel” (no. 88). But then John Paul II writes what could have come from the thought or, perhaps more accurately, from the spirituality of Thomas More. He states, “It is urgent to rediscover and to set forth once more the authentic reality of the Christian faith, which is not simply a set of propositions to be accepted with intellectual assent. Rather, faith is a lived knowledge of Christ, a living remembrance of his commandments, and a truth to be lived out…It is an encounter, a dialogue, a communion of love and of life between the believer and Jesus Christ…(no. 88). Or as More had put it, “finally it’s a matter of love.” After so many years it is perhaps too easy to view the English Catholic martyrs of the sixteenth century as having a sort of determination or even a certain eagerness for their fate. But the following passage on the subject of martyrdom written by More while he was in the Tower poignantly reveals something very different. More wrote in De Tristitia Christi of the martyr’s encounter with Christ who says this to his follower: “You are afraid, you are sad, you are stricken with weariness and dread of the torment with which you have been cruelly threatened. Trust me. I conquered the world, and yet I suffered immeasurably more from fear. I was sadder, more afflicted with weariness, more horrified at the prospect of such cruel suffering drawing eagerly nearer and nearer. Let the brave man have his high- spirited martyrs, let him rejoice in imitating of them. But you, my timorous and feeble little sheep, be content to have me alone as your shepherd, follow my leadership; if you do not trust yourself, place your trust in me. See, I am walking ahead of you along this fearful road.”4Few in the Church have more poignantly depicted the call to holiness and spiritual perfection than More in this brief description of the sequela Christi to martyrdom. But the ultimate lesson which More gives us is that for the Catholic, government service opens a horizon to a type of personal martyrdom. Certainly, this was the case in More’s life and throughout much of the 16th century. It was equally true throughout much of the 20th century. And it is also true in the beginning of the Third Millennium as we increasingly face a new culture of death. Politics which too often today has been the arena of personal self-promotion and egocentrism should be understood rather by the Catholic as a following of Christ which is open to martyrdom, if not of the bloody martyrdom suffered by More, than a martyrdom of career and reputation. To think otherwise is a disservice to the Catholic community and to be dishonest with one’s self. We might say that John Paul II has a similar vision of the Catholic’s struggle in the face of an increasingly hostile culture when he wrote in Evangelium Vitae the following: Faced with the countless grave threats to life present in the modern world, one could feel overwhelmed by sheer powerlessness: good can never be powerful enough to triumph over evil! At such times the People of God, and this includes every believer, is called to profess with humility and courage faith in Jesus Christ, “the Word of Life.” The Gospel of Life is not simply a reflection, however new and profound, on human life. Nor is it merely a commandment aimed at raising awareness and bringing about significant changes in society. Still less is it an illusory promise of a better future. The Gospel of Life is something concrete and personal, for it consists in the proclamation of the very person of Jesus” (no. 29). Thus, what Thomas More had suggested was the sure hope of those suffering for the truth of the Catholic faith, John Paul II sees as the guiding star of Catholics in the prolife movement. We see also in the life of Thomas More the truth recognized by the Second Vatican Council when it observed in Gaudium et Spes that, “In the depths of his conscience man detects a law which he does not impose on himself, but which holds him to obedience” (no. 16). In commenting on this reality of the moral life, John Paul II writes in Veritatis Splendor that this law “serve[s] to protect the personal dignity and inviolability of man, on whose face is reflected the splendor of God” (no. 90). As John Paul II continues, this “splendor” of God “is confirmed in a particularly eloquent way by Christian martyrdom” (no. 90) which when “accepted as an affirmation of the inviolability of the moral 105 order, bears splendid witness both to the holiness of God’s law and to the inviolability of the personal dignity of man, created in God’s image and likeness” (no. 92). Thus, the martyr provides an invaluable and, one might even say, irreplaceable contribution to the good of society “by reawakening its moral sense” (no. 93). The moral sense to which the martyrdom of Thomas More pointed is stated precisely in Veritatis Splendor: “Only by obedience to universal moral norms does man find full confirmation of his personal uniqueness and the possibility of authentic moral growth” (no. 96). The seeming contradiction between individual freedom and the moral law is reconciled by the martyr with a beautiful transparency which reveals the integrity of the human conscience to society. Evangelium Vitae suggests that the encounter between the Christian and society centers around several key “concepts” which go to the heart of the Catholic citizen’s life in a pluralistic, democratic society. The Holy Father makes clear that what is at stake in the public debate regarding abortion and euthanasia, for example, is not simply a disagreement over “choices” within a pluralistic society, but is instead a grave threat to the very survival of democracy (nos. 18-20). It has become a tenet of popular culture that the Western liberal democratic ideal has now emerged triumphant in it great struggle with totalitarian ideologies.5 In his address to the United Nations, John Paul II stated, “we are witnessing an extraordinary global acceleration of that quest for freedom which is one of the great dynamics of human history.”6 However, for this pope, history does not represent some inevitable evolutionary process toward the realization of democracy. Instead, the present moment is “a turningpoint” which presents not only an opportunity to realize the “universal longing for freedom” but also an enormous threat to freedom. Evangelium Vitae (no. 18) points out that this threat to freedom consists in a great contradiction lurking at the center of democracy: abortion. John Paul II begins his analysis of what he terms this “surprising contradiction’ with a deeply pastoral appreciation of the “tragic situations of profound suffering” which can give rise to “decisions that go against life” (no. 18). The Pope takes note of the “suffering, loneliness, [and] total lack of economic prospects, depression and anxiety about the future” which can influence decisions regarding abortion, euthanasia and suicide. He emphasizes that such circumstances can mitigate even to a notable degree subjective responsibility and the consequent culpability of those who make these choices which in themselves are evil.”7 The personal tragedies which lead to decisions concerning abortion, for example, do not represent the most profound threat to democracy, however. Such acts are called “tragic” precisely because we recognize them to be wrongful and we know that the actor has submitted in desperation to circumstances which he or she felt unable to overcome. These tragedies, in themselves, do not constitute a threat to the foundation of democratic society because their “tragic” character testifies to the objective evil of what is done. Instead, John Paul II observes democratic society is imperiled by the insistence that such objectively disordered acts, however subjectively mitigated, must be transformed from crimes to “legitimate expressions of individual freedom…and protected as actual rights (no. 18). It is this inversion of “wrong” actions into “right” actions that John Paul II insists constitutes “a direct threat to the entire culture of human rights” (no. 18). This inversion is a direct threat to the future of democracy because it establishes “a perverse idea of freedom” at the very heart of democracy. John Paul II describes this disordered freedom as one which “carries the concept of subjectivity to an extreme” (no. 19). It is a concept of freedom which “exalts the isolated individual in an absolute way, and gives no place to solidarity, to openness to others and service of them” (no. 19). In short, this concept of freedom ultimately makes democratic communities impossible and destroys the foundation of democratic structures because it erodes public consensus regarding the common good. Evangelium Vitae thus moves the engagement between the Catholic and contemporary society on questions of abortion and euthanasia to a more dramatic and profound level. Rights advocates often claim that a true regard for 106 pluralism and democracy requires acceptance of abortion and euthanasia. They argue that the social divisiveness surrounding these issues can only be appropriately resolved by their “privatization” or “deregulation”. In response, John Paul II maintains that the concept of freedom implicit in abortion and euthanasia “rights” makes true respect for pluralism and enduring democratic structures impossible. He observes in Evangelium Vitae that such an accommodation is in reality an invitation for whole communities or classes of people to be “rejected, marginalized, uprooted and oppressed” (no. 18). Thus, the abortion freedom, which presents itself as essential to the realization of human freedom, instead becomes the vehicle by which the rights of many are denied. John Paul II traces the cause of this contradiction to the negation of authentic freedom—when a concept of freedom is proposed which “no longer recognizes and respects its essential line with the truth” (no. 19). This separation of truth from freedom creates a culture in which “any reference to common values and to a truth absolutely binding on everyone is lost” (no. 20). The inevitable consequence of this separation of freedom from truth is to institutionalize a destabilizing form of conflict in communities. As John Paul II writes, “If the promotion of the self is understood in terms of absolute autonomy, people inevitably reach the point of rejecting one another [and] society becomes a mass of individuals placed side by side, but without any mutual bonds” (no. 20). The impossibility of moral consensus within community ultimately makes impossible the common life of communities and the realization of the common good. The separation of freedom from truth also has implications for the role of reason in public discourse. The greatest of these implications is the marginalization of reason as the foundation of society. Thus, Evangelium Vitae observes the community is increasingly unable to maintain itself “as a community in which the ‘reasons of force’ are replaced by the ‘force of reason’” (no. 19). The result is that society is increasingly unable to achieve consensus on important moral questions. Too often this cultural transformation is hidden when the abortion/euthanasia debate is seen as simply a contest between the freedom of the individual and the imposition of morality by the State. Evangelium Vitae re-focuses this discourse by opening up a more fundamental issue. The encyclical views the abortion debate as not primarily an argument over morality or even over the question of when human life begins or ends. Instead, the most basic issue is a fundamental conflict over the nature and the dignity of the human person. In reformulating the discussion in this way, Evangelium Vitae underscores the fact that contemporary man, for the first time, finds his freedom unhinged not only from the truth of an objective, external moral order, but also from the moral truth of his own nature and dignity. This distortion at the center of the human person has diminished the possibility of authentic human communion and community. It has left the human person increasingly defenseless to accelerating threats from the anti-life culture of nihilism and death.8 This anti-life culture threatens not only the life of the human person; it threatens the life of the human conscience. Indeed, this anti-life society, in the name of freedom of choice, threatens human life precisely because it distorts and diminishes the human conscience. Thus, the encounter between the culture of life and the culture of death takes place primarily within the human conscience. The culture of death has made Thomas More not just “a man for all seasons”, but a “man for all Catholics.” The culture of death challenges all of us to bear witness to the splendor of the Catholic conscience. We should not be surprised that Evangelium Vitae calls for “a general mobilization of consciences and a united ethical effort to activate a great campaign in support of life” (no. 95). This mobilization of consciences in defense of life by “the people of life and the people for life” (no. 6) is at the center of the encyclical’s vision of evangelization. It is also the foundation of John Paul II’s approach to social justice and the law. In this way, Evangelium Vitae provides an extraordinary response to the “demoralization” of conscience brought about by the widespread practice of abortion and euthanasia. 107 However, Evangelium Vitae was not the first time the Holy Father proposed such a role for conscience in the transformation of society. In reviewing the reasons for the collapse of Marxism throughout Eastern Europe, John Paul II wrote in Centesimus Annus that “the fundamental error of socialism is anthropological in nature,” since socialism rejected “the concept of the person as the autonomous subject of moral decision” (no. 13). Centesimus Annus makes clear the the confrontation between the Church and any political order which systematically denies human rights must be focused within the conscience of each person. Like Evangelium Vitae, this earlier encyclical asserts that the mission of the Church in confronting such a culture is “to increase the sensitivity of consciences” (no. 52). Centesimus Annus observed that the collapse of communism behind the Iron Curtain occurred because “the consciences of workers have re-emerged in a demand for justice” (no. 26). For example, in Poland in 1980, Fr. Jozef Tischner defined the Solidarity movement as inherently linked to a “human dignity that is based on the conscience of human beings.” In a series of sermons given in Krakow to the leaders of Solidarity, Fr. Tischner explained that “the deepest solidarity is the solidarity of consciences.”9 The “solidarity of consciences.” which Centesimus Annus understood was capable of bringing down the anti-life culture of Marxist totalitarianism, is now proposed in Evangelium Vitae as capable of bringing down the culture of death. If, as it has been said, truth is the first victim of violence, then the culture of death is also, and inescapably, a culture at war with the truth. In fact, the culture of death can only continue in existence by hiding the truth regarding the nature and dignity of the human person. One of the most obvious falsehoods undergirding the culture of death is it refusal to recognize the humanity of the child before birth. Supreme Court Justice Harry Blackmun gave legal standing to this masking of the truth when he wrote in Roe v. Wade—the case which legalized abortion throughout pregnancy—that “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus…”10 When the culture of death is expressed in a legal system in this way it surrounds the citizen and his conscience with a social environment which separates him from the truth about who he is as a person. Thus, the legal acceptance of abortion destroys not only the child but, in some sense, every person. Writing in 1978, Vaclav Havel provided a deep insight into this phenomena. In The Power of the Powerless Havel wrote, “The profound crisis of human identity brought on by living within a lie, a crisis which in turn makes such a life possible, certainly possesses a moral dimension as well; it appears, among other things, as a deep moral crisis in society. A person who has been seduced by the consumer value system, whose identity is dissolved in an amalgam of the accoutrements of mass civilization, and who has no roots in the order of being, no sense of responsibility for anything higher than his or her own personal survival, is a demoralized person. The system depends on this demoralization, deepens it, is in fact a projection of it into society.”11 The person described by Havel as one “seduced by the consumer value system: and one whose personality is “dissolved” into mass civilization does not exist only in Marxist societies. A similar process of “demoralizing” the human person is underway in the new culture of death within Western democracies. Havel’s response is worthy of deep reflection precisely because it was a response which sought to return to the politics of his native Czechoslavakia a sense of morality in order that people might once again “be able to live within the truth.”12The rehabilitation of the “demoralized” man requires precisely the rehabilitation of his conscience through the restoration of the relationship between freedom and truth. Writing during the Second World War, Jacques Maritain explored the Christian foundations of democratic political structures. He found that in the Western democracies Christianity had not been able to supplant the secular conscience but that, instead, Christianity had been able to achieve what he termed the “evangelical inspiration” of the secular conscience.13 In Christianity and Democracy, Maritain concluded that “what has been gained for the secular conscience, if it does not veer to barbarism, is faith in the brotherhood of man, a sense of the social 108 duty of compassion for mankind in the person of the weak and the suffering, the conviction that the political work par excellence is that of rendering common life better and more brotherly and of working so as to make of the structure of laws, institutions and customs of this life a house for brothers to live in.”14 In short, Maritain proposed that there was an “evangelical inspiration” of democratic principles which has made democracy possible. Reduced to its essential character, this Christian “inspiration” of democracy achieved a political consensus that “Machiavellianism and the politics of domination” were to be rejected. In their place was established the idea that “politics depends upon morality because its aim is the human good of the community.”15 Thus, Maritain saw a vital and irreplaceable role for the Christian to engage democratic society at all levels of the political process. But an “evangelically inspired” secular conscience is not the same as a Catholic conscience or even a Christian conscience. The difficulty all too often today is that the Catholic politician possesses not a Catholic conscience, but a secular conscience with little or no evidence of any evangelical inspiration. How often do we hear a Catholic politician stating a political philosophy or guiding principles that reflect or move beyond those values Maritain concluded had been accomplished by the “evangelical inspiration” of the secular conscience? We must expect more from a Catholic politician than a secular conscience. Yet, this obligation brings with it a dilemma. Joseph Cardinal Ratzinger described it when he asked, how is it possible “to allow faith to become effective as a political force without transforming it into yet another element of power?”16 Cardinal Ratzinger also put the question in a slightly different way when he asked, “How can Christianity become a positive force for the political world without being turned into a political instrument and without on the other hand grabbing the political world for itself?”17 To choose the wrong answer, of course, opens up the prospect of what Jacques Maritain so aptly described as “the pharisaically Christian state”—the state which manipulates both faith and political power in order to preserve existing power structures. Evangelium Vitae’s answer goes in an entirely different direction. It is a response which seeks to defend both the Christian and secular conscience. In doing so, it responds within the context articulated by the Second Vatican Council: “the civil authority must see to it that the equality of the citizens before the law, which is itself an element of the common good society, is never violated either openly or covertly for religious reasons and that there is no discrimination among citizens.”18 Evangelium Vitae embraced the democratic ideal and seeks to evangelize it through a community of believers transformed into a new “people of life and people for life.” Thus, the encyclical attempts to rehabilitate the secular conscience in regard to the true principles of the democratic ideal. What Evangelium Vitae brings to this discourse (nos. 18-24) is a new awakening of moral sensitivity, the rehabilitation of the concept of freedom, and the presentation of the role and dignity of conscience. This threefold approach offers the only enduring opportunity for avoiding an unprecedented abuse of human rights of the weak, handicapped and defenseless now being fore-shadowed by the culture of death. This “inspiration” of the secular conscience is possible because, as John Paul II has observed, “there is a moral logic which is built into human life and which makes possible dialogue between individuals…. The universal moral law written on the human heart is precisely that kind of ‘grammar’.”19 But we must ask ourselves what is the language which speaks this “grammar”? It has been argued that the abortion “freedom means that women must be free to choose self or to choose selfishly…. There is no easy way to deny the powerful argument that a woman’s equality in society must give her some irreducible rights unique to her biology, including the right to take the life within her life.”20 What is surprising here is not so much the ideological basis of the rhetoric of the abortion “freedom” but its explicit identification with the culture of death. But this is not all. If the “right” to abortion may not be limited by the combined weight of an innocent human being’s “right” to life and the state’s interest in the protection of human life, how is it to be supposed that the “right” to abortion may be limited by a “right” of conscience? 109 In contrast to this view of freedom, Evangelium Vitae rejects any “notion of freedom which exalts the isolated individual in an absolute way” (no. 19). John Paul II insistence that freedom must have an “essential link with the truth” is a claim that truth is linked first and foremost not with some external moral code, but with the true identity and the true dignity of the human person—and this must include a recognition of the inviolability of conscience. As John Paul II reminded us at the United Nations, “Reference to the truth about the human person is, in fact, the guarantor of freedom’s future.”21 It is only when the dignity of the human person is recognized and respected in the public order that it is possible for men and women to live not only in freedom but in truth. Common law today is the basis for the legal systems of England and many other countries formerly under British rule including the United States, Canada and Australia, among others. England, the land of St. Thomas More, is also the birthplace of common law. Common law was originally derived from Natural Law and was seen as above and independent of the state.22 Many civil rights - even those found in the U.S. Constitution - are attributed at least in part to the common law system. “Common law emphasizes assent rather than domination, the community rather than the state, moral authority rather than physical power.”23 The system also recognized the value of precedent. However, as St. Thomas More discovered, even English common law - the independent tradition of right and wrong within a community - was unable to grant him an exclusion from taking the Oath of Supremacy based on conscience, nor did it save him from the block. However, Thomas More held true to his beliefs - and interestingly - to common law as well. In his discourse on common law, William Blackstone, one of its most famous commentator’s and a man to whom the foundational documents of the United States owe a great debt24 wrote: “Nay, if any human law should allow or injoin us to commit it [an act contrary to divine or natural law], we are bound to transgress that human law, or else we must offend both the natural and the divine.”25 Thomas More certainly held fast to this principle, as “the King’s good servant, but God’s first,” however, King Henry made no allowance for a man’s conscience. Thankfully, England and other common law countries grew more tolerant of conscience in the years that followed, but to this day there is no absolute standard in common law countries with reference to exemptions on behalf of conscience for medical or pharmacy personnel confronted with issues of conscience, and common law countries struggle to balance the rights of conscience with perceived “rights” to various medical procedures. However common law countries generally seem to be moving in the direction of accepting at least some conscience claims, though there are troubling exceptions. To follow their conscience, providers of health services have sometimes had to pursue legal action, however, in many cases the right to conscience seems to have prevailed in common law countries and thus, in many instances, doctors, other medical staff and pharmacists such countries can make successful moral objections to performing certain procedures such as abortions - or dispensing certain drugs, such as so-called “emergency contraception.” [I have limited this commentary to abortion and the dispensing of abortifacients since they are the most likely to cause grave moral concern among health care providers. Moreover, the apparent trend toward allowing conscience exceptions for health care providers in this area may well set a precedent in other (newer) areas of medicine fraught with ethical dilemmas]. The trend toward freedom of religion and conscience has been building over the past centuries. Certainly, the last hundred years have brought a greater tolerance of religious ideas in England, with restrictions on Catholic finally lifted in the early 19th century, and the United States has, since the late 18th century enshrined religious freedom as a preeminent right. There is thus reason to hope that we may be moving toward a situation in which the precedent will be established that provides a greater understanding and accommodation of the conscience of the individual healthcare provider. However, there is not unanimity of opinion and contradictory decisions about the freedom of conscience in this area continue. “‘This issue is the San Andreas Fault of our culture,’ said Gene Rudd of the Christian Medical & Dental Associations. ‘How we decide this is going to have a long-lasting impact on our 110 society.’”26 While many jurisdictions have moved to incorporate some element of a conscience exemption into the law, especially in the areas of abortion and contraception, the absolute right to such an exemption is not yet universally accepted -and is the subject of widespread debate and lobbying by abortion advocates, who often seek to force those in the medical profession to perform immoral procedures.27 Too common are opinions like that of philosophy professor Ken Kipnis: “If your religious orientation is such that you can't discharge your professional responsibilities, then you shouldn't take on those responsibilities in the first place […] You should find other work.”28 Fortunately the law has often been more generous to healthcare professionals. With respect to abortion, an early example of a conscience clause occurs in England. Section 4(1) of the Abortion Act of 1967, which states: No person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised (sic) by this Act to which he has conscientious objection […]29 While the burden of proof of the conscientious objection rests with the person making the claim, a statement under oath that the person indeed has such an objection “shall be sufficient evidence for the purpose of discharging the burden of proof.”30 Section 4(1) of the 1967 Act… was not in the original bill, but was introduced in response to concerns that doctors would be under pressure to perform terminations against their beliefs. Interestingly, one amendment that didn’t make the final Act proposed that, ‘no person [shall be]…deprived of, or be disqualified from, any promotion or other advantages by reason of the fact that he has such conscientious objection.’31 So it would seem, the protection, while better than nothing, is limited. Pharmacists in England also appear to enjoy the benefit of certain conscience exemptions. The Royal Pharmaceutical Society allows some freedom of conscience for pharmacists: “The Code of Ethics, Part 2A1(k) states “that before accepting employment pharmacists must disclose any factors which may affect their ability to provide services. Where pharmacists’ religious beliefs or personal convictions prevent them from providing a service they must not condemn or criticise (sic) the patient and they or a member of staff must advise the patient of alternative sources for the service requested.”32 However, because the guidelines do stipulate that a pharmacist must “advise the patient of alternative sources for the service requested,” pharmacists objecting to providing a particular prescription may find themselves in the awkward position of having to be if not actors, at least accomplices. Some have evidently refused to refer their patients, and the legal consequences of such actions are, as of now, unclear.33 In fact, the issue of referral has become a sticking point in many common law countries as health care professionals refuse to be involved in immoral treatment in any way. It seems that many common law countries have followed England in allowing physicians and pharmacists to decline to dispense medical services that they find morally unacceptable - at least under certain conditions. In Canada, a 2002 article in the BC Catholic noted: They remain anxious, but Canadian nurses seem to have their right to conscientious objection worked out, for the most part. The nurses’ code of ethics and their collective agreements recognize their right to withdraw from giving care that offends their morality as long the patients they tend are placed in others’ care… However, a recent contract cancellation at B.C. Women’s Hospital, as well as developments in other provinces, raises doubt as to whether nurses do in fact enjoy unfettered freedoms of conscience and religion.”34 The article cites several examples of nurses whose hospitals were forced to participate in abortions, though, in most of the cases, the results - sometimes after years of struggle -favored those who held to their conscientious objection. The Canadian Medical Association discourages any discrimination stating: “No discrimination should be directed against doctors who do not perform or assist at induced abortions. Respect for the right of personal decision in this area must be stressed, particularly for doctors training in obstetrics and gynecology, and anesthesia.”35 111 “Pharmacists across Canada have the right to refuse to sell the contraceptive as a ‘matter of conscience’ as long as they refer customers to someone who will,” the Daily Herald Tribune in Grande Prairie, Alberta, reported earlier this year.36 Both in Canada and in Australia, things seem to be improving for conscientious objectors. Many legal battles and debates over conscience were seen over the past twenty to thirty years, with a shift in favor of conscience as the norm. Australia generally allows for conscience exclusions for doctors and pharmacies. For example, in 2002, along with passage of a liberal abortion law in Canberra, a conscientious objection amendment allowed doctors to opt out of the procedure.37 In many areas of the country including the Australian Capital Territory, South Australia, Tasmania and Victoria the law allows medical personnel to opt out of performing abortions.38 The Age in Australia reported in 2003 that “[p]harmacists who are morally opposed to selling emergency contraception can refuse to dispense the drug but may leave themselves open to legal action.”39 In 2004 CNS News reported that a pharmacist “who has moral objections is not obliged to supply a product, but is expected to refer the customer to an alternative source.” The story went on to report that some pharmacists are refusing “to refer customers to other suppliers.”40 As recently as last year the debate continued in Australia: “Health Minister Tony Abbott believed individual pharmacists had the right to choose whether they supplied the morning-after pill. But the Federal Opposition maintained pharmacists were obliged to offer a full range of products, particularly in one-chemist towns.”41 There is some gray area, to be sure, but overall, the idea of a conscience-exemption for those morally opposed to procedures such as abortion seems to be making headway in Australia. In the United States, both the Federal Government and many states have provided some conscience exemptions for doctors who are morally opposed to abortion: The dispute over abortion access began almost as soon as the U.S. Supreme Court legalized the procedure in 1973. Six months later, Congress carved out exceptions for doctors and hospitals with moral objections to abortion. Forty-seven states passed similar laws. Louisiana’s, one of the most restrictive in the nation, says no one should be forced to ‘recommend or counsel’ an abortion, either.42 More recently, Congress took steps to protect health care workers whose consciences prevent them from performing abortions. The Weldon Amendment became Federal Law in 2004 and gave “federal protection for health care providers, including hospitals and insurers, who choose not to participate in abortion.”43 The Amendment stated: (1) None of the funds made available in this Act [the federal Health and Human Services appropriations bill for Fiscal Year 2005] may be made available to a Federal agency or program, or to a State or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions. (2) In this subsection, the term “health care entity” includes an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.44 The amendment was not universally accepted. California’ Attorney General Bill Lockyer quickly filed suit to block the Amendment from taking effect. [The case is still pending]. For pharmacists in the United States, the laws vary according to state. As of Aug. 1 of this year: Four states - Arkansas, Georgia, Mississippi, and South Dakota - have passed laws allowing a pharmacist to refuse to dispense “emergency contraception” drugs. Illinois passed an emergency rule that requires a pharmacist to dispense FDA-approved contraception. Colorado, Florida, Maine, and Tennessee have broad refusal clauses that don't specifically reference pharmacists, while California pharmacists have a duty to dispense prescriptions and only can refuse when their employer approves the refusal and the patient can still access the prescription in a timely manner.45

112 Unresolved and troublesome issues remain, however. While pharmacists and medical personnel can often have recourse to a conscience exclusion, hospitals - including Catholic hospitals - are increasingly under attack by laws requiring them to provide so called “emergency contraception” to rape victims. Connecticut is part of a growing number of states that are considering or have passed legislation requiring hospitals to dispense Plan B or at least provide information about the emergency contraception to rape victims. According to advocacy groups, Massachusetts, California, New Jersey, New Mexico, New York, South Carolina and Washington require hospitals to dispense the drug. Catholic hospitals are not exempted from those laws, yet the laws in New Jersey and New York include provisions to appease the church that prevent the pill from being given if a woman is already pregnant. Similar bills are pending this session in 12 states, including Connecticut.46 The Connecticut bill was defeated, but the trend toward forcing hospitals to provide unethical treatment is troubling. Also troubling is the fact that abortion can be made nearly mandatory for physicians in training, with career consequences if they opt out. Such is already the case in New York City: In July 2002 the 11 public hospitals in New York City imposed mandatory abortion training for all medical residents. Amid the bad news, an encouraging sign has been reported. Some 25 percent (or 38 of the approximately 150 doctors in residency training) have opted out of the abortion program, though doing so could compromise their medical careers.47 Challenges to the conscience of a health care professional certainly continue in common law countries, and the current system of dealing with such issues in these countries is far from adequate, or uniform. The problems will only grow as new unethical procedures become seen as “the norm” by some and as a “right” by others. A good overview of the situation in the United States, at least occurred in 2002 when the United States Conference of Catholic Bishops submitted a statement to Congress, which included the following: While the principle of protection for conscience rights is widely acknowledged, its implementation has been far from perfect, creating a need for more comprehensive and forward-looking legislation. Most federal conscience protections apply only to specific federal programs or are tied to the receipt of federal funds.(5) Their scope is limited by this fact, and by the narrow range of procedures covered. Though the majority of states acknowledge and protect rights of conscience, their laws suffer from similar inadequacies. Most of these laws are limited to abortion. Only a few states protect health care providers from being forced to perform sterilizations. Few existing laws protect the full range of individuals and institutions that may be involved in providing health care in our increasingly complex health care system. Many states do not protect the rights of conscience with respect to newly created technologies such as cloning or embryonic research, or even current misuses of older technology such as ‘surrogate’ motherhood. States have also not addressed the need to protect providers with respect to new threats to human life at the end of life, such as physician-assisted suicide and euthanasia. As noted by one commentator: ‘As the range of medical technologies continues to expand..., the number of medical services involving potentially serious conflicts of conscience is certain to increase.’(6) Finally, with new organized threats to conscience on the horizon, it is especially important for states to expand and strengthen their existing protections now. These threats have become especially apparent in recent years in the fields of abortion and contraception, as reviewed below.48 Common law countries certainly have much to do to develop more fully the ideal of a conscience clause for those in the medical field. However, the fact that in most common law countries some accommodation at least seems to be made for the conscience of those in the health care field provides hope. It may also provide a precedent upon which we can work to build a society that does not require any protector of life with moral objections to unethical medical procedures to actively participate in a culture of death. It may seem that the discussion of the role of conscience of a Catholic politician and of a Catholic health care provider are two distinct, unrelated issues. However, if it is true that much of the difficulty 113 for Catholic politicians concerns the failure to adequately form a Catholic conscience or to properly understand the implications of the demands of conscience on one’s public responsibilities, then it is difficult to see how it will be possible in the future to fashion laws—either by legislative or judicial action—that respect the rights of a properly formed conscience. Once again we are reminded of a scene from A Man for All Seasons, this time of the conversation between More and his friend, the Duke of Norfolk. It is clear that More’s stand on conscience is really incomprehensible to the duke since he asks More to join the other members of the nobility in agreeing to the demands of the king for the sake of friendship. When More asks the duke whether after he has done what has been asked whether the duke will then follow More into hell for violating his conscience for friendship’s sake, the duke complains of More’s obstinacy. In short, how can we expect those who have failed to take due care of their own conscience to properly care for the consciences of others? John Paul II has elevated the role of Catholics by insisting in Veritatis Splendor and Evangelium Vitae that any moral consensus within society must be one which recognizes the three fundamental principles of the culture of life. The first is the incomparable value and dignity of every human being regardless of age, condition or race. This is especially true in the case of the poor, the weak and the defenseless. And this is also true for the dignity of the human conscience. The second is that it is always a violation of human dignity to treat anyone as an instrument or means to an end. Instead, every person must be seen as good in himself or herself and never as an object to be manipulated. The third principle is that the intentional killing of an innocent human being, whatever the circumstances and particularly in cases of abortion and euthanasia, can never be morally justified. In these moral principles we can see that the Church’s mission in building the culture of life is inseparable from the legacy of the Second Vatican Council. This is especially the case in regard to the teaching of the Council on conscience, freedom and human dignity. By insisting that the Catholic people must be “a people of life and for life” (no. 6), John Paul II has outlined the mission of the Catholic people in the conversion of culture. In this mission, Evangelium Vitae presents a blueprint for Catholic identity in the Third Millennium in which “the dignity of the person and the Gospel of life are a single and indivisible Gospel” (no. 2). In becoming “a people of life and for life” Catholics will bear witness most truly to the truth, to conscience and to the possibility of building a culture of life. But “a people of life and a people for life” can only be so if it is at the same time “a community of consciences for life” or what John Paul II might have called “a great solidarity of consciences for life.” A Catholic people must have a Catholic conscience and that conscience, to be Catholic, must be for life.

114 ENDNOTES 1. Robert Bolt, A Man for All Seasons (New York: Random House, 1960), p. 91. 2. Ibid., p. 22. 3. Complete Works of St. Thomas More, ed. Clarence Miller (New Haven: Yale University Press, 1976), vol. 14, pt. 2, p. 775. 4. Thomas More, “De Tristitia Christi”, Complete Works of St. Thomas More, ed. Clarence Miller (New Haven: Yale University Press, 1976) vol. 14, pt. 1, pp. 3-4. 5. F. Fukuyama, The End of History and the Last Man (The Free Press, New York 1992). 6. John Paul II, Address to the General Assembly of the United Nations, October 5, 1995; L’Osservatore Romano(English edition, October 11, 1995) p. 8. 7. John Paul II’s recognition in no. 18 of the suffering and sense of hopelessness which often pervades these decisions against life and his sensitivity in no. 99 in discussing pastoral responses to women who have had abortions reflect the depth of commitment to “solidarity” which runs through the encyclical. 8. C. Anderson, “’Evangelium Vitae’ e cultura post-moderna” in Evangelium Vitae: Enciclica e Commenti (Libreria Editrice Vaticana, Citta del Vaticano 1995) also printed in L’Osservatore Romano 28 April 1995. 9. J. Tischner, The Spirit of Solidarity (Harper and Row Publishers, San Francisco 1984) p. 4. 10. Roe v. Wade, 410 U.S. 113 (1973). 11. Reprinted in V. Havel, Living in Truth (Faber and Faber, London 1986), p. 62. 12. Ibid., p. 63. 13. J. Maritain, Christianity and Democracy (Ignatius Press, San Francisco 1986) (first edition French 1943). 14. Ibid., p. 46. 15. Ibid., pp. 42-43. Certainly not all of Maritain’s contemporaries were as sanguine regarding the influence of Christianity in the modern democracies. For example, Christopher Dawson wrote in 1938, “It may, I think, even be argued that Communism in Russia, National Socialism in Germany, and Capitalism and Liberal Democracy in the Western countries are really three forms of the same thing, and that they are all moving by different but parallel paths to the same goal, which is the mechanization of human life and the complete subordination of the individual to the state and to the economic process. Of course, I do not mean to say that they are all absolutely equivalent, and that we have no right to prefer one to another.” See, C. Dawson, Religion and the Modern State (Sheed and Ward, New York 1938), p. XV. 16. J. Ratzinger, Church, Ecumenism and Politics: New Essays in Ecclesiology (St. Paul Publications, New York 1988) (first edition German 1987), p. 173. 17. Ibid., p. 216. 18. Second Vatican Ecumenical Council, Declaration on Religious Liberty Dignitatis Humanae, 6 (1965). 19. Address to the General Assembly of the United Nations, October 5, 1995, op. cit. 20. N. Wolf, “Our Bodies, Our Souls”, The New Republic, October 16, 1995, p. 33. 21. Address to the General Assembly of the United Nations, October 5, 1995, op. cit. 22. Robert Clinton, God and Man in the Law: The Foundations of Anglo-American Constitutionalism. (Lawrence: Univ. of Kansas Press, 1997) 102-103. 23. James Stoner, Jr., Common-Law Liberty: Rethinking American Constitutionalism. (Lawrence: Univ. of Kansas Press, 1999) 5. 24. Wayne House, “A Tale of Two Kingdoms: Can There be Peaceful Coexistence of Religion with the Secular State?”BYU Journal of Public Law. (vol. 13, 1999) 221. 25. Quoted in Wayne House, “A Tale of Two Kingdoms: Can There be Peaceful Coexistence of Religion with the Secular State?” BYU Journal of Public Law. (vol. 13, 1999) 235. 26. Rob Stein, A Medical Crisis of Conscience in The Washington Post July 16, 2006, A1, (online). 115 27. Feminist Majority Foundation, Feminist Daily Newswire Sept. 24, 2002http://www.feminist.org/news/newsbyte/uswirestory.asp?id=6910 28. Stein. 29. Abortion Act of 1967 quoted in www.consciencelaws.org/Conscience-laws- United- Kingdom/LawUK01.htm 30. Ibid. 31. Jacky Engel, Abortion Law Reform and Conscientious Objection in the United Kingdom in Nucleus October 2004.http://www.consciencelaws.org/Conscience-Archive/Documents/Abortion % 20Law%20Reform%20UK.html#13. 32. The Royal Pharmaceutical Society of Great Britain, Fitness to Practise and Legal Affairs Directorate: Fact Sheet: Thirteen, Employing a Locum/Working as a Locum. November 2005. http://www.rpsgb.org/pdfs/factsheet13.pdf 33. Terry Sanderson, Nothing for the Weekend, in The New Humanist. May 3, 2005 34. Greg Edwards, Accommodating Conscience in The BC Catholic, Oct. 2002 http://www.consciencelaws.org/Examining-Conscience-Background/ Abortion/ BackAbortion29.ht ml 35. http://www.cma.ca/index.cfm/ci_id/3218/la_id/1.htm 36. Pharmacists in Religious Community Balking at Plan B Pill in The Daily Herald Tribune, Jan. 31, 2006, p. 7. (Lexis) 37. David McLennan, It’s not over say abortion adversaries Canberra Times. Aug. 24, 2002, C3. (Lexis) 38. http://www.childrenbychoice.org.au/nwww/auslawprac.htm 39. Miranda Wood Morning-after Pill Available over the Counter in The Age Dec. 28, 2003 40. Patrick Goodenough, Objecting Pharmacists Refuse to Sell ‘Morning-After-Pill’ Cybercast News Service Jan. 6, 2004 41. Danielle Cronin, Morning After Pill Refused: ‘Battleground’ over Contraceptives Supply in Canberra Times. April 2, 2005 A9. (Lexis) 42. Bill Walsh, Wording Bolsters Foes of Abortion: Women in Senate are Ready to Fight It in Times Picayune Nov. 29, 2004, National 1, (Lexis). 43. http://www.nrlc.org/federal/ANDA/HydeWeldonwebnrlnews.html 44. Ibid. 45. States look at pharmacist 'conscience' laws regarding EC in Drug Formulary Review Aug. 1, 2006, (Lexis). 46. Susan Haigh, Connecticut Bishops Pursuing Stricter Interpretation of Abortion, Associated Press, March 12, 2006, (Lexis). 47. http://www.projectreach.org/nycDoctors.shtml 48. http://www.nccbuscc.org/prolife/issues/abortion/kansas202.htm

116 PATRICIO VENTURA-JUNCÁ

OBJECTION OF CONSCIENCE, TESTIMONY IN MEDICAL HEALTH PRACTICE: THE CASE OF EMERGENCY CONTRACEPTION (EC)

1. The debate on the abortive effect of levonogestrel used for EC and objection of conscience I will discuss the scientific and ethical problems of EC, specifically its use for such purpose of Levonogestrel (LNG) also known as the Morning-After Pill (MAP), to exemplify the issue of the objection of conscience in the medical health field. In Chile, the Ministry of Health has decreed that LNG be supplied free of charge at public outpatient clinics to anyone who requests it, including adolescents between the age of 14 and 18, with no permission from, or information to, the parents being required. Women asking for LNG are told that it does not interfere with implantation. Several local governments have refused to distribute this pill arguing that in principle they cannot knowingly supply a drug that might compromise a human life, much less to minors. In the ethical debate over EC, in addition to the general objections raised by contraception in general, a major additional point arises: its possibly abortive effect. Public debate has focused on the latter issue, especially in Latin America, where abortion is not legal in many countries. Therefore legal issues arise over the approval of the pill. The ethical problems of contraception and abortion are different and arouse different moral sensitivities, although there is a strong ideological connection between them. 1 In this context, there is also the obligation of the health authorities to provide the population with full and clear information on the above effect. The debate makes sense to those who acknowledge that modern genetics and embryology have shown that the life of a new human being begins at fertilization and that every human being enjoys an irrevocable right to life regardless of the stage of development or progression of cognitive faculties. Latin American culture retains a major degree of sensitivity concerning such issues, and that is why the debate has been and continues to be focused on the scientific evidence of the abortive effect. We do not refer here to the WHO definition of abortion, which leaves the pre-implantatory embryo unprotected, but to the real and substantive concept of abortion, i.e. “no word has the power to change the reality of things: procured abortion is the deliberate and direct killing, by whatever means it is carried out, of a human being in the initial phase of his or her existence, extending from conception to birth.” 2 Initially in Chile, during the trial before the Supreme Court regarding the legality of marketing LNG, Chilean Health authorities admitted that one of the possible effects of the pill was to prevent embryo attachment in the uterus, but acknowledged that LNG was not abortive according to the WHO definition. Marketing LNG was prohibited by the Supreme Court in view of the real definition of abortion.3 From then on, defenders of LNG focused their arguments on the notion that new available scientific evidence denied any anti-implantatory effect; the Supreme Court reversed the prohibition, finding that the problem should be solved by the scientific community.

2. Purpose of emergency contraception Research into EC has been designed to find drugs that are highly effective in reducing the likelihood of pregnancy following ´potentially fertilizing sexual intercourse’(PFI), 4 5 6 usually known as unprotected intercourse. Referring to the administration of drugs in such a case by the name of emergency contraception introduces language misleading to the public, who usually understand such a term to mean “preventing conception or fertilization”7, whereas such is not the sole object sought. Researchers themselves admit that for highly effective reduction of the likelihood of pregnancy, it is not enough for an EC pill to have a contraceptive effect by blocking either ovulation or fertilization, but that “it should be capable of interfering with a physiological event that occurs after fertilization, during the early embryonic development prior to implantation” 4 (Figure 1). The following should be stressed: the

117 abortive or interceptive effect* was not suggested by people contrary to EC but by the same researchers who were explicitly exploring drugs with such effect. This implies that EC was proposed from an ideological position that -although not explicitly declaring as much- in fact denied human beings the right to life in the pre-implantation stage. EC drugs, in contrast with regular contraceptives, are prescribed following PFI. Use of LNG is recommended soon after PFI, in 2 doses of 0.75 mg with a 12-hour interval, or in a single dose of 1.5 mg.

3. Effectiveness of LNG LNG effectiveness in reducing the probability of pregnancy is higher the earlier it is taken. It is calculated to be about 85% if ingested in the first 72 hours after a PFI, and 60% between 72 and 120 hours. To understand the method used to measure the effectiveness of EC it should be recalled that a woman becomes pregnant only if she has had sexual intercourse during the fertile days of her menstrual period, i.e. five days before and one day after ovulation. Wilcox calculated the probability of pregnancy based on the day of sexual intercourse in relation to ovulation (Figure 2). 8 Others, like Trussell, have made similar calculations.9 It is thus possible to estimate the expected pregnancies for a specific group of women by multiplying the number of women who had sexual intercourse on a certain fertile day in relation to ovulation, by the estimated probability of pregnancy for that day. EC effectiveness has been calculated by comparing the number of pregnancies observed in groups of women who took LNG with the number of pregnancies expected in the absence of the drug. Effectiveness is equal to 1-O/E, where O = observed pregnancies and E = expected pregnancies. By way of illustration, in one of the studies where LNG was given to 976 women, observed pregnancies totaled 11, whereas calculated expected pregnancies were 75.3. Effectiveness is equal to 1- 11/75.3 = 85%. This means that the probability of clinical pregnancy has diminished by 85% with the use of LNG. Two important biases affect the above method for calculating effectiveness and have been pointed out in a number of publications: a. expected pregnancies are calculated in a group of women whose characteristics differ from those of the group that received LNG; and b. the day of ovulation is estimated from the menstrual cycle. Although only women with regular cycles were accepted in all studies, this form of estimation is known to be inaccurate. Such methodological limitations for calculating LNG effectiveness preclude having a consistent estimate, and reported figures are deemed to be approximations only.10 11 The issue is admitted by researchers: “Although there is general agreement that emergency contraception protects against unwanted pregnancy, the magnitude of the protective effect continue to be a matter of debate. This debate may well never be concluded because, to settle the question, a randomized trial would have to be conducted comparing pregnancy rates in treated and placebo groups, and this would be unethical”.10 Here the term unethical does not refer to the possibility of the drug being abortive, but to the fact that a placebo could not be given to women seeking to avoid unwanted pregnancy. The five major randomized studies, four of them under the direction of, or with the assistance of the “research group on post-ovulatory methods of fertility regulation,” of the WHO12 13 14 15 16 comparing LNG with other EC drugs, have employed the foregoing method to assess LNG effectiveness.

4. LNG mechanism of action Three possible mechanisms of action to explain the effectiveness of any EC are recognized by all researchers: inhibiting or disrupting ovulation, interfering with fertilization and inhibiting implantation.” 17 18

118 For many years the mechanism of action of EC and especially of LNG was studied very little. Researcher interest focused mainly on improving effectiveness. Interest in studying its effect on implantation emerged because many women rejected its use owing to ethical concerns. WHO mentions the issue: “Although the treatment regimens used in emergency contraception may simply consist of altered doses of widely available contraceptive pills, women may hesitate to use them because of religious, cultural or other reasons. It is important, therefore, to clarify just how emergency contraceptives work so that women can decide if these methods are acceptable to them and can choose between the methods in case their modes of action are different.” 18 WHO appears to assume that respect for the life of the pre-implantatory embryo is due primary to cultural or religious reasons. More is known today concerning the possible mechanisms of action involved, although “the precise mode of action is still indeterminate.”19 a. Effect on ovulation. A number of studies show that LNG administered in the pre-follicular (pre- ovulatory) period may interfere with ovulation. Its effectiveness will depend on proximity in time with the peak of the luteinizing hormone (LH) preceding ovulation. Prior to the LH peak, its effectiveness in causing ovular dysfunction would be about 79%-85%. 20Various authors have reached similar conclusions.21 22 23 No studies have assessed ovulation blockage in the real life situation where LNG is taken, i.e. after PFSI. The foregoing may be important in actual assessment of blocked ovulation, for sexual activity can influence ovulation24 and also the circumstances in which it takes places, for instance, in a case of rape. b. Effect on spermatozoa. This mechanism is difficult to study and there are few studies on the subject. 25 26 27 There is evidence that the administration of LNG 3 to 10 hours post intercourse increased the viscosity of the cervical mucus, beginning at 9 hours after ingestion, preventing further passage of sperm into the uterus. In vitro, LNG failed to show any effect on the motility of spermatozoa or on their acrosomic reaction. The fact that sperm reaches the tubes a few minutes after sexual intercourse28 makes it unlikely that this mechanism should play a major role in LNG effectiveness.4 29

5 Effect of LNG on implantation This has been the most widely debated issue. The studies have different levels of evidence that must be clearly distinguished Preliminary and indirect evidence. A major portion of the information supplied to the public assuring that LNG does not alter implantation comes from this type of evidence. a. Animal studies. Preclinical studies are an important reference for clinical studies, but cannot be considered evidence. In some cases the effect on humans is not the same as on other species and there is also the difficulty of making the dosage comparable. Indeed, out of five drugs that pass the screen of preclinical tests, only one wins approval for use on humans30 31. b. Studies of some post fertilization events that could alter implantation. Possible post- fertilization processes that could be altered by the use of LNG include transport of the zygote through the Fallopian tubes; preimplantation development; endometrial receptivity; sufficiency of the corpus luteum; and uterine ability to retain the embryo.6 Of these physiological events, “the sole post-fertilization mechanism investigated in women is alteration of endometrial receptivity, an indirect mechanism.”6 Initially, several authors found endometrial alterations upon administering LNG before and after ovulation. 32 33 34. Recent studies, using the recommended doses for EC and techniques thought to be more accurate, have found no such alterations.35 36 One author has found alterations with higher doses of LNG used for EC and suggests that: “the surface alterations seen with high doses may not be detected under the influence of recommended doses, but the underlying molecular changes, caused by levonorgestrel, may correspond to the contraceptive effect”.37 A recent study showed that when LNG

119 was given before the LH peak in women whose ovulation was not inhibited, there was a drop in Glicodeline A, which “might reflect a reduction of the immuno-suppressive environment at the time of implantation” and might be an element to alter implantation.38 Most researchers, however, consider that to date there is no consistent evidence to support alteration of endometrial receptivity. In any event, whether or not alterations are found in the endometrium and its receptivity markers is not decisive evidence in determining the possible effect of LNG on implantation. It must be pointed out also that there are other post-fertilization physiological events that have not been studied. We believe that the debate has often erroneously focused on expert physiological opinions, animal studies, and indirect studies of endometrial morphology and receptivity. This information is important, but it cannot give a final and precise answer to the question regarding the effect of LNG on implantation in humans. The answer to this question requires an epidemiological study that should compare the probability of pregnancy in randomized clinical trials (RCT) where LNG is administered on certain days of the menstrual cycle when it cannot act on ovulation or sperm. This is the only way to definitively prove an effect of any drug universally accepted.39 The approval of any drug includes a set of sequential trials to assess the information about effectiveness and safety that is needed to weigh the overall benefit-risk relationship of the drug40. It must be said that all the studies in EC have focused on the assessment of the benefit-risk relationship for the women, but not on the safety of the embryo, who derives no benefit from these drugs.

Direct epidemiological evidence. To date no reliable test for fertilization can detect the presence of a new human being under gestation. This can be done only after the implantation process has begun.† As a result, it is not possible to check directly whether LNG reduces the number of embryos implanted. However, substantive information may be acquired by examining LNG effectiveness relative to the day of the cycle when it is taken. Researchers agree that the mechanism of action of LNG is dependent on the period of the cycle when the drug is taken.4 5 6 If the drug only acts to block ovulation, it would not be effective when taken on days following ovulation. Therefore, to answer the question concerning the effect of LNG on implantation (abortive effect), it is necessary to assess the effectiveness of LNG taken on days of the cycle when it is not possible for it to inhibit ovulation, that is, from 1 day before to 4 or 5 days after ovulation (Figure 1). One way to estimate such effectiveness would be to separate out all the women, from the five studies mentioned above, who received the drug on the day of ovulation or on the days following it, and then estimate the effectiveness of the drug in reducing the probability of pregnancy. Information on the day of the cycle when the women received the drug exists, though it is not available through the publications. If these data were made known, such a study might be performed and more powerful and precise information regarding this effect could be obtained. These results will have the methodological limitations discussed above: the lack of a control group and inaccuracy of the day of ovulation. Some authors claim that for those very reasons such a study would be worthless. However, for the same reasons such authors should conclude that the estimations of the effectiveness of LNG would also be worthless, because in all the studies the expected pregnancies were calculated according to the day when sexual intercourse took place in relation to the day of ovulation. Even though this information is lacking, two facts still strongly suggest that LNG may have an anti implantatory effect. a. One is the information we have from one of the WHO studies on 243 women who had sexual intercourse one day earlier or one day later than expected ovulation13. These women took LNG on a day in the cycle when ovulation could not be inhibited. LNG effectiveness was 88%: 4 pregnancies observed, 33 expected (E = 1-4/33) according to data from this study (Table 1, Figure 3). In addition, it must be considered that 46% of the 243 women took the pill in the first 24 hours after intercourse; 36% between 24 and 48 hours. and 19% between 48 and 72 hours. The only possible explanation for the effectiveness of LNG in these women is inhibition of implantation. It could be argued that some of the 120 effect could be due to action on the viscosity of cervical mucus inhibiting further passage of sperm into the uterus. But this would only be possible if LNG is taken before fertilization has taken place and a few hours after intercourse. b. The other is that the latest studies mentioned above 14 15 16, including a total of 5800 women, show that LNG continues to be effective, though in a lower percentage, even when taken between 72 and 120 hours after. (Table 2) This makes it highly likely that LNG was taken on days when it is impossible to block ovulation, given that a woman’s fertile days are up to 5 days before ovulation.

6. Final ethical considerations a. From an ethical standpoint, the sole fact that EC is intended to have an “interceptive” or abortive effect, and that there are facts showing that such an effect is likely to exist, makes its use inadmissible for all who respect the life of all human beings. This justifies health providers and decision-makers responsible for the pill being distributed or not in refusing to distribute it on the grounds of objection of conscience. b. According to the principle of bioethics known as the respect for persons or the principle of autonomy, society should protect human beings unable to exercise autonomy41. Referring to persons incapable of consent, the recent UNESCO Universal Declaration on Bioethics and Human Rights42 states that: “special protection is to be given to persons who do not have the capacity to consent” and that “research should only be carried out for his or her direct health benefit” (Article 7). And it adds, “Individuals and groups of special vulnerability should be protected and the personal integrity of such individuals respected.”(Article 8). This is the case of the human being at this stage of life before implantation. Accordingly, irrespective of the level of evidence available on the abortive effect of LNG, what is scientifically and ethically important is that the human embryo derives no benefit from the use of LNG, that inhibiting implantation was the original intent of the promoters of EC, and that existing epidemiological data show that it does so. c. Based on the same principle, persons are entitled to full and truthful information in order to make autonomous, justifiable, and conscientious decisions. The public are entitled to know that one of the objects of EC, including LNG, is to obtain an “interceptive” or abortive effect; that there is factual evidence showing that LNG can have such an effect when taken on certain days of the menstrual cycle; and that no published study has consistently rejected this. In the editorial of the August 2006 issue of Contraception, James Trussell, one of the main researchers and promoters of Emergency Contraception (EC), writes as follows on the subject: “To make an informed choice, women must know that ECPs … may prevent pregnancy by delaying or inhibiting ovulation, inhibiting fertilization, or inhibiting implantation of a fertilized egg in the endometrium” In another recent paper, he states: “In the absence of absolute proof about Plan B’s mechanisms of action, the right to make personal decisions about whether its use is morally acceptable must be respected and for that reason women should continue to be informed, as they are now in the Plan B labeling, that its use may affect post fertilization events.”43 Although we disagree profoundly with J. Trussell regarding the respect for life that a human being deserves in the initial stages of development and in health-care strategies to reduce teenage pregnancies and so-called “unwanted pregnancies”, we cannot but agree on the obligation to provide clear and truthful information on the fact that LNG can alter implantation, which means elimination of a human being. d. Many say that objections to emergency contraception and respect for life arise only among groups of Roman Catholics motivated by religious reasons. This is not so. Respect for the life of an innocent human being is one of the fundamental human rights. What is true is that such respect acquires a new dimension in the perspective of the Sacred Scriptures. As Pope Benedict XVI has said: “the love of God makes no difference between the newly-conceived infant still in the mother's womb and the child, the youth, the adult, and the elderly. God makes no distinction among them because he sees in each an impression of His image and likeness (Gn 1:26) He makes no distinctions because reflected in all 121 human beings He perceives the traits of his only-begotten Son, in whom He chose us for his children “. . . before the foundation of the world . . . in love he destined us for adoption to himself. . . in accord with the favour of his will" (Eph 1: 4-6).” 44 NOTES *As the authors worked with the WHO concept of abortion, which excludes intentional elimination of the preimplantatory embryo, they used the term “interceptive effect” to describe de inhibition of implantation. † Initially, this is done by chemical methods based on chorionic gonadotropin levels, later by clinical signs of pregnancy.

REFERENCES 1 “It is true that contraception and abortion, from the standpoint of morals, are specifically distinct evils: the former contradicts the full truth of the sexual act as the expression of conjugal love, the latter destroys the life of a human being; contraception is opposed to the virtue of matrimonial chastity, abortion is opposed to the virtue of justice and directly violates the divine precept: "thou shalt not kill“. Despite their diverse nature and moral weight, they are often intimately related like fruits of the same plant. It is true that there is no lack of cases where contraception and even abortion are reached under the pressure of many existential difficulties that, nonetheless, can never exempt from the effort fully to observe the Law of God. In a great many other cases, however, such practices are rooted in a Hedonist and irresponsible mentality regarding sexuality and presuppose an egotistical concept of freedom that sees in procreation an obstacle to the personality. Thus, the life that might grow from the sexual encounter becomes an enemy to be absolutely avoided, and abortion is the sole possible answer to frustrated contraception.“ (Evangelium Vitae 13). 2 EV 58 3 Supreme Court, Judgment, 30 August, 2001, p. 1011 4 Von Hertzen H. and van Look PFA., Research on new methods of emergency contraception Research on new methods of emergency contraception. Fam Plann Perspect. 1996 Mar-Apr;28(2):52-7, 88 5 Glassier A. Emergency postcoital contraception. N Engl J Med 1997; 337:1058-64 6 Croxatto HB, Devoto L, Durand M, Ezcurra E, Larrea F, Nagle C, et al. Mechanism of action of hormonal preparations used for emergency contraception: a review of the literature. Contraception 2001;63:111-21 7 Hamel R PhD: Popular wisdom understands conception as fertilization of the ovum by the sperm; conversely, a contraceptive prevents fertilization by inhibiting ovulation or fertilization. By using the language of contraception to describe the action of the drug, the authors seem to be manipulating public opinion toward an acceptance of it N Eng J Med, 1993;328:354 8 Wilcox AJ, Weinberg CR, Baird DD. Timing of sexual intercourse in relation to ovulation: effects on the probability of conception, survival of the pregnancy, and sex of the baby. N Engl J Med 1995;333:1517-21 9 Trussell J, Rodríguez G, Ellertson C. New estimates of the effectiveness of the Yuzpe regimen of emergency contraception. Contraception 1998; Brit Med Bull 1993;49:158-170 10 Van Look P y Von Hertzen H Emergency Contraception Brit Med Bull 1993;49:158-170 11 Raymond E, Taylor D, Trussel J S, Steiner MJ : Minimum effectiveness of levonorgestrel regimen of emergency contraception. Contraception 2004 ;69 : 79-81. 12 Ho PC, Kwan MS. A prospective randomized comparison of levonorgestrel with the Yuzpe regimen in post-coital contraception. Hum Reproduction 1993;8:389-92 13 WHO Task Force on Postovulatory Methods of Fertility Regulation. Randomised controlled trial of levonorgestrel versus the Yuzpe regimen of combined oral contraceptives for emergency contraception. Lancet 1998;352:428-33

122 14 Von Hertzen H, Piaggio G, Ding J, Chen J, Song S, Bartfai G, Ng E, Gemzell-Danielsson K, Oyunbileg A, Wu S, Chen W et al. (2002) Low dose mifepristone and two regimens of levonorgestrel for emergency contraception: a WHO multicentre randomized trial. Lancet 360, 1803-1810. 15 Hamoda H, Ashok PV, Stadler C, et al A Randomized Trial of Mifepristone (10 mg) and Levonorgestrel for Emergency Contraception., Obstet Gynecol 2004;104:1307-13. 16 Wai Ngai S, Fan S, Li S, Cheng L et al A randomized trial to compare 24 h versus 12 h double dose regimen of levonorgestrel for emergency contraception. Hum Reprod 2005 Jan;20(1):307-3 17 Glasier A. Emergency postcoital contraception. N Engl J Med 1997;337: 1058-64 18 OMS, Boletín Nº 51 de 1999, Progress in Human Reproduction 19 Croxatto HB, Ortiz ME, Müller AL Mechanisms of action of emergency contraception. Steroids 68 (2003) 1095-1098. 20 Croxatto HB et al Pituitary-ovarian function following the Standard levonorgestrel emergency contraceptive dose or a single 0,75mg dose given on days preceding ovulation. Contraception 1004;70:442-450 21 Hapangama D, Glasier AF, Baird DT. The effects of pre-ovulatory administration of levonorgestrel on the menstrual cycle. Contraception 2001;63:123-9 22 Durand M, Cravioto MC, Raymond EG, Durán-Sánchez O, De la Luz-Hinojosa M, Castell Rodríguez A, et al. On the mechanism of action of short-term levonorgestrel administration in emergency contraception. Contraception 2001;64:227-34 23 Marions L, Hultenby K, Lindell I, Sun X, Stabi B, Gemzell-Danielsson K. Emergency contraception with mifepristone and levonorgestrel: mechanism of action. Obstet Gynecol 2002;100:65-71 24 Jochle W. Current research in coitus-induced ovulation: a review. J Reprod Fertil Suppl 1975 Apr; (22):165-207 25 Kesseraü E, et al The hormonal and peripheral effects of dl-norgestrel in postcoital contraception. Contraception 1974;10:411-424 26 Yeung WSB et al The effects of levonorgestrel on various sperm functions. Contraception 2002;66:453-437 27 Brito KS, Bahamondes L, Nascimento JA, de Santis L, Munuce MJ. The in vitro effect of emergency contraception doses of levonorgestrel on the acrosome reaction of human spermatozoa. Contraception. 2005 Sep;72(3):225-8 28 Kunz G, Beil D, Deininger H, Wildt L, Leyendecker G. The dynamics of rapid sperm transport through the female genital tract: evidence from vaginal sonography of uterine peristalsis and sterosalpingoscintigraphy. Hum Reprod 1996 Mar;11(3):627-32 29 Gemzell-Danielsson K and Marions L. Mechanisms of action of mifepristone and levonorgestrel when used for emergency contraception 30 D. Dale, E. Wierenga Ph.D. and C. Robert Eaton: Drug Development and Approval Process. Phases of Product Development http://www.allp.com/drug_dev.htm. 31 The Beginnings: Laboratory and Animal Studies http://www.fda.gov/fdac/special/testtubetopatient/studies.html 32 Moggia A, Beauquis A, Ferrari F, Torrado ML, Alonso JL, Koremblit E, Mischler T. The use of progestogens as postcoital oral contraceptives J Reprod Med. 1974 Aug;13(2):58-61 33 Landgren BM, Johannisson E, Aedo AR, Kumar A, Shi YE. The effect of levonorgestrel administered in large doses at different stages of the cycle on ovarian function and endometrial morphology. Contraception 1989 Mar;39(3):275-89 34 Wang JD, Jie W, Jie C, et al. Effects of emergency contraceptive mifepristone and levonorgestrel on the endometrium at the time of implantation. International Conference on Reproductive Health, Mumbai, India 1998;A83

123 35 Durand M, Cravioto MC, Raymond EG, Durán-Sanchez O, De la Luz-Hinojosa M, Castell Rodriguez A, et al. On the mechanism of action of short-term levonorgestrel administration in emergency contraception. Contraception 2001;64:227-34 36 Marions L, Hultenby K, Lindell I, Sun X, Stabi B, Gemzell-Danielsson K. Emergency contraception with mifepristone and levonorgestrel: mechanism of action. Obstet Gynecol 2002;100:65-71 37 Ugocsai G, Rozsa M, Ugocsai P. Scanning electron microscopic (SEM) changes of the endometrium in women taking high doses of levonorgestrel as emergency postcoital contraception. Contraception. 2002 Dec;66(6):433-7 38 Durand M, Seppala M, Cravioto Mdel C, Koistinen H, Koistinen R, Gonzalez-Macedo J, Larrea F. Late follicular phase administration of levonorgestrel as an emergency contraceptive changes the secretory pattern of glycodelin in serum and endometrium during the luteal phase of the menstrual cycle. Contraception. 2005 Jun;71(6):451-7 39 Clinical Trials.gov - Information on Clinical Trials and Human Research Studies glossary.url:http://www.clinicaltrials.gov/ct/info/glossary 40 The New Drug Development Process: Steps from Test Tube to New Drug Application Reviewhttp://www.fda.gov/cder/handbook/develop.htm 41 Belmont Report.: Guidelines for the protection of Human Subjects, Department of Health, Education, and Welfare Office, Washington DC 1978. 42 UNESCO Universal Declaration on Bioethics and Human Rights: Article 7, October 2005 43 Trussell J. Plan B and the Politics of Doubt. JAMA, October 11, 2006; 296 : 1775-1778 44 Benedict XVI: Address to the participants at the 12th General Assembly of the Pontifical Academy for Life and International Congress on The Human Embryo before Implantation, Scientific update and Bioethical Considerations, Rome, 27-28 February 2006.

124 MONICA LÓPEZ BARAHONA

CONSCIENTIOUS OBJECTION AND TESTIMONIALS IN THE FIELD OF BIOETHICS RESEARCH

Man is a free being who establishes his behaviour and forges his will in a series of ethical and/or religious principles. Loyalty to these principles brings the right and the need of conscientious objection. Man, in his own legitimate exercise of freedom, can and must object to exercising any action that is against or transgresses those principles that his conscience dictate. What is, then, conscientious objection? It is a simple attribution of conscience freedom (both laic and religious) , which goes further than freedom of speech and means the citizen’s rejection to any commitment against his deepest convictions in those situations where dignity and human life are at risk. Objection is risen by conscience, not by law. One cannot wait until the legislator anticipates an objection to be able to meet or present it. Most legal experts agree on the fact that conscientious objection is a fundamental right, widely recognised by many different International Treaties on human rights such as the European Convention on Human Rights (1) and the internal regulations of each country, for example, the Spanish Constitution (2) in article 16. Then, the Spanish Constitutional Tribunal has referred in a general way to conscientious objection as “the right to be exempted of meeting those constitutional or legal duties in case fulfilment of them goes against one’s own convictions” (3). Therefore, conscientious objection is definitely a way of breaching the Law and it has the following characteristics: 1. The regulation is ignored when it affects the subject personally 2. The subject only pursues unfulfillment of the regulation 3. It does not aim to bring down or modify the regulation From a juridical perspective, conscientious objection is considered as: 1. A way of disobedience to Law 2. A way to protect individual freedom One should have to distinguish between civil disobedience and conscientious objection. The latter comes from a personal motivation. One person feels that he cannot fulfil a certain juridical regulation because it goes against his/her conscience and moral principles, which are based on faith and on ethical considerations. However, civil disobedience , which can also be founded on conscience motivations, is a type of attitude that pretends to put forward a change or a breach in the law. In case of civil disobedience the law is also considered immoral or unjust. Civil disobedience and conscientious objection can happen together because civil disobedience is considered massive conscientious objection, if not massive, at least very numerous. If all catholic were coherent and oppose to an immoral mandate, we would show very high civil resistance. When talking about conscientious objection in bioethics research, it means admitting a threat against Humanity’s essential values. It also means admitting the incapacity of the positive law to prevent this situation. The citizen needs to keep distance from the law to protect such values (4). We have been witnesses of incessant concessions to scientific research by the legislator (5), concessions which need sound reasoning that may present Bioethics’ consecration by the law as the protection of the person, whereas these concessions are actually the setting of new exemptions in favour of biomedical research no matter whether it may take the entire human life’s dignity into account. In the last decades Biomedical science has greatly changed. This change is partly due to major technical advances that have resulted in so many consequences that the human mind is unable to

125 process them all. However, it is true that progress needs changes but not all changes mean progress. And when a field of science connected to life (as in Biomedicine) is not guided by the anthropological principles whose ultimate aim is man and whose limit is the dignity of every human life, then, science turns against man. After what has happened with biomedical science in recent years, it is not exaggerated to say that what interests most is dominion over life, consecrated by means of biology and research. Life is not understood as a gift that must be received and protected, especially in its early stages. Many of the biomedical research outcomes have direct consequences on man himself and many of these outcomes can be applied and are actually being clinically applied to man. To give a general approach to the scope of the above mentioned advances, we will state some of them and their implications for the person. We are living in a time that: a) The human genome has been sequenced (6) and the technology to achieved it is now being used to genetically select individuals of the human species from their very early stages in their existence (7,8) (genetic counselling, preimplantatory diagnosis etc.) b) We knew at the end of May 1997 about the birth of the first mammal born from cloning by nuclear transference: sheep Dolly (9). Since then, scientists have unsuccessfully tried to apply this technique to the human species. Legislation in different countries and supranational entities have been pronouncing about the so-called therapeutic and reproductive cloning. c) Since 1978, when the first in vitro fertilization generated baby was born, Louise Brown, the practice of in vitro fertilization has won over our laws, considering that the child is an object, an object of the couple’s desire and of the medical team’s desire; the child is an object of research and an object that, when is not needed anymore, can be discarded. The embryo is discarded when it does not fulfil the right requirements (10-13). The terrible consequences of this type of techniques are well-known by everyone. d) Research in the endocrinology field has resulted in a broad knowledge of the hormone cycles that regulate woman and man’s fertility. Therefore, fertility can be altered by using artificial contraceptive techniques or treatments that are, in many cases, abortive (14,15). e) Other type of research has been aimed at achieving efficient abortive methods (16). In addition to the fact that many innocent human beings are killed, we have seen governments pass laws to lift bans on abortion, and great intellectual efforts are also being made to legitimate such acts. f) Research aimed at the practice of euthanasia makes it possible the ‘so-called’ physician-assisted suicide (17). There are a lot of laws that regulate this practice. g) Research on embryonic stem cells, which leads to the embryo’s death (18), has been demanded as a right by some scientists and different political establishments. There is also some legislation for this type of research. h) Etc. Everything said is referred to objective data of the moment we live concerning biomedical research. There are frequent situations when the scientist considers conscientious objection necessary and has to choose whether he/she: I. gets involved in a research project where the cell lines come from embryonic stem cells II. works on biological material coming from human foetuses III. sells at a chemist’s contraceptives or abortive medication IV. works in a IVF clinic V. works in a counselling team who provides information on genetic counselling …. The solution to the dilemmas that the scientist has to confront throughout all his/her professional life is given in Donum Vitae (19) (22nd. February 1987) that recommends conscientious objection against those civil immoral laws (chap.III moral and civil law). It is also given in Evangelium Vitae (20) (25th. March 1995) and the infallibility of the ordinary and universal Magisterium that impose a grave and clear obligation to claim conscientious objection to oppose any human law that attacks human life (abortion and euthanasia) (§ 72 and 73). John Paul II quote St. Thomas Aquinas (21) regarding iniquity 126 of the law and where we are asked to oppose any law that supports any abortive and euthanasic practice claiming conscientious objection. (§ 73). Therefore, the fact of accepting a research project that goes against the human being’s dignity or using biological material out of the death of innocent human beings implies an evil practice of medical research although this practice may be in favour of man since. It is against the right to man’s life and his dignity. For this reason a scientist whose code of ethics is based on a personalist Anthropology must reject any of these practices establishing his/her legitimate right to claim conscientious objection. The pharmacist is an important subject in certain biomedical practices since he can sell abortive surgical instruments or participate in the merchandising and manufacture of abortive products ( RU-486). In this way, one can talk about the jurisprudence of another refusal; to refuse to sell contraceptive products. (Right to refuse to sale). In Spain, for example, article L.122-1 of the consumer code, accepts the refusal of sale for legitimate motives, however the Supreme Court does not accept the claim of personal convictions submitting to the material impossibility to satisfy demand alleging lack of products. This situation specifically reserves the possibility of a refusal alleging lack of orders and therefore, supplies. However, regarding one’s principles, it means an unfortunate refusal of conscientious objection. One can assume that conscientious objection is not only a simple gesture but an outstanding act of great value, a coherent attitude that, in words of John Paul II, is nowadays’ martyrdom. It is imperative in the beginning of the XXI century that there should be constant testimonials in the field of biomedical research and all the scientists with a personalist anthropological formation gather to raise an evident claim in the field of biomedical sciences. It is sad to remember certain actions such as that letter sent to Nature (journal) where a group of Medical Nobel awarded demanded the right to investigate with embryo stem cells. This demand was well-known worldwide and many initiatives were displayed to pass laws in order to encourage this type of research making people believe that there was an actual medical response to certain fatal diseases. Now, we know that there is not in the world any clinical trial with embryonic stem cells compared to more than 500 clinical trials carried out with adult stem cells, as one can prove in website www.clinicaltrials.com that register those clinical trials approved by the FDA. We still wonder why these objective data have not been published in Nature. It seems that time shows that the demand made by the Nobel awarded is not an actual therapeutic alternative and however, where are the journals publishing these data? Those researchers in the biomedical field who believe in man’s dignity, and the dignity of those human beings formed by 4 or 8 cells have the moral duty to gather and make people know the truth. Without demagogy and sincerely. A scientific and objective truth that is honestly sought and can only lead to Truth since there is only one Truth. Let us participate in all Ethical Committees where our particular votes count, let us participate in debate forums, let us reach the educative community and teach Bioethics, let us examine the bioethics laws, if not, all Bioethics, and let us give a place for our individual conscience with the aim to prevent man from participating in the destruction of the person. It is not easy, though, to find the practical methods. We can opt for a public statement, a piece of writing in a journal or paper, immediate refusal to participate in any act that goes against human dignity, a vote against any law in favour of eugenesic or homicidal acts or a positive resistance or deliberate unfulfillment of the law. All these options depend on one’s own concrete circumstances of time and place and on the local most effective appreciations. One should assess the possibilities and risks of the action and non-action. We have to bear in mind that silence usually means complicity so let us raise our active voice and search the Truth.

127 Bibliografy 1.- Convenio Europeo de Derechos Humanos y Libertades Fundamentales. 1950 2.- Constitución española. 1978,art 16.1 3.- Sentencia tribunal constitucional. 161/1987 4.- V. C. CAILLÉ Y C. JONAS, Vis clause de conscience, en “Dict. permanent de bioéthique”; G. MÉMETEAU, Recherche Antigone en bon état (âge indifférent), ou : la clause de conscience et la bioéthique (Éthique, la vie en question, 9/1993, 54). 5.- G. RAYMOND, Bioéthique ou peur du gendarme?, “La Croix”, 1989, p. 12. Science. 2001 Feb 16;291(5507):1304-5 7.- REPPING S, GERAEDTS J, SCRIVEN P et al. Central data collection on PGD and screening. Reprod Biomed Online. 2006 Mar;12(3):389; 8.- BARUCHS, ADAMSON GD, COHEN J et al. Genetic testing of embryos: a critical need for data. Reprod Biomed Online. 2005 Dec;11(6):667-70. 9.- CAMPBELL KH, MC WHIR J, RITCHIE WA et al. Sheep cloned by nuclear transfer from a cultured cell line. Nature. 1996 Mar 7;380(6569):64-6 10.- COHEN ME The "brave new baby" and the law: fashioning remedies for the victims of in vitro fertilization. Am J Law Med. 1978 Fall;4(3):319-36 11.- JONES HW Jr IVF: past and future. Reprod Biomed Online. 2003 AprMay;6(3):375-81. 12.- CLACK GN .AR.T. and history, 1678-1978. Hum Reprod. 2006 Jul;21(7):1645-50. 13.- TRUCKER MJ, MRTON PC SWEITZER CL et al Cryopreservation of human embryos and oocytes. 1995 Curr Op Obst Gyn 7, 188-192 14.- ERTOPCU K, INAL MM and OZELMAS I Demographic analysis of post-abortive and interval- administered hormonal contraceptive methods. Eur J Contracept Reprod Health Care. 2005 Mar;10(1):1-5. 15.- GOLDBERG JR, PLESCIA MG and ANASTASIO GD Mifepristone (RU 486): current knowledge and future prospects. Arch Fam Med. 1998 May-Jun;7(3):219-22. Review. 16.- HARVEY SM and NICOLSON MD Development and evaluation of the abortion attributes questionnaire. J Soc Issues. 2005 Mar;61(1):95-107. 17.- HUDSON PL, KRISTJANSON LJ and ASHBY M Desire for hastened death in patients with advanced disease and the evidence base of clinical guidelines: a systematic review. Palliat Med. 2006 Oct;20(7):693-701 18.- KIATPONGSAN S, PRUKSANANONDA K. International trends in bioethics for embryonic stem cell research. J Med Assoc Thai. 2006 Sep;89(9):1542-4. 19. Donum Vitae 1987 20.- Evangelium Vitae. 1995 21.- Somme, I-II, quaestio 93.

128 ALICJA GRZESKOWIAK

Conscientious Objection for Specific Professional Categories (Pharmacists, Judges, Administrators, Consultants, etc.)

Conscientious objection directly derives from the inviolable dignity of the person and the inherent freedom of religion and conscience. It is based upon the principle of the fundamental importance of the sovereignty of the human spirit and the inviolable right to live according to truth of one’s conscience and to allow oneself to be guided by the force of that which, according to judgement of one’s conscience, is right. Thus nobody must be forced to act against their conscience. The Polish king, Sigismund Augustus, when upholding freedom of conscience and religion, declared clearly and forthrightly: ‘I am not the master of human consciences’. Man would like his actions, for which he is responsible, to be in conformity with his ideal of good and his moral judgement.1 Conscientious objection has its roots in the basis of the conflict between the duty to behave according to positive law and the moral obligation of conscience. This conflict can be resolved or the human conscience can be violated by obeying juridical norms (thereby wounding in the end the person’s inherent dignity) or positive law can be violated by following one’s conscience. To invoke conscientious objection means to have the choice to act according to one’s conscience in conformity with moral norms, i.e. preferring one’s conscience to juridical norms. Conscientious objection in a situation of conflict between a juridical norm and a moral norm of one’s conscience becomes an individual right as long as both norms have the same field of application and concern the same situation, which emerges in a different way from both norms.2 From conscientious objection there follows at a juridical level the abrogation, in the individual situation, of the duty to respect the norm of behaviour derived from the law given that it is in conflict with human conscience. A law that envisages conscientious objection contains permission to transgress a juridical norm which is generally obligatory if this is motivated by the conscience of the individual. When conscientious objection is clearly regulated by the law or legally admissible in a supposed way, the person who invokes it and does not obey the relevant juridical norms does not have a juridical-penal, civil, administrative, disciplinary, workplace responsibility or other juridical consequences. It should be admitted that such behaviour is the circumstance that excludes penal illegitimacy, as well as civil, administrative or disciplinary illegitimacy. John Paul II wrote that ‘those who have recourse to conscientious objection must be defended not only against penal sanctions but also against any injury at a legal, disciplinary, economic or professional level’.3 In the literature in the field we find that ‘the conflict between human law and conscience is as old as the history of man’.4However, this question should be approached as a sign of the contemporary times because specifically in our times the question of conscientious objection has become of great contemporary relevance. It should be seen as a new interdisciplinary juridical institution present in all liberal juridical systems.5 One may see the legitimacy of conscientious objection as a characteristic of contemporary pluralistic societies and liberal democratic states and of the process of separating it from moral values.6 This fact above all finds its justification, which is, indeed, the source of conflicts of conscience, in the contents of positive law which imposes duties that are opposed to the universal system of high moral values. As a consequence, the situations in which conflict of conscience can exist are becoming increasingly numerous. From this comes the problem of juridical regulations involving, on the one hand, not forcing the person into a legal path to behave against his conscience, and, on the other, through disobedience to the law, of not creating a situation of anarchy in the state in which each person could violate every juridical norm as they wished by invoking conscientious objection. One may observe the tendency to confer on conscientious objection the dimension of a human right and to attribute to it the form of a juridical norm in force at a universal level. John Paul II observes of this kind

129 of solution: ‘To refuse to take part in committing an injustice is not only a moral duty; it is also a basic human right…which, precisely as such, should be acknowledged and protected by civil law’.7 At times the opinion is expressed that the acceptance of conscientious objection always involves the consequences due to disobedience to law but are such as to render their authors immune. At times, to compensate these costs, the obligation is introduced to obtain from the objector such activities that reduce the injury of disobedience.8 Questions are raised about the justification in a democratic state for this institution which is said to violate the principle of equality and justice.9 For that matter, the reason for this institution is unusually fundamental for the dignity of the person. To act justly according to one’s own conscience is a part of the identity of a person. The institution of conscientious objection must be understood as a technique to solve axiological controversies. Thanks to the institution of conscientious objection the conflict can be resolved so as to attribute this right to individual behaviour that is in conformity with conscience but in opposition to the duties of the law. It is evident that conscientious objection creates problems, not only juridical problems, but also problems in the sphere of the philosophy of law, legal medicine and, above all, ethics.10

2. The state can regulate in various ways the problem of allowing conscientious objection. The general regulation of this institution directly in a country’s constitution is the best solution.11 Conscientious objection thus obtains the status of a universal right. This can be referred to in every situation determined by the constitution without the need for specific legislative provisions. Thus consistent doubts often arise in attributing to conscientious objection the dimension of a universal human right that is guaranteed constitutionally. This could limit the possibilities of using a human right, for example the conscientious objection that medical doctors who do not want to carry out an abortion could raise, thereby creating difficulties in the upholding of the so-called ‘right of a woman to abortion’. The constitutional approach to conscientious objection is the highest juridical guarantee there is of allowing a violating of a specific juridical duty if a person is motivated by conscience. Leaving aside the question of the constitutional regulation of conscientious objection in relation to military service, which is to be found in nearly all the constitutions of democratic countries and is supported by international regulations, one may observe that shared regulations relating to conscientious objection in normative documents at a constitutional level are few in number. One example is the Portuguese Constitution of 1976 which with its up-dating of 1982, in article 41.6, upheld the right to conscientious objection but in conditions envisaged by the law. This means that it must be specified in the context of ordinary law as well.12 In realty, after a certain fashion, the constitutional right to conscientious objection works in dependence on the law in force by which it is applicable. It is held that the Constitution of Holland of 1983 intentionally did not introduce a general norm guaranteeing the right to conscientious objection because it was believed that ‘a Constitutional country cannot authorise everyone to have scruples of conscience - this would lead to anarchy’.13However, even when a specific law is absent the person who applies conscientious objection could directly invoke the right to freedom of conscience imposed by the Constitution in relation to human rights, applicable in an indirect way, independently of the intervention of the legislator that determines it. In a situation where the Constitution does not directly cover conscientious objection as a human right, it happens that constitutional courts uphold this right during analysis of individual cases by extrapolating it from the right to freedom of conscience and religion. In this context, the sentence of the Constitutional Court of Spain decreed that ‘conscientious objection is a part of the contents of the fundamental right to ideological and religious freedom recognised by article 16.1 of the Constitution’.14 The Constitutional Court

130 emphasised on this occasion that the Spanish Constitution is applicable in a direct way, in particular in the field of fundamental rights. The other sentences of the same court have not confirmed to the full this opinion.15 In the field of the right of freedom of thought, conscience and religion of article 9 of the European Convention for the Defence of Human Rights and Fundamental Freedoms, the European Court of Human Rights in Strasbourg allows the reality of conscientious objection but argues or denies that this right depends on the object of the case under examination. In international human rights conscientious objection is very often connected with freedom of religion and freedom of conscience. As the literature in the field demonstrates, it is necessary to broaden the motivations at the base of conscientious objection as well as the motivations of an ethical, philosophical, ideological and political character.16However, it is significant that in the European Convention on Bioethics and Gene Therapy of 4 April 1997 a clause on conscientious objection was not inserted.17 Although during the parliamentary assembly of the Council of Europe an amendment that envisaged its introduction was proposed,18 this was rejected. The speaker contested the meaning of inserting it into this document given that it was already present in other conventions.19

3. In the analysis of the juridical regulations on respect for freedom of thought and conscience in relation to the various professional categories, numerous solutions to the question can be observed. In this case, laws envisage regulations that indicate in an evident way the right to express conscientious objection both in the form of exercising actions determined at a juridical level that form a part of the profession and through a conscience clause which envisages that the profession is exercised by people according to their conscience - the conscience option. In the case of a conscience clause, the law allows non-obedience to the obligations derived from the law when a specific profession is practiced. The regulation of conscientious objection by numerous laws creates models for juridical norms in relation to conscientious objection that are different in a subjective and objective sense.20 Reference is also made, applying the plural form, to ‘institutions of conscience’. One should also note the special dynamic of this field of law, which R. NavarroValls calls a ‘juridical big-bang’.21 At the present time, two contrasting trends as regards the position of conscientious objection may be identified: on the one hand, there is the trend of extending the field of the legal formula of conscientious objection; on the other, there is a moderation of this trend with the denial to certain professional categories of the right to conscientious objection or the limitation of its contents, that is to say, after a certain fashion, a taking into consideration of the nature itself of this institution. One can observe that conscientious objection prior to becoming a form of fundamental human right is already limited. Legislative concessions in favour of conscientious objection are progressively engaged in for well specified reasons.22 A new overall way of regulating conscientious objection at a juridical level was applied in the Republic of Slovakia with a clear connection with freedom of religion in relation to Catholics. In agreement with the Holy See, a project was drawn up for an agreement regulating the question of conscientious objection23 which referred to the concordat of 24 November 2000. By this project Slovakia would have recognised the right of the faithful to act according to conscience and there was an undertaking to approve a law on a conscience clause. Taking the form of an appendix it would have guaranteed Catholics the right to refuse to engage in certain professional activities that were in opposition to their religious beliefs. Conscientious objection would have applied to professions and to forms of conduct that were laid down in the project. It would have applied to health-care personnel who would have been guaranteed the right to refuse to procure abortions, engage in assisted procreation, and to participate in experiments, euthanasia, cloning, sterilisation, contraception and trading in the human body, human embryos, and organ banks. Teachers could have refused to hold courses that were against their beliefs, and in particular courses on sexual education, and lawyers could have refused to accept cases and provide juridical aid, but above all it would have allowed people to refuse to work on Sundays and 131 feast days. This juridical solution, which is without precedent, which hitherto is not applicable and thus does not constitute law in this field, contained an overall regulation of conscientious objection, even though it was limited to Catholics. The approach of this Slovak project meant, first of all, a direct recognition of conscientious objection as a human right. Unfortunately, the project was not approved and the result of all the initiatives to achieve its approval was the fall of the government and early elections. This, perhaps, indicates the political aspects of the question.

4. Recently, the recognition of conscientious objection has often been requested by people obliged to perform military service but because in this case the same right offers the alternative possibility of choosing other forms of service, reference is made more to the option of conscience.24 Thus for some time the question of refusing to carry out activities that are decreed by law has become of particular contemporary relevance in relation to certain professional categories and to activities of theirs which raise conscientious objection. There is a juridical specification of the category of these professions and a legalisation of the right to refuse activities that are defined as being opposed to the judgement of conscience. In many contexts it is stated that professions exist where the refusal to perform certain activities envisaged by the law for reasons linked to conscientious objection is inadmissible.25 One is dealing here first and foremost with carrying out duties to the state that require the application of a legal obligation for the defence of its security and public order - for example police and prison guards. It is to be noted that conscientious objection is not allowed for civil servants.26 The questions and issues connected with conscientious objection, examined with reference to labour relations, no longer depend on the kind of work that is done but on the category of public-private employer and the way in which the work relationship is formed. It is supposed that the basis of the way in which the work relationship is formed constitutes the contract between the employer and the employee, that is to say that the voluntary contract of work that explicitly determines the kind of work engaged in, does not recognise, ex post, that the worker has the right to invoke conscientious objection. He can choose or broaden the duties of his work that are in conformity with his conscience or he can reject the post. For that matter, if the contract of work does not include this clear explanation of his professional duties or at the moment of beginning the job these professional duties are not set out, and the conscience of the employee rebels against them, it is necessary to give the worker the possibility of invoking conscientious objection and to obtain another kind of job for him. In no case can the worker who invokes conscientious objection be subjected to disciplinary measures or be dismissed. However, it is emphasised that this cannot involve privileges because this would injure the principle of legality and justice. Such cases are examined by courts in a different way. The case examined by the European Commission for Human Rights is well known. This concerned the dismissal of a Protestant priest who had protested against the broadening of his activities because of the law on abortion, which is accepted in Norway, as a result of his contract of work. The Commission decided that his work had no relationship with direct or indirect participation in an act of abortion. Basing itself on the contents of the work contract, it argued that ‘within the context of the official Church, the pastor is not only attributed religious duties, he must also accept duties towards the state’. It added that if the requirements of law were in contrast with the man’s conscience then he could always withdraw from the work contract with the state.27 In the analysis of questions connected with conscientious objection in various professions it is to be observed that the deontological codes of certain professions include the right to conscientious objection or an indication that a person who practices a profession is recognised as having the right to act according to conscience. Article 62 of the deontological code of the Province of Turin of 1948 clearly laid down that a medical doctor, who because of his convictions believes that he should not procure within a specific legal period so-called therapeutic abortion, could refuse to carry it out, but this norm was repealed in 1954. Conscientious objections is fully inserted into the deontological code for medical doctors of 1978 and is firmly established in the deontological code of 1998, but on the condition that a refusal to carry out 132 activities contested by the conscience of the medical doctor does not directly imperil the health of the patient.28 Article 19 of the same code contains the common right of a medical doctor to refuse to carry out activities in contrast with his conscience or his clinical knowledge. The ethical code for medical doctors of Poland argues that a medical doctor should work in conformity with his conscience and contemporary medical knowledge; indeed, in particularly justified cases he can refuse to treat a patient.29 However, ethical codes do not have the power of state law and there thus emerges the question of the relationship of their norms with the legal norms that regulate the practice of certain professions which do not have a conscientious objection clause or go beyond the clauses of the deontological codes. In Poland the Constitutional Court has dealt with the relationship between deontological norms and the norms established by law and amongst other things has referred to the opposition between the very restrictive medical ethical norms in relation to abortion that involve the prohibition of taking part in the act of killing and the norms of the law that legalise abortion. In its sentence of 7 October 1992, the Constitutional Court of Poland argued that ‘medical ethical norms have the character of deontological norms and not the character of norms that apply in the field of state administration…The statement that an ethical norm must conform to a legal norm30 is illegitimate. This statement presupposes the primacy of the law over ethical norms’.31The Constitutional Court argued that law must have ethical legitimation and that ethics do not require legal legitimation. It emphasised that a medical doctor can refuse to grant authorisation attesting the acceptability of abortion and refuse to carry it out. This right derives from the fundamental freedom to act in conformity with one’s own conscience as defined by the Constitution of the country. The observation of the Constitutional Court of Poland is very important because from comparison with ethical codes of specific professions there often explicitly derives the right to perform professional activities, a right which is not confirmed or upheld in the broader field of the precepts of law. In particular, this situation occurs with the conscientious objection of pharmacists which has been upheld by ethical commissions but rejected by the courts because they held that it was without legal bases.

5. Conscientious Objection in the Health-Care Professions Conscientious objection is defined in juridical terms in relation to health-care workers above all in the context of laws that recognise abortion as a medical intervention and because of which medical doctors are obliged to carry out abortions although this involves the death of the conceived child. The right to refuse to collaborate in abortion is also extended to other professions that form a part of the health-care professions. The juridical institution of conscientious objection has been expanded by the development of bioethics32 and by the legalisation of attacks on human life - euthanasia, assisted suicide, artificial fertilisation,33 and voluntary sterilisation. It also covers other activities of the health-care professions, for example organ transplants, but it is also included in the professions of scientists, in particular in the field of sciences that can generate problems of conscience in relation to scientific experiments (on animals as well), biotechnology and genetic engineering.34 Laws on science are introduced or proposed that establish the right of scientists to claim conscientious objection in the field of research in the scientific domains that are indicated, and these are also extended to students.35 John Paul II clearly characterised the question of conscientious objection in the case of the health-care professions when he wrote that ‘the opportunity to refuse to take part in the phases of consultation, preparation and execution of these acts against life should be guaranteed to physicians, health-care personnel, and directors of hospitals, clinics and convalescent facilities’.36 It is necessary to establish conscientious objection in the health-care field so that, amongst other things, people who exercise such professions (medical doctors, pharmacists, nurses or biologists) take decisions of an ethical character in relation to the beginning and the end of human life, as well as in relation to its dignity and to private life.37 Many conflicts between conscience and the law arise at the level of the professional activities that they engage in.38 By the health-care professions is meant above all medical doctors but also obstetricians, nurses and other health-care personnel who provide 133 assistance. E. Sgreccia describes the following as the subjects of conscientious objection: medical doctors, paramedical staff, the heads of hospital institutions, clinics and health centres, and pharmacists.39 The above-mentioned professions are attributed the right to invoke conscientious objection in relation to activities connected with abortion, assisted procreation or medical experiments that are connected with the need to eliminate human embryos. The legalisation of abortion-inducing instruments such as the RU486 pill and the ‘day after’ pill and the increasing phenomenon of pharmacists who refuse to sell them, raises the question of whether pharmacists, too, are health-care personnel who can invoke conscientious objection in relation to abortion-inducing acts and procedures and thus whether this group belongs to the health-care professions. It is pointed out that the professional integration of health-care personnel must lead to a recognition of conscientious objection as a shared right of the health-care professions, to which they have a right in any case.40 In legislative practice, conscience clauses are atomised around various activities and dispersed in various laws. Furthermore, they are very different in their contents and it would be difficult to construct from them a model for a single clause common to all the health-care professions. An attempt is made to limit to the minimum some substantial model through juridical resolutions on the question. R. Dresser has presented this evidence.41 In his opinion, the first model is based upon the contract between the medical doctor and his patient. The medical doctor, at the beginning of the contract, indicates the limits of his conduct, although modifications dictated by urgent medical help are inserted. The second model authorises the medical doctor who is the conscientious objector to be obliged to send the patient to another doctor. This model is false because it relativises the right in question. A pharmacist expressed the point in a precise way when he said that ‘I do not kill but I point out a man who would do it who is somewhat further away’.42 The third model rejects the possibility of invoking conscientious objection because a person who enters the profession accepts that he will conform to its standards, although the author emphasises that not all the duties of health-care personnel are known at the outset. For that matter, the development of biomedicine and the legalisation of attacks on human life, which are legally connected with the health-care professions, demonstrate that the framework of professional activities is not fully predictable. In the fourth model R. Dresser describes the schema of conscientious objection in relation to military service, that is to say the legal indications of the possible options for the conduct of the health-care personnel from which they can choose suitable conduct in conformity with their consciences. Lastly, the fifth model constitutes a compromise solution which establishes a balance between the interests of the patient and the freedom of conscience of the health-care personnel. The Italian legislature introduced a juridical unification of a solution to the problem of a conscience clause with reference to experiments on animals. A special law was passed on conscientious objection in relation to experiments on animals.43As a criterion for such regulation the objective factor was adopted, namely the kind of experiment involved in the domain of the various professional categories. This allowed a shared right to conscientious objection in relation to every act committed in experiments on animals. According to this law, medical doctors, researchers, health-care personnel with jobs of professionals with degrees, technicians and nurses, as well as university students, can invoke the conscience clause. It is a pity that this regulation (which is overall and unitary) of conscientious objection has not been inserted into laws that legitimate attacks on human life. However, as regards the expansion of the field of conscientious objection in the health-care professions at times reference is made to the need for legislative additions in this field so that in protecting the individual conscience respect ‘is saved’ for the precepts of law that attribute to the personnel of this category the duty to engage in the activities that belong to the profession.44 In addition, it is observed that the condition of invoking conscientious objection in all the health-care professions, including pharmacists, should assure that sick people have access to medical are.45 a. Medical doctors

134 Medical doctors are the professional category in the sphere of health-care personnel in which for the first time was expressed with full acuteness the question of refusing to engage in activities imposed by the law but opposed by their consciences. Many activities have been included in the profession of being a medical doctor that have nothing to do with treating man and the Hippocratic oath, for example: abortion, euthanasia, contraception, prenatal diagnosis, the selection of embryos, artificial fertilisation etc. The rejection advanced by medical doctors concerned first and foremost activities that lead to the murder of a person, that is to say abortion, which had been legally recognised as a medical intervention, and also, much later, euthanasia and capital punishment by injection. Medical doctors refused to engage in abortion despite the fact that the law had not, as yet, established a conscience clause. The juridical regulation of conscientious objection in the context of the professional of medical doctors, which came into being with laws that legalised abortion, was also extended at the outset to the right to refuse to kill a conceived child by voluntary abortion.46 The sphere of application of the conscience clause for medical doctors was extended with the legalisation of abortion and the acceptability of abortion for criminal and eugenic reasons, but above all social and personal ones, or the acceptance of the model of abortion on demand.47 However, the first pro-abortion laws, which were approved in Communist countries, did not include precepts that authorised medical doctors to refuse the interruption of a pregnancy. Medical doctors who refused to engage in an abortion were the subjects of oppression, deprived of the right to practice their profession, and in the best of cases dismissed from their jobs. And medical students who did not want to participate in the carrying out of an abortion were expelled. This was the case in Poland, where the law on abortion of 27 April 1956 did not envisage the legal possibility of refusing to carry out an abortion. Only in the laws passed by Western countries from the 1970s onwards, in parallel with the permission granted to a medical doctor to kill a conceived child without being liable to legal action, was there also permission, rooted in the conscience of the medical doctor, to reject such activity without being liable to sanctions, although in a certain sense this was dependent on the conditions that were indicated.48 This authorisation applied not only to medical doctors but was also extended subjectively to all people and thus to health-care personnel who in a direct or indirect way participated in the practice of legal abortion.49 This clause is to be found in the first law allowing abortion, that of Great Britain of 1967.50 Conscientious objection, independently of the legal status of the workers, related to a refusal to engage in abortion-inducing activities within the area of the profession, but with the exclusion of actions necessary to save the life or defend the health of, or to prevent grave physical or mental damage to, the pregnant woman. However, in invoking conscientious objection it was necessary to guarantee the implementation of the decision of the woman to be referred to another medical doctor who would procure the abortion for her.51 It may be seen that the clause already included grave objective limitations. The medical doctor had to establish the person who was to carry out the abortion. Given that the legislature used the phrase ‘every person who treats’, it was supposed that this applied not only to medical doctors but also to all the people who in some way or another co-operated in the abortion. This was the subject of a famous case.52 Conscience clauses were also included in the laws on abortion that were subsequently approved by European countries. Without doubt, on the basis of these laws, a medical doctor could employ the conscience clause and refuse to carry out an abortion and thus the clause formed a part of the juridical practice of his profession. In an explicit way, this was confirmed by article 9 of the law of 1978 which legalised abortion in Italy53 with reference to the activities of people who co-operated in abortions, above all medical doctors. The law of 1985 that legalised abortion in Spain did not include a conscience clause and thus it has been necessary to refer to the decisions of the Constitutional Court. The medical deontological code, however, does envisage such a clause54 but it remains without relevance to the legal status of the right to conscientious objection. The Polish law on abortion of 1993 did not include a conscience clause. At the beginning such a clause was inserted into the regulation of the Ministry of Health55 of 30 April 135 1990, that is to say in a directive of a lower level. But the Constitutional Court, when examining the legitimacy of this provision, argued that the right of medical doctors to conscientious objection derived directly from the constitutional right to freedom of conscience. In 1996 the conscience clause was established in the law on the medical profession.56 It was given a general framework and was treated as the right of medical doctor to abstain from engaging in health-care activities that were against his conscience. The use of the clause is conditional and the medical doctor is prohibited from refusing to provide help to someone who runs the risk of dying or a grave injury to their health. The medical doctor is obliged to indicate the real possibilities of obtaining this service from another medical doctor or in a local health-care structure able to justify and register this fact in the medical records. A medical doctor who practices his profession on the basis of his work relationship or during service is also obliged to inform his superior in written form. With respect to the interruption of pregnancy, according to Polish legislation the medical doctor who refuses to engage in such an interruption has to indicate another medical doctor who does practice it. This approach is clearly wrong because it relativises conscientious objection. And obviously it violates the conscience of the medical doctor involved.57 In Poland, the question was raised of the possibility of invoking the conscience clause of a medical doctor with reference to a refusal to issue a prescription for contraceptives (in Poland abortion-inducing pharmaceuticals have not been legalised), to a refusal to provide a certificate on state of heath to a pregnant woman that authorises the interruption of the pregnancy for reasons of heath, to a refusal to issue a certificate on the state of health of a foetus, and a refusal to find whether prenatal tests indicate a major likelihood of the foetus having a grave and permanent disability or an incurable illness that will lead to death.58 On the basis of this case the medical doctor was accused of not performing his duties as a public official and of causing injury to the pregnant woman. Analyses of the juridical formulas of the conscience clause in relation to the practice of abortion, above all in relation to medical doctors, demonstrate a tendency towards a ‘secularisation’ of their contents. This is connected with the trend towards the ‘secularisation’ of conscience, that is to say its detachment from religion and its connection solely with the individual decision of a person.59 One can also find proposals, in relation to conscientious objection, that refer solely to the concept of secular morality for which the diversification of ethical values is justified and which does not accept the high truth of the character of juridical-natural norms.60 Subsequently, some legislatures tried to break the relationship between the refusal to practice an abortion and the conscience of the medical doctor by providing an ethically ‘neutral’ formula. This was something the French legislature did in article L2212-6 of the Code of Public Health. This lays down that if a medical doctor does not engage in an interruption of pregnancy he should direct the request of the woman to another doctor.61 The clause does not refer to the fact that the abortion is in contradiction with the conscience or beliefs of the medical doctor. This broadens the objective range of the refusal to practice an abortion. The conscientious objection of the medical doctor can also be extended not only to the physical carrying out of an abortion but also to all the activities and all the procedures that are needed to bring about an abortion - the provision of information, the issuing of certificates, the prescription of tests on which an abortion depends, and the decision to engage in an abortion. Thus conscientious objection for medical doctors has two dimensions of an objective character: firstly the stage of the test and the procedures leading up to an abortion and secondly the carrying out of the abortion.62 We should point out that in recent years there has been a third dimension as well, namely the prescription of abortion- inducing pharmaceuticals. The legalisation in a large number of countries on the use of post-coital abortion-inducing products that prevent the implantation of the blastocysts and destroy the conceived baby has created a new area as regards the right to conscientious objection of medical doctors. The question concerns the acceptance above all of the RU486 pill and the ‘day after’ pill, that is to say so- called ‘emergency contraception’. The National Committee of Bioethics in Italy clearly argued that ‘medical doctors should have the faculty to have recourse to conscientious objection in the case of prescribing the day after pill’. Without doubt a medical doctor can for reasons of conscience invoke the 136 conscience clause and refuse to prescribe means such as these that lead to abortion.63 However, the question has been presented as being controversial64 and in certain countries it has become the subject of pronouncements by courts or constitutional courts. Unfortunately, as regards the definition of pregnancy which holds that it begins not with conception but with implantation, a view which has often been approved by laws, at times the right of the medical doctor to refuse to prescribe abortion-inducing pharmaceuticals is contested. It is argued that such activity has nothing to do with abortion and as a result is not covered by the conscience clause. This approach follows the policy of the juridical solution to the question of conscientious objection included in the Bill on aware Fatherhood and Motherhood of 2004,65 which was rejected by the Polish parliament. It was indicated explicitly that the right of a medical doctor to abstain from health-care duties that are in opposition to his conscience do not apply to the refusal to engage in activities that prevent pregnancy in the sense of also preventing the implantation of an embryo in the uterus with the aim of making the growth of the embryo or foetus impossible. With the development of biomedicine and the legalisation of techniques of in vitro artificial fertilisation, which are connected with the elimination of human embryos and biomedical research on human embryos, the selection of embryos for eugenic purposes, the manipulation and the worsening of the genetic inheritance of an embryo, cloning, the formation of hybrids or chimeras and the practice of contraceptive sterilisation,66 the conscientious objection raised by the medical doctor is broadened by the refusal to engage in such activities. The Declaration of the World Association of Doctors on in vitro Fertilisation and the Transfer of Embryos, which was accepted by the thirty-ninth assembly of the doctors of the world within the context of the activities that a medical doctor can engage in, laid down that legal provisions cannot transgress the moral principles of a medical doctor and at the same time must respect the moral principles of patients. In article 16 of the law of 19 February 2004, n. 40, on norms relating to the field of medically assisted procreation, which is concerned with conscientious objection, it emerges that health-care personnel, and without doubt a medical doctor, cannot be obliged to take part in procedures involving the application of techniques of assisted procreation when he invokes conscientious objection with a preventive declaration. This does not apply to medical care before and after the intervention. In the conscience clause emphasised in article 38 of the Human Fertilisation and Embryology Act of 1990 of Great Britain, it is generally indicated that no individual, and by this is meant a medical doctor who has invoked conscientious objection in relation to any of the activities envisaged by this law, can be forced to engage in such activities.67 For some years, in connection with the legalisation of euthanasia and assisted suicide, the question has been raised of the extension of the conscience clause to members of the medical profession.68 The Dutch law on ending life on request and assisted suicide69 does not include a conscience clause. It is to be found, however, in article 14 of the Belgian law on euthanasia.70 In the legislation of the State of Oregon, where assisted suicide and the role of the medical doctor in such an act have been legalised, permission is envisaged for the medical doctor to abstain from prescribing the pharmaceuticals necessary to suicide.71 It should be observed that in the laws on euthanasia, in which the murder of a person who is gravely ill by a medical doctor is legal, substantially the problem of a conscience clause does not exist because the law does not give the medical doctor the task of killing a man through euthanasia or assisted suicide. The situation seems to be inverted: medical doctors who want to kill a sick person present their readiness to engage in such activity. They know that they will not be liable to penal responsibility for the murder if they are rigorous in their conduct, that is to say if they engage in the interruption of life or assisted suicide with all the medical rigour requested in conformity with article 2 of the Dutch law. The legalisation of euthanasia and assistance in suicide is clearly contrary to the ethics of the medical profession and medical deontological norms. The numerous deontological codes indicate, indeed, that a medical doctor cannot take part in ending life. This abstention includes the common norm of the deontology of this profession derived from the moral norm ‘do not kill’. At the level of the conscientious objection of medical doctors, the trend is emerging which, if implemented, could lead to the loss or the limitation of the right of the medical doctor to conscientious 137 objection. Here I am referring to the concept of so-called neutral medical ethical values72 in relation to such activities imposed on the medical doctor as abortion, euthanasia or assisting in suicide. It presumes that the values that are inscribed in the conscience of the medical doctor cannot influence his decisions as regards his approach to his patients. The medical doctor must not present any system of values to the patient or assess interventions in a moral sense or the procedures he engages in or sets in motion. He must not transfer his individual religious, ideological or political values to the relationship between the patient and the medical doctor.73 This concept is based upon the principle that no value is more right than another and thus the values of the medical doctor should not prevail over the values of the patient. The medical doctor must be neutral in relation to values, or to put it differently, he has to accept ‘neutral values’. The presentation of his own values in the form of conscientious objection is said to be politically incorrect. The acceptance of this concept, as a consequence, would deprive the medical doctor of the right to conscientious objection. Another dimension relates to the question of conscientious objection in connection with the death penalty. The problem emerged with the approval by the United States of America of the death penalty by lethal injection. On receiving news of the first execution of this kind that was to take place in the state of Oklahoma in the United States of America, the First Secretary of the World Association of Doctors, during the thirty-fourth world congress of the World Association of Doctors, spoke on the resolution which condemned the participation of medical doctors in the carrying out of the death penalty. For him, the destiny of medical doctors, of medicine and of its instruments was the protection of life and not acting as a killer. A medical doctor should not carry out the death penalty but merely ascertain death after the execution.74Unfortunately, voluntary excesses in wanting to carry out the death penalty in this form have occurred. It should be emphasised that in the case of the carrying out of the death penalty by the endovenous injection of a lethal chemical dosage, medical knowledge is required, and the typical situation for conscientious objection does not arise, that is to say conflict between two obligations, the legal and the moral, because the law does not force the medical doctor to engage in active participation in the execution. Requests to entrust prison doctors with such a task in certain states of the United States of America has led to the protests of some medical doctors who stressed that they were physicians and not killers.75However, in the United States of America cases are well known of doctors who have come forward voluntarily to carry out a death penalty by lethal injection. b) Nurses and other health-care personnel The question of a conscience clause for nurses and obstetricians does not raise doubts. The need to introduce such a clause was recognised by the International Labour Organisation which in article 18 of its Recommendation n. 157 of 1977 laid down that members of the nursing profession should be able to exclude themselves from activities engaged in by them that are in conflict with their religious, moral or ethical beliefs on the condition that they inform their health-care superiors in good time so as to ensure suitable measures to prevent patients from being damaged. The right to the conscientious objection of nurses and other health-care staff has been introduced in the formula of the conscience clause in numerous abortion laws or laws relating to such professions. Laws that allow abortion and envisage the right to conscientious objection expand its realm of application and thus, without doubt, it is extended to nurses, obstetricians and other people who belong to the professional categories of health-care personnel. It should also be pointed out that in the laws on the professions of nurses and obstetricians at times the right to conscientious objection is sanctioned, with a description of its sphere in general terms, so that conscientious objection can be invoked in relation to every activity that generates it and not only in relation to abortion. In article 23 of the Polish law on the professions of nurses and obstetricians it is explicitly laid down that nurses and obstetricians can abstain, with a prior written declaration sent to their health-care chief, from engaging in health-care services that are in contrast with their consciences on the condition that they act when there is an imminent threat to life and a decline in the health of a patient.76 The question is solved differently in countries where there is no 138 juridical regulation of conscientious objection in relation to the professions of nurses and obstetricians and no general clause such as exists in Poland or a specific clause relating to auxiliary health-care activities and the carrying out of abortion. After the above-mentioned sentence of the Constitutional Court, which stated that conscientious objection is a human right, in substantial terms there has been no doubt that in the professions of nurses and obstetricians the conscience clause is allowed. However of relevance in this area is the sentence of the National Court of Spain of 20 January 1987 (RJA 18/87) on the case of eight nurses of a gynaecology department who presented a request for conscientious objection in relation to activities connected with abortion and assured that all activities, apart from those connected with abortion, would have been carried out. The governing authorities of the hospital, in replying to their request, indicated that they should change their jobs. Four of these appealed against this and invoked articles 14 and 16 of the Spanish Constitution. The National Court of Spain upheld their right to conscientious objection but argued that the fact that they did not carry out duties as nurses disturbed the normal work of the department.77 Conscience clauses or a clear indication that nurses should act in conformity with wisdom and their conscience are to be found in the deontological codes of nurses and obstetricians. The objective domain of conscientious objection goes beyond abortion, for which nurses prepare the patient, both when they take part in the actual interruption of pregnancy and when they engage in subsequent related activities. The field of legalisation of attacks on human life carried out ‘for medicine’ has been enlarged to activities that require the presence of nurses as well. I mean here, for example, actions involving artificial fertilisation or euthanasia. Also in the case of a decision by a court to separate a patient from a ventilator or to suspend artificial alimentation, which leads to the death of the patient, such activities are entrusted to nurses. One should not be surprised that these require the extension of the conscience clause so that it covers not only abortion but also other interventions or activities in contrast with their conscience. This question has not been matched by an overall regulation and in reality the declaration of conscientious objection by nurses constitutes the basis for the application of disciplinary sanctions to them to the point of being dismissed or, in general, for professional discrimination by employers. c. Pharmacists The question of conscientious objection is at the present time the most topical there is for the profession of a pharmacist who works in a laboratory or a pharmacy. Its intensity has followed the insertion of the legal sale of contraceptives and above all of pre-implant pharmaceuticals that cause the death of the conceived child during the first moments of his life, primarily the RU 486 pill and the ‘day after’ pill, but also instruments for assisted suicide, euthanasia or the production or sale of medicines and drugs made from human foetuses. This problem has become particularly acute in the United States of America where, in various states, diametrically opposed approaches have been approved. Frequently the refusal to allow pharmacists the right to conscientious objection, above all in relation to emergency methods (especially the ‘day after’ pill), has been a pretext to present these questions to the courts. However, in certain states of the United States of America state law has allowed the right to refuse sell such instruments on the basis of conscientious objection.78 The third solution approved in certain states of the United States of America has been that of recognising that pharmacists have the right to conscientious objection but on certain conditions and in order to defend the interests of patients.79 The question of the conscientious objection of pharmacists emerged somewhat before this in the approach of French pharmacists who refused to sell syringes to drug-addicts and refused to dispense prescriptions that had been issued by medical doctors.80 Although the granting of the right to conscientious objection to medical doctors, obstetricians and nurses does not raise objections, in relation to pharmacists it generates controversy. Pharmacists make up a professional category to whom the right to conscientious objection is refused, especially in the context of the legalisation of the sale of abortion-inducing pharmaceuticals.81 139 J. Lopez Guzman is right when he points out that in substance a pharmacist can invoke conscientious objection like every other citizen because it is a human right82 based on the right to freedom of conscience and religion guaranteed by the Constitution. As a result of strong protests and famous judicial cases involving pharmacists who had invoked conscientious objection, evident changes were made in the approach to the right to conscientious objection of this professional category. Of importance here is the decision of 2 October 2001 of the European Court of Human Rights in Strasbourg which declared the illegitimacy of the plea of French pharmacists, who had refused to dispense prescriptions for ‘day after’ pills, in the sentence called ‘contraceptive means’. The pharmacists had referred to the right to freedom of conscience and religion as laid down in article 9§1 of the European Convention on Human Rights. At first they were punished with a fine on the basis of a definitive decision because they had not fulfilled their obligation to sell a pharmaceutical prescribed by a medical doctor. The European Court of Human Rights argued that the reference to the human right to freedom of conscience to justify conscientious objection was baseless because article 9 of the Convention does not always guarantee the right to conduct in the public domain that is dictated by a person’s belief. It pointed out that if the sale of a product is legal, pharmacists should not impose on others their beliefs so as to justify their refusal to sell the product that is prescribed, and added that they have many ways of expressing their beliefs outside the professional domain.83 The most debatable problems of the question of the recognition of the right to conscientious objection of pharmacists are as follows. Does the profession of pharmacists belong or not to the category of health-care professions? In their practice of their profession does the law guarantee their right to refuse to carry out legal obligations for reasons of conscientious objection? Should the production and the distribution of abortion-inducing methods by pharmacists to be placed in the activities indicated by conscience clauses as explicit or implicit co-operation in abortion-inducing procedures or activities? Can a pharmacist who is in conformity with the law on his profession, and is called upon to distribute the pharmaceuticals of the prescriptions of a medical doctor, refuse to issue them by invoking conscientious objection? Although the first question in general does not raise many doubts, it becoming evident that the profession of the pharmacist is one of the health-care professions. In the second case an attempt has been made to deny the right to insert the activities of a pharmacist amongst those indicated by conscience clauses in relation to the procedures of abortion, and in such activities and procedures that attack human life or the dignity of the person as: euthanasia, assisting suicide, artificial fertilisation or contraceptive sterilisation carried out by health-care personnel. It has been denied that the production or the dispensing of prescriptions for abortion-inducing pharmaceuticals can be seen as activities imposed by abortion laws which provide a qualification to invoke conscientious objection.84 It has been demonstrated that this is not co-operation in procedures to carry out an abortion. This point of view should obviously be rejected because the production or distribution of an abortion-inducing or euthanasia-effecting means is to be found, according to the principle of ‘sine qua non’, within the frameworks of co-operation in abortion or euthanasia. It has also been denied that post-coital or mechanical means have an abortion-inducing effect. If they do, their distribution cannot be included in the conscience clause. The principal field of conflict concerns above all, since they were allowed onto the market, the RU486 pill (which goes under various medical names) and the ‘day after’ pill which has been legalised in many countries.85 Some of these have been distributed even without a prescription and for free. It has been pointed out, first and foremost, that the interruption of a pregnancy can only occur after implantation, whereas the impeding of nidation does not constitute abortion, and that this excludes the substantial qualification for the invocation of conscientious objection. An even more complex question has been the justification of the right to conscientious objection in relation to the distribution of the post-coital ‘day after’ pill. This question was examined by courts that assessed the cases of pharmacists who had refused to dispense prescriptions where a medical doctor had prescribed the ‘day after’ pill. In general they did not accept the right of the pharmacist to conscientious objection. The question of the conscientious objection of 140 pharmacists, above all with reference to the ‘day after’ pill, is of particular contemporary relevance in the United States of America, where in 1988 the Food and Drug Administration approved the use of the ‘emergency contraception pill’ as an instrument for the control of births. It is argued that its application allows the prevention of 1.5 million ‘unwanted’ pregnancies and 700,000 abortions every year.86 One may also add, generalising, that at the level of the application of these pills a new front of national battle for reproduction rights is being opened up.87 A few state legislations have introduced legal guarantees for the conscientious objection of pharmacists in relation to the ‘day after’ pill and the RU486 pill and other abortion-inducing methods, whereas others have obviously excluded this possibility, often after an intense debate.88 A large number of Italian pharmacists have also invoked conscientious objection, pointing out that it is included in the formula of law n. 194 of 1978 which approves the possibility of invoking conscientious objection in relation to the interruption of pregnancy because they form a part of ‘health-care personnel and engage in health-care activities’.89 The same has happened with French pharmacists, especially since 2002 when the law obliged pharmacists to distribute the ‘day after’ pill anonymously to minors. In Belgium it is obligatory to distribute this pharmaceutical which induces abortion for free to minors.90 In relation to the conscientious objection of pharmacists to the ‘day after’ pill, national bioethical committees have contributed to the debate and within the context of the associations of pharmacists have tried to insert the question of conscientious objection into the deontological codes of this professional category. One example of this is the National Bioethical Committee of Italy which, accepting the claim of medical doctors to conscientious objection to the prescription of the day after pill, clearly approved that pharmacists could invoke conscientious objection in dispensing prescriptions for emergency contraception, including the ‘day after’ pill. The same question has been approached differently in countries such as France or some states of the United States of America where the obligation to write out prescriptions for these methods was abolished and they can be obtained ‘over the counter’. In Spain, in the absence of a legal conscience clause for health-care professions, including pharmacists, a conscience clause was introduced into articles 28 and 33 of the ethical and deontological code of the year 2000. This code was approved by the Ministry of Health and although it does not have the force of law its significance is emphasised for the practice of the profession of pharmacists and for possible judicial cases examined by courts that involve the refusal to distribute such methods.91 On the other hand, the Italian deontological code for pharmacists of 2000 clearly established that a pharmacist works according to his wisdom and his conscience and with respect for the law. However, in general this normative obligation with disciplinary sanctions is completed by a clause which lays down that a pharmacist cannot refuse to distribute pharmaceuticals and medicines without a justified reason.92 It has been stressed that in conformity with the law on the profession a pharmacist is obliged to distribute those pharmaceuticals and medicines which have been legally approved for sale. There can be no doubt that conscientious objection is a justified reason. John Paul II strongly emphasised that ‘the pharmacist, who has always been an intermediary between the medical doctor and the patient, has seen an expansion of his function of mediation. Awareness of …duties….leads him to reflect increasingly on the human, cultural, ethical and spiritual dimensions of…his mission. Indeed, the relationship between the pharmacist and the person who asks for remedies goes far beyond the commercial aspects because it requires a profound perception of the personal problems of the individual involved, in addition to the fundamental ethical aspects of services provided to life and the dignity of the human person…in the distribution of medicines the pharmacist cannot forgo the requirements of his conscience in the name of the laws of the market or in the name of accommodating legislation’.93 Pharmacists are not ‘mere neutral traders in, or distributors of, what is asked for: the dignity of their professional service requires them to live their role of mediation between the medical doctor and the patient responsibly and pro life…The sale of products, if they are intended exclusively for a purpose contrary to life, must be the subject of objection’.94 141 It should be stressed that pharmacists are a special professional category which has its own deontological codes. Pharmacists have to engage in studies, obtain authorisation to practice their profession, and in general they have their own ethical code. They cannot distribute pharmaceuticals and medicines in a mechanical way and they cannot dispense prescriptions automatically. They have to analyse them because they practice one of the health-care professions. They thus have the right to engage in a personal judgement when they dispense specific prescriptions. They cannot reject the morality of their profession.95 Thus the law should not impose on pharmacists the obligation to sell products that are intended to destroy or end human life. This decision should be included in the formula of legal conscientious objection.96 The right to conscientious objection is so strongly contested that proposal has been made to install automatic machines in pharmacies for the dispensing of prescriptions for contraceptive and abortion- inducing products, including the ‘day after’ pill. It is said that the distributors do not invoke conscientious objection and that the interests of the patient are respected.97 A grave problem is: can the autonomy of the profession of a pharmacist be absolute and should it possess in the interests of the patient certain specific limits? Here one may record opinions which hold that it is not necessary to introduce a general conscience clause for pharmacists into law and that it is necessary to link it to the results of the action of the pharmaceuticals and methods that are distributed. It is observed that pharmacists should not transfer their moral judgements on pharmaceuticals onto patients so as not to interfere with the existing state of the law.98 Conscientious objection in the domain of the profession of pharmacists should only include those cases, where the pharmacist believes that in selling a pharmaceutical he is taking part in the committing of an immoral act, in which an insoluble conflict arises. This means that in certain cases the pharmacist should not look for alternative means by which to refuse to distribute specific medical methods with professional arguments. Much depends on the type of pharmaceutical and the way that the personnel is employed. The reference to conscientious objection, when reasons of professional wisdom are sufficient, are in Guzman’s view an error,99 and this applies not only to the dispensing of prescriptions issued by medical doctors for abortion-inducing medical methods but also their work within hospital structures and research on pharmaceuticals in laboratories.100 d) Consultants The institution of consultants in the field of human life and the family is very differentiated and involves a public or private institution to which is entrusted the task of offering consultancy - that is to say advice, opinions and help in relation to questions connected with conjugal and family personal life.101 It is envisaged by numerous laws, above all by laws on abortion, but Dutch law also envisages it for euthanasia. Thus subject is also regulated by special laws. Consultants do not constitute, in substance, a separate professional category but rather they represent a specific specialisation in the domain of more general professions which, however, require suitable qualifications. One of their duties is consultancy prior to an abortion. The role of consultants in the interruption of a pregnancy is specific because they should present the truth about the development of the unborn child, the nature and procedure of abortion, the results and dangers of this act, the needs of the mother, and the kinds of social or medical assistance that are envisaged for babies and mothers both before and after birth. In some cases consultancy before an abortion is obligatory and is a formal condition envisaged by the law that is necessary in the case of an interruption of a pregnancy. In these cases a certificate that requires that the pregnant woman has engaged in consultancy is required. Unfortunately, it has no material influence on the carrying out of the abortion because this depends solely on the wishes of the pregnant woman, but it is a required document that must be presented to the medical doctor who procures the abortion. Consultancy before an abortion is envisaged as being obligatory or facultative in many laws on abortion. This is the case, for example, in France, Germany, Italy, the Czech Republic, Slovakia, and 142 Switzerland. Special laws have been passed on consultants, for example in Switzerland a Federal law is in force on abortion consultants which was passed on 9 October 1981.102 This created or recognised consultancy centres, as a result of which all cantons are obliged to create such centres to provide consultancy to all the people involved. This consultancy should be a detailed conversation about the personal situation and the mental and social circumstances of the pregnant woman and about help to remove the causes that led to the interruption of pregnancy. The legislature supposes that it is sufficient for the woman to take a decision to accept abortion freely and voluntarily.103 Especially well known is the case of Catholic consultants for pregnant women in Germany,104 where consultancy is a condition for legal abortion. In conformity with §218 of the German penal code, with modifications of 26 January 1992, the life of the conceived child is defended not by the prohibition of abortion with the threat of sanctions but by obligatory consultancy for the woman. This consultancy has recently been carried out by Catholic centres and this requires the authorisation of the state and is subject to state control.105 The question of the certificates issued by Catholic consultants for the interruption of pregnancy was the subject of grave controversies and an intervention by John Paul II. The Permanent Council of the German Bishops’ Conference decided to leave the state system of consultants and create its own consultants who, obviously enough, do not issue certificates that are required for the carrying out of legal abortion but, instead, have other duties. Because of a directive of the German Bishops’ Conference of 26 September 2000 on the work of consultants for pregnant women, it was accepted that ‘no Catholic consultancy office is allowed to maintain or support at the level of ideas or funds organisations which issue consultancy certificates which are one of the pre-conditions for the decriminalised carrying out of abortions. This certificate cannot be used for the decriminalised carrying out of abortions’.106 In Italy, family consultants worked de facto in Milan since 1948 and were formally created by law n. 405 of 29 July 1975.107 The area of their responsibilities was expanded by the law of 22 May 1978 n. 194 on assistance for pregnant women.108 The numerous duties of the consultants include, for example, education, responsible fatherhood and motherhood, family education, questions and issues connected with marriage and minors, contraception, assistance for pregnant women, information on the rights of such women, on social services, and on health-care services, and help in removing the causes that are said to have led the woman to the interruption of the pregnancy. Every woman that wants to interrupt her pregnancy is obliged to consult the consultant, who issues a suitable certificate which is then given to the medical doctor who procures the abortion. Consultants are employed on the basis of specific provisions in force and on work contracts and thus they know the subject matter of the field in which they provide consultancy. It appears that there is no doubt about the fact that they provided with the faculty of conscientious objection on the basis of article 9 of law 194 of 1978 which lists espressis verbis health-care personnel and those who engage in auxiliary activity. This is based upon the fact that their work is not confined to issuing a certificate to a pregnant woman who wants to interrupt a pregnancy. As family consultants they can invoke the conscience clause in relation to the issuing of a document that authorises the interruption of a pregnancy or consultancies on contraceptive methods. However, as L. Melina rightly observes in relation to the consultants envisaged by laws on abortion, they are subjected to the false logic of a law which forgoes defence of the conceived baby and emphasises respect for the decision of the conscience of the woman.109 The people who decide to work in consultancy centres are aware that their certificates can be used as a formal ‘sanctioning’ of the individual woman to interrupt the pregnancy. The situation of the consultants established by the Dutch law on euthanasia is completely different. According to article 1 of the same law, ‘by consultant is meant the medical doctor who has been consulted with reference to the intention by a medical doctor to end life on request or provide assistance to an act of suicide’. A medical doctor who takes away life or assists a suicide is obliged to provide consultancy with another independent medical doctor who has examined the patient and has 143 provided a written opinion on the requirements of the treatment that is due, expressing the belief ‘that the request of the patient is voluntary, well thought through, and he has the full belief that the sufferings of the patient are resistant to therapy and insuperable’, and that ‘he has informed the patient about the clinical situation and his prospects, that the medical doctor and the patient believe that there is no other reasonable solution to his situation’. In the light of this law it does not appear that the person who is entrusted with the role of a consultant is attributed the possibility of conscientious objection because he is fully aware of his duties in relation to euthanasia or assisted suicide which are specified by the law, and he has voluntarily undertaken to perform these duties. In the case of the Dutch law the consultant knows at the outset the sphere of activities for which he is responsible within the context of consultancy, and thus it would be hypocritical to attribute to him the right to conscientious objection so that he can reject work that is contrary to his conscience. To assign the right to conscientious objection to him would be as absurd as giving this right to a killer because the murder of a man is the essence of his profession. e) The administrative personnel of health services With respect to the legalisation of the conscience clause, in certain legislation the medical doctor is obliged to indicate another medical doctor or another health-care structure where abortion is carried out. The other juridical solutions transfer this obligation directly to the directors of hospitals, clinics or other health-care structures. The medical doctor who invokes the conscience clause in relation to abortion informs the provincial doctor or the health-care director who have to guarantee the possibility of the abortion being carried out by another doctor. The exponents of abortion emphasise that a public health-care structure as such cannot invoke conscientious objection because a conscience has an individual dimension and not a collective one. Thus it is connected with physical persons and not with entities that have a juridical status. This opinion is criticised to such an extent that some laws envisage such a possibility.110 The person who performs the functions of a director is obliged to indicate members of the personnel who procure abortions or where all the medical doctors of that structure are conscientious objectors he must indicate another health-care structure. It is certainly the case that such activity can be in opposition to the conscience of the provincial doctor or the health-care director. But this is no longer a question of the profession but of the function performed in the administrative structure and it should be examined within the context of the right to conscientious objection of the workers employed on the basis of a work contract or appointment. It is thus beyond the scope of this paper.

6. The Juridical Profession a) Many controversies are raised by the fact that judges can invoke the right to conscientious objection. This question emerges not only with regard to the need to deal with cases where the subject is an attack on life, in general in the form of abortion, but also divorce cases or couples of the same sex. In these last cases the Catholic Church has encouraged invocation of conscientious objection. In conformity with the precepts of law on the judicial system, judges decide according to their own conscience. This allows them to examine a specific case in conformity with the norms of conscience but always within the limits laid down by the law.111 It should be emphasised that in this formula one is dealing with the independence of judges and sovereign decisions without forms of pressure. However, if the judge does not consent to cases decided by the majority of his collegial judges he can declare a votum separatum and express his different opinion. He then acts within the domain of the so-called option of conscience. He can also exclude himself from deciding a specific case. The gravest problem is the question of binding a judge with the precepts of law whose ‘axiology he does not accept’.112In general, it is accepted that a judge is bound by the law and thus that he cannot refuse to enforce it.113 At times, above all in reference to the situation of ‘political changes’, the 144 possibility is indicated of applying to the judge the so-called Radbruch clause, according to which ‘the conflict between justice and juridical safety should be solved so that positive law, which is upheld by legislation and state power, has precedence even though its contents are unfair and useless, although the contradiction between positive law and justice reaches such a level that the law as unfair law should give way to justice. One could, however, with all clarity, indicate…the boundary: where there is never a move in the direction of justice, where equality, as the essence of justice, is knowingly rejected at the moment the positive law is made, it is difficult to say that the law is only ‘unfair law’ because it loses, overall, the nature of law’.114 Radbruch explains that ‘juridical principles exist that prevail over every legal provision and in consequence law that is opposed to them is without force. These principles are defined as natural law or the law of reason’.115 In this explanation, which is at the basis of the exceptional possibility of withdrawing from respect for legal norms, is reflected the principle of unfair law which was pointed out much earlier by St. Thomas Aquinas. A judge who in his conscience sees the unworthiness of a juridical norm, and its contradiction with universal moral values, and refuses to implement this provision of juridical norms, accepting the consequences thereby or even forgoing to practice the profession of a judge, should not take on juridical responsibility. 116 In the Polish literature on the subject one can find the reasonable view that ‘an ethically sensitive judge cannot obey every law…A threshold of the legal system or juridical order exists beneath which we are dealing with the negation of the fundamental idea itself of law because of the violation of fundamental principles and values. This law cannot be implemented by any honest judge’.117 Although the substantial contradiction between Stalinist law and human laws was the background to this opinion, one should extend the ethical norms of the conduct of a judge to his activities connected with the right to life or family law. A judge, like everyone else, has the right to act in the practice of his profession in conformity with the judgement of his own conscience. Indeed, he should be recognised as having the right to conscientious objection. One must accept that in the case of an irremediable conflict between the contents of provisions and the conscience of the judge at the level of universal human rights, for example the right to life, a judge should have the opportunity to refuse to decide on their bases. In the same field there has emerged the problem of the refusal of a judge to defend the issuing of the authorisation of abortion to a minor; acting in accordance with his conscience he can refuse to issue such authorisation. E. Sgreccia has expressed the same opinion. He has emphasised that the judge responsible must have the right to conscientious objection in the case of minors or handicapped people.118 Reference should be made to the sentences of the Constitutional Court in Italy, for example: 196/1987, 445/1987, 1993, 2002, in which a judge was refused in the above-mentioned cases the right to conscientious objection because he would have been in sharp contract with the substantial obligation to implement the juridical order imposed on people who perform public functions.119 It appears that the question of a judge invoking the conscience clause can arise in the sphere of other laws and not only in relation to abortion laws. Some authorities, however, in rigorously binding the judge to the obligation to apply the law, indicate that where he is convinced that a specific provision of the law violates constitutional norms he can begin ‘procedures to examine the legitimacy of the contested norm in relation to the constitution at the Constitutional Court’,120 and this evidently excludes the possibility that he can invoke conscientious objection. The question of the right of a judge to conscientious objection is also raised with reference to decisions on divorce cases and it is a very topical question in the sphere of the legalisation of homosexual couples at the level of the duties of a judge who keeps a civil register of people who want to contract a marriage. It should be remembered that the Congregation for the Doctrine of the Faith has clearly indicated that one must abstain from any type of collaboration in the sanctioning and application of laws that legalise such couples because they are gravely unjust. In this case ‘everyone can claim the right to conscientious objection’.121 Within the context of Spanish law, reference may be made to the same question by examining the contents of the sentence of the Constitutional Court of 11 April 1985. In truth, this applied to abortion 145 but it recognised conscientious objection as a fundamental right and one that was directly applicable. According to this sentence, there are no juridical reasons why a judge cannot invoke this sentence as a juridical basis for refusing to apply the law on the civil unions of couples of the same sex with reference to conscientious objection. In this context it may be observed that as a result of an overall law a judge, if he believes that the civil union of people of the same sex is illegitimate, can present a case to the Constitutional Court.122 In Italy, after the address of John Paul II to the Rota Romana given on 28 January 2002,123 on the occasion of the inauguration of the judicial year, discussion intensified about the right to conscientious objection of people who practice the juridical professions, and in particular judges and lawyers. The Holy Father, who defined divorce as a curse for civil society and emphasised the indissolubility of marriage, invited people to abstain from co-operating in divorces. The President of the National Forensic Council, in opposing the right to conscientious objection, declared that were jurists to engage in it they would betray the law. Similarly, the Italian Minister of Justice declared against the right to conscientious objection for judges.124 At the time of this discussion on the conscientious objection of Catholic jurists in relation to divorce, it was argued that the juridical order should recognise the right to conscientious objection as an individual right that is inviolable and innate and observed that the application of this right should not lead to juridical sanctions.125 b) The right to conscientious objection of lawyers and other people who practice a legal profession. It is assumed that a lawyer does not have the faculty to have recourse to conscientious objection because he is in a situation in which an insoluble conflict between his conscience and the contents of the legal provision does not exist. Put more simply, he will refuse to handle a case that would lead to a violation of the norms of conscience. There remains, however, the question of the defence of the professional role which is requested in some situations by the judicial organs because in this case two duties can clash; the possibility of invoking the conscience clause would be a just solution, all the more because in deontological codes for lawyers there is often the rule that a lawyer should act in conformity with his own conscience. In the French law on lawyers of 31 December 1990 it is indicated that a lawyer should not provide services of defence if he finds that this is in opposition to his own conscience.126 One must therefore accept that a lawyer also has the right to conscientious objection which, indeed, constitutes a universal human right. The Bill on the concordat in Slovakia clearly guaranteed the right to conscientious objection for all jurists whose activities concerned the subject of that Bill, for example divorces. In the appendix to this measure reference was made to judges, lawyers, and judicial officials.127 c) The law that legalised homosexual marriage in Spain provoked the problem of the right to conscientious objection not only of civil judges or mayors who preside over the civil marriages of such couples but also of auxiliary administrative personnel. The secretary of a court raised conscientious objections in relation to activities imposed during the process of the marriage of a couple of the same sex. It should be supposed, above all in the light of the general observation of the Constitutional Court of Spain which recognised conscientious objection as a human right, that the secretary of a court has the right to invoke conscientious objection and that this should not involve disciplinary sanctions.128 Thus administrative and judicial personnel, the sphere of their co-operation, and the carrying out of legal obligations in opposition to the obligations inscribed in their consciences, should thus be added to the professions where the question of conscientious objection is present. The same applies to administrative personnel in health-care structures because one cannot always see administrative personnel as health-care personnel, although according to article 9 of the Italian law n. 194 of 1978 they are carriers out ‘of auxiliary activity’. The specific case of the secretary of a medical doctor who refused to write a document that included indications of the doctor in relation to the 146 procedures of an abortion for a woman who wanted to interrupt her pregnancy was the basis for raising the question of the right to conscientious objection. I am referring here to the well-known case of Janaway v. Salford Area Health Authority where the first-level court accepted her plea and argued that the activities carried out by her were covered by article 4(1) of the Abortion Act of 1967. However, in the final decision the House of Lords refused the secretary conscientious objection and argued that the activity of writing a letter that referred to abortion was not covered by the provisions of the law on abortion of 1967 because it did not constitute participation in the process of abortion.129 In cases in which the question of conscientious objection is not regulated expressis verbis, the basis for invoking it constitutes the precept to be found in all constitutional charters of democratic countries that guarantee the right to freedom of belief and conscience.

7. The Teaching Profession The question of conscientious objection for teachers arises on the basis of the obligation to transmit opinions that are in opposition to values recognised by their conscience. In particular, one is dealing here with the subject of sexual education. The question of conscientious objection is not regulated by the law but encounters problems of various kinds. A teacher works according to a contract of work. In this way, the teacher of sexual education accepts the programme that is proposed with which he will teach his subject in various state schools. In some countries the teaching of sexual education is entrusted to specialised teachers, so-termed ‘educators’. In addition, it is necessary to distinguish the teachers in private schools, and especially confessional private schools, from teachers in state schools. In private schools this subject can be taught according to the system of values chosen by the school. It should be remembered that parents are the first and fundamental educators of their own children. In conformity with international standards, in the education of children a school should respect the religious and moral beliefs of parents. Teachers cannot be refused the right to conscientious objection. In the proposed agreement between the Republic of Slovakia and the Holy See this kind of solution was proposed. In the clause concerning conscientious objection educational activities were also placed, and these were subjected amongst other things to the laws on public education that justify sexual education.130 As has already been observed in this paper, this project was not approved.

8. As regards laws whose contents bear upon fundamental values and injure the fundamental rights of man, there is the question of whether people who perform public functions in high organs of the state can invoke a conscientious objection clause. In the above-mentioned cases, however, one is not dealing with the real practice of a profession, even though one talks of a parliamentary professional because that person performs a public function. The legal foundation for the revocation of the obligation to perform certain actions contemplated by the law is to be found in the right to freedom of conscience. One example of this is without doubt the gesture of King Baldovin of Belgium who refused to sign the law on abortion because it was in opposition to his conscience. Members of Parliament have the right to draw up a law, to present amendments and to vote according to conscience. Unfortunately, however, this rule is rarely applied.131 Naturally, one could list other professions where the guarantee of right to conscientious objection has a more important role. This would be a subject for a longer monograph.

9. It is to be observed that in our epoch there are strong tensions between the conscience of individuals and the authority of democratic countries which tend to exercise absolute power over the conscience, given that positive law creates serious problems for those who accept the existence of a supernatural normative order.132 The situation is such that in the name of the pluralism of beliefs laws are passed that violate fundamental values and when they are applied reference is made to their names, thereby justifying the individual decisions of individuals that are of determining importance. This practice frees 147 the legislator from making sure that acts do not violate moral rules and do not bear upon fundamental human rights. The institution of conscientious objection acutely brings out the question of unjust law and objection to its contents.133Laws that injure fundamental values, and especially values relating to man and his intangible rights, are increasingly numerous, and this is true in particular of laws on life, the family, and natural rights. In introducing a conscientious objection clause, legislators appear to justify their ethical choices in relation to the contents of the law and justify moral relativism, delegating matters exclusively to the individual conscience. The juridical acceptance of conscientious objection is seen as the ultimate requirement of a coherent order based on human rights.134 A person who invokes conscientious objection has immunity against the juridical consequences of his behaviour in accordance with the principle of individual concession. One can thus speak about the privatisation of morality and of a fragmentariness dependent on the ethical behaviour of a specific person. In this way, ethics becomes the ethics of personal conscience clauses.135 The conscience, however, is not a private criterion but an objective one.136 The frequent practice of invocation of conscientious objection by representatives of the various professions creates conflicts in those who tend towards the total separation of the law from the fundamental moral values connected with man and the family. Thus a campaign is gaining ground against this institution, based on the assumption that it can represent an abuse of rights and personal freedom. This mass attack was illustrated in particular by the work on the Concordat project on the right to acceptance of conscientious objection in the Republic of Slovakia. In the report of 15 December 2005 of the European Union’s Network of Independent Experts on Fundamental Rights, which was drawn up first and foremost by pro-abortion organisations, it was argued that such a regulation would have had a negative influence on certain so-called fundamental rights, such as the right to abortion, euthanasia or homosexual marriages, and the right to have access to contraceptives as well.137 Although I cannot enter here into discussion of the admission of such rights as fundamental human rights, the experience of Slovakia indicates that the rule of the concession of conscientious objection to the various professions is not a stable law and can be seen by contemporary pluralist states as being too ‘pluralist’. When reflecting on the question of conscientious objection, one should observe that in situations where laws are not based upon the fundamental norms of moral law in relation to human rights, human life, and the family, and where they cannot be changed at the level of legislation, one should at least assure the right to conscientious objection.138

1 J.J. WRIGHT, Coscienza e autorità.Tensione e armonia (Citta Nuova Editrice, Rome, 1970), p. 15. 2 G. DANESI, L’obiezione di coscienza: spunti per un`analisi giuridica e metagiuridica, 3JOHN PAUL II, Evangelium Vitae, n.74. 4J.T.M. DE AGAR, ‘Problemi giuridici dell’obiezione di coscienza, versione italiana dell’ art. Problemas juridicos de la objecion de conciencia’, Scripta Theologica, 1995, 2: 519-543. 5G. DANESI , L`obiezione di coscienza: spunti per un`analisi giuridica e matagiuridica, p. 90. Cf. e.g. G. DALLA TORRE, ‘Ruolo della Chiesa nella societa civile:pastori e laici nella prospettiva ecclesiologico-canonica’, in I cattolici e la societa pluralista. Il caso delle “leggi imperfette” (Edizioni Studio Domenicano, Bologna, 1996), p. 218, ss. 6G. DANESI , L`obiezione di coscienza: spunti per un`analisi giuridica e matagiuridica, p. 90. Cf. e.g. G. DALLA TORRE, ‘Ruolo della Chiesa nella societa civile:pastori e laici nella prospettiva ecclesiologico-canonica’, in I cattolici e la societa pluralista. Il caso delle “leggi imperfette” (Edizioni Studio Domenicano, Bologna, 1996), p. 218, ss. 7JOHN PAUL II, Evangelium vitae, n 74. 8J.T.M. DE AGAR, ‘Problemi giuridici dell’obiezione di coscienza’, p. 17. Ibidem. 148 9 ibidem 10 Cf. A. FIORI and E. SGRECCIA (eds.),Obiezione di coscienza e aborto (Milan, 1978), p. 90. 11Cf. F. PEREIRA COUTINHO, Sentido e limites do direito fundamental a objeccao de consciencia, Faculdade de Direito da Universidade Nova de Lisboa, Working Papers 2001, p. 6. 12 Constitution de la République Portugaise, http://www.parlamento.pt/frances/const-leg/crp- franc/crp-97.1.html 13M. BEN VERMEULEN, ‘Rapport sur „Portée et limites de l`objection de conscience’, in Liberté de conscience. Actes de Seminaire organisé par le Secrétariat General du Conseil de l`Europe en collaboration avec le Centre d`études des droit de l`homme. “F. M. von Asbeck” de Université de Leiden, 12-14 novembre 1992 (Les editions du Conseil de l`Europe, Strasborg, 1993), p. 85. In Holland it is recognised that the best level for the regulation of conscientious objection is specific laws: ibidem, p. 90. 14STC 53/85 dell`11.IV. 1985. 15Cf. J.T.M. DE AGAR, ‘Problemi giuridici dell`obiezione’, p.17 . 16F.P. COUTINHO, Sentido e limites do direito fundamental a objeccao de consciencia (EDUNL, 2001), p. 6. 17E. SGRECCIA, ‘La Convenzione sui diritti dell`uomo e la biomedicina’, Medicina e Morale, 1997, 1, p. 10. 18CONSEIL DE L`EUROPE, ASSEMBLEE PARLAMENTAIRE, SESSION de 1995. Compte rendu officiel de la sixième séanc, 2 II 1995, AS(1995)CR6. 19Cf. L’emendamento e l’intervenzione di A. Grześkowiak, Conseil de l`Europe, Assemblee parlamentaire, Session de 1995. Compte rendu officiel de la sixième séanca, 2 II 1995, AS(1995) CR6. 20 J.T.M. DE AGAR, ‘Problemi giuridici dell`obiezione di coscienza, versione italiana dell’art. Problemas juridicos de la objecion de conciencia’, Scripta Theologica, 1995, 2, 519-543. 21 R. NAVARRO-VALLS and J. MARTINEZ-TORRON, Las objeciones de conciencia en el derecho espanol y comparado (Madrid, 1997), pp. 1-2. 22 G. QUINN, ‘Objection de conscience dans le domaine professionel (fonction publique et professions liberales’, in Liberté de conscience, p. 114. 23Nvrah. Zmluva medzi Slovenskou republikou a Svatou stolicou o uplatnovani vyhrady svedomia. 24Cf. G. DELLA TORRE, ‘Ruolo della Chiesa’, p. 220. 25M. BEN VERMEULEN, ‘Rapport’, p. 90. 26Z. CICHOŃ, ‘Klauzula sumienia w różnych zawodach’, in Prawnik katolicki a wartości prawa (Kraków, 1999), p. 50. 27 Affaire Knudsen c/ Norvege- Decision de la Commission europeenne des Droit de l`Homme du 8 mars 1985. DR 42:247. 28 M.l. DI PIETRO, C. CASINI, M. CASINI, A.G. SPAGNOLO, Obiezione di coscienza in sanita. Nuove problematiche oer l`etica e per il diritto (Edizioni Cantagalli, Sienna, 2005) pp. 8, 28, 39, 138. 29Kodeks etyki lekarskiej del 2 I. 2004, Warsaw, 2004. 30 U.1/192 31 E. Sgreccia has written ‘Ce n`est donc pas la loi qui constitue l`ethique ni qui impose sa propre moralite’: E. SGRECCIA. Manuel de bioethique. Les fundaments et l`ethique biomedicale (Mame- Edifa, Paris, 2004), p. 497. 32Cf. G. RIPERT, Bioethique et objection de conscience, il discorso al Colloque Pampelona, 2/3 X 1999, (typescript). 33 M. GAŁĄZKA, Prawo karne wobec prokreacji pozaustrojowej (Wydawnictwo KUL, Lublin, 2005) p. 384 34R. NAVARRO-VALLS, ‘La objecion de conciencia’, Bioetica y Justicia, pp. 311- 314. 35 Ibidem, p. 314. 36 JOHN PAUL II, Evangelium vitae, n. 74. 149 37 J. GUZMAN LOPEZ, Objecion de consciencia farmaceutica: http://www.andoc- biosanitario.org/Juridico/Lopezguz:1; R.DRESSER, Professionals, Conformity, and Conscience Hastings Center Report, 2005, XI/XII, p. 9. 38 J. GUZMAN LOPEZ, ‘Objecion de conciencia’, p. 1. 39 E. SGRECCIA, Manuel, p. 499. 40G. HERRANZ, ‘La objecion de conciencia de las profesiones sanitarias’, Scripta Theologica, 1995, 2, p. 546. 41R. DRESSER, ‘Professionals, Conformity, and Conscience’, Hastings Center Report, 2005, XI/XII, pp. 9-10. 42Ibidem, p. 9. 43Legge 12 X 1993, n. 413, Norme sull`obiezione di coscienza alla sperimentazione animale, GU n. 244. 44 In the view of P. DUCA: ‘La difficile conciliazione di precetto morale, dettato della legge e diritto della paziente, Ochio Clinico, 2004, 8, p. 23. 45 J.R.H.R. MANASSE, ‘Conscientions Objection and the Pharmacist’, Science 2005, 308, 9728, p. 1559. 46 E. SGRECCIA, Manuel, p. 501. 47 K. WIAK,Ochrona dziecka poczętego w polskim prawie karnym (Redakcja Wydawnictwa KUL, Lublin, 2001), pp. 49-50. 48 Cf. F. STELLA, ‘La situazione legislativa in merito alla obiezione sanitaria in Europa’, Medicina e Morale, 1985, 2, pp. 281-301. 49 Cf., for example, C.M.R. CASABONA Los delitos contra la vida y la integridad personal y los relativos a la manipulacion genetica (Canares, Granada, 2004), p.143. 50The Abortion Act of 1967. 51M. DAVIES, Medical Law (Blekstone Press Limited, London, 1998), p. 279. 52Janaway v Salford Area Health Authority (1989) AC537, HL. 53 Law of 22 May 1978, n. 194, Norms for the social defence of maternity and the voluntary interruption of pregnancy, GU n. 140, of 22 May 1978, with modifications. 54 D. SERRAT MORE and L. BERNAD PEREZ, Las profesiones sanitarias ante la objecion de conciencia,http://www.andoc-biosanitario.org/Juridico/Serrat.htm :3. 55 ROZPORZĄDZENIE MINISTRA ZDROWIA z 30 kwietnia 1990 w sprawie kwalifikacji zawodowych, jakie powinni posiadać lekarze dokonujący zabiegu przerywania ciąży oraz trybu wydawania orzeczeń lekarskich o dopuszczalności dokonania takiego zabiegu Dz.U. 2000. nr 29, 179. 56 Attached text Dz. U. 2001, nr. 126, 1382. 57Cf. A. ZOLL, ‘Prawo lekarza do odmowy udzielenia świadczeń zdrowotnych i jego granice’, Medycyna i Prawo, 2003, 13, p. 20. 58Cf. E. ZIELIŃSKA, ‘Klauzula sumienia’, Medycyna i Prawo, 2003,13, pp. 26-30. 59 M. BEN VERMEULEN, ‘Rapport sur “Portée et limites de l`objection de conscience’, in Liberté de conscience (Strasbourg, 1993), p. 81. 60P. DUCA , ‘La difficile conciliazione’, p. 23. 61Loi n.2001-588 du 4 juillet 2001 art. 1 Journal Officiel du 7 juillet 2001. 62 Cf. E. SGRECCIA, Manuel, p. 500. 63Cf. M. L. DI PIETRO, C. CASINI, M. CASINI, and A.G. SPAGNOLO, Obiezione, p. 73ss. 64Ibidem, p. 127. 65 Projekt ustawy o świadomym rodzicielstwie, Warsaw 30 II 2004, Sejm RP, Druk nr 3214. 66Cf. A. CAFARO and G. COTTINI, Etica medica (Edizioni Ares, Milan, p. 113). 67Human Fertilisation and Embrylology Act 1990, c. 37, ‘The Public General Acts and General Synod Measures’ 1990, part IV: 1471-1509; cf. also §10 Gesetz zum Schutz von Embryonen

150 (Embronenschutzgesetz-EschG) vom 13. Dezember 1990, BGBI Nr 69, Teil I : 2746-2748, with modifications, cf. GAŁĄZKA, op.cit., p. 324. 68 Cf. F. MENDOZA, La objecion de conciencia en derecho penal (Comares, Granada, 2001), pp. 409, 423; C.M.R. CASABONA, Los delitos, p. 142. 69 Reform of the procedures for putting an end to life on request and assisted suicide and amendments to the penal code (Wetboek van Strafrecht) and the law on cremation and burial, High Chamber of the States General, parliamnetary year 2000-2001- 26691 n. 137. 70 Loi relative à l`eutanasie, (28 V 2002), Moniteur Belge 2002, 22:VI. 71 R. DRESSER, Professionals, Conformity, and Conscience’, Hastings Center Report, 2005, n. XI/XII, p. 9. 72 J.F. PEPPIN, ‘The Christian Physician in the Non Christian Institution: Objection of Conscience and Physician Value Neutrality’, Christian Bioethics, 1997 1, 39-49. 73Cf. S.G. GAY, ‘“Conscience Clauses” for Doctors Are a Risk to Public Health’, Science & Theology News, 2004, VI. 74A, GRZEŚKOWIAK, ‘Współczesne problemy kary śmierci’, Przegląd Powszechny, 1988, 1, p. 28. 75Cf. R. NAVARRO-VALLS, ‘La objecion de conciencia’, Bioetica y Justicia, p. 321. 76 Law of 5 July1996 on the nursing and obstetric professions G. U. Nr 57 , pos .602, with modifications. 77 R. NAVARRO-VALLS, ‘La objecion de conciencia’, Bioetica y Justicia, p. 323. 78It may be observed that in twenty-three states of the United States of America, legislators have passed a law that in an explicit way recognises the right to conscientious objection of pharmacists: cf. The New York Times, 19.IV.2005; cf. J.R.H.R. MANASSE, ‘Conscientious Objection and the Pharmacist’, Science 2005, v. 308, 9728, p. 1559. 79J. CANTOR and K. BAUM, ‘The Limits of Conscientious Objection - May Pharmacists Refuse to Fill Prescriptions for Emergency Contraception’, The New Journal of Medicine, 2004, 2, p. 2010. 80S. RODOTA, ‘Objection de conscience au service militaire’, in Liberté de conscience, p. 100. 81R. NAVARRO-VALLS and J. MARTIN TORRON, ‘Le obiezione di coscienza. Profili di diritto comparator’, p. 106. 82 J. GUZMAN LOPEZ, Objecion de conciencia farmaceutica, op. cit, p. 2. 83Cf. COUR EUROPEENNE DES DROIT DE L`HOMME, Décision sur la recevabilité de la requete n.49853/99 contre France du 2.X. 2001. 84 J. GUZMAN LOPEZ, El farmaceutico en la elaboracion, promocion y dispensacion de abortivos,http://www.bioeticaweb.com/content/view/150/42. 85P.es. in Italy, France, Spain, Belgium, the USA, Mexico, the Honduras, Colombia, and Chile, cf. ‘Obiezione di coscienza e pillola del giorno dopo’: http://italiasalute.leonardo.it/news2pag.asp? ID=6072. 86SCOTT S. GREENBERGER, ‘“Morning-after pill” issue poses dilemma for Rommney’, The Boston Globe, 12,VI 2005. 87R. STEIN, ‘Pharmacists’ Rights at Front of New Debate’, Washington post. Com, 28.III. 2005 s. A01. Cf.for exmple S. ERTELT ‘Arizona House Commitee Approves Pharmacists’ Abortion Conscience Clause,’ Lifenews. Com, 3.II.2005, idem, ‘Minnesota Bill would Allow Pharmacists to Opt out on Morning After Pills’, ibidem, 3. III, 2005, Newada Pharmacy Board Will, Consider Pharmacists Conscience Clause’, ibidem 8824.X. 2005, ibidem.,’ Georgia Haus Rejects Pharmacist`s Conscience Clause on Abortion Drugs’, 14.III. 2006, ‘Arizona Governor Votes Pharmacist Abortion Conscience Clause Bill’, ibidem, 13.IV . 2005, ibidem, ‘Illinois Gov. Sued\Over Discrimination Against Pro-Life Pharmacists’, LifeNews.com Editor 13.IV.2005. 89Cf. for example. ‘Obiezione di coscienza dei farmacisti sulla pillola del giorno dopo’, http://www.mpv-cav.veneto.it/a_93_IT_659_1.html; P. MORANDINI, ‘Obiezione di 151 coscienza dei farmacisti sulla pillola del giorno dopo’:http://www.pinomorandini.it/a_14_51_1.html, 2.XII.2000. 90‘Des pharmaciens sommes de distribuer la pilule du landemain, Alliance pour les droit de la vie’, Revue de presse confidentielle n. 185 of 15.III.2006. 91P. TALAVERA FERNANDEZ and V. BELLEVER CAPELLA, ‘La objecion de conciencia farmaceutica’, Medicina e Morale, 2003, 1, p. 111. 92 P. TALAVERA FERNANDEZ and V. BELLEVER CAPELLA, ‘La objecion’, p. 121. 93JOHN PAUL II, ‘Address to the International Fedration of Catholic Pharmacists’, 13. XI. 1990, nn. 3, 4. 94Cf. L. MELINA, ‘La cooperazione con azioni moralmente cattive contro la vita umana’, in Commento interdisciplinare alla “Evangelium Vitae” ed. by E. Sgreccia and R. Lucas Lucas (Vatican City, 1997), p. 488. 95J. CANTOR and K. BAUM, op.cit., 2009. 96Cf. L. MELINA, ‘La cooperazione con azioni moralmente cattive contro la vita umana’ in Commento interdisciplinare alla “Evangelium vitae”, ed. by E. Sgreccia and R. Lucas Lucas (Vatican City, 1997), p. 488. 97K.A. BRAMSTEDT, ‘When pharmacists refuse to dispense prescriptions’: www. thelancet.com, vol 365, 15V 2006 , 9518, p. 1220. 98 J. CANTOR and K. BAUM, op.cit., p. 2010. 99 J. GUZMAN LOPEZ, ‘Objecion’, p. 2. The author argues that the refusal to sell condoms in a pharmacy does not require invocation of conscientious objection. 100 A.R. LUNO, ‘L`obiezione di coscienza sanitaria’ (2006): http://www.eticaepolitica.net/corsodi morale/giudizia20.pdf:4. 101 L. PATTI, ‘Consultori Familiari’ in LEXICON, edited by the Pontificio Consiglio per la Famiglia (Edizioni Dehoniane Bologna, Bologna, 2003); L. PATTI, ‘Consultori Familiari’ LEXICON, edited by the Pontificio Consiglio per la Famiglia (Edizioni Dehoniane Bologna, Bologna, 2003): p. 113. 102 RS 857.5 103 J.H. POZO, Droit penal. Partie special I. Infractions contre la vie, l`integrite corporelle et le patrimoine (Schulthess Polygraphischer Verlag, Zurich, 1997), pp. 69-70. 104 H. REIS, ‘Consulenza per le donne incinte in Germania’, Lexicon, pp. 105-111. 105 Ibidem, p. 109. 106 Ibidem, pp. 110, 111. 107 Cf. L. PATTI, ‘Consultori Familiari’, p. 113,ss. 108 Art 2, L. 22 V. 1978, n.194 Norme per la tutela sociale della maternità e sull`interuzione volontaria della gravidanza. 109 MELINA L., La cooperazione...:483. 110 Cf. G. RIPERT, ‘Bioethique et objection de conscience’, Colloque Pampelona, typescript, p. 6. 111 Cr. R. DE ASIS ROIG, ‘Juez y objecion de conciencia’, Sistema 1993, 113, p. 72; J. GUZMAN LOPEZ, ‘Objecion de conciencia farmaceutica’, p. 2. 112 A. ZOLL, ‘Związanie sędziego ustawą’, in Konstytucja i gwarancje jej przestrzegania. Księga pamiątkowa ku czci prof. Janiny Zakrzewskiej (Warsaw, 1996) p. 245. 113 A. ZOLL, op.cit., p. 251. 114 G. RADBRUCH, ‘Ustawowe bezprawie i ponadustawowe prawo’, in M. Szyszkowska, Zarys filozofii prawa (Białystok, 2000), p. 262. 115 G. RADBRUCH, ‘Pięć minut filozofii prawa’, in Colloquia Communia 1988/89, 41-42, p. 62. 116 W. ŁĄCZKOWSKI, ‘Wymiar sprawiedliwości a stosowanie prawa’, in Ius et lex. Księga jubileuszowa ku czci Profesora Adama Strzembosza, edited by. A. Dębiński, A. Grześkowiak, and K. Wiak, Lublin, 2002, p. 236. 117 M. SAFJAN, ‘Etyka zawodu sędziowskiego’, in Ius et lex, op.cit., p. 272. 152 118 E. SGRECCIA, Manuel, p. 504. 119 M.J. DI PIETRO, C. CASINI, M. CASINI, and A.G. SPAGNOLO, ‘Obiezione di coscienza in sanità’, pp. 135-136. 120 A. ZOLL, ‘Związanie’, p. 247. 121 Congregazione per la Dottrina della Fede, ‘Considerazioni circa i progetti di riconoscimento legale delle unioni tra persone omosessuali’, 31 July 2003; cf. also Card. LOPEZ TRUJILLO A., ‘Reflexiones sobre la objecion de conciencia en la Enciclica Evangelium vitae', Famiglia e Vita 2005, 2, p. 72. 122 J. FORNES , ‘Il giurista: L`obiezione de coscienza? Scelta legitima’, Avvenire, 27 IV 2005. 123 JOHN PAUL II, ‘Il discorso alla Rota Romana’. 124 R. RICCIOTTI., ‘Il giudice non puo obbiettare contro la legge’: htt://www.giustiziacarita .it/ professioni/rom.htm. 125 M. ALTOBELLO, ‘Relazione deontological’: http://www.giustiziacarita.it/professioni/relazione- deontologica.htm. 126 La Croix.com, 10 VI 2005, L`Eglise et les lois 127 Cf. art 4 Nvrah Zmluva, op.cit. 128 The case described by R. NAVARRO-VALLS, ‘La objecion de cociencia religiosa’, Famiglia et Vita 2005, 3, p. 105. 129[1988] AC537 HL, cf. M. DAVIES, Medical Law, p. 280; G. QUINN, ‘Objection de conscience dans le domaine professional (fuction publique et professions liberales)’, in Liberté de conscience, op.cit., p. 124. 130 Nvrah. Zmluva …, art.4 lit. c), Predkladacia sprava, II. 131 On the question of the votes of members of parliament cf. JOHN PAUL II, Evangelium Vitae,N. 73; and E. SGRECCIA, Manuel, pp. 499-500. 132 J. J. WRIGHT, Coscienza e autorità, p. 7. 133 J.T.M. DE AGAR MARTIN, Problemi, op.cit. p. 2 134 J.T.M. DE AGAR MARTIN, Problemi, op. cit., p. 8. 135 M. SCHOOYANS M., L`objection de conscience en politique, Communication à la Conference Internationale pour les Parlementaires d’Europe Centrale sur le theme Contemporary Family, Bioethics, and Responsibility of the Members of Legislative Bodies, Bratislava, 3 octobre 2003. 136 E. Sgreccia, ‘Foundations of the Ethics of Life: Ethical Personalism’, Bioethics Notes & News, Manila, 2006, 1, p.6. 137 Cf. UNIFER, ‘Commissione dell`Unione Europea di espert indipendenti sui Diritti Fondamentali’:htpp://europa.eu.int/com/justice_home/cfr_cdf/index_en.htm. 138 CONGREGATION FOR THE DOCTRINE OF THE FAITH, Instruction on Respect for Unborn Human Life and the Dignity of Procreation, Donum Vitae, III.

153 Ivan DIAS

The Role of the Christian Conscience in the Promotion of Life in Relation to Developing Countries

It is advisable to clarify at the outset the terms of this paper. First of all, reference is made to ‘promotion of life’ which, for a Christian, embraces the various dimensions of the human person: his intellectual, spiritual, mental, physical, and social dimensions. The Lord Jesus, who came into the world so that everyone ‘may have life, and have it in abundantly’,1invites us to promote it as a whole and to promote its components. Secondly, the present paper addresses action for ‘developing countries’ but it is principally intended for donor countries so that they may help developing countries to achieve their own overall progress by receiving the yeast of the Christian values of justice and love/service. I would like to begin with a personal testimony. I come from India, an ‘emerging’ country with a non- Christian majority. Indeed, out of a population of one thousand two hundred million people, 80% are Hindu, 13% are Muslim, and only 2.3% are Christian. The rest are made up of Buddhists, Jainars, Sikhs, Parsees and Jews. Despite this fact, Christians are responsible for 20% of all primary education in India, provide 10% of health-care and literacy programmes in rural communities, direct 25% of institutions for orphans and widows, and are responsible for 30% of homes for the mentally and physically handicapped, for lepers and for people living with AIDS. Most of those who benefit from these services are not Christians, and this is a fine example of the role of Christians in a developing country in the promotion of life. Non-Christians appreciate this genuine witness of Christians but they are at times scandalised by the behaviour of certain governments, bodies and people of the Christian faith who at times impose conditions that are in contrast with Christian values. For example, there is a famous international bank which grants aid to developing countries on the condition sine qua non that they must adopt birth control programmes based on artificial contraceptive methods. This is why the father of the Indian nation, Mahatma Gandhi, who admired Jesus Christ and believed that the Sermon on the Mount was the most beautiful sermon ever given in the world, said: ‘I love Christ but not Christians because they do not do what Jesus taught and commanded’. Beginning with such realities I would like to outline three fundamental principles - by way of a orientation - that should guide the role of Christians in the promotion of life in developing countries. 1. The Primacy of Charity The Church, which is a subject for the promotion of human life, through her individual believers and aid bodies, prolongs in history the presence of Christ, the Good Samaritan. ‘As our previous reflections have made clear’, writes Pope Benedict XVI in his encyclical Deus caritas est, ‘the true subject of the various Catholic organizations that carry out a ministry of charity is the Church herself - at all levels, from the parishes, through the particular Churches, to the universal Church’. 2 A primary task of a Christian involved in overall development is thus the ‘witness of charity’ and ‘charity without pretence’,3 which is lived to begin with within ecclesial commuities. In fact Christ says: ‘By this all men will know that you are my disciples, if you have love for one another’.4 This witness of love makes the prophetic mission of the Church credible only if it is open to the entire world.5 Indeed, prophecy, as a proposal of values to be followed and goals to be achieved, is sterile if it is not accompanied by the witness of concrete facts. This is because ‘faith without works is dead’.6In this way, prophecy makes witness clearer and witness makes prophecy more credible. The preaching of the ‘Gospel of life’ becomes persuasive if it is followed by gestures of welcoming and service. Even though, in fact, responses to emergencies continue to have value, the complexity of today’s problems means that a broader horizon of action is required. Thus, although it is necessary to respond to what what is urgently needed, it is no less essential to remove the obstacles that are often its cause, unless we want to run the risk of institutionalising situations of acute poverty that wound the dignity of human life, as though such situations were unavoidable and not, as in fact they are, the 154 outcome of personal and social responsibilities. The belief that ‘politics is an eminent form of charity’ mantains all its importance,7 but it is necessary to intervene in relation to conditions that make offences to life possible. This is a matter of preparing the gound so that bad fruit is replaced by good fruit. At times, however, a commitment to dealing with emergencies makes more of an impact and is more gratifying than humble and laborious action designed to defeat the culture of death. The recent encycical of Pope Benedict XVI8 throws light on the rekationship between justice and charity, and in particular when this document declares that: ‘The Church cannot and must not take upon herself the political battle to bring about the most just society possible. Yet at the same time she cannot and must not remain on the sidelines in the fight for justice…A just society must be the achievement of politics, not the Church. Yet the promotion of justice through efforts to bring about openness of mind and will to the demands of the common good is something which concerns the Church deeply’.9 The Supreme Pontiff thus invites us to make charity the constitutive and permanent core of the person, even where the conditions to assure justice are already present.10 Thus the commitment to human life in dveloping countres is based upon the witness of charity.

2. The Formation of Conscience A second less visible path in supporting life requires that efforts be made in the formation of consciences. Such a task should be seen in relation to the relational dimension of the person. Although one cannot deduce a political model of society from the Gospel, it emerges with clarity, however, that charity should be the engine-principle of every political institution. Thus to form consciences means to learn to direct choices beginning with charity, taking into account the historic concreteness within which man lives. In this framework it necessary to form consciences to that sense of responsibility that is born from the relationship between the life of the individual and the life of other people. This is an invitation to exit from individualism so as to open oneself up to others. The dominant culture, which is called post-moderm, has recently developed a tendency which absolutises a partial element such as the market and makes it become a unifying factor of all the experiences of life. Indeed, globalisation tends to homogenise the lives of people and countries in line with a standard dictated by economic requirements, and it ends up by reducing local cultures to a stage part. Here is the root of responsibility for the unfair structures that are now working against those very forces that produced them.11 In this way the lives of people are subjected to the effects of an injustice that has become insitutionalised. To promote life in this situation means to begin a path of conversion that contemporaneously brings back man to God and his neighbour.12 Globalisation itself, with its world network of distribution, could be a new opportunity to serve the cause of life. In order to promote life in developing countries, attention must be turned to countries which are already developed, forming a conscience that goes beyond the immediate interests of a group or a multinational. Without, however, thereby forgetting about the formation of conscience to solidarity, in developing countries as well. To form conscience means to be convinced that as long as in some part of the world people are dying of hunger, there will be elsewhere those who eat for two, not because they are hungrier than others but because they have greater abundance. 3. God is the Lord of Human Life Lastly, I would like to sugest a renewed commitment to the preaching of the absolute and universal lordship of God over the world and men as a concrete path for the promotion of human life. ‘…“God alone is the Lord of life from its beginning until its end: no onecan, in any circumstance, claim for himself the right to destroy directly an innocent human being”. With these words the Instruction Donum vitae sets forth the central content of God’s revelation on the sacredness and inviolability of human life….God proclaims that he is absolute Lord of the life of man, who is formed in his image and likeness (cf. Gen 1:26-28). Human life is thus given a sacred and inviolable character, which reflects the inviolability of the Creator himself’.13

155 At least two consequences derive from this statement. The first concerns the call to man to share in God’s lordship over the world and life.14 The second concerns the responsibility due to such participation.15 Thus as lord man cannot be subjected to any other man and any other human reality. Because it is shared in by God, his lordship should be carried out in obedience to God’s will. It follows from this that only obedience to God guarantees human life against every shameless abuse. No anthropology is secure when God is removed and replaced with absolute claims of a political or market character. The lordship of God, in which man participates, is revealed and made present in the words and work of Jesus, who conceived his mission as obedience to the Father and as a response to the needs of men, beginning with the poorest and the last. Here we are dealing with the law of the grain of wheat: ‘Truly, truly, I say to you, unless a grain of wheat falls into the earth and dies, it remains alone; but if it dies, it bears much fruit. He who loves his life loses it, and he who hates his life in this world will keep it for eternal life. If any one serves me, he must follow me; and where I am, there shall my servant be also; if any one serves me, the Father will honour him’.16 Human procreation remains impossible outside a context of love. It is not enough to have procreated life to generate it. It is necessary to love it because only love gives life. At times exaggerated procreation, sought for at any cost and with any means, makes people forget that love can ‘re-generate’ people who are already born but humiliated in their dignity as children of God. When the lorsdhip of God over human life is obscured, some people are tempted to end their own lives and request that euthanasia be made legal. Others tend to give emotive opinions on the question of the death penalty and ignore the cruel realities of thousands of children who are brutally killed every day in their mothers’ wombs, a crime often camouflaged by so-called ‘civil’ laws which are in reality totally ‘incivil’ because they condemn innocent and defenceless children to death. Conclusion: the Gospel of Hope More than a real conclusion, I have taken the liberty of offering two approaches for a re-reading of the subject that has been examined. The first is that the promotion of human life in developing countries goes beyond the questions and issues of genetics and forms of reproduction. The ethical question calls into the debate the political and economic structures of the world that produce conditions that are adverse to the development of the life of man. One could venture the conclusion that what injures the dignity of life is not so much a couple that wants a child through artificial procreation at any cost, but cultures and markets that are obsessed with finding responses to desire and at times to the whims of individuals or nations and forget about the real needs of the majority of mankind. A second approach is that the Gospel of charity and life invites everyone to live a vigilant waiting for the return of the Lord. One cannot crush hope of a better future on our experience of life today. However many efforts we may make, we will never be able to respond in an exhaustive fashion to the request for fullness of life. This is because only Christ is the answer. ‘the expectation of a new earth must not weaken but rather stimulate our concern for cultivating this one. For here grows the body of a new human family, a body which even now is able to give some kind of foreshadowing of the new age…For after we have obeyed the Lord, and in His Spirit nurtured on earth the values of human dignity, brotherhood and freedom, and indeed all the good fruits of our nature and enterprise, we will find them again, but freed of stain, burnished and transfigured’.17 The Gospel of life, in fact, is entirely bound up in its preaching with the Gospel of charity and hope.

156 1 Jn 10:10 2 BENEDICTXVI, Encyclical Letter Deus caritas est, 25 December 2005, n. 32. 3 Rm 12:9. 4 Jn 13:35. 5 ‘today as in the past, the Church as God’s family must be a place where help is given and received, and at the same time, a place where people are also prepared to serve those outside her confines who are in need of help’. (BENEDICT XVI, Deus caritas est, n. 32). 6 Jm 2:26. 7 ‘Here politics and faith touch meet’ (Deus caritas est, n.28). 8 Cf. ibid., nn. 26-29. 9 Ibid., n. 28. 10 ‘Love - caritas - will always prove necessary, even in the most just society. There is no ordering of the State so just that it can eliminate the need for a service of love. Whoever wants to eliminate love is preparing to eliminate man as such’ (ibid., n. 28). 11‘36. It is important to note therefore that a world which is divided into blocs, sustained by rigid ideologies, and in which instead of interdependence and solidarity different forms of imperialism hold sway, can only be a world subject to structures of sin. The sum total of the negative factors working against a true awareness of the universal common good, and the need to further it, gives the impression of creating, in persons and institutions, an obstacle which is difficult to overcome. If the present situation can be attributed to difficulties of various kinds, it is not out of place to speak of "structures of sin," which, as I stated in my Apostolic Exhortation Reconciliatio et Paenitentia, are rooted in personal sin, and thus always linked to the concrete acts of individuals who introduce these structures, consolidate them and make them difficult to remove.65 And thus they grow stronger, spread, and become the source of other sins, and so influence people's behavior’ (JOHN PAUL II, Sollecitudo rei socialis, 36). 12 ‘The exercise of solidarity within each society is valid when its members recognize one another as persons. Those who are more influential, because they have a greater share of goods and common services, should feel responsible for the weaker and be ready to share with them all they possess. Those who are weaker, for their part, in the same spirit of solidarity, should not adopt a purely passive attitude or one that is destructive of the social fabric, but, while claiming their legitimate rights, should do what they can for the good of all. The intermediate groups, in their turn, should not selfishly insist on their particular interests, but respect the interests of others (ibid., n.39; see also nn. 38 and 40). 13 John Paul, Evangelium vitae, n. 53. 14 ‘To defend and promote life, to show reverence and love for it, is a task which God entrusts to every man, calling him as his living image to share in his own lordship over the world’ (ibid., n. 42). 15 ‘A certain sharing by man in Gd’s lordship is also evident in the specific responsibility which he is given for human life as such…But over ad above the specific mission of parents, the task of accepting and serving life involves everyone; and this task must be fulfilled above all towards life when it is at its weakest’ (ibid., 43). 16 Jn 12:24-26 17 Second Vatican Council, Gaudium et spes, n. 39.

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