President Obama has recently announced his intent to reverse what is commonly called the “conscience clause” for medical professionals. Officially, the Provider Refusal Rule, allows a medical practitioner to opt out of procedures they personally find immoral and distasteful. Their conscience can be their guide in their practice, and for many, that means their religious views will come into play.
Enter the standard drum-beat of public vs. private morality. Stanley Fish wrote a column on this issue for the NY Times in which he invokes Hobbes’ political theory in order to support the view that doctors should be bound by law to carry out what the law requires. If we allowed each individual doctor to practice according to their conscience, the public order of law and morality would be on the brink of disorder. According to Hobbes and Fish, Law becomes the public morality, and each of us in society is bound by our kinds of social contracts to abide by those laws.
Fish’s argument has some fatal flaws to it. I agree, for example, that because premeditated murder is against the law, all citizens are bound to not commit premeditated murder. And if they do, they should be punished. In this way, murder has a tight legal force behind it and our society has contracted to abide by it.
The provision of abortion has no such tight legal force around it. Where the universal prohibition of premeditated murder is on the books, no such universal provision for abortion exists. There is no law stating that all doctors are bound to provide abortions. So Fish’s argument stands with murder – it fails with abortion. If any doctor (or any set of doctors) refuses to provide abortions, they violate no laws, and certainly do not even rise to the level of violating a social contract.
Secondly, Fish doesn’t even raise the question of the status of the fetus. And he doesn’t, because to do so is to make the social contract theory he enjoins work against him. If a fetus is human or potentially human, then abortion is murder or tantamount to murder, thus we have a universal law agreed upon by our society protecting the fetus against abortion. Fish’s argument might just commit suicide.
And thirdly, he assumes an ethical breech between private and public morality. In making a silly emotional plea, he tries to take your emotions and wrap them around a bad conclusion.
But should patients be asked to add to the problems they already have the problem of having to figure out (if they have the time) which providers will be willing to treat them? When a professional hangs out his shingle doesn’t he offer his services and skills to the public and not just to members of it who share his morality?...
The force of these questions depends on assumptions the proponents of the conscience clause do not share, chiefly the assumption that obligations vary with different contexts and that one can (and should) relax the obligations of faith when one is not in church.
I wonder if Fish holds these private ethical values of his loosely when he enters the public square, especially one that on the whole, disagrees with abortion on demand?