Meet Jennifer. Jennifer is a physician who specializes in obstetrics and gynecology. She has served her patients in a Catholic hospital for four years and intends to continue her service there. One of her patients is named Emily. Emily is thirty weeks and six days pregnant. She has four other children whose ages range from three to eleven years old. At the most recent prenatal visit, Emily informed Jennifer that she and her husband have talked extensively and concluded that they are satisfied with their family size and do not wish to conceive any more children. Jennifer is sympathetic to Emily’s request and recommends a tubal ligation following her scheduled cesarean section. Emily accepts the recommendation. By week’s end, however, Jennifer is called into the Office of Hospital Administration and is reprimanded for suggesting a direct sterilization for her patient. She is reminded that all the medical professionals in her institution are required to follow the Ethical and Religious Directives for Catholic Health Care Services, and one such directive expressly prohibits direct sterilizations. Having listened patiently to the hospital administrator, Jennifer pleads for permission to perform the ligation, arguing that she knows Emily very well and thinks her wish to be sterilized is thoughtful and prudent given the circumstances. After nearly an hour of discussion, and having gained very little ground, Jennifer asks in frustration, where precisely is her right of conscience to do what she thinks is in her patient’s best interest?
Many people are familiar with cases when a healthcare professional advances a negative claim of conscience, that is to say, when the professional refuses to perform or participate in a service that he judges is evil. Jennifer’s case, by contrast, is an example of a positive claim of conscience, whereby a healthcare professional is inclined to commit an act that she judges is in her patient’s best interest. History has shown that both negative and positive claims of conscience can result in coercion, discrimination, and even disciplinary action by those in authority. The following essay analyzes positive claims of conscience, especially in cases where those claims conflict with a hospital’s institutional identity. What follows is a very brief glimpse into a complicated subject.
The Prophet Jeremiah proclaimed God’s new covenant with the Israelites by sharing the words the Lord spoke to him, “I will place my law within them, and write it upon their hearts” (Jer 31:33). Seven centuries later, St. Paul the Apostle gave a nearly identical message to the Christian church in Rome. “[The Gentiles] show that the demands of the law are written in their hearts” (Rom 2:15). This law, written by God on the heart of man, is called Natural Law because it is inscribed in the very nature of man. It is Natural Law, revealed through human reason, whereby man encounters the Eternal Law that governs the whole of the universe, including the actions of all created beings.[1] Natural Law inclines man to commit the “proper acts” and seek the “proper ends”[2] desired by God, so that the man can live well in this life and experience beatitude in the next.
The truth that Natural Law is inscribed in the nature of every man is knowable through reason. Yes, the Jews to whom Jeremiah prophesied and the Gentiles who received St. Paul’s letters are governed by this law, but so too are Muslims, Hindus, Sihks, agnostics, and indeed, even nonbelievers and atheists. It is rooted in their very being. Consider here whether the natural inclinations of man, identified by St. Thomas, rely on language, geography, culture, or era, or if the inclinations transcend them. St. Thomas wrote that man is inclined to do good and shun evil, to preserve human life (including his own), to reproduce and educate offspring, to seek transcendent truths, to live in community, to shun ignorance, and to avoid offending others.[3] While the intellect and will of fallen man can be disordered in its specification of the true good, or its movement to attain it can be morally flawed, human experience proves the naturalness of those inclinations transcends any one language, region, culture, or time.
There are instances in which a group passes down to its children norms or customs that are contrary to the inclinations of man. These instances—not rules, mind you—can occur on account of man’s “reason [being] hindered from applying the general principle [that good is to be done, and evil avoided] to a particular point of practice, on account of concupiscence or some other passion . . . by evil persuasions, or by vicious customs and corrupt habits,” according to St. Thomas.[4] Consider the Universal Declaration of Human Rights, which reasonable men call good and just. One hundred ninety-two countries have signed the Declaration since it was adopted in 1948. How well do the governments of those countries exercise power in accordance with articles of the Declaration? Do the failures of any one country, or a number of countries for that matter, render the Universal Declaration of Human Rights arbitrary, invalid, or in error? Certainly not. Likewise, some people and groups may act contrary to Natural Law, but that does not disprove its existence. Rather, it proves how blind man can be to its radiant light. And while some people in modern society claim that truth is subjective, such a claim is contrary to the existence of objectively good actions, and objectively evil actions, which Natural Law reveals. As C.S. Lewis wrote, “The effort to refute [Natural Law] and raise a new system of value in its place is self-contradictory.”[5]
Perhaps one of the most concise references to Natural Law comes from St. John Henry Newman: “He has within his breast a certain commanding dictate, not a mere sentiment, not a mere opinion, or impression, or view of things, but a law, an authoritative voice bidding him to do certain things and avoid others.”[6] There are two distinct movements of the intellect contained in Newman’s statement. They are synderesis and conscience. The habitual act of listening to the authoritative voice is synderesis, and the particular act of discerning how that voice’s bidding applies to a specific moral dilemma is conscience. Or, as J. Budziszewski explained, “synderesis is the interior witness to universal basic moral law, the deep structure of moral reasoning. [Conscience] is the surface structure of moral reasoning, the working out of applications from the universal basic moral law.”[7]
St. Thomas taught that synderesis cannot err, calling it a “permanent principle which has unwavering integrity, in reference to which all human works are examined.”[8] Conversely, conscience can err. As previously cited, there are several causes of an erroneous conscience, for example, vicious customs and corrupt habits. Additionally, ignorance is another cause. There are classically three types of ignorance, each with differing degrees of moral culpability: antecedent, consequent, and concomitant. Antecedent ignorance precedes an act and cannot be reasonably dispelled. This is called invincible ignorance and involves the least moral culpability. Consequent ignorance can be reasonably dispelled, yet knowledge is obfuscated because the agent is negligent in his duty to know the truth. This is called vincible ignorance and the degree of moral culpability hinges on the extent of the negligence. Finally, concomitant ignorance describes an act that is committed regardless of knowledge. There, an informed conscience would not affect the agent’s decision to commit an evil act because he nevertheless intends the end that is attained regardless of whether the means to attain it are good or evil. Concomitant ignorance involves the most moral culpability of the three.[9] Therefore, ignorance of the law—whether Natural Law or just positive law—should not be an excuse to act as one wishes. Moral culpability can very well remain.
Finally, man has a duty to form his conscience well. The Catechism of the Catholic Church teaches: “Conscience must be informed and moral judgments enlightened. A well-formed conscience is upright and truthful. . . . The education of conscience is indispensable for human beings who are subjected to negative influences and tempted by sin to prefer their own judgment and to reject authoritative teachings.”[10] The right to act according to one’s conscience is inextricably linked to the responsibility to form it well.
There are two types of conscience claims—a positive claim and a negative claim. A positive claim of conscience demands the freedom to commit an act that one’s conscience judges to be good, and a negative claim demands the freedom to not commit an act that one’s conscience judges to be evil. Modern focus has primarily been on the latter—negative claims of conscience. Abram L. Brummett described that focus as “asymmetrical,” observing: “There is greater ethical, legal, and scholarly focus on negative, rather than positive, claims of conscience.”[11]
Negative claims of conscience have been routinely safeguarded in American legislation and jurisprudence. Consider the Church Amendments of the 1970s that protected healthcare professionals and entities from coercion in response to their conscientious refusal to participate in abortion and sterilizing acts.[12] Or, the Religious Freedom Restoration Act of 1993 (RFRA) that states: “Government shall not substantially burden a person’s exercise of religion . . . except . . . in furtherance of a compelling governmental interest and if the burden is the least restrictive means of furthering that interest.”[13] Or the Supreme Court cases of Little Sisters of the Poor v. Sebelius and Burwell v. Hobby Lobby Stores, Inc., to name a few. There remains a consensus, although routinely challenged, that man ought not to be coerced to commit an act that he judges to be evil. That consensus is rooted in Natural Law. Pope St. John Paul II wrote in this regard:
The negative precepts of the Natural Law are universally valid. They oblige each and every individual, always and in every circumstance. It is a matter of prohibitions which forbid a given action semper et pro semper, without exception, because the choice of this kind of behavior is in no case compatible with the goodness of the will of the acting person, with his vocation to life with God and to communion with his neighbor. It is prohibited—to everyone and in every case—to violate these precepts.[14]
The late pontiff affirmed without equivocation that man is always and forever duty-bound to avoid evil, without exception.
However, the question is raised: Is man duty-bound semper et pro semper to commit acts he judges to be good, without exception? Turning again to Pope St. John Paul II, he wrote:
In the case of the positive moral precepts, prudence always has the task of verifying that they apply in a specific situation, for example, in view of other duties which may be more important or urgent.[15]
What must be done in any given situation depends on the circumstances, not all of which can be foreseen. . . . It is always possible that man, as a result of coercion or other circumstances, can be hindered from doing certain good acts.[16]
Therefore, the positive precepts of Natural Law remain “universally binding,” but foreseen and unforeseen circumstances can impede a man from committing an act he judges to be good in certain situations.
Consider cases where a person is moved to commit an act that he judges to be good, but all the while resists that movement because of an external cause. A man who cannot swim resists the movement to dive into deep water to save someone who is drowning. A single mother with three young children who is moved to give money to a man living on the street but refrains because of her limited finances. Or a healthy man who is moved to donate blood but forgoes that act out of a vehement fear of needles. Are these people morally culpable for not committing an act they judge to be good in light of their circumstances? Truly, they are not. But another question then follows: What else can they do if not those acts? Can the man who is witnessing a drowning cast a life preserver to the victim or call for help? Can the woman direct the homeless man to the local food pantry or soup kitchen? Can she pray for him? Can the man who is paralyzed by fear seek counseling to overcome it? Can he volunteer at the American Red Cross or seek other ways of promoting the gift of life?
The freedom to commit an act that one’s conscience judges to be good ought to be robust, and broadly protected under the law. Consider the example of RFRA, noted above. At times, however, external factors can impede the commission of an act that a man judges to be good. A just positive law, known professional standard, or mutually agreed-upon contract can prevent a person from acting in a manner that he judges to be good. However, the freedom to refuse to commit an act that one’s conscience judges to be evil ought to be absolute.
U.S. law, founded on the religion clauses of the First Amendment and upheld by numerous Supreme Court opinions, protects the freedom of religious institutions to organize, build, and practice according to the dictates of the faith they profess. Catholic healthcare institutions have done just that since 1727—with the founding of Charity Hospital in New Orleans[17]—up to the present day, where there are 668 Catholic hospitals and nearly 1,600 other Catholic healthcare facilities across the country.[18] Those institutions with a Catholic identity must abide by the rules promulgated by the United States Conference of Catholic Bishops, namely the Ethical and Religious Directives for Catholic Health Care Services (ERDs). The ERDs, now in its sixth edition, provide moral guidance to institutions and the professionals operating within their walls. There are seventy-seven directives in total, covering topics like professional-patient relationships, issues in care for the beginning of life, as well as for the seriously ill and dying. The Preamble to the ERDs explains the two-fold purpose: “First, to reaffirm the ethical standards of behavior in health care that flow from the Church’s teaching about the dignity of the human person; and second, to provide authoritative guidance on certain moral issues that face Catholic health care today.”[19]
Directive 5 recognizes the authority of the ERDs within Catholic healthcare institutions, and binds those who are employed by a Catholic institution to follow them. “Catholic health care services must adopt these Directives as policy, require adherence to them within the institution as a condition for medical privileges and employment, and provide appropriate instruction regarding the Directives for administration, medical and nursing staff, and other personnel.”[20]
The diocesan bishop has the authority to oversee the implementation of the ERDs, because healthcare is an apostolate that falls within his canonical jurisdiction.[21] A fairly recent example of that jurisdiction occurred from 2009 to 2010 at St. Joseph’s Hospital and Medical Center in the Diocese of Phoenix, Arizona. Bishop Thomas J. Olmstead was the local ordinary at the time. In that example, a twenty-seven-year-old woman with pulmonary hypertension underwent a direct abortion[22] during the eleventh gestational week of her pregnancy. Bishop Olmstead ordered an investigation into the matter, and that investigation concluded that Directive 45—which forbids any and all direct abortions[23]—was indeed contravened by the hospital. As a result, the hospital lost its Catholic affiliation, and ethics board member Sr. Margaret McBride was excommunicated latae sententiae for approving the abortion. Bishop Olmstead wrote in his official statement on the incident: “The direct killing of an unborn child is always immoral, no matter the circumstances, and it cannot be permitted in any institution that claims to be authentically Catholic.” [24] His judgment on the direct abortion that occurred at a Catholic hospital within his diocese is clearly within his authority as bishop according to the Code of Canon Law.
Returning to Jennifer’s question regarding her right of conscience to do what she thinks is in her patient’s best interest, neither Natural Law nor the ERDs (within the context of Catholic healthcare) permit her to proceed with Emily’s tubal ligation. First, an elective tubal ligation intended to sterilize a patient is contrary to the precepts of Natural Law because it is a mutilatory act that harms, often irreversibly, the function of a healthy body system that is neither diseased presently nor is the cause or site of disease in the future. The aim is not to heal, but to mute the procreative significance of the sexual act; all the while a non-mutilatory, reversible, and ordered alternative is available should the couple have a well-grounded reason to use it.[25] The alternative is the fertility awareness-based method which, according to the American College of Obstetricians and Gynecologists and the National Health Service of the United Kingdom, is 95–99% effective if used consistently and correctly.[26] On the subject of the fertility-based method, even if not referred to by that name, Pope St. Paul VI wrote that controlling birth in this way “does not in the least offend the moral principles,”[27] which include the teaching “that each and every marital act must of necessity retain its intrinsic relationship to the procreation of human life.”[28]
Jennifer is inclined to perform good acts, but she has judged the evil act of elective tubal ligation as good; therefore, she has an erroneous conscience. Jennifer may think she is duty-bound to commit this act and demand permission by making a positive claim of conscience, but her employment in a Catholic healthcare institution nullifies that demand. As Edmund Pellegrino wrote:
The ethical content of the institutional conscience of particular hospitals is well known with respect to sterilization, abortion, euthanasia, assisted suicide, contraception, and cooperation through mergers with other institutions that accept those practices. Fidelity to these prohibitions is not negotiable. It applies to all who practice in these hospitals regardless of their personal beliefs. Catholic hospitals, like Catholic physicians, do not have the option of being “value neutral” or of separating religious from professional ethical precepts.[29]
Directive 5 binds Jennifer to uphold the ERDs in her current employment, and Directive 53 expressly forbids direct sterilizations.[30] Her positive claim of conscience is denied by those directives. The hospital administration has the responsibility to provide sufficient instruction about which practices in Catholic health care are unacceptable and why, as well as the “Church’s teaching on responsible parenthood and in methods of natural family planning.”[31] Even if the hospital had failed to sufficiently teach the ERDs, including the force behind them, as Pellegrino rightly noted above, it would be unreasonable for her to claim ignorance of the prohibition of direct sterilization in Catholic healthcare. Moving forward, Jennifer’s advice to Emily must be in line with the institutional identity of the hospital and must not counsel her to commit an evil act nor refer her to a doctor who would accede to such a request.[32]
Jennifer is free in her personal life to accept or reject the truths contained in the ERDs—provided she does not cause scandal for the hospital by any such rejection—but she must nevertheless agree to follow the directives that flow from those truths within the scope and practice of her employment at a Catholic healthcare institution. Otherwise, she must seek employment elsewhere.
The aim of this essay is to better understand and resolve conflicts between individual conscience and institutional identity. While it is clearly written through the lens of Catholic health care, its conclusions can apply to other faith-based healthcare institutions. Christian (non-Catholic), Jewish, and Muslim healthcare institutions, for example, have the same freedom to establish a faith-based identity and require that their employees practice their profession in line with that mission, provided that the mission safeguards the dignity of the human person, administers life-affirming care, and upholds the Hippocratic oath to do no harm. And no healthcare institution, public or private, religious or secular, should mandate their employees to commit acts that they judge to be evil.
[1] Thomas Aquinas, Summa theologiae, 2nd and rev. ed., trans. Fathers of the English Dominican Province (1920), I–II.91.1
[2] Aquinas, Summa theologiae I–II.91.2.
[3] Aquinas, Summa theologiae I–II, 94.2.
[4] Aquinas, Summa theologiae I–II.94.6.
[5] C.S. Lewis, The Abolition of Man (San Francisco, CA: Harper Collins, 2001), 43.
[6] John Henry Newman, “Men of Good Will,” E-catholic 2000, https://www.ecatholic2000.com/cts/untitled-287.shtml.
[7] J. Budziszewski, “Conscience: What It Is and How It Works,” Religious Freedom Institute: Medical Conscience Rights Initiative (2021), 2.
[8] Thomas Aquinas, Questiones Disputatae de Veritate, trans. James V. McGlynn (Chicago: Henry Regnery Company, 1953), 16.II.
[9] William Wallace, The Elements of Philosophy: A Compendium for Philosophers and Theologians (Eugene, OR: Wipf & Stock, 1977), 162.
[10] Catechism of the Catholic Church, 2nd ed. (Washington, DC: United States Conference of Catholic Bishops, 2000), n. 1783.
[11] Abram L. Brummett, “Should Positive Claims of Conscience Receive the Same Protection as Negative Claims of Conscience? Clarifying the Asymmetry Debate,” Journal of Clinical Ethics 31, no. 2 (2020): 136–42, abstract.
[12] Church Amendments, 42 U.S.C. § 300a-7, https://www.law.cornell.edu/uscode/text/42/300a-7.
[13] Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 (1993), https://www.law.cornell.edu/uscode/text/42/2000bb-1.
[14] John Paul II, Veritatis Splendor (Rome: August 6, 1993), n. 52.
[15] John Paul II, Veritatis Splendor, n. 67.
[16] John Paul II, Veritatis Splendor, n. 52.
[17] Charles Kaupke, “The History of Catholic Health Care,” Orange County Catholic, February 21, 2017, https://occatholic.com/the-history-of-catholic-health-care/.
[18] “U.S. Catholic Health Care: The Nation’s Largest Group of Not-For-Profit Health Care Providers,” Catholic Health Association of the United States (Washington, DC, 2021), https://www.chausa.org/about/about/facts-statistics.
[19] Committee on Doctrine of the United States Conference of Catholic Bishops, Ethical and Religious Directives for Catholic Health Care Services, 6th ed. (Washington, DC: United States Conference of Catholic Bishops, 2018), 4.
[20] Committee on Doctrine, Ethical and Religious Directives for Catholic Health Care Services, n. 5.
[21] United States Conference of Catholic Bishops Administrative Committee, The Pastoral Role of the Diocesan Bishop in Catholic Health Care Ministry, 2nd ed. (Washington, DC: United States Conference of Catholic Bishops, 2020), 2–3.
[22] Direct abortion is any procedure that directly and intentionally kills an unborn human being, either as a means to an end or as an end in itself. See Catechism of the Catholic Church, 2nd ed., n. 2271; and John Paul II, Evangelium vitae (Rome: March 25, 1995), n. 62.
[23] Committee on Doctrine, Ethical and Religious Directives for Catholic Health Care Services, n. 45.
[24] Thomas J. Olmstead, “Bishop Olmstead Statement in Response to Abortion Performed at St. Joseph’s Hospital,” Catholic Culture, May 15, 2010, https://www.catholicculture.org/culture/library/view.cfm?recnum=9323; Janice Hopkins Tanne, “US Hospital Loses Catholic Designation After Performing a Lifesaving Abortion,” BMJ 341 (2010): 7437, https://doi.org/10.1136/bmj.c7434.
[25] Paul VI, Humanae vitae (Rome: July 25, 1968), n. 16, https://www.vatican.va/content/paul-vi/en/encyclicals/documents/hf_p-vi_enc_25071968_humanae-vitae.html.
[26] “Fertility Awareness-Based Methods of Family Planning,” The American College of Obstetricians and Gynecologists, November 2020, https://www.acog.org/womens-health/faqs/fertility-awareness-based-methods-of-family-planning; “Natural Family Planning (Fertility Awareness): Your Contraception Guide,” National Health Service, April 13, 2021, https://www.nhs.uk/conditions/contraception/natural-family-planning/.
[27] Paul VI, Humanae vitae, n. 16.
[28] Paul VI, Humanae vitae, n. 11.
[29] Edmund Pellegrino, “The Physician’s Conscience, Conscience Clauses, and Religious Belief: A Catholic Perspective,” Fordham Urban Law Journal 30, no. 1 (2002): 236, https://ir.lawnet.fordham.edu/ulj/vol30/iss1/13/.
[30] Committee on Doctrine, Ethical and Religious Directives for Catholic Health Care Services, n. 53.
[31] Committee on Doctrine, Ethical and Religious Directives for Catholic Health Care Services, n. 52.
[32] Committee on Doctrine, Ethical and Religious Directives for Catholic Health Care Services, n. 73.
Andrew S. Kubick, “Who Decides? Resolving Conflicts between Individual Conscience and Institutional Identity,” Dignitas 29, no. 3–4 (2022): 10–13, www.cbhd.org/dignitas-articles/who-decides-resolving-conflicts-between-individual-conscience-and-institutional-identity.
