In which Stanley Fish makes a naked appeal to authority in order to justify demolishing the right to not violate one's conscience:
It is called the "conscience clause" because it affirms the claims of conscience - one's inner sense of what is right - against the competing claims of professional obligations. Mike Leavitt, Bush's Secretary of Health and Human Services, said at the time of the rule's introduction, "Doctors and other health providers should not be forced to choose between good professional standing and violating their conscience." In good liberal fashion, Leavitt assumes two registers of judgment - public and private - and imagines a conflict between them. He himself would resolve the conflict in favor of the private judgment; others would insist that public norms trump and that conscience must yield; both parties would share the definition of conscience Leavitt assumes.
Were he alive, the English philosopher Thomas Hobbes would dissent, for he has another understanding of conscience altogether, one that casts quite a different light on this conflict. Hobbes begins with the etymology of "conscience" - conscire, to know in concert with another - and proceeds to a definition of conscience that turns the one we know upside down. Since conscience, correctly understood, refers to those occasions "when two or more men know of one and the same fact . . . which is as much to know it together," it is a violation of conscience - of knowing together - to prefer their "secret thoughts" to what has been publicly established.
Hobbes is aware that others take conscience to be the name of the private arbiter of right and wrong, but he regards this as a corrupted usage invented by those who wished to elevate "their own . . . opinions" to the status of reliable knowledge and try to do so by giving "their opinions . . . that reverenced name of Conscience."
Hobbes's larger point - the point he is always making - is that if one gets to prefer one's own internal judgments to the judgments of authorized external bodies (legislatures, courts, professional associations), the result will be the undermining of public order and the substitution of personal whim for general decorums: ". . . because the Law is the public Conscience . . . in such diversity as there is of private Consciences, which are but private opinions, the Commonwealth must needs be distracted, and no man dare to obey the Sovereign Power farther than it shall seem good in his own eyes."
The Law itself is no arbiter of truth or morality. It is nothing more than the private opinion of a sovereign imposed on the public or the opinion of a simple majority of politically empowered citizens acting in a republican or democratic system to impose their views on society. The only appeal that the Law has to its own legitimacy in this case is based on circular reasoning; the Law is to be followed because it is the Law. As it contains no inherent conception of what "two or more men know of one and the same fact . . . which is as much to know it together." The very fact that so many people have a genuine, natural revulsion to abortion, calling it by instinct a form of abortion, is enough to eviscerate this line of argument as clearly the two factions certainly do not "know of one and the same fact." Thus the imposition of one private judgment here is at least problematic in that two seemingly legitimate, dichotomatic opinions exist, and even more so in the possibility that the one currently accepted is demonstrable false upon deeper, logical examination.
Some "ethicists" have argued in favor of infanticide against children that have been born defective. Now, let's assume, for the sake of argument, that their position were to become the law of the land. Even most abortion rights advocates would not be able to support that sort of position, for it would be too clearly a form of cold-blooded murder of a human being for them to defend it. At that point, it would suddenly become a matter of private conscience being superior to "public conscience," the latter being widely regarded as irredeemably evil. However, the line that separates the two cases is arbitrary and unprincipled. To accept that line is nothing more than to give abortion rights advocates the arbitrary authority to designate where public and private conscience become respectively superior and inferior to one another.
I suspect that if Dr. Fish were to have to give his opinion on the matter of conscientious objectors, he would have no problem with accommodating them. That is generally how people who make his argument feel on that issue. It's just another example of how far from being an internally consistent worldview, the secular liberalism which he defends is, a bundle of unprincipled exceptions that would collapse if they had to be reconciled. Ironically, it makes more moral sense to force a man to kill those who are trying to harm his countrymen than it does to deny the equivalent right of obeying one's private conscience to those who have chosen a career of saving lives. Where one can be defended as a matter of civic virtue and duty to one's neighbor, the latter requires one to force action which many in that profession feel violates the very core of what they do for a living. To force such medical practitioners to provide access to abortion is no different from ordering a citizen-soldier to oppress and slaughter his countrymen and upend its constitution.
Ironically, if the Roman Catholic Church is forced to provide abortions or close its hospitals, Dr. Fish and others like him will get the very public order disaster they fear. As forcefully as Obama may impose his elimination of the conscience clause, the Roman Catholic Church may deny its medical services to the public. This is just another reminder that public order is more complicated that laws and the rote, mindless enforcement thereof.
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