December 6, 2022

Should institutions enjoy freedom of conscience?

One of the most difficult issues in contemporary bioethics is “institutional freedom of conscience”. Should a healthcare facilities or nursing homes in a liberal democracy be permitted to eschew practices like abortion or assisted suicide and euthanasia? One of the strongest objections against legislation passed last week in the Australian state of New South Wales is that faith-based hospitals, nursing homes and hospices will be compelled to host “assisted dying” on their premises.

“This is essentially an authoritarian imposition on what are, in our civil society, associations of people coming together for a purpose,” said Upper House MP Greg Donnelly in the debate. “To impose on them provisions whereby, within their facilities, people’s lives will be ended by assisted suicide or euthanasia is utterly repugnant and it is draconian.”

This is denied by supporters of assisted dying, who say that individual autonomy must trump an institution’s rules. On a more theoretical level, it is argued that institutions do not enjoy conscience rights, as individuals do. This was stated forcefully in (of all places) the Notre Dame Law Review a few years ago:

In fact, those who support a Catholic physician’s right to refuse to offer medically indicated treatment must admit the supremacy of the individual physician’s conscience protection. And yet these same supporters advocate the reverse, an institutional trump of individual conscience, when a Catholic hospital obliges a non-Catholic physician to adhere to the Directives, contrary to the physician’s clinical morality. This is the intrinsic hypocrisy of modern conscience legislation.

Clearly, some clarification is needed to unpack the issues which will flow from the legalisation of “assisted dying” in jurisdictions around the world. The latest publication by the Canada-based Protection of Conscience Project is a very helpful guide, which draws distinctions and examines precedents for institutional conscience. The paper is long and hard to summarise, but these sentences indicate the drift of the argument:

The concept of institutional freedom of conscience or religion has been examined and challenged repeatedly since at least the early 1970s. Claims that facilities like hospitals and hospices cannot rely on constitutional guarantees of freedom of conscience because they are not individuals are untenable because they are contradicted by legal history and widespread practice. At best, they provide superficial camouflage for efforts to compel unwilling institutions to provide morally contested services favoured by the claimants, or anti-religious discrimination, or both. 

For the Protection of Conscience Project, the problem is wider than “assisted dying” or abortion. It tries to establish a set of principles which can be applied in all circumstances. It calls for legislation which will protect what it calls “preservative freedom of conscience”, that is, refusing to do what one believes to be wrong, as opposed to “perfective freedom of conscience”, that is, doing what one believes to be right.