Abstract
In Kimberly Brownlee’s book, Conscience and Conviction, she argues that Thomas More’s paradigmatic ‘personal objection’ successfully meets the 4 conditions of her ‘Communicative Principle’ (2012: 29). In this article I want to challenge Brownlee’s ‘universality’ condition and the ‘dialogical’ condition by focusing on a counter-example of a British GP conscientiously objecting to authorizing an abortion. I argue that such an objection can be morally admirable, even though the GP is not politically active, even though she is not open-minded to the possibility that she might be wrong, and even if she refuses to condemn her non-objecting colleagues. I suggest that this particular counter-example can tell us more general things about the nature of ethical disagreement and ethical incomprehension.
There is a long-standing problem with how to justify conscientious objection. If a parliament lawfully institutes military conscription, then a basic principle of fairness is that it should apply to all members of a particular category (e.g. able-bodied adult males), regardless of their religious or ethical beliefs about war or about a particular war. At the same time, there has always been a small minority of men who are so devoutly pacifist that they are willing to face imprisonment for desertion rather than bear arms. Kimberley Brownlee’s subtle and engaging book Conscience and Conviction (2012) articulates and defends a compromise between these two positions within a liberal democracy. She uses a ‘Communicative Principle of Conscientiousness’ to distinguish between acceptable and inacceptable kinds of what is popularly known as conscientious objection. While I mostly agree with the principle and the uses that Brownlee puts it to, I want to focus on a particular counter-example: a general practitioner’s conscientious objection to authorizing abortion within the British National Health Service. I use the failure of the principle in this case to say some more general things about the nature of ethical disagreement and incomprehension.
I Brownlee’s account
Brownlee finds the term ‘conscientious objection’ misleading, and prefers the larger category of ‘belief-driven non-conformity’, which may or may not be conscientious, and may or may not be against the law. Her project is then to distinguish admirable from less admirable forms of non-conformity by using the Communicative Principle. Paradigmatic acts of admirable civil disobedience such as Rosa Parks’ refusal to move seats, and paradigmatic acts of admirable ‘personal objection’ (Brownlee’s term) such as Thomas More’s resignation from the lord chancellorship, are essentially communicative, in that they fulfil the following 4 conditions: a consistency condition that holds between our judgements, motivations and conduct to the best extent that we are able; a universality condition that holds between our judgements of ourselves and our judgements of others; a non-evasion condition that we bear the risks of honouring our conviction, which means that we do not seek to evade the consequences for reasons of self-protection and, in some cases, take positive action when appropriate to support our conviction; and a dialogic condition that ceteris paribus we be willing to communicate our conviction to others so as to engage them in reasoned deliberation about its merits. Our willingness to defend our conviction to others is a mark of both our non-evasion and our belief that our conviction is sufficiently credible that it can be given a reasoned defence. (Brownlee, 2012: 29–30)
Conscientious conviction may or may not involve breaking the law. Paradigmatic cases of conscientious objection, such as a draftee’s open refusal to serve, may be legally permitted, but the draftee can still fulfil Brownlee’s communicative conditions by discussing his reasons with a specialized tribunal. Such an act of non-evasive communication on the draftee’s part helps to convince the tribunal of his motivations and to show that he is not simply trying to avoid discomfort, career setbacks, or risk. Brownlee is concerned to expose certain would-be objectors, e.g. the Roman Catholic civil registrar who refuses to perform same-sex civil partnership ceremonies and ‘happily’ swaps assignments with her colleagues (2012: 28). Such a swapping violates not only the universality condition but also the non-evasion condition in that the agent is unwilling to assume any costs or run any risks for her dissent.
There is much more to this discussion, but I will simply take the above as broadly plausible and return to individual parts of her account as relevant. In the next section I introduce the example of the British doctor conscientiously objecting to abortion. Brownlee mentions objection to abortion in several places in her book, but there is no sustained discussion.
II Abortion in the UK
In the United Kingdom, abortion is legally permissible, and free of charge, more or less on demand up until the 24th week of gestation. The pregnant woman requires two signatures, and typically these will be that of the GP who first sees her and that of the obstetrician who performs the procedure. The 1967 Abortion Act governs the provision of abortions and includes the following clause: 4. No person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorized by this Act to which he has a conscientious objection.
There are two restrictions on the conscientious objection to abortion: first, the objecting doctor has to refer the patient to another doctor whom she (the objector) knows will be willing and able to authorize or perform the procedure, so that the patient is not unduly distressed or her access to treatment unduly hindered; second, there is no right to a conscientious objection when there is a serious risk to the woman’s life or health. In this article I discuss only a woman’s request for a non-emergency pre-24-week termination of a healthy pregnancy.
Presumably some objecting GPs will also be active politically: they may be sitting on influential committees within the professional hierarchy, they may be demonstrating in front of Parliament with placards, or taking part in television interviews and debates; presumably these will meet with Brownlee’s approval of non-evasiveness and dialogicality. But the GP I am focusing on has no interest in political activism on the issue of abortion, let alone in illegal acts of sabotage and disruption. Partly this is because she is more interested in doing other things in her spare time; but partly it is because she feels that it would be pointless, given the moral and political consensus about abortion, and given the seriousness of the issue for her. I return to this question of pointlessness later.
Before continuing, let me spell out two basic assumptions I make. First, I do not take sides in the abortion debate itself; while I focus on individuals who morally object to abortion, many of Brownlee’s arguments could be made in support of Vera Drake, who performed covert illegal abortions in 1950s England. Second, I do not take sides on the permissibility of conscientious objection itself in healthcare. 3
Let us return to our British GP refusing to authorize non-emergency abortions. For the sake of simplicity, I make three further assumptions: (1) she is an atheist, and so does not invoke religious reasons for her conviction; (2) the surgery receptionist can tactfully make patients aware of her conviction in order to avoid the possibility of their feeling embarrassed or stressed by her refusal; (3) she is a very good GP, identifies with her job, does her job well, is well liked by patients and keeps up to date with medical and professional developments.
How does this GP fare under Brownlee’s conditions? The less problematic are the non-evasive condition and the consistency condition. The GP sees no need to hide her conviction, and she is ready to accept the costs of her conviction in terms of the extra administrative work and hindered career progression. She would certainly refuse to practise her objection secretly. Now it might be argued that this is not enough of a cost or risk, and that this makes it difficult to test the sincerity of the doctor’s objection. In response, there is an important disanalogy between conscription and abortion: there are very clear reasons why anybody would be reluctant to become a soldier, especially for a war as unpopular as that in Vietnam. Once the decision is made by the American legislature to draft citizens, fairness requires that exceptions be very few, and that such exceptions be made only after a rigorous test of sincerity and motivation. (The ‘success’ of a conscientious objection tribunal will be in minimizing the proportion of rejected applicants who are then willing to go to prison rather than to enlist.)
By contrast, it is not clear why a doctor would pretend to object to authorizing abortions, if not for moral reasons. The GP has many forms to sign, and this is but one more. And among the many clinical tasks that an obstetrician must perform, abortion is relatively straightforward and low-risk. In addition, we as a society already trust doctors with so many difficult decisions that it would be strange not to trust a declaration of conscientious objection as thoughtful and sincere.
In terms of the consistency condition, it would of course severely undermine the doctor’s status as an objector if she herself had an abortion in response to an inconvenient but healthy pregnancy. But for the moment let us assume she has not been, and is not, pregnant. There is perhaps another kind of inconsistency that would be a problem, concerning the legal duty to refer. This could be taken – by her and by others – as complicity in the evil act. There is a potential way around this problem, and that is to see the GP’s referral duty not as enabling the abortion but merely as informing the patient. After all, the obvious person she would refer the patient to is one of her colleagues; and the ‘referral’ need not be anything more than a fact that the patient could have ascertained from the receptionist (or indeed from another patient, or from an internet blog). In this way she is not complicit in an event that would otherwise not have taken place. This does not take her off the moral hook entirely, of course, and in different contexts I accept that the legal duty to refer may actually facilitate abortion. I suggest, however, that the moral cost is sufficiently low for most British GPs that it can be weighed against the great amount of good that she can achieve as a doctor. For present purposes, however, I leave aside further discussion of this question. 4
III The universality and dialogical conditions
In the following I also leave aside the consistency condition in order to concentrate on the other two conditions, since they raise more of a problem for the objecting GP and the admirability of her conscientious objection. Consider now the universality condition. There is an extreme version that Brownlee is careful to reject (2012: 34). A morally extreme vegetarian might well conclude that anybody who eats meat at any time is doing something wrong. Instead, a ‘reasonable’ vegetarian would say that eating meat is pro tanto wrong, but that it may be outweighed on a particular occasion. Thus it would become ‘all things considered’ permissible to eat meat in an emergency.
This is a plausible concession, but it does not get Brownlee very far. The vast majority of people in the modern West are lucky enough to be able to afford any number of foods, including plenty of cheap nutritious vegetarian food. In practice, therefore, the universality condition requires the vegetarian to condemn all non-emergency meat consumption. Perhaps this is not a problem: there have always been small groups convinced that wider society was morally mistaken, and indeed some of those groups – such as the emancipationists and the suffragettes – were ultimately vindicated. However, I take issue with Brownlee’s claim that an admirable conscientious conviction rationally requires a mindset of active condemnation of those lacking the conviction in question. There are many vegetarians who for various reasons abstain from active campaigning and from condemning their carnivorous friends and family. Such vegetarians may maintain a passionate commitment but keep it to the personal sphere. It is important, however, that a personal commitment need not be understood as a merely ‘subjective’ matter of whimsy or taste or lifestyle; it can still be morally serious and admirable despite failing Brownlee’s overly demanding universality condition. 5
What about the dialogic condition? I suggest this can also be a problem for the committed vegetarian. It is true that she can easily remain open to a discussion of her position with whomever is curious. However, Brownlee wants more than this. The dialogue must be ‘progress-oriented’, the objector not only must be open but must try ‘to persuade others of the value of her view’, while at the same time ‘trying to understand’ her interlocutor. But what to ‘understand’ means in this context is ambiguous: I suggest that in one important sense the vegetarian cannot understand the carnivore. When the carnivore sincerely describes animals as essentially machines, or describes his own gastronomic pleasure as more important than the animals’ suffering, or describes the importance of meat dishes in cultural traditions, the vegetarian understands the words, and understands how those beliefs fit into the carnivore’s life. But she cannot understand how anybody with access to the same evidence that she has can come to that conclusion. And the more educated and reflective the carnivore is, the more of an ‘epistemic equal’ he is to her, the more his apparent mistake or blindness will be incomprehensible. 6 In the final section, I suggest that incomprehensibility need not lead to the formulation of a judgement that the carnivore is mistaken, however.
Let us assume that after a certain number of conversations, the vegetarian decides to give up on ‘progress’ and no longer tries to persuade anybody. Moreover, she is not sure that there is anything left for her to say: everyone is familiar with the main arguments for vegetarianism, and yet most people are not persuaded. Once she discovers that both she and her carnivorous interlocutor know the same arguments and the same evidence, all she can say, lamely, is that she is persuaded by the arguments and he is not.
Contrast this with another of Brownlee’s examples. The cover of her book shows Norman Rockwell’s The Jury (1959). It is a striking scene of a jury deliberating. Here is Brownlee’s description: All we know is that the woman sits in a rickety chair with her back straight and her arms folded while 10 of the men stand or sit around her, leaning over her in united opposition … She is exposed. And, she might be wrong about what she thinks of the case. She seems to be aware of this since she is listening attentively to the men around her. But, she is also unflinching. (2012: 1)
However, the informed vegetarian is not trying to discover further facts; she has taken up a moral position on the facts. And such a moral position does not admit of enquiry and progress – or error – in the same way as the jury deliberations. It should be remembered that we are dealing with a committed vegetarian here, not someone who is morally perplexed about whether to become a vegetarian in the first place: such perplexity is indeed likely to generate Brownlee’s kind of openness and enquiry, especially in dialogue with trusted and thoughtful significant others.
What is more, I suggest that Rosa Parks, likewise, was not open to the possibility of error in her conscientious conviction. Nor was Thomas More. Both were open to dialogue in the minimal sense of being willing to explain their position to anyone who sincerely wanted to know; but they were not open to dialogue in the sense of accepting the possibility of being mistaken. It would make sense for Rosa Parks to ‘try to understand’ her racist interlocutors from the point of view of strategic planning for the civil rights movement, but it is part of the nature of her unperplexed moral conviction that she might not even try to understand her interlocutors, in the sense of being open to the force of their racist arguments and ‘evidence’. This would not preclude her trying to understand her racist interlocutors in the spirit of Gandhian loving resistance. 7
This is not to deny that the vegetarian might change her mind. She is not stubborn and prideful about her position, for she genuinely wants to do the right thing. But if and when she does change her mind, this will not be on the basis of learning new evidence or new arguments; instead, it will be something in the nature of a religious conversion, whereby the same facts come to have a different significance.
My claim is that the situation for the vegetarian objecting to meat-eating is structurally similar to that of the doctor objecting to abortion, with the obvious difference that the doctor’s decision directly affects both her patients and her colleagues. After all, in merely avoiding meat, the vegetarian probably does not incur any significant costs or risks, and in that sense her conviction is effectively her own business.
In holding that non-emergency abortion is morally wrong, the universality condition determines that the GP is logically committed to holding that other people would be wrong for requesting one, authorizing one, or performing one – indeed, they would be performing or complicit in murder: and that includes all her GP colleagues, as well as some of her patients whom she otherwise likes and respects, probably even some of her neighbours or family members. Seen in this light, anything less than vigorous remonstration or emigration would implicate the doctor. But our GP is British, feels at home in Britain and feels a sense of loyalty to the particular community and patients where she practises. Alternatively, she could switch to a different part of medicine (such as pathology or dermatology), or leave medicine altogether – but she considers it her calling to be a GP, and in all other respects she is entitled to feel that she is doing a good job. After all, abortion authorization is a very small part of a GP’s job. The great majority of the GP’s time involves responding to the thousand natural shocks that flesh is heir to – in part through the more or less effective tools of medicine, in part through the provision of lifestyle advice, spiritual comfort and a sympathetic ear.
But how is she to see her colleagues, if not as murderers? Clearly in all other respects, they are intelligent, educated, good and caring doctors, and some of them loving parents. They must be ignorant of the moral reality, she might tell herself. Of course this might not mitigate their culpability; it merely makes them murderers by negligence rather than by intention. This universality condition therefore remains a problem. I believe part of the problem is a certain conception of ethics and ethical disagreement, which would logically force the objector to see her non-objecting colleagues as murderers. I will propose a different account of disagreement in the final section, one that can accommodate objectors working alongside non-objectors without condemnation.
IV The pointlessness of argument
At this point it is necessary to distinguish two distinct aspects of the abortion debate in the UK. The first is that there is no significant organized public debate about the permissibility of non-emergency abortion on demand up until 24 weeks’ gestation, either among politicians, or among healthcare professionals, or in the media, or in popular culture, or among opinion polls of the general public. Since the Act was passed in 1967, there has never been any serious political movement to repeal it. 8 This distinguishes the situation in Britain from that in certain US states, for example, where proponents on both sides feel that everything is still left to fight for. Occasionally there is debate about borderline cases, e.g. about the suspicion that a foetus is being aborted because of its sex or a mild deformity. Occasionally there is concern about women who return to the same clinic for their fifth or sixth abortion. But mostly the pro-choice arguments seem to have won the day. This means that having a conscientious objection to abortion in the UK puts one in a very small minority. It is not an exotic or suspect minority like a sect; most people will have some qualms about abortion, they will know about the Catholic position, and for the most part will recognize and respect the objector.
Second, the arguments for and against abortion are already so familiar – not only to students of university courses in applied ethics, but more generally. Everybody understands right away what it means, on the one hand, for a woman to be given the right to choose what happens to her body; or, on the other hand, for one to see the object inside the womb as a ‘baby’. (I will not rehearse the other familiar arguments on both sides.) This familiarity has to do with the sheer visibility of babies and pregnant women and sex in our lives. In comparison, factory farms are deliberately out of the public eye, and the much more complex euthanasia debate touches us directly only when a friend or relative dies painfully.
These two factors – the huge consensus and the familiarity of arguments – put the GP in a peculiar position. On the one hand, she has a deep conscientious conviction that abortion is wrong and she is not afraid to discuss it with anybody; on the other hand, more than the vegetarian, she is overwhelmed by the sheer lack of interest, and she is reluctant to come across as a tiresome moralist or an intrusive busybody. I am not saying she is close-minded, dogmatic, or arrogant. I am simply saying that such is the consensus against her, and such is the familiarity of the debate that – when both parties recognize and respect one another as thoughtful and morally concerned – there is nothing left to say beyond the statement of one’s position. ‘I am conscientiously opposed to abortion’, says the GP, and already her colleagues will probably understand most of the reasons underlying her position.
I repeat that we are dealing with a committed objector. Maybe there was a time when she was unsure of her position, perhaps in medical school once she started to find out what she would be doing as a future GP. Under a situation of perplexity it makes sense to discuss the matter with friends, with peers, with teachers. Perhaps she was uneasy about it, but not so uneasy as to take a stand; and so in her early years as a GP she authorized abortions. But her unease grew, not in response to arguments, but merely through encounters with the patients who were asking for them, or encounters with friends who were happily pregnant. And one day, something tipped her into a decision, or rather a dawning, and eliminated the perplexity. If she had to describe what tipped her, she would not be able to point to anything of universal validity, anything that ought to tip everyone as it did her. Insofar as she is discovering something about the world, she is also discovering something about herself, and it is the personal aspect of her decision that undermines any confidence she might have in trying to universalize it in the way Brownlee demands.
V Disagreement and incomprehension
In this final section I use the abortion example to say something about the difference between disagreement and incomprehension in ethics. To start with, ‘disagreement’ is ambiguous. At one level, two people can disagree about what ought to be done. At this level, the objecting GP and the non-objecting GP disagree about the permissibility of abortion. But at another level, however, a disagreement is possible only when there is enough background agreement about the object of disagreement for it to be a disagreement in the full sense of the word. Let me explain by looking at a paradigmatically non-ethical disagreement.
You and I can disagree in the full sense about a complex mathematical calculation precisely because we agree about what would constitute a mistake in mathematics. I could go through the sum with you and say something like ‘Here you forgot to carry 1’. And the implication is that I can bring you to see where you made your mistake, and you will accept that you made a mistake once the mistake is pointed out. Or else you can show me where I made my mistake. Either way we have resolved the disagreement. Similarly, when the juror in the Rockwell painting disagrees with her fellow jurors, they already agree about plenty of things: about what constitutes criminal guilt and innocence, about the difference between strong and weak evidence, about the human psychology underlying hypothetical behavioural explanations (‘If he had wanted to kill her, surely he would have …’).
Many writers about ethics seem to assume that ethical disagreement is not significantly different from mathematical or empirical disagreement: if both parties can lay out the reasons that ground their contradictory ethical beliefs, then each will converge upon the correct beliefs when one or the other (or both) discover the mistake for themselves. The objecting and the non-objecting GPs disagree about what ought to be done; but I suggest that they do not disagree in the full sense because they do not share enough of a conception of what would constitute a mistake, and of what it would mean for their disagreement to be ‘solved’ by one person demonstrating the mistake to the other person.
In the case of conscientious objection, instead of ethical disagreement in the deep sense there might be ethical incomprehension. 9 The objecting GP cannot ethically comprehend how the non-objecting GP can authorize the abortion. And vice versa. They understand each other’s reasons, they recognize not only the English words but also their status as a reason, but they do not understand how the other’s reasons ‘add up’ to the particular ethical beliefs the other holds. This is because a reason, in order to function as a sufficient reason for belief or action, requires certain relevant background beliefs to be in place. If two people do not share the same relevant background beliefs, then the exchange of their respective ethical reasons may not expose a mistake and may not lead to a change of belief, even if both parties have approached the encounter in good faith and with openness to new evidence and arguments. In some cases, this mutual incomprehension could be explained away (and the other’s ‘disagreement’ overridden or ignored) by reference to bad faith or prejudice or some other cognitive fault. But in other cases the mutual incomprehension is stubbornly mysterious.
Sometimes the deployment of one’s reasons may change the other’s mind. But the success or failure of such a deployment is a partly contingent affair, in the sense that it will depend on many features of the situation in which the two disputants find themselves, on the ‘fit’ between the two disputants, as well as on many features of the respective background ethical beliefs that the disputants bring to the situation. In the same way, there is no reason to think that a strong ethical belief (such as the GP’s conscientious objection) is dogmatic, inflexible, or impenetrable for her whole life, precisely because the background beliefs themselves may shift through her life (without necessarily being due to error) in response to unpredictable contingencies of the situations and people she encounters.
One implication of this mutual incomprehension is a special kind of humility. I spoke earlier of the possibility that the objecting GP might see her non-objecting colleagues as ‘murderers’ in authorizing abortions. Some objecting GPs may do so, and may combine it with robust political activism involving strong condemnation and overt attempts to persuade. But they need not; other objecting GPs may have resigned themselves to the fact that the majority of British society, and the majority of doctors, do not see abortion as impermissible, and such a resignation would be in a spirit of incomprehension rather than confrontation or defiance. This incomprehension, and their awareness of it as incomprehension, might yield a generous attitude of giving the benefit of the doubt, and with it a refusal to condemn their non-objecting colleagues as ‘murderers’ or even as ‘negligent’ or ‘ignorant’. They would allow themselves, in relations with their colleagues, to be guided primarily by the usual aspects of personalities and behaviour and wit and experience. Such a humility is founded not on a belief that they might be wrong about abortion – they have no doubts about that – but on the belief that they do not understand the full picture of the others’ interaction with the world. I suggest that even solid friendships can allow for moments or aspects where one friend is quite mysterious to the other. While Brownlee’s account would imply that such humility could only be cowardly, or pragmatic in the bad sense, I think it could be generous and admirable.