Conscience, Data, and the Burden of Proof

Dr. Susan Haack’s recent posts on conscience, and the ongoing struggle over the HHS regulations on mandatory insurance coverage for contraception under the Affordable Care Act, demand more careful further reflections than will fit in a blog post, but I will dare to stick a toe in nonetheless.

In The Line Through the Heart: Natural Law as Fact, Theory, and Sign of Contradiction, J. Budziszewski argues (see pp 8-15, for example) that “deep conscience,” which is “rooted in the constitution” of all humans, is a cardinal indicator of the existence of a natural moral law.  Deep conscience “remembers” general moral norms (including, he argues, the Decalogue).  I’d take this to be Dr. Haack’s “antecedent” function of conscience.  Budziszewski then distinguishes three “modes” of conscience:  cautionary, accusatory, and (for lack of a single term) confession/reconciliation-seeking—the “consequent” functions Dr. Haack mentions.  He would certainly agree with Dr. Haack (as do I) that conscience points to a transcendent authority.

Presumably (me talking now, not Budziszewski), we form correct moral convictions by agreeing with deep conscience about moral truth.  However we arrive at those convictions, we can argue that they too have “antecedent” functions in that they are, if properly understood, sufficient to motivate ethical behavior.  (I just glossed over a major discussion in ethical philosophy that I ask the reader to accept for the sake of argument here.)  Convictions do not, however, produce a sense of guilt, accountability, or of a need for reconciliation.   Conscience does that.   Whether we recognize it or not, conscience is witnessing to our accountability before God.  People who deny God’s existence, however—and who may well also interpret “guilt” to mean a response to bad-faith intimidation by the organized church—can still coherently claim, it seems to me, to act out of conviction with accountability to the community, as long as the standard is some sort of community-recognized norm.  In a pluralistic society, one can appeal to positive law or what we can agree on; or, alternatively, one can appeal to the shared understanding of what it is to be an autonomous moral agent (as I take the German philosopher Jürgen Habermas to do).  Just don’t plead metaphysics.  But the appeal to convictions is not ripped from its community connections—it depends on them, just in a different, but critically different, way.

And that, of course, is the problem.  People like me are making a metaphysical argument (actually, I want to argue for a form of natural law) in a positive law world.  Some of the “positive lawyers” claim that their convictions are objective, not relativistic, because they are available to observation, as in the natural sciences, so we can agree on them, revising our understanding as we get new information.  We are left with a sort of “naturalist’s natural law.” I think that is irredeemably relativistic, in the end—if God is dead, nothing is out of the question.   I understand Budziszewski to agree.  He criticizes the “positive/natural lawyers,” if you will, of pursuing a “second-tablet project”—that is, isolating the “second [stone] tablet” of the Decalogue (Commandments 5-10) from the more explicitly God-directed first 4 commandments of the “first tablet.”

So what?  First, I would submit that the “conscience/convictions” argument doesn’t help all that much in cases like the HHS mandate.  The issue is how much room to give to particular metaphysical stances—the public/private square problem.  Pluralistic norms vs religious freedom is still the battle.  And it will not do to say that profit-seeking makes the moral application of metaphysical commitments illegitimate.  To put the fine point on it, Hobby Lobby’s owners ought to be accorded the same freedom of conscience as are the Catholic Church, or a church-run hospital, or Wheaton College (for example).  I worry, perhaps too much, that bioethicists in particular worship at the altar of non-profit status in ways that risk serious mistakes.

Second (and cf. the recent post by Dr. Joe Gibes), statements like “[The] lack of any substantial evidence for post-fertilization effects [of emergency contraceptives] may significantly weaken conscience claims, and may militate against refusals to dispense or to refer,” [Lewis and Sullivan, Ethics & Medicine 28:113-120, 2012] will not do.  Failure to prove is not disproof.  Absent definitive data, prohibition of emergency contraceptives may be weakened.  But without definitive data—which may not be accessible by ethical experiments—sufficient to free the conscience of concerns, conscience claims of someone with a reasonable doubt about what the data mean ought to be vigorously defended, even against a strong majority consensus.   We should not let a prevailing tide of naturalistic, “data-driven” ethics confuse our use of the data in service of true moral precepts.

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