Conscientious objection has long been a cause of controversy in bioethics, and has the topic has received significant attention in recent months.
David Oderberg, a moral philosopher from the University of Reading, has weighed into the debate with a sophisticated analysis of the “increasingly important issue of cooperation in immoral actions”.
In a new article in the Journal of Medical Ethics,Oderberg outlines a “set of principles that courts can apply” to cases concerning cooperation in wrongdoing -- drawing in particular upon concepts developed, though not exclusive to, the Catholic moral theological tradition.
Oderberg suggests that an appeal to the principle of double effect (PDE) can give us just the sort of jurisprudential system we need.
“The basic idea is that the fundamental principle of practical reasoning is to do good and avoid doing bad, but unless this principle requires more than can be expected of a finite human agent it has to be qualified. Since so much of what we do has bad effects whether we intend them or not … we have to be permitted to cause bad things to happen -- although within strict requirements”.
While Oderberg suggests that there are many cases where PDE may justify cooperation in evil, he argues that there are serious issues with proximate involvement in wrongful actions -- an example of which is the provision of fully subsidised contraceptives by employers for employees through health insurance plans. Analysing the legal reasoning in the case of Burwell v. Hobby Lobby, Oderberg remarks:
“On the assumption that (abortafacient) contraception is wrong, the plaintiffs were being asked to cooperate in wrongdoing...Their cooperation would have been mediate since they were supplying the means for contraception to be used, namely paying the insurance company … The cooperation would have been relatively proximate. The plaintiffs were being asked to subsidise, although indirectly, behavior they considered wrong”.
Oderberg repeatedly criticises the so-called “sincerity test” of conscience that courts apply, saying that its laxity could lead to “an increasingly restrictive backlash by the courts, which could significantly reduce religious freedom and conscientious objection”.
“If the current mere sincerity test were replaced by a reasonableness test based on objective principles of cooperation … a more balanced jurisprudence would be likely to follow.”
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