M. A. K. HOSS, K. S. DECKE R
parent company. Hendershott parses Dean’s opposition to Olm-
sted’s decision in this way: “… Mr. Dean appeared to suggest
that the teaching authority of the Phoenix Bishop was just one
more ‘opinion’ on a ‘complex matter’.” In fact, Dean said that
“this is a complex matter on which the best minds disagree,”
and cited the expert opinion of M. Therese Lysaught, Associate
Professor of Theology at Marquette University, whose training
includes an MA in Theology from Notre Dame and a PhD in
Religion and Theological Ethics from Duke University. But
Hendershott has clearly made her mind up in advance about the
results of a disagreement between, say, Olmsted and Lysaught
when she writes: “Many theologians … write that theologians
comprise ‘an alternative magisterium’ to the teaching authority
of the bishops. And in cases like the one at St. Joseph’s, the
alternative magisterium often trumps the true Magisterium of
the church.” She apparently ignores that fact that many “alter-
native” church fathers, including Saint Clement, Origen, Ter-
tullian, and Saint Jerome, never held any formal position within
the church hierarchy. And as guilty as Dean was in omitting the
considered views of ethicists who disagreed with him in his
communications with Olmsted, Hendershott herself is as guilty
in failing to consider the Bishop’s complete lack of clinical
competence.
To cast the issue, as Hender shott and many Catholic com-
mentators do, as a failure to heed prescriptive authorities is to
cede the controversy to Bishop Olmsted without debate and,
further, to ignore the opportunity for moral deliberation and
transformation that might ensue. From the perspective of med-
ical care within a pluralistic democracy such as the United
States, there are at least two key issues at stake in the St. Jo-
seph’s Hospital case: clinical competence and conscience. As
can be shown, these are not necessarily at odds with each other,
either in this case or in such cases in general.
Patient’s Right
There is at least a prima facie plausibility to the individual’s
claim that, in a clinical or pharmaceutical setting, their con-
science requires them to “opt out” of a professionally required
duty. However, it is a mistake to think that conscience should
automatically trump such duties, since in any scenario where
treatment or services might be denied, one also must weight in
the pre-commitment of the medical professional to the normal
performance of their duties, as well as the claim of the patient
to their well-being. Claims of conscience, at least in American
legislative history (the Church Amendment, 1973; the Hyde
Amendment, 1976; the Weldon Amendment, 2004) are based
on two principles: 1) the right of an individual to secure his or
her own moral integrity, and 2) the incorrigibility of the dictates
of conscience. While individuals do have the right to their
moral integrity, this is not an absolute right, especially in cases
where it can be shown that an autonomous individual accepted
professional responsibilities that they were aware might im-
pinge on their sense of moral integrity. Especially in such cases
of conscience, the strict burden of proof should be placed on the
individual to indicate the precise reasons for their opting out.
Further, because of a patient’s right to receive therapeutic
treatments or critical care that are not forbidden by law, con-
scientious dissenters and/or their institutions should be obli-
gated to inform a patient where and how they can receive the
treatment or services requested; in other words, the right to
conscientious opting out does not extend to a right to absolutely
deny a patient services and information.
It is also arguable that the dictates of conscience are incorri-
gible; while an individual may have a strong moral intuition in
a given situation, it is not always true that their conscience is
speaking. Particularly in cases where an individual’s moral
intuitions are inconsistent with each other, we have good reason
to believe that at least some of their intuitions are actually giv-
ing voice to habit, woolly thinking, parental or peer influence,
or religious training. It may also be the case that while I do not
doubt that my conscience has “spoken”, I may be wrong about
the fact that such a moral intuition applies in this particular case,
or how it applies in this case. This is another reason why the
presence of biomedical ethicists is still significant in clinical
care settings, and a reminder of the danger of having one indi-
vidual make decisions that directly and irreversibly impact, in a
negative fashion, the fundamental health and well-being of
hundreds or thousands of others.
Claims of Conscience
Claims of conscience in the Catholic healthcare setting are
most likely to be encountered by providers demurring from
providing services that violate principles the ERD That is,
Catholic health professionals may make negative conscience
claims that they should not be compelled to provide services
that impinge on their conscientious moral intuitions. However,
as Mark Wicclair points out, there are also positive conscience
claims that can be made to justify “provid[ing] professionally
permitted medical goods or services (e.g., medications and
procedures) when do so is prohibited by law, institutional rules,
employer policies, and so forth” (Wicclair, 2009: p. 15).
The termination of the pregnancy of the 11-week pregnant
woman at St. Joseph’s that incited Olmsted is best justified as
demanded as a positive claim of conscience. Sister McBride’s
decision in the case was made more difficult, of course, by the
Church’s teaching that the fetus is a person. But at a non-viable
age of 11 weeks old, the fetus could not have been classified as
a disti nct patient, deserving o f patient rights and treatment con-
siderations, at least in non-Catholic hospitals. In these settings,
the standard ethical practice is that “beneficence-based obliga-
tions to the fetal patient should be negotiated in the context of
the beneficence and autonomy of the mother” (Springer, 2011).
In following the ERD, McBride and the staff at St. Joseph’s
attempted to save the only life that was possible to save. The
decision hinged on the mother’s diagnosis of pulmonary hyper-
tension as a near-certain risk of death; The patient realized this
in her decision to abort the pregnancy. What Bishop Olmsted
failed to comprehend, but what St. Joseph’s apparently did, is
that a mother need not suffer from a “grave illness” in order
that both the lives of her and her baby are at risk. The doctrine
of double effect (DDE) clearly allows McBride, in this case, to
make a decision in which the intention is to save the life of the
mother even though she also knows that the fetus’s life will be
ended; the alternative would be that both would die. Whether or
not the reasoning of the DDE is sound, McBride’s case should
be one of a positive claim to conscience. What we then have is
the unusual case of assessing the justifiability of this claim not
from within the structure of a religious institution, but against
it. Which issue should one weight more heavily in this case,
Bishop Olmsted’s lack of clinical competence or the claims of
St. Joseph’s clinical professionals to permissibly dissent, on the
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