Faith and Freedom

"Conscience is a tricky business. Some interpret its personal beacon as the guide to universal truth. But the assumption that one's own conscience is the conscience of the world is fraught with dangers. As C.S. Lewis wrote, "Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience."

R. Alta Charo, J.D., "The Celestial Fire of Conscience — Refusing
to Deliver Medical Care," New England Journal of
Medicine 352;24 June 16, 2005. 2471

Faith and freedom belong together. It simply isn't possible to value one over the other because the practice of faith or even its possibility is unlikely without freedom.We only have to look at today's headlines to realize that conflicts in the name of religion are raging and fuelling all manner of conflicts - and wars. More than ever, religious tolerance, as a path to peace is of utmost importance.

As far as the proposed Bill's author is concerned, religious freedom is of paramount importance. While we fully agree with this sentiment , we do not agree that the Bill's provisions support the same principle.

The Definition of Conscience

In the Bill, the "right of conscience" is narrowly defined as the right "not to participate" in medical procedures such as artificial birth control, sterilization, ligation, artificial insemination, assisted reproduction, human cloning, euthanasia, human embryonic stem cell research and fetal experimentation and other related services involving complex ethical and moral issues, that violate his or her conscience."

Indeed, while objections to the same procedures can come from a myriad of other religious and ethical beliefs and not solely Catholic ones, in our given context wherein the Bill is sought to be enacted, the Catholic hierarchy stands apart from its religious counterparts in its stand against modern family planning methods.

It is worth pointing out that the Muslim community has adopted a Fatwah in support of reproductive health care in the country and that alliances of Christian churches and sects have come in similar support for reproductive health care. Hence our quandary: Is the right to conscience in the Bill, exclusively a traditional Catholic conscience?

Secondly, the Bill also extends "rights of conscience" to Medical and Health Institutions, and even Payers (Health Insurance Companies!) similarly giving them the same right to refuse participation, in the same set of enumerated procedures. Again this raises the question of whether the conscience sought to be protected here is a traditionally Catholic conscience," and in so saying accessible only to Catholic run hospitals and clinics or Catholic plan and insurance companies?

This provision gives rise to more than one set of problems. Apart from giving hospitals and clinics, corporate persons the same footing as individuals in the "exercise" of conscience, the bill focuses solely on the aspect of "non-participation."

Can not a medical or health professional also claim that to opt to participate in a medical procedure sorely needed and requested by a patient, is also an act of conscience? In case of conflict, whose conscience in such cases will get protection?

The point is simply that difference in religious beliefs is a reality even in a predominantly Catholic population such us ours. Certainly the point of any legislation seeking to protect religious exercise should be to promote freedom, and not sanction religious discrimination of minorities.

Immunity from Liability:
A Grave Danger to Patients

The Bill's grant of immunity from liability to those it seeks to protect is dangerously broad, extending the option of non-participation beyond the conduct of the actual procedure, but likewise to include a refusal to give information, as well as the refusal to pay as in the case of health plan and insurance companies: all in the name of conscience, as defined in the Bill.

As worded, the Bill literally and sadly leaves powerless patients vulnerable to abuse and discrimination for having a different set of beliefs with that of their health care providers. In the context of the relationship of Patients with their Doctors, no less than the Hippocratic oath reflects the recognition that Doctors possess great power over their patients. The oath exists precisely to check those powers.

The realm of medical ethics already provides us with many useful guidelines and examples, among them, the FIGO Ethical Guidelines for Conscientious Objection. If anything, the Bill is an impractical measure because it attempts to "fix" concepts like conscience and ends up regulating free "religious exercise" through legislation, protecting only some.

Religious freedom protected by our Constitution is made up of the free exercise clause, and the non-establishment and separation clauses. With the recognition that religious difference is both a function and consequence of such freedom, our Supreme Court has time and again stood firmly in upholding religious freedom, especially when minorities faced dire consequences in the practice of their faith (as in Ebralinag 1 and recently, Escritor 2 ).

While there is no doubt that the same Constitutional principles give ample protection to health professionals in their own personal exercise of their faith, this proposed Bill is premised on such a narrow definition of such free exercise as "non-participation," which makes it an exclusive definition of conscience, and therefore not inclusive nor supportive of the democratic ideal of protecting a plurality of faiths. Likewise, it over extends a concept of "conscience" to corporations such as clinics, hospitals and Insurance companies, dangerously pitting the individual with collectives, corporate
at that.

Indeed, as noble as the author's intentions are, we urge him to withdraw it and instead support the preservation of the self-same religious freedom clauses in our currently embattled Constitution. Finally, we quote from an article of the New England Journal where this legal problem of medical professional ethics and religion was recently tackled by legal scholar, R.Alta Charo:

"Accepting a collective obligation does not mean that all members of the profession are forced to violate their own consciences. It does, however, necessitate ensuring that a genuine system for counseling and referring patients is in place, so that every patient can act according to his or her own conscience just as readily as the professional can. This goal is not simple to achieve, but it does represent the best effort to accommodate everyone and is the approach taken by virtually all the major medical, nursing, and pharmacy societies."

Atty. Carolina S. Ruiz-Austria,
Senior Lecturer,
University of the Philippines, College of Law
Consultant, REPROCEN

Statement on behalf of the Legal Committee,
Reproductive Health Advocacy Network (RHAN)
26 September 2006
________________
(Footnotes)
1 Ebralinag v Superintendent of City Schools, G.R.
No.95770.March 1, 1993, 219 SCRA 256. This Supreme
Court involved the expulsion of students from the Jehova's
Witness for their refusal to salute the Flag in accord with
the Administrative Code of 1987. The court upheld their
religious freedom.
2 Estrada v Escritor, A.M. No. P-02-1651, 22 June 2006.
This case involved a court employee facing administrative
charges of immorality for a second marriage while her
first was subsisting, to another man. The woman and her
second husband were validly married in accord with the
rites of the Jehova's Witness and living as husband and
wife. The Court upheld the woman's petition, upholding her
right to free exercise.

Sincerity

It was another disappointment but perhaps no longer a surprise. Pope Benedict claims he was merely quoting the words of another (Emperor Manuel II Paleologos of the Byzantine Empire) to make his point about the incompatibility of the notion of God with violence.Read news coverage here with links to the Pope's lecture

Yet it is very difficult to understand why the Pope in making his point, chose to only mention (and focus only on) Islam, let alone, omit the Catholic Church in any historical mention about the use of violence in the propagation of faith.

Unfortunately, the Catholic Pope is not alone in even assuming that other religions and their institutions, such as Islam, exist in the self-same monolithic sense as most in the Catholic hierarchy assume Catholicism to exist.

In fact, much unlike the Roman Catholic Church, Islam across the world has many faces, many leaders, and there is actually room for divergent views and practices. United by the Koran, Muslims nonetheless, are free from a singular, all powerful clergy, and "Pope."

Ironic perhaps is that in many ways, dialogue (that is in its classic sense, a conversation, and exchange of views) is much more possible within Islam, than it is with Catholicism, given the immutability of Papal dogma and Church canon even at this day and age. It also largely depends where you happen to be practising your faith. Here in the Philippines, the Muslims have declared a fatwa supporting reproductive health policy and practice. The Catholic hierarchy continues to pressure politicians into blocking such policy.

True, Islamic fundamentalism exists just as Christian fundamentalism abounds and and in many ways are raging fires fed by all forms of social injustice, crooked politics and politicians, and yes, by careless utterances by leaders of other faiths.

In making his referrences to the Byzantine Emperor's words, it is hard to imagine that the Pope was being careless simply because he is such a learned man and presumably a scholar of history. Be that as it may, we take heed from the Turkish protesters who perhaps hit upon the simple truth:"Easy to be the Pope. Harder to be the human." [Banner by protesters at Ankara, Turkey over Pope Benedict's statements against Islam]

More links on the topic:

University of Southern California Compendium of Muslim Texts

Pope Says Anti-Islam Quotes Not his Own Views on Reuters, 20 September 2006

Pope's upcoming visit to Turkey complicated with anti-Islam remarks on Pravda 20 September 2006

Individual Conscience and the Monopolists of Morality: Unconscionable Violations Against Religious Liberty

The House Bill, which purports to support free religious exercise, actually endangers no less than religious liberty. What is being passed off as a piece of legislation promoting freedom and human rights, in fact imperils the very existence and guarantee of the same principles.

Indeed the right of conscience is held sacrosanct by our Constitution and while we have no argument with the bill’s very premise that the right to free religious exercise is of paramount importance, we do not agree that the bill’s strategy supports the exercise of such liberty.

In the Bill, “conscience” is in fact so narrowly construed against a myriad of scientific and medical practices and procedures, among them a host of legally demandable and necessary reproductive health care services, which are already being denied Filipino women by the State mandated to extend them, also in the name of religious beliefs.

While doctors and medical professionals cannot and should not be forced to conduct medical procedures, which they refuse to perform on the basis of their faith, except when there is a medical emergency, which may warrant procedure, the Bill does so much more than just, reiterate this basic freedom, which is already embodied in our Constitution.

By instituting “immunity from liability,” for medical and health workers, in the refusal not only to perform the medical procedures objected to, but likewise in the refusal to provide information and even referral to alternative providers, the bill literally provides a license to commit religious discrimination against patients who may have a different set of beliefs about modern contraception, sterilization and such other medical procedures.

In the specific case of Family Planning and Reproductive Health, the bill clearly demonstrates a bias for conservative Catholic religious beliefs and does not even consider that other Christian sects and churches , as well as other religions such as Islam, (as well as dissenting Catholics within the Catholic church), have varying views on Family Planning which do not necessarily correspond to the views of the Catholic hierarchy!

In fact, the Catholic Church hierarchy itself is engaged in a raging debate over the use of condoms (which is also a form of contraception) in the context of HIV-AIDS.

Whose conscience does House Bill 5028 purport to protect?

Indeed, if we were to take on the premises of the bill’s provisions, it is as if, there is a monopoly of conscience, a monopoly of religious liberty. We have only to look at our Constitution’s religious clauses and provisions, as well as the line of Supreme Court decisions on religious freedom to see that the bill’s manner of construing “freedom of conscience,” makes a mockery of the notion.

1. The relevant Constitutional provisions on religious liberty are the provisions on separation and religious liberty and non-establishment. The provision on the “separation of church and state,” is in the preliminary Article on State Principles and the free exercise and non-establishment clause is in the Bill of Rights. Taken together, these provisions make up our Constitutional basis for religious liberty. The State’s secular character is premised on the very notion of keeping religious exercise free for all to enjoy. Together with the non-establishment clause, which prohibits the state from favoring any single religion, the provision on free religious expression also emphasizes individual liberty in prohibiting religious tests. Apart from our religious clauses, the Constitution also has a provision, which mandates the State to defend the right of spouses to plan their families “in accordance with their religious beliefs.”

2. In the case of Ebralinag vs Secretary, the Supreme Court ruled to exempt students who refused to “salute” the flag and attend flag raising ceremonies because it was against their religious beliefs. This 1995 case along with the more recently decided Estrada vs Escritor, wherein the court ruled also to respect the religious beliefs of a court employee charged with administrative misconduct (sexual immorality) when she was able to prove that her second marriage was sanctioned by her religion, demonstrates the profound importance given to religious freedom by our Supreme Court. In both cases, the religion in question was that of the Jehova’s witnesses, notably not the dominant religion. These cases demonstrate that while religious liberty is a guarantee for all, often enough, it is the beliefs of those who are in the margins (the minority), which are endangered. In Ebralinag, as in Escritor, construing the laws strictly would not only have burdened the religious beliefs of the petitioners, but would have also violated their very right to believe.

It is also ironic that the bill even utilizes the term “discrimination,” when by its very provisions, it sanctions discrimination, as it is already being widely practiced against women who seek reproductive health care, not necessarily just by medical practitioners, but government officials themselves who refuse to fund reproductive health services. Indeed, while the Bill proposes to protect would-be, primarily Traditional Catholic “conscientious objectors,” from discrimination, it does absolutely nothing to ensure the rights of those who, in their exercise of the right to conscience, believe differently.

But the bill so broadly defines the scope of the “conscientious objection,” not just to include the provision of information, it also misplaces the exercise of the right to institutions, not just individuals! What about doctors and health professionals who continue giving information and referrals for family planning no banned in a public hospital because the local government funding it has a policy against modern contraception? Aren’t they also conscientious objectors? What about a private and Catholic hospital with medical professionals who maintain an ethical responsibility to refer their patients to alternative sources of medical information?

House Bill 5028 no doubt, brings to fore core issues of religious
difference, not the least of which centers on beliefs about sexual morality, in so doing also affects vital issues on women’s sexual and reproductive health, current day issues which are hotly being debated in other fora.

For this reason, we are of the position that House Bill 5028, does not promote religious liberty, but in fact, sanctions its violation. In effect, House Bill 5028 is contrary to our Constitutional guarantee of religious freedom.

[A Position Paper on House Bill 5028 filed by Rep. Hermilando I. Mandanas in the 13th Congress, By Atty. Carolina S. Ruiz-Austria, Position Paper for Womenlead Foundation, Inc.]

Further Reading on Conscientious Objection

By Reason of Religious Training and Belief..." A History of Conscientious Objection and Religion during the Vietnam War By Karl D. Nelson

This site gives an overview of the historical origins of conscientious objection , in relation to an individual's refusal to go to war (at the time of the draft, the right to refuse it) on the basis of conscience. This background on the concept of conscientious objection is vital to an understanding of how the proposed Bill (and proponents of like drafts in the US) have veered far from the original notion.

FIGO Ethical Guidelines on Conscientious Objection

This site links to the International Organization of Gynecologists (FIGO) Ethical Guidelines on Conscientious Objection formulated in 2005. In the face of emerging use and application of the notion of conscientious objection in cases of reproductive health procedures, this set of guidelines presents a model response in terms of checking the abuse of the notion in the context of ethical medical practice.

Cosmic Soup

"When we were told that by freedom we understood free enterprise, we did very little to dispel this monstrous falsehood. Wealth and economic well-being, we have asserted, are the fruits of freedom, while we should have been the first to know that this kind of "happiness" has been an unmixed blessing only in this country, and it is a minor blessing compared with the truly political freedoms, such as freedom of speech and thought, of assembly and association, even under the best conditions."-Hannah Arendt


Among advocates, there is a tendency to take the notion of "rights" as a given, as if merely invoking or mentioning the word(in the vernacular, "karapatan" would be enough to create a common understanding of the concept.

"Rights" afterall are in a sense a modern day symbol which we closely relate to very basic notions around democracy, freedom and the life of civil society. Often enough, it is at best, hortatory when we "claim" rights or invoke them. On the other hand, the issue of whether or not a person or persons are actually able to exercise rights is always a whole other issue.

For those working to advance women's status,the status of marginalized sexual identities and battling sex and gender discrimination, rights have served a useful political purpose not only for framing interests as legitimate (READ: legally palatable and enforceable claims) but has likewise served as a basis for articulating, and at times, even challenging notions related to identity, community, and freedom.

Critiques about (classical) rights and their built-in limitations within liberal democratic legal systems have shown us how taking "rights" for granted (that is, leaving them unpacked), can often lead to a tendency to ignore the social context of inequalities at the various levels of race, class, sex/gender and ethnicity.

The most well-meaning "human rights" educators have no doubt found themselves grappling with not only the translation of the term rights (locally, karapatan) but likewise with the problem of having a more meaningful discussion of the concept. Bringing rights closer to home, into the practical, and far from just the abstract however often leads to the impractical reduction of "rights" as "legal rights," and "legal remedies."

In my class, a senior law student asked, "why stop at rights ?" Otherwise stated, why continue privileging "rights" above all other concepts, that is even in human rights education?

Moving past the "contest" of rights, what does seem to be an important area for inquiry and discussion are the emerging ethical standards in relation to rights discourse. Indeed, challenging institutional ethical standards (especially sexual morality), seems exactly where current rights discourse is at. No longer limited by a premise of universality (sameness or uniformity), we can confront difference, and engage those arbitrary categories as we bring the discussion closer to home, in the everyday aspect of human relations.