Should Positive Claims of Conscience Receive the Same Protection as Negative Claims of Conscience? Clarifying the Asymmetry Debate

Abstract

In the debate over clinicians' conscience, there is a greater ethical, legal, and scholarly focus on negative, rather than positive, claims of conscience. This asymmetry produces a seemingly unjustified double standard with respect to clinicians' conscience under the law. For example, a Roman Catholic physician working at a secular institution may refuse to provide physician-aid-in-dying on the basis of conscience, but a secular physician working at a Roman Catholic institution may not insist on providing physician-aid-in-dying on the basis of conscience. This article outlines arguments against this asymmetry and critiques them for failing to distinguish between positive claims of conscience as positive or negative rights. I suggest the asymmetry debate should be focused on whether positive claims of conscience as positive rights ought to enjoy the same protections as negative claims of conscience. Clarifying the debate in this way helps elucidate some of the best reasons for the asymmetry, which these arguments have not addressed. This article does not take a definitive position on whether the asymmetry is justified, but attempts to bring some focus to the debate by directing arguments against the asymmetry to address the significant differences between positive claims of conscience as positive rights and negative claims of conscience.