Over at The Hastings Center’s Bioethics Forum blog, there’s an interesting post from Rosana Triviño addressing the difference between conscientious refusal and civil disobedience, in relation to Spain’s new law limiting care for undocumented immigrants. This links nicely to some conversation we’ve been having here at Bill of Health as to whether conscientious refusals and actions ought to be thought of similarly and granted similar protections.
One thing I’m puzzling over is the relevance (or not) of institutional support for the conscientious behavior in question. So in Spain, several medical organizations have encouraged physicians to avoid withdrawing care from undocumented immigrants, and of course in the US and elsewhere, there are many groups that encourage physicians not to perform abortions and other controversial services. Does institutional involvement make something look more like civil disobedience? I think the answer is “kind of.”
Ultimately, something is clearly civil disobedience when refusers or actors – 1 or 100 or 1000 – violate the law on the books for conscientious reasons. But where numbers or institutions can matter is when refusers refuse on grounds of conscience to do something that is legal but not required. Their refusals are not violating the law, individually or collectively, and there is no technical disobedience. But when there are enough refusals to do what the law allows, the law may as well say something different. And particularly when those refusals are coordinated in some way to prevent access to what the law allows, things start to look a lot more like civil disobedience. So conscientious violation of law seems to be sufficient but not necessary for civil disobedience, which on a broad view could also include efforts to sabotage or impede a law through collective inaction.
What do you think?
I think we should keep the notion of civil disobedience confined to instances of conscientious or principled law-breaking. With regard to those cases in which “refusers refuse on grounds of conscience to do something that is legal but not required,” this falls under the heading of “lawful departures from legal rules,” the subtitle of a classic work by Mortimer R. Kadish and Sanford H. Kadish, Discretion to Disobey (Stanford University Press, 1973, reissued in 2010 by Quid Pro Books). I think Kadish and Kadish provide us the essential elements by which we might come to ethically and legallly conceptualize and discuss this apparently anamolous example, keeping in mind that the sort of “collective inaction” you cite here is in a broader sense a species of a certain sort of action…. The exercise of official or citizen discretion or judgment in such instances “are not satisfactorily accounted for by either the statement that when officials [or citizens: they offer examples from both roles] depart from rules they lawlessly usurp legal authority or the statement that what officials do is the real law and what the law says is not the law at all.”