conference proceedings of congress International Bioethics 1999. Bioethics and dignity in a pluralistic society
Table of contents
Bioethics and conscientious objection
Gérard Mémeteau
Professor at School of Law
University of Poitiers
I.- The need for a conscience clause
II.- The means of the conscience clause
"You do not fight for law, O jurists," Ihering told them, "but for the triumph of your vision of man. He was right.
Georges Ripert
The creative forces of law
(LGDJ. 1955, p.114)
The question of resistance to the law of the state certainly dates back to the dawn of philosophical reflection and the confrontation of the values of citizenship and universal, not to say religious, values. Sophocles' heroine will be its spokeswoman until the end of time. In theology, St. Thomas Aquinas established the conditions of substance and prudence - Prudence is a virtue presumed to the jurist, by indulgence or pun - to oppose the law, for "civil disobedience" as one would say in modern language, even if, otherwise, his spirituality takes him totally away from it.
On the other hand, that of resistance to the dictates of bioethics, increasingly transmitted through the law and state provisions (bioethics no longer manages to conceal its regulatory appetite) does not seem to arise. Originally born in North America1, around 1970, perhaps to help certain clerics free themselves from the authority of Humanae Vitae, this discipline of the proper use of biomedical sciences to improve the quality of life2 almost by its very nature excludes the difficulty. In fact, bioethics and its oracles, the committees, are pluralist, they call and claim to await the various spiritual families, they open the discussion about the aims and practices of biomedicine, they present themselves as places of confrontation in which auctoritas is excluded in favour of consensus: To qualify the embryo as a potential human person is not an act of authority, nor the result of a vote, but the fruit of a agreement that neither counts the votes nor imposes a doctrine, and in this particular case neither a logic of reasoning. An attentive observer realises that "the virtue of bioethics is to show that the dogmatic speech or even the persuasive speech are not enough "3. What is there to oppose? What demand of conscience can be invoked in the face of an ostensible rejection of the obligation? Or, on the contrary, is it bioethics that welcomes free individual reflections that are reluctant to exclusive dogmas and qualifies them as fundamentalism4? Where to find an angle of attack against pluralistic liberalism (pleonasm? it is not obvious) and what rebellion to raise? Undoubtedly, it is easier to plead the real or imaginary subjective right (e.g. to abortion) against a dogma replaced by the secular arm.
Now, on the one hand, the free discussion speculative, at best suggestive, nature of bioethics is nothing more than a myth. Bioethics uses the persuasive force of its opinions, its moral authority, the complex technique of the decisions of its committees5 , or simply the effects of fashion, to establish rules parallel to those of the State6 (cf. including deontology7 ) in the field of self-regulation, the first manifestation of which was, according to general opinion, the Declaration of Helsinki (1964; currently being rewritten at the General board in Santiago de Chile), even successfully directs the pen of the legislator: bioethical laws exist. The free doctrinal research is transformed into binding rules. On the other hand, the development of bioethics, precisely in the name of ethical pluralism which produces the indifferent appreciation of actions which can only be judged according to the criterion of usefulness internship, generates all forms of appropriation and disqualification of the human being. If it is bioethically incorrect to affirm the full humanity of the embryo, it is licit to choose the quality of the embryo, and therefore its definition, which will be the best in virtue of the benefit that can be obtained from it, which has led to the concept of the pre-embryo, indispensable for carrying out research on subjects during their first days8. This is not the place to list these uses of the weakest of men, these denials of humanity through opportune slippage of definitions and invention of Untermenschen. For the second time in history, we know this dialectic between the needs of biosciences and the disqualification of usable subjects/objects, but it is - it must be said - a progress of the Enlightenment (indeed) and of law, reducing law itself to an instrumental rank.
It is therefore understandable that, in the face of this perversion of bioethics, unless it is not an inevitability, warnings are raised and invitations to resistance are issued. Donum Vitae (22 February 1987) teaches conscientious objection to morally unacceptable civil laws (chapter III: Morals and civil law). Evangelium Vitae (25 March 1995), accompanied by the infallibility of the universal ordinary Magisterium9 , imposes the grave and precise obligation to object by conscientious objection to human laws which authorise and favour abortion and euthanasia (§ 72 and 73). This colloquium is based on serious concerns and a just cause. It was only natural that it should take place in this University of Navarre in which fertile ethical reflection has generated important works, both in themselves and in the bibliographical indications that give an account of the multiplicity of research into this conscientious objection10. And this reflection must be university-based, because it is universal. The realisation of the need, the search for means on a human scale, of the conscience clause in bioethics are imperatives that are often neglected.
I.- The need for a conscience clause 
To speak of a conscience clause in bioethics is to admit the existence of threats against important values of humanity, as well as the current inadequacy of positive law to remedy this status. The citizen therefore needs to keep that law at a distance in order to be able to protect those values. This is the starting point of the conscience clause, presented below11.
Even if the topic of these talks does not immediately deal with the acts of modern biomedicine, a quick review of the landscape will serve to confirm its threatening character for the human person. It is clear that this is not about playing the game, often played by advocates of medical liability reforms, which consists in claiming that modern, more efficient medicine is more dangerous and should therefore be protected by severe civil liability. This is, in our opinion and in the opinion of other authors (e.g. M. Demichel), a sophism. What interests us most is the control over life, enshrined by the means of biology and research. We will mention cloning, of course, capable of creating, as we learned at the end of May 1999, a double of the age of model (Dolly the sheep), which may dishearten the Faust doctors in search of youth. We will mention the WFP, which has conquered our laws, starting from the principle that the child is an object, the object of the couple's phantasmal desire, and of the medical team's desire for power; also the object of the research or of the will to transfer or destroy when the fertilised embryo is no longer desired, becomes supernumerary or when one realises that it is not the one to be used12. Let us add the cost, the importance of which varies among data, of giving maternity a medical character: developed Western societies throw their unconsciousness in the face of the victims of the Earth, incapable of ensuring the financing of the most necessary care.
Let us also mention the biomedical research freed from false obligations after the Nuremberg Trial or the Declaration of Helsinki. To lend oneself to research without direct individual benefit is to allow oneself to be appropriated by the mythical social group for the good of future generations. The collective takes possession of the individual for its own benefit, within the logic of the Social Contract in which the subject must return to society the equivalent of the advantages he has received from it, which logically leads to giving life a contractual character13.
Examples are obviously taken from the liberalisation of abortion and, de lege ferenda, euthanasia or medically assisted death14. Alongside the actual act of killing large groups of innocent human beings, there is the legalisation of the act itself, which in turn provokes a multiplier effect, and the setting in motion of an intellectual process to give the appearance of legitimacy to such behaviour. "To legislate, said Dean Carbonnier, is to consecrate "15, adding to the disorder of the facts the disorder of the law by writing that human sacrifice becomes lawful again16 , which favours the disorder of the facts and, as (positive) law no longer fulfils its function of protection, it grants all subject of powers to the most powerful against the weakest.
Life has become, in practice and often also in law, an object of utility and power. In the face of legislative reversals, what is possible becomes permissible, despite the words of St. Paul.
Even more serious, if possible, is the existence of perverse philosophies that encourage people to judge the facts as insignificant, even excusable. The most common one B seems to be that of the quality of life. On the one hand, it embellishes research with the hope of an increasing quality of life for healthy people in a healthy environment. On the other hand, the two-faced Janus sows doubts about the value of a life with handicaps, illness or suffering, an "abnormal" life, and suggests that it is useful to put an end to it. Useful for whom? For the community, which cannot bear the spectacle of lives of leave quality, and goes so far in this direction as to demand a threshold of intellectual quality. We are all familiar with the doctrines of Altkinson, Engelhardt and Tooley17 ; also those of the promoters of "death with dignity". They revolve around this idea: there are lives that are not, or no longer, worth living and one fears to discover involuntary reminiscences of "Lebensunwerten Lebens" (Binding and Hoche). These thoughts are present in the attempted institution of wrongful life action. They are at the heart of the so-called "therapeutic" abortion and the techniques that precede it (DPI / DPN). The abnormal being is suppressed - or avoided, through the selective criteria of PMA - because of its handicap, without, of course, the moral quality of those responsible being called into question. Who and on what basis can describe another as abnormal, as incurably handicapped? This is a new morality of human selection in the name of the quality of life18 . Contemporary thought even goes so far as to propose that, faced with the prospect of leaving a child with significant handicaps to take care of his or her needs on his or her own, abortion is "a true gesture of paternal love "19. The normality of reasoning is altered. The Pontifical Academy for Life can pose the question: "Medicine and law: for or against life? "20.
In the past, perversions of medical thought, this complicity in the denial of the humanity of the other and utilitarianism, have also been known, and, when they were considered past, the researchers and doctors guilty (at least some of them) have been condemned, without being able to take refuge behind the order or authorisation of the "law".
What is more particular at the present time is that this status, after all, not very original (is it progress to go back to mediated animation?) and, in a certain sense, its promotion, is being re-established thanks to bioethics. For example, it invents the recognition of the principle of enlightened consent in the Declaration of Helsinki, a sacred text, even in the Nuremberg Trial, forgetting all the much older jurisprudence. What it has actually allowed is the use of the concept of self-determination outside the therapeutic field in order to justify consent to research, to abortion, to the request for death, to the PMA, thus diverting consent from its purpose of protecting the subject, and lowering the level of public order: "Faced with the absolute power of the subject over himself, there are no longer limits to the power of the other, nor reason not to transform the body into a thing, an object of commerce and industry "21. And indeed, consent becomes one of the determining criteria of bio-research, of abortion, of the manufacture and destruction of the child (PMA). The laws set limits to regularised acts. They are only formal limits: abortion is not and never has been controlled; the research on the person does not respect the rules of the law of 20 December 1988. And these limits are considered to be provisional, extendable according to the evolution of the data and the needs of science. The research on the embryo serves as an example. The article L. 152-8 of the Public Health Code as it was written in July 1994 must, some argue, be revised: it does not allow all the research declared necessary by biomedicine to be carried out. Biomedicine dictates its needs to the legislator who, on the basis of erudite reports, translates them into legal norms with appropriate attenuations for the state of political forces. And the subtlety is seen in the denaturalisation imposed on the principles of law, particularly necessity and gratuitousness.
By definition, obligation and necessity are, for jurists, exceptional. In bioethics they appear constantly. The article L. 209-6 C. Public Society concerning research on handicapped and hospitalised persons raises the reservation after the prohibition in principle: unless it cannot be carried out otherwise. The legal argument is formally invoked, only to be rendered meaningless later on. As far as abortion is concerned, article 1 of the law of 17 January 1975 raises the exception of necessity, and then reference letter for helplessness and, in the internship, in the absence of any control, the simple request is reached, and even, as is now the case, the voluntary termination of pregnancy, all on philosophical grounds and for practical reasons of obtaining embryonic material22. As for eugenic abortion, its uncontrolled evolution towards the elimination of any abnormality or supposed abnormality has been admitted and "the criterion of certainty has been abandoned for the criterion of risk "23. In July 1994, the law outlawed eugenics but did not abolish the monstrous provision of article L. 162-12 C. Public Society, and organised a significantly eugenic PMA.
Free of charge? Since the law of 20 December 1988, it has been the basis for bioethical acts, first the research, then the PMA, the donation of tissues, organs, blood. Gratuitousness appears as the main virtue to hide the object of the action: to give an embryo to a couple, not to sell it to them, which is lawful, and then civic. Let's go back in time: it would have been result virtuous to give a slave and immoral to sell it. Gratuity absorbs the other ethical values; what is gratuitous no longer needs substantial examination24 , and this sophism of gratuitousness in turn contributes to feeding bioethical utilitarianism: if one lends oneself gratuitously to research, promoters encounter fewer obstacles than if they have to remunerate the subjects.
One could develop the topic of the perversion of the law by bioethics, insisting above all, like Michel Schooyans, on the technique of derogations, the insidious normativity of the opinions of the committees, the incessant concessions to scientific research by the legislator25, the inversion of a reasoning that presents the consecrations of bioethics by the law as protections of the person, whereas in reality it is a question of the essay of new dispensations in favour of bio-research...26. We will only stop at the ontological risk.
Some, with the best of intentions - we were on the point of sharing their opinion - wanted Parliament to pronounce itself in 1992 and 1994 at purpose on a definition of the embryo. The question was raised again recently, de lege ferenda27. As is well known, the congress of the Deputies considered it more appropriate to censor itself so as not to risk calling into question the law of 17 January 1975 (which is a magnificent test of bioethical censorship!). And on balance, was this not wise? Indeed, to applaud today the adoption of a definition of a human being would lead to suffer tomorrow the adoption of a different definition. Giving the law the power to define a human being one day means giving it the power to define him differently on another occasion and accepting that the law - in other words, the State - can define a human being at any time in his life or according to his qualities. It is to grant the State the absolute power to tolerate, or exclude from legal personality, entire categories (the embryo and the foetus with handicaps: art. L. 162-12 C. Public Health28). Public Health28) of variable legal Untermenschen according to majorities, philosophies, the needs of the bio-research, the power to eliminate from the supposedly perfect ethnic body beings declared inferior or different in what has been called "an orgy of consuming research "29. And it would be to grant the State an illegitimate and totalitarian power, democracy or not30, which exceeds the competences of any human legislator31. The Civil Law contributed to defining the subject of law, taught the logics of "Infans conceptus..." with the rupture, however, of the artificial condition of viability. But it did not provide any concept or any technique that would make it possible to exclude any human being from legal life, not even the former living dead. Bioethics, on the contrary, leads to this through the paths of the object being of research, of the qualitatively insufficient being, of the being not yet recognised as such.
It is easy to guess that the problem of the conscience clause develops one of its chapters within bioethics itself. What is the role of the jurist in this field? Can the jurist be a bioethicist? If we consider this word as an easy and modern synonym for "specialist" in the relations between law and morality on the one hand, and the manifestations of life on the other, the answer is surely positive. Since very early times, the jurists of Civil Law, of Criminal Law, have explored the secrets of the rights of the person, of the rights over the person, and have developed medical law around these investigations. But, in constant relation with the Civil Law, it was a right protecting the human being, his integrity, his bodily indisposability32 , his dignity, and the jurist played his social mission statement by studying it. What is he asked to do? To argue in the sense of the reification of the human being in interventions and qualifications. This is a denaturalisation of his function, a degradation of his science: the jurist is not at the service of bio-research. Could it be that there is an idea that, if one speaks of a conscience clause in bioethics, there is a conscience clause against bioethics? If it exists, it is a mental movement that refuses to systematically adapt the law to the fact / to the facts, weighing them against the values of a world that is humanly habitable and respectful of the smallest33 , what has already been the honour of Civil Law (of the disabled)34.
It is easy to understand that, faced with what is at stake, the citizen cannot contemplate the movements of bioethics in silence. They are not only technical, which would deprive the jurist of part of his judgemental skills. They apply to the very essence of humanity as a whole, of the individual in particular, they disturb the socially structuring function of the law35, they call into question both the definition and the existence (via use) of the human being36. Consequently, the law must not be obeyed, or even applied without prior reflection, value judgement, or possibly reservation of rejection.
II.- The means of the conscience clause
If it seems useful, even necessary, to examine the laws of bioethics, if not the whole of bioethics, through the prism of the individual conscience in order to prevent the citizen from contributing and cooperating, in spite of himself, in a vast business of deconstruction of the person, it is not at all easy to discover the practical means. Between the public demonstration and the essay of a doctrinal page (which is in fact a form of public demonstration), between the immediate refusal to participate in an act contrary to human dignity and the vote against a homicidal or eugenic law project , between deliberate ignorance of the existence of the law and positive resistance, the choices depend at the same time on the concrete circumstances of time and place, on local assessments of the greatest effectiveness, on the comparison of the possibilities and risks of action or inaction (although silence is generally synonymous with complicity). Mgr. von Galen was not silent). Sometimes it is easy to rely on express acknowledgements of respect for conscience. At other times, it is necessary to go back to the sources of law to rescue principles, otherwise rather vague, of intervention against "the unjust force of law".
The doctrine has pointed out recognitions of the conscience clause in bioethics37. In French law, the examples are not numerous, but they are significant, as they show the bewilderment suffered by certain legislators or, in the opinion of some, the political strategy that has recognised the existence of such a clause in order to vote for laws that, without this reservation, would have been rejected or considered unconstitutional. Is it not noteworthy that the Constitutional Court, in its decision of 15 January 197538 , accepts the law on abortion by stating that it does not prejudice the freedom of the parties concerned? financial aid What freedom subject does a woman in a real state of helplessness have, or if she is brutally confronted with the revelation of a serious deficiency of her child and is not offered any material or moral financial aid, which the legislator could have thought of, especially considering that in the same year 1975, a law for the protection of the handicapped was passed, which can be compared with the aforementioned article L. 162-12 (abortion of the handicapped)? In any case, the law of 17 January 1975 contains a article which recognises the right of objection of doctors, midwives, nurses and medical assistants "whoever they may be" (art. L. 162-8 C. Public Health). The clause also benefits legal entities, private clinics that do not collaborate in the public hospital service (but not public hospitals, which suggests that there is a "public service" of abortion, as suggested by the reading of report Nissand39. It is true that there are some reservations when it comes to implementing this clause in internship , but the legislator recognises its principle40. Does it generalise to the profession of pharmacist as a consequence? The pharmacist, on the one hand, submission abortifacient instruments, and on the other hand, participates in the manufacture and marketing of even more abortifacient products (U.K. 486), so that from now on one speaks of IVG41 medicamentous42 thanks to a reversal of language similar to that of "therapeutic" abortion or "mercy killing "43. In this sense, it is possible to speak in case law of another refusal, the refusal to sell contraceptive products (right of refusal to sell)44. The discussion takes place in economic law, which, curiously enough, supports a freedom that does not dare to declare itself as such45. The article L. 122-1 of the Consumer Code reservation the refusal to sell in cases of "legitimate reason", but the Supreme Court, always very severe with the "anti-IVG commandos" (as they say...), rejects the invocation of the invocation of "legitimate reason".), rejects the invocation of personal convictions by referring to the material impossibility of satisfying the demand for reasons of unavailability of products, which, concretely, reservation a possibility of refusal due to lack of orders, and therefore of supplies, but, as far as principles are concerned, represents a regrettable rejection of the conscience clause46. The reflection starts from the principles and moves down to the consumer protection technique, the only one that proposes a concrete solution, albeit not a very glorious one.
However, the preparation of the law of 17 January 1975 (abortion) would have been the ideal moment to propose a generalised conscience clause. This clause would have mainly favoured hospital directors47. The clause in question was initially designed to favour the directors of establishments48 and was abandoned for reasons of essay49, not of substance, which was soon forgotten. The idea was therefore not incompatible with the application of the law (obviously, with all the reservations expressed about the law's legitimacy). It has even been shown that by referring generally to "persons" to whom the law applies, the Constitutional Court went further than the legislator, and set up instructions for an implicit extension of the conscience clause50. But on the internship, when the law was interpreted unilaterally, it would have been very difficult for hospital administrators to invoke the School of refusal to cooperate with abortion, and most probably of their degree program. When the "bioethics" laws were discussed in 1994, Ms. Boutin, like Ms. Neirtz, proposed to extend the current School of article L. 162-8. She was answered that the doctor could always refuse a request for intervention - which is deontologically correct - but this argumentation was outside of topic51, and that the Parliamentary Assembly of committee of Europe, not endorsed by the CDBI, had also worked in this direction52. There are draft laws53. They go to meeting from other old texts which recognise conscientious objection in cases of importance for life and death (military conscientious objectors). No legal technique puts any obstacle in the way, except the will not to curb the anti-life policies denounced in Evangelium Vitae, a will that is more political than legal. It is even licit to imagine a conscience clause of the States54 , to imagine it more modestly in active medical contracts (at group or in clinics), in health insurance law, in tax law55.
What is this conscience clause, in all its varied and specific expressions? It seems to us to be a simple application of freedom of conscience (both secular and religious), which is more powerful than freedom of expression and the citizen's refusal to commit himself against his deepest convictions, in situations where human dignity and life are endangered. We are all familiar with the notorious or discreet censorship of bioethics in the name of pluralism and worldliness. They are regrettable when they do not attack this fundamental freedom, as is the case with article L. 162 -15 C. Public Health, which makes it a criminal offence to obstruct abortion, and how many politicians, ardent and outspoken defenders of the family, have declared that they want to apply it firmly! Let us not deceive ourselves: if this provision is supported under pretexts of good public order, its logic is, after repressing the acts of civil service examination to abortion, to repress also the words and thoughts that oppose this internship. It is not necessary to take sides on the appropriateness of the above-mentioned manifestations to elaborate this observation and to know that the 1975 law benefits from a very dualistic interpretation. Proclaiming the freedom, and therefore the clause, of conscience in bioethics already implies in itself a fight against the only way of thinking. Or against the lack of thought... It means raising the need for critical reflection on the compromise and consensus solutions that de facto anaesthetise consciences56. In spite of this, if positive law contains any vestige of respect for conscience, even if jurisprudence shows its reluctance to enshrine the clause in general, this means that the legal order is not opposed in its principles to listening to the objections raised by subjects against inhuman laws. This was the real teaching of the Nuremberg trials, including, of course, the 1947 trial, which revealed that order and the authorisation of the law do not rule out crime57. And in bioethics, organised death is everywhere, creeping and insidious. It insinuates itself between the lines of the laws which, up to now, authorise without yet obliging.
In reality, we find ourselves in the presence of a classic conflict between positivism and natural law. For positivism, whose most eminent advocate, Kelsen, was the first victim of the consequences of its theories, law is enclosed in law, understood as any formally regular act of state authority (both regulations and laws in the strict sense). This is, for example, a very American position: the myth of the law, in the absence of a collective spiritualist or philosophical reference letter , is the social foundation. What the law says is the expression of legal, political and moral truth, and the hypothesis of a rupture between the law and the moral imperative is eclipsed or not considered feasible. We are back to Rousseau: if I think differently from the law, I think wrongly. There are certainly different currents58 within positivism, but legalistic positivism and normativistic positivism insist on the completeness of "law", being content with unjust laws as long as they are regularly adopted. In this respect, Nazi laws and regulations were formally regular and constituted truly normative elements of positive law. How then to explain the Nuremberg trials? If one follows a positivist law Philosophy , these trials are inexplicable because the punishable behaviour was lawful. In order to consider them punishable, it was necessary to go beyond this formal truth to establish that they were illegitimate, as well as to accept judging the law in relation to the fundamental values of legal civilisation59 and to distinguish the rule of law from the rule of laws.
The law is not the whole of law; the law is merely the fraction that expresses the will of the state at a given time and in a given place, depending on the contingencies of parliamentary majorities in democratic societies. However, we must inevitably ask ourselves whether the definition and use of the human being depends on these contingencies. The answer is in the negative. The human being pre-exists the law, so that, by pure logic, the legislator can only define him by defining himself, so that the question concerns his own existence. If he votes doubt about the other, he votes doubt about himself at the same time. If he votes the certainty of existence in his person, he votes it consequently in the person of the other. This is really the dilemma, and bioethical laws resolve it by means of a kind of schizophrenia: I exist, but I doubt that the other exists (adding implicitly: I have never been an embryo and I will never be a dying person). We are faced with a double betrayal by the so-called State of law: ontological betrayal and betrayal by rejecting criticism through conscientious objection60.
John Paul II, in Evangelium Vitae, has developed the committee of conscientious objection already presented by Donum Vitae. Human law, even if it is "democratic", must be in conformity with the moral law. If it permits the killing of innocent people, if it violates their elementary rights, it has no juridical value and is a corruption of the law. The Supreme Pontiff quotation (§ 72) to St. Thomas Aquinas61 to purpose of this iniquity of the law and then asks us to oppose these abortion and euthanasia laws by conscientious objection (§ 73), which, it seems, does not please certain infallible religious who prefer to follow the doctrine of "dirty hands", which does nothing to change the fate of the victims and is nothing more than a form of complicity. And since St Thomas has been so conveniently quoted, let us read that he encouraged action against the letter of the unjust law.62 Is the jurist surprised? The revolutionary declarations, including that of 1789, affirmed the right of resistance to oppression. Allowing the killing or manipulation of human beings is a form of oppression by the act and by the disqualification it presupposes. The topic of the objection, although coming from theology (think of Suarez), has also been retained by secular thought, which establishes the constant and universal character of the moral prerequisite of law.
The only way to understand this reservation of the citizen in the face of these bioethical texts, on the ordinary condition of comparing the advantages and risks of resistance, is to understand that human law is subordinated to a superior normative order called natural law63. Secular or Christian, it goes beyond formulas and appearances of regularity to proceed from objective truths inherent in the nature of beings and things, escaping all voting, all rule. We will not develop here a Philosophy of natural law (we would be incapable of doing so), but we will only direct our reflection towards the basis of the conscience clause: an imperative more pressing than the regulation which obliges the subject endowed with reason and conscience. Of course, it is not a question of promote a constant rebellion, an inconsequential activism...
The conscience clause is sometimes expressed very loudly within the state!64 The citizen does not face such extraordinary difficulties. In his case, it is only a question of rejecting the slavery of deadly conformity.
Notes
(1) Ch. Byk, V° Bioéthique, in Dict. permanent de bioéthique; F. A. Isambert, Révolution biologique ou réveil éthique, Cahiers STS/ CNRS, 11, 1986, 9; D. Roy, La bioéthique et les pouvoirs nouveaux, "C. de bioéthique", 1979, 1, 81.
(2) G. Hottois, citing V. Potter, V° Bioéthique, in Les mots de la bioéthique, edited by G. Hottois and M. H. Parizeau, Ed. De Broeck, 1993.
(3) Ch. Byk, op. cit. and loc. cit. grade 1, no. 17: "the principle of dialogue".
(4) On abortion, cf. M. Schooyans, L'avortement: enjeux politiques, Ed. le Préambule, Québec, 1986, and L'enjeu politique de l'avortement, preface J. H. Soutoul, Ed. OEIL, 1992, 82 et seq.
(5) Among others, Ch. Byk and G. Mémeteau, Le droits des comités d'éthique, Ed. Eska, 1996, 49 et seq.
(6) A. Schifres, Le nouveau dictionnaire des idées reçues, des propos propos convenus et des tics de langage, ou: le dîner sans peine (ed. J.C. Lattès, 1998, V° Biochimie: "Bioéthique: chose sainte" (sic).
(7) We leave aside the discussion, which we believe has now been overcome, about the legal nature of deontology. The Supreme Court has happily put it to rest.
(8) It is legitimate to think that the CDBI commission in charge of drafting the protocol concerning the embryo of the Oviedo Convention has rejected this concept as scientifically and ontologically unfounded. The relevant documents have been confiscated until the year 2000, which is a double-edged manoeuvre.
(9) We do not commit ourselves in this respect other than our own assessment.
(10) J. López Guzmán, Objeción de conciencia farmacéutica, Ed. Int. Universitarias, 1997, preface by P. Arrebola Nacle, and references.
(11) V. C. Caillé and C. Jonas, Vis clause de conscience, in "Dict. permanent de bioéthique"; G. Mémeteau, Recherche Antigone en bon état (âge indifférent), ou: la clause de conscience et la bioéthique (Éthique, la vie en question, 9/1993, 54).
(12) Avortement sous les pressions de l'équipe hospitalière: TA. Clermont-Ferrand, 15 December 1998, quoted in Dict. permanent bioéthique, updated 73/6 February 1999, Vis interruption de grossesse, by D. Vigneau, nº 18.
(13) J. Fierens, L'idéologie du contrat et les droits de l'homme, in Droit, pauvreté et exclusion, edited by Y. Dechamps, Fondation du Roi Baudouin, September. Dechamps, Fondation du Roi Baudouin, Sept. 1998, p. 142; X. Dijon, La liberté sans mère, méditation critique sur la lecture libérale des droits de l'homme, in La réconciliation corporelle, une éthique du droit médical, Ed. Lessius, 1999, esp. 22.
(14) The US Supreme Court has however ruled that assisted dying does not constitute a subjective right. R. Rosenfeld, L'aide au suicide en droit constitutionnel américain, report 1998 of committee , p. 379.
Compare with the grounds of the judgment of the Supreme Court of Canada, "Sue Rodriguez", 4/31 August 1993, and with developments in Dutch law: H. J. Leenen: Dutch Supreme Court about assistance to suicide in the case of severe mental suffering, in European Journal of Health Law, 4/1994, 377.
(15) J. Carbonnier, report in Colloque génétique, procréation et droit (Actes Sud / Nyssens ed. 1985, p. 83). The eminent author spoke of medically assisted filiations.
(16) C. Labrusse-Riou, Droit du corps, lois sur le corps, in "Éthique, la vie en question", 1/1191, p. 16 et seq.
(17) See the study by M. Rivet, Esquisse d'un profil de la personne selon le droit, R.D.U.S, 1981, 418. See the very complete study by R. Andorno, La distinction juridique entre les personnes et les choses à l'épreuve des procréations artificielles, LGDJ, 1996, preface by F. Chabas.
(18) G. Naughton, Le choc du passé, avortement, néonazisme, nouvelles morales. GARAH, 1974, 65.
(19) Sic. Mme Beaudeau, Sénat, 14 January 1994, CR. nº 62, col. 11 in limine.
(20) Copublication Pontifical Academy for Life, high school John Paul II of Lublin, Acad. théologie cath. Varsovie, Acad. pontificale théologie Cracovie, Lib. de. Vaticana de. 1999. The question arises even more strongly - if possible - in the face of new infanticidal techniques ("partial birth abortion") about the madness of which one does not know what to say, unless supranazism is not far away (see. N. S. Dufourl, Gaz. Pal., 3/4 April 1998, p. 35; 21/22 May 1990, p. 48/49).
(21) C. Labrusse-Riou: Servitude, servitudes, in Ch. Bourgois, L'homme, la nature et le droit, 1988, p. 316.
(22) Cf. report Y. Nisand, L'IVG en France, report February 1999, Ministère de l'emploi et de la solidarité / secrétariat d'État à la santé et à l'action sociale. Throughout the whole of report the idea of the "fundamental" right of women to abortion appears. There is not a single word about the embryo. Unless there is a misreading, an (indirect) extension of the conscience clause seems to be feared (grade 54, p. 21). Abortion ends up being considered as something banal, as is shown by the purely technical "anxieties" of doctors (see Concours Médical, 19 September 1998, 2070). A legal paper thought it could shudder at the idea of publishing the information, albeit with commentary. What an exquisite horror!
In the United States, there is no longer any talk of uncontrolled freedom of abortion. D. Custos, La Cour Suprême américaine et la liberté d'avortement, R.D.P. 1995/5/1119.
(23) J. F. Mattei, J-O-Ass. Nat. 8 April 1994, p. 648 (B. O. of congress). In reality, legally this is a high probability. It is not a matter of certainty, but this does not fundamentally change anything: the sick child is legally killed because it is sick and because it is a child. Such texts are the disgrace of supposedly civilised Western rights.
(24) D. Folscheid, La science et la loi, in "Éthique: la vie en question", 1/1991, p. 65.
(25) Sic. G. Raymond, Bioéthique ou peur du gendarme, "La Croix", 8 June 1989, p. 12.
(26) Reference should be made to: Bioéthique et droit, mythes ou enrichissement?, in Le mythe bioéthique, ed. Bassano, 1999, and, of course, Le droit saisi par la biologie; des juristes au laboratoire, under the direction of Labrusse-Riou, Ed. LGDJ, 1996.
(27) Ph. Malaurie: L'enfant à naître, colloquium "La révision des lois dites bioéthiques" (under the direction of J.-Ch. Galloux), School de Droit de Versailles, 5 June 1999.
(28) Cf. M. Broszat, l'État hitlérien, Ed. Fayard, trans. P. Moreau, p. 559 et seq.
(29) E. Klee, La médecine nazie et ses victimes, Ed. Solin / Actes Sud 1999, trans. O. Mannoni, p. 351. Of course, it is necessary to think about what Mr Schooyans called "supranazism", but without making connections or thinking of analogies too quickly. Let's first look at the texts and practices.
(30) Evangelium Vitae, § 20. Comp. F.A. Hayek, Droit, législation et liberté, T. III, l'ordre politique d'un peuple libre, Ed. PUF, 1983, trans. R. Audouin, p. 1 et seq. Audouin, p. 1 et seq.
(31) See G. Mémeteau, La définition de la personne par la loi, in "J. Int. bioéthique / Éthique: la vie en question", 1-2/1997, p. 39 et seq.
(32) X. Dijon, Le sujet de droit en son corps, Ed. Larcier, 1982.
(33) C. Atias, D. Linotte, Le mythe de l'adaptation du droit au fait, Dalloz, 1977, chap. 251); (†) Ch. Hennau-Hublet, L'embryon humain in vitro: à quel titre s'en préoccuper?, in Liber amicorum Marie-Thérèse Meulders-Klein, Ed. Bruylant, 1999, p. 335 ff, esp. 344 ff.
(34) Ph. Malaurie, Les personnes, les incapacités, Ed. Cujas, 1994/1995, p. 203, a vibrant plea in favour of the right of the disabled, but unfortunately not extrapolable in favour of bioethics.
(35) V. C. Champaud, Des droits nés avec nous. Discours sur la méthode réaliste et structuraliste de connaissance de droit, in Mélanges G. Farjat, Philosophie du droit et droit économique, quel dialogue?, Ed. Frison-Roche 1999, esp. p. 74.
(36) We strongly refer to M. Schooyans, Les mystifications de la bioéthique, op. cit, p. 35 et seq.
(37) J. López Guzmán, op. cit., p. 67 et seq.
(38) Among others, Dalloz 1975, 529, grade L. Hamon (the references appear in the Public Health Code, ed. Dalloz, on article L. 162-1).
(39) Cited at grade 21. V. L. Perrel, Les méfaits de la bioéthique, "Lectures et tradition", 266/267/ April-May 1999, 1.
(40) Among others, E. Clavel, la clause de conscience du médecin dans la loi du 17 Janvier 1975, JCP. 1975, Y, 2915.
(41) N. of the T.: IVG, Interrupción Voluntaria del Embarazo (Voluntary Interruption of Pregnancy).
(42) report Nissand quoted on grade 21, p. 19. A judgement in favour of an industrial pharmacist. We very much regret that we do not know the references.
(43) A study of bioethical nominalism, of the denaturalisation of words, is needed. We will undoubtedly find it in the thesis prepared by O. Geoffroy, School de Droit de Poitiers.
(44) G. Mémeteau, Avortement et clause de conscience du médecin, JCP. 1990, Y, 3443.
(45) The discussion is indeed found in works on business law. R. Bout, C. Pricto, (†) G. Cas, "Lamy Droit économique", 1999, 997.
(46) Cass. Crim. 21 October 1998 (Juris-Data 004465; Contrats, concurrence, consommation, 2 February 1999, 33, grade G. Raymond).
(47) J.M. Clément, Les pouvoirs à l'hôpital, Ed. Berger-Levrault 1995; M.L. Moquet-Anger, Le statut des médecins hospitaliers publics, Ed. PUF, 1994, 2859.
(48) report Mézard, bulletin Official Senate of 14 December 1974, 2859.
(49) Veil, JO Sénat (bulletin Official Senate) of 15 December 1974, 2949.
(50) J.B. d'Onorio, Le respect de la vie: principe constitutionnel?, in Le respect de la vie en droit français, conference proceedings del XIV colloquium de la Confederation des Juristes Catholiques de France, Ed. Téqui, 1996, especially pp. 27-28.
(51 ) bulletin Official Journal of the congress of 16 April 1994, 894; see also obs. Descours, Sénat 13 January 1994, CR. no. 61, col. 73/74.
(52) On topic in general, Laszlo-Fenouillet, La conscience, Ed. LGDJ, preface G. Cornu, 1993. Cornu, 1993.
(53) J. L. Beaumont et al., bulletin Official congress of 11 January 1996, 2480. The report of Messrs Claeys and Huriet suggests a conscience clause in the field of embryonic research "going beyond the direct interest of the unborn child" (sic. p. 139). The topic of civil service examination of the 1975 law and of conscience reappears when discussing whether health insurance should cover abortion (J. Chérioux, bulletin Official Senate of 18 December 1982, 7065 et seq).
(54) C. Caillé, C. Jonas, op. cit.; G. Mémeteau, La clause de conscience de l'État en bioéthique, in G. Huber, Ch. Byk La bioéthique au pluriel, Ed. J. Libbey/ Assoc. Descartes, 1996, conference proceedings of the colloquium in Budapest, December 1992.
(55) In this area, the case law is resolutely hostile.
(56) X. Dijon, Euthanasie: la triple erreur des solutions de compromis, "La libre Belgique", 21 January 1998; E. Montero, Vers une légalisation de l'euthanasie volontaire? Réflexion à propos de la thèse de l'autonomie, (C. Fac. Droit Namur, nº 3, July 1998, 1.
(57) Reference should be made to: G. Mémeteau, Nuremberg: mythe ou réalité?, "Rev. Rech. Jur", 1999, in press.
(58) B. Oppettit, Philosophied droit, Ed. Précis Dalloz, 1999, p. 58 et seq.
(59) We should refer to the reading of X° J. J. Dabin, Licéité en droit positif, et références légales aux valeurs, foreword J. Verhaegen, Ed. Bruylant, 1982. Everything is set out there.
(60) J. M. Lemoyne de Forges, Le respect de la vie entre la loi morale et la loi civile, in Le respect de la vie en droit français, conference proceedings de la Confederation des Juristes Catholiques de France, Ed. Téqui, 1996, esp. p. 203.
(61) Somme, I-II, quaestio 93.
(62) Somme, I-II, quaestio 96. V. J.-M. Aubert. Aubert: Loi de Dieu, loi des hommes (ed. Desclée 1964).
(63) X. Dijon, Droit naturel, T. Y, Les questions du droit, Ed. PUF/ Thémis 1998.
(64) X. Dijon, Baudouin Y° et l'enfant à venir, in Liber Americorum Marie-Thérèse Meulders-Klein, p. 181); J.M. Hennaux, Le droit de l'homme à la vie de la conception à la naissance, I.E.T., Brussels 1993, p. 191. Constitutional proceedings are therefore not exempt from this movement of conscience.