Crashing Rights – “The Conscience Exception”

Americans tend to take their rights pretty seriously. Right to free speech, assembly, bearing arms, voting, privacy, religion, etc; we love that shit. People from all walks of life and every belief on the spectrum clings to one or many of those rights at some point in time. What happens, though, when my right to do something comes up against your right to do something? Who’s holding the big joker?

This may have slipped under your radar, depending on how up on public policy you are, but the US Department of Health & Human Services (HHS) is proposing new regulations which basically says medical professionals/facilities receiving Federal funds do not have to perform abortions or like procedures if those acts would conflict with the professional’s/facility’s religious or moral belief.

Alright, well depending on where you stand this might not sound so bad. I can see why someone would think this was a good idea. If I were a conservative person or practiced a religion that taught me abortions were dead wrong, well then I would support the regulation. Perhaps instead of going to law school I wanted to be an Obstetrician (I really did consider this path once in my life, Ob-Gyn). I should be able to choose the kind of job I want without being forced to do things that go against my personal convictions, right?

Eh, not so fast. One also must consider the person who has a right to medical care and a constitutional right to privacy (for legal purposes, abortion is often considered a right to privacy issue. That’s what it came down to in Roe v. Wade, FYI). I shouldn’t be turned away from the Wal-Mart pharmacy because the pharmacist doesn’t think I ought to be taking birth control. And about that job choice thing… I chose law school and as an attorney I will most certainly be asked (or forced, in some instances) to represent the interests of a client which come into direct opposition with my values and ideals. Legal professionals, however, often do not get to reject representing those kinds of people. The rationale being that we are a service profession. It is not about us, but about the client and providing access to the legal system. While we’re seeking a result for our client (whether he be a criminal or Fortune 500 company), we’re also helping to move the movement… you know, keep the cogs turning and the wheels of justice grinding.
I would think that the medical profession was somewhat similar. It is a service profession as well. They swear to “do no harm”, they must provide care for those who cannot pay, and they have to care for people they might not really like. Surely a racist doctor is not protected by law if he refuses to give the best care possible to someone based on their race/ethnicity.

The HHS report (linked above) cites several statutes for its conclusion that doctors can’t be compelled to practice medicine contrary to their religion/morals. The report quotes a 9th Circuit case which goes as far as saying the right to religious freedom is the big joker here. That right trumps the right to privacy.

“If [a] hospital’s refusal to perform sterilization [or, by implication, abortion] infringes upon any constitutionally cognizable right to privacy, such infringement is outweighed by the need to protect the freedom of religion of denominational hospitals ‘with religious or moral scruples against sterilizations and abortions.’” Taylor v. St. Vincent’s Hospital, 523 F.2d 75, 77 (9th Cir. 1975) (citations omitted).

Good to know.

I can’t wait to see how this is going to turn out, although I have a pretty good idea of how things will go. To be honest, there is a statutory basis for the regulations. (see the Conscience Clauses/Church Amendments [42 U.S.C. § 300a-7], the Public Health Service Act § 245 [42 U.S.C. § 238n] and the Weldon Amendment [Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, Div. G, § 508(d), 121 Stat. 1844, 2209 (Dec. 26, 2007)], all in the above linked report).

I agree with Pace Law School student Terrance DeRosa who writes:

In the Department’s Response to the Problem, it states that a “trend that isolates and excludes some among various religious, cultural, and/or ethnic groups from participating in the delivery of health care is especially troublesome when considering current and anticipated shortages of health care professionals in many medical disciplines facing the country.” My response is that it does not matter how many people this new Regulation will “help” become a health professional because they can now pick and choose what kinds of medical services to provide when his or her patients are being denied need care. An increase of health professionals who go into gynecology and refuse to provide abortions and related services in effect helps to foster a shortage of health care providers. Most people do not need to see health professionals who provide selective services they need the full range of services a specialty normally offers.

It is irresponsible government to place more obstacles in the way of patients seeking medical care, including women who are seeking an abortion. The government should not be allowed to put people’s health and lives at risk like this because of certain people’s subjective “values.” Besides providing quality medical services, a doctor’s first obligation is to do no harm. The government is effectively helping doctors to harm women with this Regulation. If doctors seriously have a huge moral or ethical issue with providing abortions then they should not go into gynecology or pick an entirely different profession. – (Swiped from Feminist Law Professors Blog)

We do a lot of weighing and balancing when it comes to rights. Your right to say what you want versus my right not to hear your bullshit. Without getting into a deep constitutional law discussion, I’ll just say that the big joker is usually the right which we collectively hold highest. This changes with time and socio-cultural attitudes but is the best way to decide what is important to Americans. In the current climate/administration, religious freedom and religious idealism trump.

And they wonder why we’re going to vote for Change in November?