Wednesday, February 2, 2011
Does the physician's right of conscience encompass a right against compelled speech?
My post of Mark Rienzi's new paper arguing that physicians have a constitutional right not to be required (by the state) to participate in abortions triggered this comment from Kevin Walsh:
What about laws that enlist doctors to provide scripted information about fetal development for women that seek to obtain abortions? Suppose a doctor believes that the information is misleading or that delivering it is in some other way incompatible with his or her integrity as a person and as a professional. Would that doctor have a constitutionally protected conscience right to refuse enlistment as a mouthpiece of the state, but to nevertheless continue to perform abortions? If professional licenses are "safeguards of competence" rather than a "means by which providers are enlisted as quasi-government officials" (which sounds right to me), then it would seem difficult to justify the compelled speech simply as an incident of professional licensing. Is there some other way to justify this particular form of compelled speech? Or does it not call for justification in the same way that compelled participation in performing an abortion does?
Given that it came a bit late in the comment thread, I was afraid it might get overlooked, so I'm posting it here because it raises an important issue. The success of Rienzi's argument turns on our view of professional licenses. If we want to ensure that licenses are not used to hijack a professional's conscience, should we resist state efforts to use providers to transmit certain (contested) messages about abortion to patients, even if we like those messages?
UPDATE: A related question is whether the constitutional right not to participate in abortions would extend to pharmacists, as argued in the Washington state litigation over pharmacy regulations. There's an empirical wrinkle in the pharmacist context, at least in the (widely litigated) Plan B context: is the drug at issue an abortifacient, and must the state defer to the objector's view on that question?
https://mirrorofjustice.blogs.com/mirrorofjustice/2011/02/does-the-physicians-right-of-conscience-encompass-a-right-against-compelled-speech.html
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I think it turns heavily on the status of abortion itself and its role in medical practice. Either abortion is an uber-right of extreme proportions requiring access to it, or as Roe contemplated and even moreso under Carhart, the abortion right never included a compulsion that the doctor act on it and, in addition, abortion itself is a kind of thing that a state can impose restrictions on and even disfavor. Ultimately either abortion will be seen as a divergence from medical practice, or conscientious objection to it will be seen as the divergence. "Competence" even in the minimalistic sense you refer to includes a standard of care and a level of information for patients. If not, licenses aren't even gurantees of competence. What that level is for abortion depends on what you think abortion is. What is being proposed in the medical industry is that abortion is the pinnacle of medical practice for women and no professional can be engaged in such practice without participating in abortion.