Apparently the Obama Administration is due to issue its new regulations on conscience rights for health care providers sometime between now and March 1. (See this court filing.) I'm trying to get up to speed on the Bush regs, and I have a couple of questions:
1) Are folks who oppose the Bush regs arguing that they represent a change in the law, and if so, what is their argument? I can understand opposition based on opposition to the underlying laws (Church Amendments, Public Health Service Act, Weldon Amendment) or on wanting to keep the existing laws underenforced and underpublicized, but I can't figure out any way to view these regulations as changing the existing law. Any thoughts?
2) Section 88.4(d)(2) of the regulations provides that a covered entity shall not: "discriminate in the employment, promotion, termination, or the extension of staff or other privileges to any physician or other health care personnel because he performed, assisted in the performance, refused to perform, or refused to assist in the performance of any lawful health service or research activity on the grounds that his performance or assistance in performance of such service or activity would be contrary to his religious beliefs or moral convictions, or because of the religious beliefs or moral convictions concerning such activity themselves."
Given the language in bold, does this mean that a Catholic health care organization could not refuse to hire or grant privileges to a physician who is a notorious provider of late-term abortions, for example? If the person provides the services based on his moral convictions, wouldn't that person fall within this regulation's protection? (Obviously the organization could prevent the person from performing the services at that organization, but the physician could maintain their own private practice.) Or would a research entity dedicated to pro-life values be precluded from refusing to hire someone who has been a leader in embryonic stem cell research?
If I'm correct in my interpretation of the provision (and I very well may be wrong), this does reflect an accurate view of conscience (i.e., sometimes conscience forbids, but sometimes conscience permits). A policy based on that reality, though, creates problems when it focuses almost exclusively on conscience protection at the level of the individual provider. Institutional identity gets pushed to the margins. Am I missing something?
As Rick pointed out a few days ago, we usually do not equate "legally permissible" with "must be funded by the government." At a minimum, we should be prepared to make separate arguments for government funding; the fact that an activity is protected by the Constitution is not an argument for funding. My local paper this morning falls into the trap in criticizing new state legislative proposals on abortion: "If ending a pregnancy is legal, income should not be a barrier." Perhaps the argument could work if the state was creating financial obstacles to abortion, but there is nothing in law or logic that compels the state to remove financial obstacles to the exercise of a constitutional right. Particularly in the case of abortion, where the removal requires the financial support of a citizenry sharply conflicted on the topic, these arguments are weak.
Fans of Abraham Kuyper (and who isn't?) will want to check out this new paper by Lael Daniel Weinberger, "The Business Judgment Rule and Sphere Sovereignty." Here's the abstract:
The Business Judgment Rule prevents courts from reviewing the substantive business decisions of corporate directors. The rule is a microcosm of the tension between government regulation and private autonomy that runs throughout corporate law. The Business Judgment Rule is protective of the self-determination of the business enterprise, but its rationale is, not surprisingly, debated. Courts and commentators have offered a variety of explanations, but these still leave the rule open to the accusation that it is a sui generis privilege granted to corporations.
This Article places the Business Judgment Rule in the context of a large-scale social theory: sphere sovereignty. In a sphere-sovereignty framework, the Business Judgment Rule should not be viewed as a special privilege of corporations. Rather, it should be viewed as a recognition by the courts of the autonomy of each societal sphere, created by God to pursue unique ends and purposes. The political and theological theory of sphere sovereignty provides a basis for the Business Judgment Rule’s various provisions and offers suggestions for its future development.
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?
In December, President Obama's Bioethics Commission issued a report on synthetic biology -- the engineering of new forms of life. I have not heard much news coverage about it, and I haven't read the report. For my own research purposes, I'm interested in how the concept of "human dignity" is being used (or not) in public policy discussions. I ran a "find" search for "dignity" in the report, and the word does not appear. I know that President Bush's Commission was criticized for relying on "dignity" to do too much heavy lifting in its analysis (a criticism with which I disagree), so I wonder if this is a deliberate decision by the new Commission to chart a new course. Again, though, I haven't read the (192-page) report, and I know the Commission has some good folks on it (e.g., Daniel Sulmasy). Can anyone comment on the report or steer me in the direction of some good commentary?
Mark Rienzi has posted a fascinating new paper, The Constitutional Right to Refuse: Roe, Casey, and the Fourteenth Amendment Rights of Health Care Providers. Here's (a portion of) the abstract:
The Court’s substantive due process analysis typically looks for rights that are “deeply rooted” in our history and traditions. Accordingly, this article addresses the historical basis for finding that providers do indeed have a Fourteenth Amendment right to refuse to perform abortions. This historical analysis shows that the right to refuse passes the Court’s stated test for Fourteenth Amendment protection. In fact, the right to refuse actually has better historical support, and better satisfies the Court’s stated tests, than the abortion right itself.
Beyond this historical case, a healthcare provider’s right to make this decision also fits squarely within the zone of individual decision-making protected by the Court’s opinions in Casey and Lawrence v. Texas, and protects providers from the types of psychological harm that the Court recognized in Roe and Casey. For these reasons, under Roe and Casey, a healthcare provider has a Fourteenth Amendment right to refuse to participate in abortions.
I have only had a chance to skim the article, and though it is well worth reading, I admit feeling some skepticism toward the constitutionalizing of professional conscience claims. Whether or not providers were allowed to refuse to participate in abortion over the course of our nation's history, I still think the constitutional question has to take a back seat to questions about the definition of the professional role. If a state hospital posted a job description for an "abortion provider," I have a hard time imagining the doctor hired for that job successfully challenging the state's decision to fire him for refusing to provide abortions. Let's say that the state wants, via its professional licensing authority, to establish a category of abortion providers as a subset of the broader category of obstetricians. Would it be constitutionally permissible for the state to require a willingness to provide abortions as a condition of licensing for that category? It's difficult for me to see where the constitutional violation kicks in -- perhaps when the state sweeps too broadly with the requirement, forcing all obstetricians to provide abortions as a condition of licensing, for example? In any event, I need to spend more time with this article, and you should too.
Wilson Huhn has postedA Higher Law: Abraham Lincoln's Use of Biblical Imagery. (HT: Solum) The abstract:
This article describes Lincoln’s use of biblical imagery in seven of his works: the Peoria Address, the House Divided Speech, his Address at Chicago, his Speech at Lewistown, the Word Fitly Spoken fragment, the Gettysburg Address, and the Second Inaugural. Lincoln uses biblical imagery to express the depth of his own conviction, the stature of the founders of this country, the timeless and universal nature of the principles of the Declaration, and the magnitude of our moral obligation to defend those principles. Lincoln persuaded the American people to embrace the standard “all men are created equal” and to make it part of our fundamental law. This goal was formally accomplished as a matter of law in 1868 when the Equal Protection Clause was added to the Constitution as part of the Fourteenth Amendment, but it is approached in fact only through our constant application of this ideal to our society and in our daily lives. The principle of equality is a higher law, but it need not exceed our grasp. As Lincoln called upon us – “let it be as nearly reached as we can.”
Kenji Yoshino has an article in the new Harvard Law Review that looks to be worth reading titled "The New Equal Protection," in part because of his claims about how dignity can be reflected in constitutional rights beyond the traditional categories of equality and liberty. He writes that:
The introduction of a third overarching term like “dignity” that acknowledges the links between liberty and equality is overdue. Too much emphasis has been placed on the formal distinction between the equality claims made under the equal protection guarantees and the liberty claims made under the due process or other guarantees. In practice, the Court does not abide by this distinction. The Court has long used the Due Process Clauses to further equality concerns, such as those relating to indigent individuals, national origin minorities, racial minorities, religious minorities, sexual minorities, and women. Conversely, the Court has used the equal protection guarantees to protect certain liberties, such as the right to travel, the right to vote, and the right to access the courts. We need to look past doctrinal categories to see that the rights secured within those categories are often hybrid rights. This Article focuses particularly on the liberty-based dignity claim, because I believe it offers a way for the Court to “do” equality in an era of increasing pluralism anxiety.
