When Law And Ethics Converge: Goodbye To The Trump Administration’s Unconstitutional and Unethical “Conscience Clause”

Today’s decision by U.S. District Judge Paul Engelmayer, voiding the Trump administration’s “conscience rule” that resuscitated the Bush Administration’s similar rule, is right on the law, and, more important for this blog, right on ethics. The Trump version, which was yet to go into effect,  allowed health-care providers to refuse to participate in abortions, sterilizations or other types of care they if they disagreed with them on religious or moral grounds.

It was an invitation to open-ended discrimination, and as objectionable in principle as allowing public accommodations to refuse to serve Jews, blacks or gays. This topic has been thoroughly explored on Ethics Alarms over the years, and I don’t have anything much new to say. In fact, perusing my various essays on the topic, my favorite is one that is so old, it was on the Ethics Alarms predecessor the Ethics Scoreboard (on which I am slowly making progress in my efforts to get it back online) and mentions Paris Hilton, working at Blockbuster, and an earlier incarnation of Colin Kaepernick in the NBA.

I wrote, in 2005,

A Wisconsin pharmacist named Neil Noesen refused to fill University of Wisconsin student Amanda Phiede’s birth control prescription on religious grounds, and now faces discipline from the state Pharmacy Examination Board. He also managed to call attention to a growing demand for so-called “conscience clauses” in state laws that would permit pharmacists to withhold professional services that they found morally objectionable.

“Conscience clauses” came into being in the wake of the Supreme Court’s Roe v. Wade opinion legalizing abortion. Obviously that right to privacy ruling put Catholic hospitals in a difficult position, so the U.S. Congress passed the Church Amendment (named after Sen. Frank Church of Idaho) in 1973. This provision allowed individual health care providers and institutions such as hospitals to refuse to provide abortion and sterilization services, based on moral or religious convictions. Most states adopted their own “conscience clause” laws by 1978.

…Conscience clauses are a terrible idea that encourage arbitrary professional misconduct. It is an example of how morally-based action can lead to unethical conduct.

An especially wrong-headed “commentary” that appeared a while back in the Los Angeles Times argued otherwise. In it, Crispin Sartwell, who teaches political philosophy at Dickinson College in Carlisle, Pa. stated his opinion that:

“…I personally am no opponent of birth control of any sort or, for that matter, of abortion rights. But people whose jobs require them to violate their own deeply held convictions ought to refuse to do the job, and any politician who upholds freedom or dignity must uphold their right to do so.

“What you should ask yourself in this case is not whether you think people should have access to birth control, but whether you should be required to do things that violate your deepest convictions. Should a soldier be required to torture prisoners, for example? Should he refuse to do so if ordered? Should a liberal corporate peon be required to contribute to the Republican Party? Should a Christian secretary have to assist in the advocacy of man-boy love?”

Well, Professor Sartwell, since you ask…yes, people who voluntarily undertake the duties of a job should either be prepared to fulfill those duties, take the consequences of not doing so, or not take the job in the first place.

That is the ethical duty that one accepts when one agrees to do any job. This couldn’t be clearer.

Sartwell’s examples are terrible:

  • U.S. soldiers are, in fact, not only permitted to refuse to obey an illegal order (like being ordered to torture a prisoner) but are required to do so.
  • Contributing to a political party is not a duty of employment, and refusing to obey an order to do so has nothing to do with “conscience.”
  • His last bizarre example comes from the beginning of his essay, in which he describes a supposedly true anecdote about a devoutly religious woman who served as a secretary for an executive who had her type letters related to his involvement in the National Man-Boy Love Association. She needed the job, you see, but didn’t feel it was right to type his letters. But she didn’t, in Sartwell’s terms, “have to assist in the advocacy of man-boy love.” Nowhere are typists regarded as active participants in the projects related to the letters they type; it is not as if the letter wasn’t going to be typed if she didn’t do it. But more importantly, she didn’t have to type the letter at all. She just had to type it if she wanted to keep her job. His argument here is like saying an actor can refuse to speak lines he doesn’t agree with, and still play the role he was cast in.

This calls to mind a court case of a few years back in which a National Basketball Association player was suspended for refusing to stand when the National Anthem was played before games. He said his religion prohibited doing so, and sued. The NBA pointed out that the standard player contract requires players to follow such team rituals. That was enough for the court, which ruled that the player was free to exercise his conscience, but not if he wanted to continue to play in the NBA.

The call for conscience clauses is just another chapter in what I sometimes refer to as the ethical “weeny-fication” of America, in which advocates strive assiduously to take all risk, danger and courage out of moral stands. Courage is a great and necessary test of conviction, and it must not be removed from ethical decision-making. Professionals should be able to make moral stands in defiance of their official duties only if they are willing to take the heat afterwards, and pay the price.

Without this necessary feature, we would all be subjected to paralyzing refusals to fulfill basic duties for moral reasons large, small, eccentric and imaginary. The PETA member check-out clerk who won’t allow you to buy steak and eggs; the ecologically minded Home Depot worker who refuses to let you buy pesticide for your peach trees; the religiously teetotalling bar waitress who will only serve you soft drinks; the SUV-hating gas station attendant who won’t let a gas-guzzling, global-warming Ford Suburban fill up; the Democrat- detesting poll-worker who won’t let one of those socialist Obama-lovers vote; the Fundamentalist science teacher who refuses to teach Bible-denying evolution…oh, one can come up with endless examples, and, frankly, none are any more absurd than the pharmacist that began this discussion.

He has no professional right to refuse to fill a lawful prescription directed by a physician. He has no right at all to make his customer feel like she is doing something wrong, or to inconvenience her by making her go to another store, which might be miles and miles away. His job is to fill prescriptions, not judge them, and if he cannot do that, he shouldn’t be a pharmacist.

He is free to make his stand, and indeed, there are times a stand is appropriate….but it is extremely unwise to pass laws to make moral stands widespread and without consequences. Do I want surgeons free to refuse to operate on criminals, child molesters, adulterers, drug pushers, Michael Moore, Tom DeLay, Paris Hilton, Professor Sartwell’s friend’s NAMBLA boss or Howard Stern just because they may be morally certain that the world would be better off without them? No, I don’t, and neither do you. And, I suspect, neither would Professor Sartwell, if he gave the issue just a bit more thought.

“If you claim the right to behave in accordance with your conscience,” he writes at the end of his article, “then you also must accord that right to all others, even pharmacists.”

Perhaps. But you do not have the right to avoid all consequences that flow from your exercise of that “right”. You have to have the courage to go along with the moral stand, the guts to risk the consequences. The NBA player can refuse to stand for the National Anthem, if he’s willing to pick cherries for a living. Neil Noesen can refuse to fill the prescription, if he’s game for employment at Blockbuster.”

Yeah, that pretty much covers it.

Today’s ruling declared the“conscience rule” unconstitutional in a 147-page decision arising out of a lawsuit brought by New York and nearly two dozen other  states and municipalities. The judge found that the burden of the HHS provision would fall most heavily on certain groups, and thus violated the Equal Protection Clause of the Constitution, along with other legal defects.

It was also, like all such provisions, unethical and wrong.

44 thoughts on “When Law And Ethics Converge: Goodbye To The Trump Administration’s Unconstitutional and Unethical “Conscience Clause”

  1. I get the idea when people choose to work for an employer that performs procedures that end life be prepared to perform.

    Now, but what of the physician that has a concientous objection to assisted suicide? Many states are now legalizing that which at one time was illegal. Does the legalization obviate any concientous objection now? Is the physician obligated to resign?

    Would a hospital staffed only with conscientous objectors violate the patient’s right to obtain a service if the facility as a whole said it would not perform such services? A clinic that can perform a variety of surgical services may be equipped to perform an abortion but only do so when a mother’s life was at risk. Must they do them on demand?

    • Now, but what of the physician that has a concientous objection to assisted suicide?

      That requires some research. I don’t know that this is reagrded as a “medical procedure,” or that a patient can demand it.

      Many states are now legalizing that which at one time was illegal.

      Doctors refuse to engage in lethal injections for Capital Punishment. I’m pretty certain any Medical Bord would fight a legal obligation to kill someone, a pure medical ethics breach.

      Does the legalization obviate any concientous objection now? Is the physician obligated to resign?

      I view it as a workplace decision. The law doesn’t require every health worker to perform a procedure, just that one does, or the necessary number.

      Would a hospital staffed only with conscientous objectors violate the patient’s right to obtain a service if the facility as a whole said it would not perform such services?

      I think clearly yes. A restaurant can employ a bigot who won’t wait on white people, but somebody has to. If the whole place is staffed with bigots who refuse to serve a type of customer, that against the law.

      A clinic that can perform a variety of surgical services may be equipped to perform an abortion but only do so when a mother’s life was at risk. Must they do them on demand?

      I would assume that a legal abortion must be performed on demand.

      • And when post birth infanticide becomes legal up to 3yrs age will a pediatrician ethically be required to euthanize a child-thing because the legal right has been established?

      • Thank you.

        I do have a bit of difficulty with public accomodations argument in that I cannot, as a male, schedule a chest X Ray at the Women’s Imaging Center as they only serve women. I understand why these women only centers came into existence but it strikes me as if there is one standard for women’s health care and and quite another for men’s.

        • If I need a chest x-ray, I go to radiology. If I need a mammogram, I go to a women’s imaging center. If you can get your breast into a mammogram machine, Chris, by all means schedule an appointment!

          • Womens imaging in my are provide a a wide array of diagnostic imaging that includes sonograms, cat scans and MRI. The centers are established because the market indicated women wanted a women only facility staffed by women. This is similar to the reasoning behind women only colleges and other female only programs.

            My opinion is buyers should buy from those that best meet their needs. The interesting argument you made about squeezing my chest into a mammography machine is little different than saying if Doctor X does not want to do procedure Y because of some personal objection then the patient should find one without the objection.

            The issue Jack posited was that if you accept a position that performs procedure X then don’t claim a concientious objectection. I agree with that.

            I was extending the discussion to a facility that can but chooses not to perform procedure X. Jack’s response to my questiond suggests they could be compelled to do so.

            When one examines the issue of equality under the law the issue of disproportionate impact arises. But, disproportionate impact only seems to be applied unequally.

            • My response was a late night attempt at making a funny. I apologize. In my area, a women’s imaging center is for mammography only. In all other areas of medicine – dermatology, oncology, cardiology, etc., we all share the same waiting room.

              • No worries. I realize that some area do one thing and others do another.

                The crux of my point was merely that these cases are decided based on the 14th amendment equal protection clause. Many courts use the doctrine of disproportionate impact to determine if equal protection did not exist.
                Given that only women can biologically carry a baby to term – hence the potential decision to abort – how can the notion of equal protection come into play unless the case involves areas of absolutely limited choice. I have real reservations on how the concept of disproportionate impact is employed.

                Obviously if a person decides to be an OBGyn and fetal terminations are part of the job they should be required to perform the task. I want to offer one caveat: If the ObGyn makes the conscience declaration during a pre hire interview and is still hired the objection should be valid.

                    • Actually, there is a literal dearth of abortion providers in this country. Too many training programs decided not to teach the potentially scary procedure. Except a D&C (dilation and curettage) is the same for an abortion as for a miscarriage, or the other varying reasons it’s needed. And depending on where you are in the country, you can have real trouble finding a doc who can perform various procedures (especially the politically problematic but still medically necessary later-term surgeries), no matter whether it’s an abortion you want or a life-saving identical procedure. But it started long ago when you had medical training choices decided on ick factor instead of the idea that people might need the procedure no matter what the reason.

          • Males do develop some breast diseases including breast cancer and occasionally need mammograms. As with women, early detection is the key to survival.

      • Doctors refuse to engage in lethal injections for Capital Punishment. I’m pretty certain any Medical Board would fight a legal obligation to kill someone, a pure medical ethics breach.

        It is an interesting question. It does seem on the surface that a doctor qua doctor should not participate in a capital sentence. The sentence should be carried out by a police official or a military agent.

        (It is an aside of course but my own view is that when the death penalty is carried out it should be by firing squad. It is immensely cheaper and does not involve all those bizarre and also terrifying machines, tables, straps, needles and poison-concoctions.)

      • It’s…. Something. Interesting might be the right word. We’re discussing conscientious objectors in the field of medicine, which encapsulates a whole lot of objections, but for the purposes of this, let’s narrow it down to abortion, specifically. Juxtapose for a second, what you just said; “Doctors refuse to engage in lethal injections for Capital Punishment. I’m pretty certain any Medical Board would fight a legal obligation to kill someone, a pure medical ethics breach.”

        This really is a tale of two positions. One side will look at that and say: “You’ll refuse to kill Rapey McMurderface over there, but you’ll kill a baby 13 minutes before birth.” And the other side posits that until that baby traverses the magic birth canal, thereby conferring upon it personhood, it’s just a cluster of cells, a tumor, or a rutabega. With a healthy side dose of “her body her choice (unless that’s too trans exclusionary).

        I wonder if it’s as cut and dry as you put it…. Are medical boards also of the opinion that unborn children are tumors, or are they of the opinion that if something is within the law, then they should do it? In which case, start tap-tap-tappin those syringes doc, you got a convict to kill.

  2. While the man who works in the pharmacy should have no issue with completing the purchase of the contraceptive — he did not manufacture it, he did not prescribe it, and he is not in fact selling it (the company he works for is selling it) — and he really has no moral connection to the patient getting the contraceptive. He hands it to her and receives the payment. But a person who is committed to a pro-life position is in a different relationship to the issue if asked/forced to participate in excising the fetus.

    If a clinic has as its policy only to perform an abortion in the event of a danger to the life of the mother, I cannot see how it could be justifiable that the clinic be forced to provide an abortion on-demand.

    The Trump version, which was yet to go into effect, allowed health-care providers to refuse to participate in abortions, sterilizations or other types of care they if they disagreed with them on religious or moral grounds.

    It was an invitation to open-ended discrimination, and as objectionable in principle as allowing public accommodations to refuse to serve Jews, blacks or gays.

    There must be a point where a moral conviction — to not abort nor participate in an abortion — has to take shape and become effective. If it happened, tomorrow, that no one would perform an abortion except in special cases Because of a conviction they held, then no abortions would be performed. And that would be entirely justifiable: defensible.

    This does not seem comparable to the open-ended discrimination in housing or accommodation in hotels. It seems to me that that is a specious argument.

    I have been largely convinced by your argument in other situations — the woman who would not issue a marriage license to a homosexual couple — but I am not sure if a nurse who refused to participate in an abortion is in a neutral ground: it is after all a homicide (if one accepts that logic).

  3. I too am often convinced by your arguments, but I don’t understand why it is unethical to refuse to kill someone, even if you live in a place where killing certain people is legal. I see a big difference between refusing to provide a service to a particular person when you generally do provide that service to other people and refusing to provide a service that you would not provide to anyone.
    In the case of the surgical center mentioned above – would it be ok for them to say they do not provide abortions under any circumstances? Would that then be a place where a doctor who conscientiously objects to abortion could continue to practice? Or will the government now mandate that if you remove cysts you must also remove fetuses?

    • You are talking about abortion? If the law says abortion isn’t killing someone, then it isn’t. If you think it is, then you need to avoid being in a field of medicine that involves abortions.

      • If the law says abortion isn’t killing someone, then it isn’t.

        That’s just flat positivism. By that standard, if the law says people have a right to conscientious objection, then they do, and the judge had no grounds to say otherwise. If one has no right to argue what the law should say, then the other doesn’t either.

        In reality, sex-change operations, contraception, and abortion are no more related to medical care than any other forms of murder and mutilation, as they are all examples of thwarting otherwise functioning biological ends. A thing can be other than what a majority calls it. If the law called a cat a dog, it would just be wrong, like an emperor ordering the tides to recede.

        I can see you’re angling for consistency in law, but I can hardly see how consistency outweighs correctness.

        • ” In reality, sex-change operations, contraception, and abortion are no more related to medical care than any other forms of murder and mutilation, as they are all examples of thwarting otherwise functioning biological ends”

          What about mammoplasty on boys with gynecamastea? The removal of perfectly functional breasts?

          What about haircuts for that matter?

          • What about mammoplasty on boys with gynecamastea? The removal of perfectly functional breasts?

            You lose the sense of “functional” in this question, describing growths which form as the result of an endocrine disorder. It’s less black-and-white than most examples, but it still retains that lingering sense of “perfectly functioning tumor” to quite achieve the full-on grey you want.

            What about haircuts for that matter?

            Can anyone say the purpose of hair isn’t to be a functional length? Is the removal of excess dead, keratinized, continuously-reproducing cells really so equatable to the removal of a single pulsating heart? We can know what things are and, by knowing that, their purpose. “Ought” is derived from “is”, in proper generalized context.

        • Anyone is welcome to hold such opinions that are contrary to what society had decided via law, but living in that society requires you to conform your conduct to what the culture and community has decided. Nonetheless, murder (and robbery, and other crimes) are what the law say they are. “Correctness’ is a subjective concept—I would think that is settled by now, or better be, so we don’t have to founder with those “God’s laws vs Man’s laws” arguments. We do not have a theocracy, thank God.

          “In reality, sex-change operations, contraception, and abortion are no more related to medical care than any other forms of murder and mutilation, as they are all examples of thwarting otherwise functioning biological ends” is a statement of ideology, not fact. One could argue, and some do, that all medicine thwarts biological ends. And that’s fine, as long as you start your own commune in the woods.

          • “Correctness’ is a subjective concept—I would think that is settled by now, or better be

            No, I should think it’s quite settled that “correctness” is exactly an objective concept, or else I could play the same game one level down. Indeed, perhaps “subjective” is a subjective concept, and a settled one, which only could be questioned by the benighted. Is that correct, incorrect, subjective? If everything fundamentally means nothing, then it does all the way down.

            a statement of ideology, not fact.

            Am I to think then, that the law can call simply anything anything else, and it would become real? Gone are the days when the law was subject to reality, supplanted instead by the today in which reality is dictated by the laws? By this reasoning, Hitler did nothing wrong, and to say otherwise is to banish oneself to the woods with the rest of us religious illiterate fruitcakes, because it was all strictly legal! If there’s nothing fundamental to which law must conform, then the Holocaust, conscience protections, abortion, and street signs all occupy the pallid-gray realm of the merely neutral, and to speak of what a law should or should not say is always deserving of the dread moniker ‘subjective‘. Indeed, your celebration of striking down conscience protections is skewered by the same petard you wield against me. So it was written, so shall it be done! Perhaps we could be commune-buddies.

            One could argue, and some do, that all medicine thwarts biological ends.

            It’s clear to me that anyone can argue anything, but not everyone is right. Truth is true, and reality is real. The ones to ignore say the opposite, and can only ever refute themselves.

          • Anyone is welcome to hold such opinions that are contrary to what society had decided via law, but living in that society requires you to conform your conduct to what the culture and community has decided. Nonetheless, murder (and robbery, and other crimes) are what the law say they are. “Correctness’ is a subjective concept—I would think that is settled by now, or better be, so we don’t have to founder with those “God’s laws vs Man’s laws” arguments. We do not have a theocracy, thank God.

            What seems interesting in this — about this — is something that extends beyond the matter at hand. True, we do not live in and under a theocracy. But also true is that we live in a developing society, and intellectual environment, that has become substantially divorced from the *essential metaphysical definitions* that produced and gave birth to our society.

            So, you speak as one who is grounded in jurisprudence in a strict sense, and therefore what you say makes sense, and you influence and convince many people. But what is meta-jurisprudential is what interests me and it is from that perspective, and this developing position of reclaiming the field of values that I wish to be involved in.

            To reduce the issue to a ‘man’s law vs God’s law’ is a way of making theological and also foundational metaphysical arguments seem absurd, and of dismissing them as ridiculous and outmoded. Perhaps there is a man on a freeway overpass somewhere shouting about ‘God’s law’ who is indeed ridiculous. There are certainly many religious figures who are utterly ridiculous. Yet the foundation of our Occidental value-system is not ridiculous, and it has been forged at every juncture by religiously-influenced and religiously-minded people.

            It is the larger social and intellectual milieu that establishes values and value-systems, and these are then translated into and expressed as sound and good laws. In any case, that is how it has happened historically.

            …but living in that society requires you to conform your conduct to what the culture and community has decided

            It may be that one will have to conform, or suffer legal consequences, but there is a larger point but I struggle to find the better way to express it. If we lose — or surrender, or throw away, or have taken away — the inner relationship to the source of metaphysical truths, we lose the ground on which civil society rests.

            Therefore, the object is to bring forward the argumentation that changes how people look at these questions: take abortion as an example. You for example have always seemed to me horrified that the act is done. But there is no metaphysical dimension to your opposition, visceral as it is. But your argument against it is solely legalistic: that the child there, though alive, should have rights extended to it (if I do understand your position).

            I am forced to say that committing an abortion is a mortal sin that endangers the should of that person and those persons involved in that act. And a society that establishes such a thing as an accepted practice, whether through legal measures or through the engineering of social opinion, is a society that shows itself heading into a very dangerous territory. But it is not just with abortion — though that has a strong symbolic power — but in many different and interrelated areas.

            Therefore: we do indeed have to ‘founder’ with the essential questions, the existential ones.

      • Apologies if this is unbecoming of a first post, but is this not an application, or perhaps a corollary, of Rationalisation 4 – Marion Barry’s Misdirection?
        Rather than “If it isn’t illegal, it’s ethical”, your argument seems here to be “if it’s legally mandated, it’s ethical”. Nonetheless, the writing on Rationalisation 4 seems to describe the situation aptly, citing in particular the third paragraph: “The greater problem with it is that it omits the concept of ethics at all. Ethical conduct is self-motivated, based on the individual’s values and the internalized desire to do the right thing.”
        To one ideologically opposed to abortion, the act is a killing regardless of whether or not the state chooses today to call it murder. Performing abortions under such a demand, to such an individual, would be subjecting themselves to a form of Rationalisation 25 – compliance with the law at the expense of ethics (speaking of which, I was surprised to see an absence of the Nuremburg Defence – just following orders – in the nomenclature about said rationalisation). Providing the service in emergencies only is perhaps hypocritical under such ideology, but can be seen as an attempt to minimise harm – in that particular aspect, I’m not as informed as perhaps I should be.
        Apologies once again if this is clumsily written.

        • Nope. I was clear: you can refuse to follow the law, but you cannot demand that the law allow you not to follow the law, or that you suffer no consequences when you refuse. There are unethical laws, but following the law, defying the law and accepting the consequences, or trying to change the law are your three doors. “I get to violate the laws I don’t like” is not the fourth. Laws that can be ignored because of perceived necessity, including “conscience” aren’t laws.

          • Nope. I was clear: you can refuse to follow the law, but you cannot demand that the law allow you not to follow the law, or that you suffer no consequences when you refuse. There are unethical laws, but following the law, defying the law and accepting the consequences, or trying to change the law are your three doors. “I get to violate the laws I don’t like” is not the fourth. Laws that can be ignored because of perceived necessity, including “conscience” aren’t laws.

            Thus: Socrates drank the hemlock willingly.

              • I had the thought that you would misinterpret that. I was going to say ‘Thus he drank the hemlock’ because it would have been more elegant. I was afraid you would take it wrong. So I added ‘Socrates’ to clarify it. But you still misinterpreted: I was agreeing with you.

                He drank because the Law that he valued above all else did not permit him to run away and avoid punishment. Yet he was also acutely aware that *life* did not end with the destruction of his body.

                I think you are substantially right in what you say about ‘the laws of the nation’ as the necessary foundation that everyone should respect. (And I demand a cookie!) That is because I accept the Platonic argument. If you are going to violate the laws, you have to be willing to accept the consequences for doing so. You can’t violate the laws and demand that they be bent to accommodate you. For Plato the laws of his nation were sacred, even in their way divinely revealed. Plato certainly and quite definitely understood that ‘revelation’ was real. It was the outcome of the proper ordering of the mind and the soul.

                Additionally, I think I also agree that the definition of ethics must occur in an intellectual setting and that each person has to work through the arguments and processes. But I also am fairly certain that when people lose their metaphysical — and Christian — connection (which is an interior relationship), that the necessary intellectual environment to be able to think grandly in ethical terms will be lost. I do not think you agree with that assertion.

      • You are talking about abortion? If the law says abortion isn’t killing someone, then it isn’t. If you think it is, then you need to avoid being in a field of medicine that involves abortions.

        I approach these issues from a Christian perspective, and a more traditional perspective within Christianity even (Thomistic Catholicism) — certainly not the popular way of looking at them. As a starting point then it does not matter what the law says or how the law defines things, though of course I obey the law in most things, but rather how I define things in accord with a greater (or perhaps more inclusive) understanding that has already been defined and expounded.

        I am interested in the admonition “If you think that it is, then you need to avoid being in the field of medicine that involves abortions”. Well, that would certainly be true for a Christian (there are other religious philosophies with a necessary pro-life philosophy of course) except, of course, in the case of a practicing Christian doctor who would perform an abortion to save the life of the mother: the proper and legitimate use of abortion.

        But the larger implication of what you suggest is what interests me: if you have religious-driven beliefs and understandings, and if these conflict with the social milieu, or with ‘culture’, or with the economic powers as they mold culture and society in accord with their (often perverse) desires and intentions (the corporation-driven system we live under), and if you say that one should then remove oneself from the milieu and simply live apart, then I think that I would have to say that you cannot make that demand.

        If in this sense *you* represent ‘the law of the land’ and if the law becomes perverse or counter-principled, it is not an option for those with Christian convictions to simply remove themselves from the field. It would certainly not be in accord with the civilizational thrust of Christian endeavor which built civilization from the ground up. Now, obviously, what I am saying here defines the conflicts of The Culture Wars and I am very aware that many people totally reject the principled platform of American Christendom.

        Those people — that class — are in ascent right now and yet there are significant rumblings among wide-ranging people to recover a logos-based general philosophy and to confront a legalistic system which has deviated from a (truer) value-based approach.

        The reason I bring this up is related to my general approach on your blog: to explain to the degree I am able the positions and ideas of the Dissident Right. To bring them forward even against a strong resistance. To confront ‘pseudo-conservatism’ with what I understand to be a more really grounded conservatism platform based in Christian metaphysics.

        There is a faction of the DR that is Christian/Catholic, and as well there is a faction that is pagan and non-Christian. (These are not in harmony I must say.)

        My larger point is that it is when the idea-structures change, when people begin to *see* things in different ways, or return to former humanistic and theologically-defined approaches to defining life and values, that societies do change. E. Michael Jones, for all his strengths and weaknesses, defines this as ‘Logos rising’: an intellectual and cultural reawakening.

        The conflicts in the present — in my view — reduce to conflicts in world-view and fundamentally to metaphysical conflicts.

      • Jack, you know that isn’t a valid argument. Killing, leaving out the “someone,” as arguendo, is an objective fact of abortion. The “someone” is the subjective part, and is, in fact, a matter conscience as well as principled debate. It isn’t as if it were a “scientific consensus” or anything (I’m not sure I can get my tongue out of my cheek, sorry).

        I understand your argument against this policy, and I see some room for agreement. But this statement isn’t why, because it is unusually specious for you. A little slippery, in fact, bordering on the argument that legality defines ethics. We know how that one goes.

        Because abortions are currently performed in so few places, I can agree that the public cost of forcing medical professionals to choose between resignation or reassignment and their conscience might be in the interest of the public.

        But supposing the alternative, where all hospitals would be required to perform abortions on demand, it becomes a problem. If a cake baker can refuse to decorate a cake for a gay couple as a matter of conscience, how much more serious must we take assisting in or performing an abortion, where a human life is arguably taken on the whim of another?

        But the idea that the law defines the acceptable limits of conscience? Nope. It is a starting point, for sure, but as we’ve seen from Welsh v. United States on down, it’s not dispositive.

  4. Jack,

    What is meant by the statement the rule would fall most heavily on certain groups thus violating Equal Protection Clause of the Constitution? Obviously, males cannot be medically affected by the abortion issue so there can be no equal protection in that regard. Are we assuming only males have concientuous objections and only females are denied the service? My understanding is that we don’t discriminate based on gender not on the acquisition of goods and services.

    I find it interesting that males have no rights in the decision to terminate a pregnancy yet courts do not find that the laws imposing financial burdens on males violate the equal protection clause. If a woman has a child she is entitled to social programs to benefit her and the child. Technically, WIC programs do not provide equal protection. We no longer live in the 50’s. Today, women earn more degrees, are involved in virtually every job classification, and are starting businesses with the help of government at a pace exceeding men. Seems to me the idea of equal protection focuses on historically discriminated persons but how long will it be before we treat everyone truly equally? If the laws are to be applied equally we must also review those that deny fathers equal rights in custody issues and financial burdens.

    This comment is simply my cynicism showing because I never thought we would ever agree to having legally protected classes of persons and an equal protection clause simultaneously.

  5. So a plastic surgeon should be required to give a double mastectomy to a healthy 13 year old girl who believes she’s male? If full sex reassignment surgery becomes legal at age 16, 14,12 or earlier, must a surgeon ignore their conscious?

    Should doctors be required to give a three year old puberty blockers because his parent believes he believes he’s a girl?

    I’m not a medical professional or have a clue about how the law works in such circumstances but I thought the Hippocratic Oath would let doctors of conscious protect patients from serious harms like the ones mentioned above. It seems like this is an issue where we might also consider the increasing medical extremism were potentially heading for.

    • But there’s a medical reason to refuse to do that surgery. Rejecting conscience clauses doesn’t stop a doctor or medical professional from applying sound professional judgment. Same with the puberty blockers. It’s not a matter of conscience, it’s a matter of professional judgment and standards of care.

      • But there is a medical reason to refuse to perform an abortion?
        The surgery is not on the mother, it is on the baby-thing inside her?

      • I appreciate your willingness to engage Zoe, however in making ethical counter arguments, twisting original content shouldn’t be necessary.

        • When the original is fallacious – containing an assumption not evidenced – then twisting the original with the opposite assumption – also unevidenced – is illuminating.

          The crux of the matter is how to determine sex. In cases where florid psychosis is absent, i argue that self determination, while imperfect, is biologically more accurate than alternatives, as well as being most humane.

          While currently this is the accepted, mainstream view in this branch of medicine, this is a relatively recent development. It was a (substantial) minority view only 20 years ago, before evidenced based medicine was a thing in psychiatry.

          Just because a view is popular or the concensus doesn’t mean it’s correct. One should research the evidential reasons *why* a view has become accepted, and the reasons why it wasn’t before.

  6. WHATEVER IS NOT FORBIDDEN IS MANDATORY.

    That is the mindset here. As a doctor, either you are forbidden from performing abortions or you will be required to perform them.

    That is the thought-process of a totalitarian.

    And, it is stupid in another way; it seems to ignore other bases for declining services.

    For instance, my understanding (I could be wrong) is that every OB/GYN has to be trained to perform abortions in order to be board certified. And, it makes sense that they would have to have that knowledge. But, my understanding is that many obstetricians refuse to do the procedure, either out of conscience, or because their practice is 100% devoted to bringing healthy babies to term. So, even though they have the knowledge and the skill to perform the procedure they will not do so because of the way it will appear to their patients.

    Assuming I am 100% wrong in this sort of anecdotal example, I will bring it back home: I am an attorney. I was raised Catholic. We are against divorce and gay marriage.

    I am fully capable of representing someone in a divorce. But, I don’t do divorces. Because I am Catholic? No. Because people often get very ugly in divorces and kids suffer. I don’t need those kinds of problems weighing on me. So, I can turn down divorce work not on the basis of conscience, even though my conscience should tell me not to do the work.

    I am also fully capable of setting up an estate plan for a gay couple. Do I? No. Because I’m Catholic? No. Because I haven’t been asked. It’s a small part of my practice. But, if some couple walked in today, it would be no problem. I can oppose gay marriage and still help people vindicate their legal rights.

    I don’t think government should be stepping in and mandating conduct of professionals. As long as services are available, any professional should be able to decide what types of service they can provide or not provide. That would mean that, if there is no one else around who can provide the service in question, the professional should be obliged to perform the service out of a professional obligation (not a legal one).

    -Jut

  7. I have commented before on this.

    http://www.eeoc.gov/eeoc/newsroom/release/10-22-15b.cfm

    Jury Awards $240,000 to Muslim Truck Drivers In EEOC Religious Discrimination Suit
    Star Transport Fired Truckers for Refusing to Transport Alcohol, Federal Agency Charged

    CHICAGO – A federal jury in Peoria, Ill., has awarded $240,000 to two Somalian-American Muslims who were fired from their jobs as truck drivers at Star Transport, an over-the-road trucking company, when they refused to transport alcohol because it violated their religious beliefs, according to the U.S. Equal Employment Opportunity Commission (EEOC), which brought the case. The trial started on Oct. 19, and the jury returned its verdict the next day after 45 minutes of deliberation.

    Judge James E. Shadid, the chief judge of the U.S. District Court for the Central District of Illinois, found in favor of EEOC after Star Transport admitted liability in March 2015. The resulting trial was to determine compensatory and punitive damages and back pay. The jury awarded Mahad Abass Mohamed and Abdkiarim Hassan Bulshale $20,000 each in compensatory damages and $100,000 each in punitive damages. Judge Shadid awarded each approximately $1,500 in back pay.

    EEOC alleged that in 2009, Star Transport fired Mohamed and Bulshale after they were required to transport alcohol. Both men told Star Transport that they believed doing so would violate their religious beliefs under Islamic law.

    EEOC also alleged that Star Transport could have but failed to accommodate the truckers’ religious beliefs, as required by Title VII of the Civil Rights Act of 1964. EEOC filed suit (EEOC v. Star Transport, Inc., No. 13-cv-1240) in U.S. District Court for the Central District of Illinois in Peoria in May 2013.

    “EEOC is proud to support the rights of workers to equal treatment in the workplace without having to sacrifice their religious beliefs or practices,” said EEOC General Counsel David Lopez. “This is fundamental to the American principles of religious freedom and tolerance.”

    The case was litigated by EEOC Trial Attorneys Aaron DeCamp and June Calhoun and Supervisory Trial Attorney Diane Smason.

    Calhoun said, “This is an awesome outcome. Star Transport failed to provide any discrimination training to its human resources personnel, which led to catastrophic results for these employees. They suffered real injustice that needed to be addressed. By this verdict, the jury remedied the injustice by sending clear messages to Star Transport and other employers that they will be held accountable for their unlawful employment practices. Moreover, they signaled to Mr. Mohamed and Mr. Bulshale that religious freedom is a right for all Americans.”

    Smason stated, “We are pleased that the jury recognized that these – and all – employees are entitled to observe and practice their faith, no matter what that might be.”

    Bulshale commented, “This case makes me proud to be American.”

    EEOC enforces federal laws prohibiting employment discrimination. Further information about EEOC is available on its website

    If Judge Engelmayer’s ruling is upheld on appeal,. the precedential value of the EEOC case I quoted would be doubtful, to write the least.

    After all, in both law or ethics, there is no difference between truck drivers and pharmacists in this context.

  8. There is the joke about a new, secret government program that was going to push the limits of legality to fight the enemies of the US. They needed the most committed, most loyal people they could get. After a lengthy screening process, the first 3 candidates were selected. The first candidate was told ‘Your wife is in the next room. As your ultimate test of loyalty, take this gun and shoot her with it.” He went into the room and raised the gun. She began to cry, he began to cry. He came out and said “I can’t do it”. “You’re out” he was told. The second candidate was given the gun, and the same thing happened. The third candidate was given the gun, he went into the room, the instructors heard “Blam, blam, blamblamblam” then the sound of a great struggle. The candidate emerged and gave them the gun and said “Who filled the gun with blanks? I had to beat her to death”. If you only allow people who are willing to do morally compromising things, you will only have immoral people in the profession.

    Hooker Chemical Company operated a landfill during the late 1940’s. It was a model hazardous waste landfill, far ahead of the standards of the time, which might actually meet the standards of today. The local school board wanted to buy the land to put a school on it. The chemical company was horrified and refused. The school board threatened to take it by eminent domain. Rather than allow that to happen, the company sold it to them for $1, because they were able to get a liability waiver and they put a note on the deed to the land that clearly stated that it had vast amounts of highly toxic waste under it. If seized by eminent domain, no warning would have been on the title to the land. That warning was removed by the school district and/or developers when the land was broken up and sold to homeowners. No doubt the removal was legal and any judge and the clerks involved had a legal obligation to remove that warning. No doubt the lawyers had an obligation to do what their client wanted. No doubt they legally should have been fired if they refused. However, the children that went to those schools and the families that built houses in Love Canal probably would have appreciated having someone with some moral fibre there when they needed it. In the end, Hooker Chemical company, the only people with any moral objection to these actions, had to pay ~$130 million in compensation. The school board, the developers, and the people who removed the warning didn’t question if what they were doing was right, they just did their jobs as specified and they paid nothing.

    What kind of doctors will I be seeing in the future?

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