conscience clauses

Minnesota’s Religious Freedom Pharmacist Case

/ Jack Marshall / 20 Comments

In  2019, Andrea Anderson’s primary birth control method had failed, so she called her health care provider to ask for a prescription to Ella, an emergency contraceptive tablet. But when she went to  the local McGregor Thrifty White pharmacy in Aitkin County, Minnesota, pharmacist and local pastor George Badeaux refused to fill the prescription, citing his religious beliefs. He told her that a pharmacist working the following day could fill her needs if a snowstorm didn’t prevent the pharmacist from getting to work.The desperate woman ended up driving three hours round trip to Brainerd during a snowstorm to get her pregnancy-terminating pills.

Anderson sued under the Minnesota Human Rights Act, alleging sexual discrimination. The jury ruled against her.

Ethics Alarms verdict: the jury was right on the law, but the pharmacist was unethical. Continue reading →

Comment(s) Of The Day: “Ethics Quiz And Poll: The Nurse Practitioner’s Dilemma”

/ Jack Marshall / 13 Comments

We have a rare two-headed Comment of the Day on “Ethics Quiz And Poll: The Nurse Practitioner’s Dilemma,”about the nurse practitioner’s dilemma when she was asked by a poor, unmarried, 16-year-old , unemployed high school drop-out to help her get pregnant. Taking a minority position among commenters (the post’s poll results overwhelmingly favored counseling the girl against pregnancy), commenter valkygrrl wrote,

“Assuming the local age of consent laws make the pairing lawful, I think we have our answer in regard to professional ethics:

(f) Not discriminate against patients who have difficult-to-treat conditions, whose infertility has multiple causes, or on the basis of race, socioeconomic status, or sexual orientation or gender identity.

Assuming the local age of consent laws make the pairing lawful, I think we have our answer in regard to professional ethics.”

Commenter Tony, a physician, added in his Comment of the Day #1, Continue reading →

Comment Of The Day: “Ethics Quiz And Poll: The Nurse Practitioner’s Dilemma”

/ Jack Marshall / 9 Comments

As I thought it might, the Ethics Quiz about “The Ethicist’s” position that a nurse practitioner was obligated to help an unemployed, unmarried, 16-year-old high school drop-out get pregnant provoked a lot of discussion. Here is how the poll results on the issue are running:

And here is Arthur in Maine’s Comment of the Day on the post, “Ethics Quiz And Poll: The Nurse Practitioner’s Dilemma”:

Yikes. I know you hold Appiah in high regard, and your previous posts about his work make clear why. But I agree with you – he’s very much in the wrong on this one.

Many years ago, I worked in a group home for adjudicated teenagers. We had several 15 and 16 year old girls who, like the girl in question, actually wanted to become pregnant (thank God none of them managed to achieve this goal on our watch).

I recognize that my sample size is small enough that this is nothing more than anecdotal – but as far as I’m concerned, well-adjusted 16-year-old girls may adore babies and kids but understand that now’s not the time. To desire pregnancy at that age requires one or more underlying pathologies. Continue reading →

Ethics Quiz And Poll: The Nurse Practitioner’s Dilemma

/ Jack Marshall / 58 Comments

Sure.

It is seldom that I strongly disagree with NYU philosophy professor Kwame Anthony Appiah, “The Ethicist” of the New York Times Magazine’s long-running advice column. A month ago I did, and emphatically so.

The question posed to him involved a professional ethics dilemma, and “The Ethicist” was so certain he had the correct answer that he was uncharacteristically terse about it. I’m pretty certain about the answer too, except that my certainty is that he’s wrong. But I have some doubts, based on my ethical positions in related situations.

The inquirer was a a nurse practitioner working at a primary care clinic for low-income patients. She said that a 16-year-old patient told her that she had stopped coming by the clinic to have her birth control pills replenished because she and her partner were trying to have a baby together. She had been having unprotected sex for  a while, and she was concerned that she might have some physical problem preventing her from conceiving. The nurse practitioner asked,  “Would it be ethical for me to steer her away from trying to get pregnant? …Or, as her health care provider, do I have an ethical duty to try to help her conceive?”

Appiah doesn’t see any wiggle room. He says,

“You’re her health care provider. You should certainly tell her about the medical consequences of pregnancy. But the social and economic consequences don’t fall within your professional competence. An intervention about her life choices may seem moralizing and intrusive to her, and it could drive her away; and then she’d be losing your guidance on the things you are trained to help her with.”

Really? Continue reading →

Thoughts Upon Reading The Comments To The Recent “Conscience Clause” Post

/ Jack Marshall / 45 Comments

The comments on the recent post regarding the so-called conscience rule being voided in court generated the comments the topic always does. What follows is a relatively short, general post to frame the issues as clearly as possible.  Admittedly, when a post is titled “When Law and Ethics Converge,” perhaps I shouldn’t have to explicate with a post focusing on the difference between law and ethics. I strongly believe that conscience clauses undermine the law, and are unethical, as you will see.

Law and Ethics are not the buddies people think they are, or wish they were. If you look around Ethics Alarms, you see why. Ethics, as the  process by which we decide and learn what is good and right conduct, evolves with time and experience. A predictable cut of a society’s ethics are always going to be a matter of intense debate. Ethics are self-enforcing, for the most part and by nature, because being ethical should make us feel good.  Once an authority or power starts demanding conduct and enforcing  conformity, we are mostly out of the realm of ethics and into morality, where conduct is dictated by a central overseer that, if it is to have genuine authority, must be voluntarily accepted by those subject to its power.

Society cannot function on ethics alone. Without laws, chaos and anarchy result. Because chaos and anarchy are bad for everyone, no individual who has accepted the social compact may decide which laws he or she will follow and which he or she will defy—at least, not without paying a price, which is society’s punishment. In ethical terms, this is a utilitarian calculation: we accept laws that individually we may find repugnant, because allowing citizens to pick and choose which laws they will obey as a matter of “conscience” doesn’t work and has never worked. Ethics pays attention to history.

Thus it is ethical to obey the law, and unethical not to,  even if good arguments can be made that particular laws are themselves unethical. This is where civil disobedience comes in: if a citizen chooses to violate a law on a the basis of that citizen’s conscience or principle, the citizen also has to accept the legal consequences of doing so as an obligation of citizenship. Continue reading →

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

/ Jack Marshall / 44 Comments

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, Continue reading →

The Division Of Conscience And Religious Freedom Vs. Basic Workplace Ethics [UPDATED]

/ Jack Marshall / 60 Comments

In May, the Trump administration issued a new rule  that gives health care workers the power to refuse to provide services their religion disapproves of, such as abortion, sterilization or assisted suicide. A religious conviction isn’t even essential to trigger the rule; a matter of conscience is enough. The measure essentially revived a Bush rule that the Obama administration reversed.

It’s a bad rule, and an unethical rule, as Ethics Alarms has held before. If you can’t perform all the duties of a job, then don’t take the job. If an employee can get his or her employer to agree that he or she is exempt from certain duties, that’s freedom of contract. Fine.  The Trump rule, however, like the Bush rule before it, breaches a basic principle of the workplace, and common sense as well. It also leads inevitably to messes like this one:

The federal government has accused  the University of Vermont Medical Center in Burlington, Vermont of violating  federal law by forcing a nurse to participate in an abortion despite her objections. The hospital denies it.

The nurse, who is Catholic, filed a complaint with the Office for Civil Rights. It  alleges, that she was misled by supervisors to believe she was assisting in a procedure scheduled after a miscarriage. “After [she] confirmed that she was, in fact, being assigned to an abortion, [her employer] refused her request that other equally qualified and available personnel take her place,” the complaint reads. She then participated in the procedure and “has been haunted by nightmares ever since.”

Now the Office for Civil Rights at the Department of Health and Human Services has filed a notice of violation against the hospital, the  first since the Division of Conscience and Religious Freedom was added to HHS in  2018. Continue reading →

Morning Ethics Warm-Up, 5/14/19: Tlaib And Kavanaugh.

/ Jack Marshall / 68 Comments

Good morning,

I hope…

1 Social Q’s ethics. I’m whomping the advice columnist in the Ethics Alarms poll regarding whether complimenting someone on weight loss can be reasonably taken as offensive by the object of praise. Looking at the same column, I have decided that Mr. Gallanes was just having a bad day. Another inquirer complained that he sleeps with her bedroom window open, and is often awakened in the morning when the next door neighbor takes his dog out for a 5 am walk, a ritual, she says, that is always preceded by his “disgusting” coughing. The advice columnist suggested that she ask him to do his disgusting coughing inside. Yeah, THAT will go over well. If you insist on leaving your window open, you have no standing to protest sounds that would not be heard if you kept it closed. Given the choice between waking one’s spouse with the morning hacking that most men of a certain age can identify with, and getting all the morning phlegm up while walking the dog, the latter is the wiser and more ethical choice.

2. Supreme Court ethics and pro-abortion fear-mongering.

a.) Somehow it was reported as news akin to squaring the circle that Justice Kavanaugh joined with the four typically liberal justices in a 5-4 ruling yesterday that left Thomas, Gorsuch, Roberts and Alito licking their wounds. This is non-news. It was a dishonest partisan smear on Kavanaugh to suggest that he would be a mindless puppet in lock-step with conservatives on every issue. Justices consider cases in good faith, and the fact that their judicial philosophies make some decisions predictable doesn’t mean, as non-lawyer, non-judge, political hacks seem to think, that they will not judge a case on its merits rather than which “side” favors a particular result.

b) Kavanaugh did join the conservative justices in a ruling that overturned a 1979 case in which the Court had allowed a citizen of one state to sue another state. This decision, being a reversal of an older case, immediately prompted the publication of fear-mongering op-ed pieces warning that the evil Court conservatives, having re-read and enjoyed “The Handmaiden’s Tale,” were slyly laying the ground for a Roe v. Wade reversal with a case that had nothing whatsoever to do with abortion. Don’t you see? Stare decisus is the SCOTUS tradition that older cases will generally not be overturned by later Courts, lest Constitutional law be seen as unstable and too fluid to rely on. Garbage. Stare decisus has never been an absolute bar to reversing a wrongly decided case, so no new affirmation of that fact is necessary. In addition, the case overturned yesterday was a relatively obscure case that seldom comes into play, exactly the kind of case in which a reversal is minimally disruptive. Roe, on the other hand, has become a foundation of supporting law and social policy. That doesn’t mean it can’t be overturned, but it does mean that the protection of stare decisus is strong. Continue reading →

Sunday Evening Ethics Debriefing, 7/22/18: FISA, “Resistance” Jerks, Translator Ethics And More Problems With CVS

/ Jack Marshall / 38 Comments

Good evening!

1.  Confirmation bias test? The big news today was that the  U.S. Department of Justice and FBI have released the 412 page FISA application used to gain a Title I surveillance warrant against Carter Page in 2016 while he was working as a low-level unpaid adviser for the Trump campaign. The document is heavily redacted in its more than 400 pages. Carter Page himself—he was never charged or interviewed , which seems rather damning in itself–said today,

“‘You talk about misleading the courts, it’s just so misleading… It’s literally a complete joke.'”

The full pdf is available here.

Once again, it is impossible to tell what is going on by following the news media’s reports. It sure seems, however that once you block out the spinning by the mainstream media, this post regarding Devon Nunes’ much attacked memo on the topic was verified.  Still, I have a low rate of patience for these things, and am not the best interpreter of documents like this, so I am only relying on second hand opinions by others who have plowed through the damn thing. I’ll wait to get some reliable readings.

It seems like the critics of the Mueller investigation and the conduct of Justice and the FBI feel confident that the materials show that indeed the warrants were acquired deceptively, meaning illegally, with the unsubstantiated Steele dossier being the crux of the justification for the warrants, also considering the fact that the Clinton campaign was behind the dossier was never revealed to the judges. [Here’s a recent example of the spin being applied to that argument. The judges were told that the dossier was paid for by a person with political motives, and the claim is that this was enough, that they could figure out that it was a tool of the Clinton campaign. I’ve never understood this argument. Why weren’t the judges informed directly, then? ] Ann Althouse commenter named Yancy Ward wrote, Continue reading →

Morning Ethics Warm-Up, 1/22/2018: The Returns Of A Terrible Idea, A Times Mania, And Lord Acton’s Observation

/ Jack Marshall / 68 Comments

Morning!

1. Bad Ideas Never Die Dept. The Obama Administration  killed an unethical Bush Administration rule that permitted a wide variety of health care workers to refuse to administer treatments and procedures they found morally repugnant, what the Bush administration termed workers’ “right of conscience.” It was, and is, a terrible idea; The American Medical Association  explained why, in the context of opposing conscience outs for pharmacists, when it declared..

“RESOLVED, That our American Medical Association reaffirm our policies supporting responsibility to the patient as paramount in all situations and the principle of access to medical care for all people (Reaffirm HOD Policy)…

Now that bad idea and the same ethically warped principles are embodied in a new Trump administration policy that provides “religious freedom protections” for doctors, nurses and other health care workers who object to performing procedures like abortions and gender reassignment surgery. This is a sop to the Republican evangelical base. As I wrote here (actually partially quoting myself from an earlier article),

“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….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 a job. “

President Trump doesn’t do ethics, and not being a deep thinker,  inconsistencies of principle don’t resister on him. The reason for requiring health care workers to perform their jobs regardless of whether some portion of it clashes with their religious beliefs, moral conviction, political passions or gag reflex is the same whether a doctor objects to abortions, a baker doesn’t approve of gay marriage , a restaurant owner doesn’t want to serve blacks, Hispanics, or Republicans, or an NFL football player is offended by the National Anthem. Society doesn’t work any other way. The religious freedom dodge easily turns into a cover for bigotry, harassment and oppression.

Nothing in the Constitution says that citizens have the right to hurt people when they practice their religion, or defy our laws, or refuse to perform the duties of their professions or employment while still getting paid because they cite religious conscience.

2. I Told You Not To Look Under That Rock! Dept. For some reason, I broke my own rule and skimmed a Paul Krugman column. What was I thinking? What is so digsuting about Krugman is his intellectual dishonesty, as he writes down to his readers using rhetorical tricks, rationalizations and lazy arguments that are 90% political bias and 10% substance at best. Here was the sentence that exploded my head,  stopped me from reading, as Krugman twisted reality to hold Republicans responsible for the government shutdown that was 100% caused by Senate Democrats blocking the continuing resolution to keep the government open:

“Protecting the Dreamers is, by the way, enormously popular, even among Republicans, who oppose deporting them by a huge margin. So it’s not as if the G.O.P. would be giving up a lot.”

So, as long as a provision is popular with its base, a party isn’t “giving up a lot” by supporting it—regardless of whether it is responsible, fair, smart, principled, or in the best interest of the country. Got it, Paul. This is the lowest common denominator theory of democracy being peddled to New York Times reader by its Nobel Prize-winning columnist: legislation by poll. Continue reading →