Monday, December 29, 2008
Although the holidays technically aren't over yet, people are gradually easing back into the "work" mode. Well, my goal this week is to provide analysis of some stories that you might have overlooked while grading bluebooks, eating pumpkin pie, or chatting with family and friends.
As frequent readers of the site know, my co-editors and I have mentioned the outgoing administration's use of midnight regulations several times in the space. One of the more recent midnight regulations is such a doozy that it deserves a mathematical equation of its own: First Amendment rights + Fundamental rights+ Midnight Regulation = A big problem. I'll explain.
The regulation at issue is the medical "conscience" exception. As previously explained in this blog, the goal of the proposed regulation was to prevent entities recieving Title X funds from discriminating against health care workers with moral or religious objections to performing abortions or similar services to women who request them. Two things should be noted before we proceed. First, there are already several regulations in place - as well as Title VII of the 1964 Civil Rights Act - that prevent discrimination based on religious convictions. Second, as the Wall Street Journal reports, "Advocates on both sides of the issue have interpreted the rule as also protecting workers who refuse to participate in providing birth control or other care they don't support."
The First Amendment portion of the equation is not complicated. Of course, those who have strong religious - and perhaps even moral, non-religious - objections, could and should be protected under the Free Exercise clause. I believe it is not controversial in the least to say that those with true objections to a procedure that is hotly debated on medical, physchological, religious, and ethical grounds should be protected.
The Fundamental Rights portion of our equation is more complicated. While most would agree that the providers have a right of conscience, at what point does the professional's conscience give way to the duty to provide the best service to the patient - even if that is not what a doctor would choose for herself? What would happen if every single OB/GYN in the nation decided that they would refuse to perform abortion services? Such a drastic turn of events would render a woman's fundamental right to choose regarding her pregnancy a meaningless tenent - a right without remedy. While this hypothetical is extreme, it is true that the number of abortion providers is steadily declining. At what point can - or should? - we say to health care providers, "Your right to act on your conscience ends here." It's an extremely difficult line to draw. Moreover, when two fundamental rights clash, which should prevail? It will likely depend on the method of interpretation and jurisprudence favored by the particular justices hearing the cases, which means there is no clear way to predict the outcome.
The second fundamental rights issue is that while most would not quibble with persons being exempted from performing actual abortions, the regulations are arguably broadening the scope beyond abortion. Newsweek states that under the regulation, a pharmacist could refuse to supply Plan B - a contraceptive that can prevent pregnancy after unprotected liasons - although Plan B is incapable of terminating an existing pregancy. Even if someone is adamantly opposed to abortion, should this objection be extended to contraception unless it is an explicit religious tenet? This is a dangerous development as linking abortion and contraception will potentionally result in lowered protection for contraception as well. Moreover, it leads inevitably to the question of where will the argument end? Jill of Femiste cogently explains the "slippery slope" argument as follows:
So what if a pharmacist wakes up tomorrow and decides that AIDS is your punishment for being gay, or your STI is a punishment for being a big whore, and refuses to fill your prescription for the medication you need? What if a Scientologist decides that he shouldn’t have to leave his moral beliefs at the door, and refuses to write or fill any prescriptions for psychiatric meds? What if a Christian Scientist decides that he is under no obligation to provide any health care at all? What if an ER doctor or EMT’s religion forbids them from touching someone of the opposite sex and so they refuse to treat half the population, even in emergencies?
The next part of the equation is the Executive (and legislative) response. For his part, President Elect Obama is already considering ways to reverse the regulation. Soon-to-be Secreatary of State Clinton and Senator Patty Murray (D-Wa) have vowed to introduce legislation to block the measure. However, either method would be time-consuming, and there is no guarantee the Congressional route would be effective.
This is a fascination regulation that raises a number of issues, so we will continue to update on any further developments.