Obama Moves to Overturn Bush Health Care "Conscience" Rule

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On its way out the Bush Administration issued new regulations that would possibly outlaw stem cell labs, fertility clinics, abortion clinics, and pharmacies from firing employees who objected to their medical services for reasons of conscience. According to the Washington Post:

The Obama administration has begun the process of rescinding sweeping new federal protections that were granted in December to health-care workers who refuse to provide care that violates their personal, moral or religious beliefs.

The Office of Management and Budget announced this morning that it was reviewing a proposal to lift the controversial "conscience" regulation, the first step toward reversing the policy. Once the OMB has reviewed the proposal it will be published in Federal Register for a 30-day public comment period.

"We are proposing rescinding the Bush rule," said an official with the Health and Human Services Department, which drafted the rule change.

The administration took the step because the regulation was so broadly written that it could provide protections to health-care workers who object not only to abortion but also to a wide range of health-care services, said the HHS official, who asked not to be named because the process had just begun.

As I noted in Reason

"Religious freedom is an important part of the history of this country," Richard S. Myers, a professor at Ave Maria School of Law, told The Washington Post. "People who have a religious or moral belief should not be forced to participate in an act they find abhorrent." Myers is correct. But why should the religious beliefs of others trump those of patients and employers? People who don't want to participate in medical procedures they find abhorrent have a simple solution: They can choose to work elsewhere.

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  1. Good for Obama.

    See? I’m being fair with the guy. It won’t shield him.

  2. Can’t you just be a good little libertarian and point out that it is a good thing the White House is rescinding one regulation out of thousands of areas it has no business regulating from Washington without getting all snotty?

  3. Choice for me, but not for thee.

  4. I read that Obama was doing this because he believes very strongly in the 10th amendment.

  5. One might think that this rule of Bush’s would have done more good on day one.

    Or, I suppose, on the day after the win in 2004. Or the day after the Congressional losses in 2006.

    Doing it on the last day seems… well. Like it wasn’t really an attempt to change stuff as much as a thing to throw to the base.

  6. So anybody who is morally opposed to actually performing abortions should never be allowed to practice medicine?

  7. They can choose to work elsewhere.

    That boss-eye view would be dandy if, say, any judge who recuses himself from any single case has to step down and is permanently disbarred. But as long as they get to say “Hey, you get this one, I’m too close” without destroying their lives, everyone should be allowed to.

    (I don’t think anyone should.)

    Like it wasn’t really an attempt to change stuff as much as a thing to throw to the base.

    From the two or three sentences I read about it, Bush’s exception was put in as a timely end-around to a regulation coming into effect that “would possibly” (because that’s enough, isn’t it?) be used to force Catholic hospitals to provide abortions, etc., and they were all “Fuck it, we’ll close the place.”

    But I don’t care, so I could be wrong.

  8. So anybody who is morally opposed to actually performing abortions should never be allowed to practice medicine?

    No, it allows bosses to fire someone if they aren’t doing the job they are hired to do. Ob/Gyns can work anywhere as long as they inform their bosses ahead of time that they won’t perform abortions or w/e and are hired with that knowledge. The ruling kinda previously said that they couldn’t be fired even if they were wrist deep in a poor person’s vagina and then objected to the procedure. The government forcing private organizations to operate based on the whims of the larger public is something else.

  9. Why are you talking about abortions? Abortions have nothing to do with health care. Health care is keeping people healthy. Pregnancy isn’t a state of unhealthyness to be cured.

  10. So anybody who is morally opposed to actually performing abortions should never be allowed to practice medicine?

    Yep. That’s the new law. If your a nurses aide, you have to rip the feuses out of prospective mothers wombs sans aneshesia. If you don’t like it, you have to join the army and kill babies the old fashioned way.

    Sheesh! Read much?

  11. Just as I thought. More reckless deregulation by those Nozick-worshiping Bushistas.

  12. I wonder if they could fire the guards at Auschwitz.

  13. TallDave, only if they were Jews.

  14. Hmm. So Obama is reversing a 2 month old policy and returning us to the status quo of, um, November 2008 .

    It’s just weird to see so much criticism of an act which restores a bit of employer’s ability to hire and fire at will. Isn’t that a core value?

  15. So anybody who is morally opposed to actually performing abortions should never be allowed to practice medicine?

    Something does not make sense here.

    Why would someone who is morally opposed to abortion get a job as an abortionist?

  16. Why would someone who is morally opposed to abortion get a job as an abortionist?

    Sabotage.

  17. People are still arguing about abortion?

    It’s almost 2009 and a 1/2. If, by now, you haven’t convinced the masses that your cult of the fetus should be acknowledged by all, then you’re never going to convince them.

    It might be time to mind your own fucking business.

  18. ‘It’s just weird to see so much criticism of an act which restores a bit of employer’s ability to hire and fire at will. Isn’t that a core value?’

    Not if the employer took taxpayer money on the express condition that he not fire employees conscientiously opposed to abortion – a requirement in several federal statutes, including the various Church Amendments of the 1970s. By the way, Senator Frank Church, after whom the amendments were named, was a good ‘pro-choice’ liberal – this is one of the few examples of a moderate abortion bill which wasn’t sponsored by a pro-life legislator.

    ‘Why would someone who is morally opposed to abortion get a job as an abortionist?’

    Or as a doctor, nurse, physician’s assistant, etc., in a hospital whose main business is *not* abortion? And whose claim to federal funds is based on all the healing, non-abortion-related work they’re doing?

    Recall that, within living memory, doctors were bound not only law, but by a solemn oath predating Christianity, not to do abortions. By federal law, at least they can’t be forced to take an *anti*-Hippocratic oath to do abortions, at least if their employer sucks at the federal teat.

    ‘It might be time to mind your own fucking business.’

    That’s what the fetus might have said.

  19. “‘It might be time to mind your own fucking business.’

    That’s what the fetus might have said.”

    I expect pedophiles to shout a chorus od “Ditto.”

  20. subtract od, add of

  21. ‘I expect pedophiles to shout a chorus o[f] “Ditto.”‘

    Thank you for bringing up that point.

    When a girl is pregnant by a pedophile and seeks an abortion, it is likely to be the pedophile himself who insists on the abortion. Tends to cover up the crime, you know.

    Planned Parenthood employees keep getting caught on tape agreeing to cover up what they believe to be child-rape. (here, for example)

    Technically, of course, that’s a crime, since health-care employees have to report child abuse.

  22. Or as a doctor, nurse, physician’s assistant, etc., in a hospital whose main business is *not* abortion?

    In order to perform an abortion, must one at least train in the procedure.

    Why would someone morally opposed to abortion take sort of training? I have never heard of conscientious objectors training to become B-52 pilots.

  23. When a girl is pregnant by a pedophile and seeks an abortion, it is likely to be the pedophile himself who insists on the abortion.

    Especially if said pedophile is related to the girl.

  24. ‘Why would someone morally opposed to abortion take sort of training?’

    Maybe because it is required as a condition of graduating from medical or nursing school. At least, that’s the goal of the pro-aborts with medical education.

    In other words, they don’t want people to have the right to treat cancer or heart disease unless they have first mastered the skill of doing abortions.

    I take it you oppose this?

  25. Although I’m glad to learn that there isn’t really a problem of pro-life doctors and nurses, etc., being required to assist in abortions. I am glad to learn that they are not, in fact, pressured to do such things. I suppose the pro-choice crowd needs to loosen up and stop claiming that conscience protections threaten access to abortion.

  26. What’s really ironic about this policy is the moralist right has seized the left’s socialist notion that a job is some sort of right. The idea you can’t fire at-will employees at your business for any reason you like was a fairly modern progressive invention.

    It’s like a pro-life EEOC!

    Oh, how awfully the worm turns.

  27. Once again, though I don’t automatically reject all regulation of private business activities among consenting adults, that’s not the situation we’re facing here.

    We’re *not* dealing with consenting adults. We’re dealing with taxpayers *compelled* to give money to these “private” employers. And the money comes with conditions, thanks to Congressional statutes like the Church Amendments, dating from the 1970s and named after their sponsor, prochoice liberal Senator Frank Church. The conditions attached to the federal taxpayer money are that you don’t fire staff for refusing to perform abortions.

    Giving money to employers who ignore this restriction would violate the express terms of the Constitution, that no money shall be drawn from the federal treasury except through appropriations made by law.

    Not even President Obama is claiming the right to ignore the Church amendment. His claim is that the Bush administration has misapplied it – he claims, I suppose, that the Bush regulations apply to procedures other than abortion, among other objections. These are all debatable points, but it’s common ground that federal funds are *denied,* by law, to those who fire prolife staff for refusing to help with abortions.

    In other words, Obama hasn’t taken the “Lincolnesque” stance of claiming the power to take money out of the federal treasury without Congressional authorization. His stance is based on an interpretation – a problematic interpretation, to be sure – of Congressional statutes.

  28. ‘It’s like a pro-life EEOC!’

    No, it’s like a right-wing Office of Federal Contract Compliance Programs. They’re the guys who enforce civil-rights protections for federal contractors – you know, the guys who have to agree to various minority-employment conditions in exchange for performing various (well-paid) services for the feds.

  29. I should say “pro-life” not “right-wing,” because Nat Hentoff (for instance) is not right-wing.

  30. If a devout Muslim checkout clerk refuses to ring up beer or pork purchases due to her moral code the proprietor gets to fire her whether he accepts food stamps or not.

    This is as it should be. That some pro-lifers claim that they, and they alone, deserve some sort of protection in order to be able to not perform their job is self-serving disingenuous bullshit that a sharp 6th grader can see through.

  31. When a girl is pregnant by a pedophile and seeks an abortion, it is likely to be the pedophile himself who insists on the abortion.

    A pedophile is someone who wants sex with children. Either there are a lot of prepubescents getting pregnant, or you’re [intentionally?] misusing the term to conflate one crime with another.

    Also, the second clause in that statement could use some sort of link for verification.

  32. Rick H.,

    I was deferring to common usage on this forum, which seems to prefer to define pedophiles as people who have sex with any child, ie, someone under 18. You may notice that in the post to which I replied, brotherben brought up pedophiles wishing to be left alone, in response to a comment of mine about abortion (abortion being the topic of the thread).

    If you prefer the scientific definition to the blogging definition, that is fine, too.

    Certainly, I suppose it is possible that child abusers, finding that they got their victim pregnant, would say, “never mind the risk of me getting arrested when this pregnancy exposes my misbehavior – I insist you carry the child to term!” Possible, I suppose, but “extraordinary claims require extraordinary evidence.”

  33. ‘If a devout Muslim checkout clerk refuses to ring up beer or pork purchases due to her moral code the proprietor gets to fire her whether he accepts food stamps or not.’

    This assumes what need to be proved – that abortion is a morally neutral act like beer-drinking or pork-eating, an act to which only bizarre religious freaks could object.

    The analogy might work if

    -The convenience-store industry had a moral code dating back before the Muslim era, forbidding the sale of beer and pork,

    -There was a formal convenience-store clerk oath, dating back to before the Muslim era, binding the clerk not to sell beer or pork,

    -that moral code and oath had only been dropped in the last few decades

    -Federal aid to convenience stores was based on their non-beer, non-pork products,

    -Congress had passed specific legislation protecting the consciences of convenience store clerks,

    -Said congressional legislation had been supported by a pro-beer, pro-pork Senator,

    -Prominent pro-beer, pro-pork politicians had solemnly declared that beer and pork should be “safe, legal *and rare*” (as Bill Clinton said about abortion)

    Other than that, your analogy is perfect.

  34. ‘If a devout Muslim checkout clerk refuses to ring up beer or pork purchases due to her moral code the proprietor gets to fire her whether he accepts food stamps or not.’

    This assumes what need to be proved – that abortion is a morally neutral act like beer-drinking or pork-eating, an act to which only bizarre religious freaks could object.

    I certainly didn’t say or imply that opposition to abortion makes one a “bizarre religious freak”. Sensitive much?

    The analogy might work if

    -The convenience-store industry had a moral code dating back before the Muslim era, forbidding the sale of beer and pork,

    You may have heard of Judaism, a moral code dating from before Islam and Christianity.

    There was a formal convenience-store clerk oath, dating back to before the Muslim era, binding the clerk not to sell beer or pork,

    The Pentateuch, AKA the Torah is believed to be the word of GOD. That trumps silly oaths that many Christians believe are blasphemous sins anyway.

    -that moral code and oath had only been dropped in the last few decades

    Miscegenation anyone?

    -Federal aid to convenience stores was based on their non-beer, non-pork products,

    Huh? I don’t get what this is about.

    -Congress had passed specific legislation protecting the consciences of convenience store clerks,

    Congress has passed and a president has signed legislation allowing pweople to pick and choose what jobs they can do in a private business (hospitals, pharmacies)? Linky link? This is a regulation promulgated by the Bush administration, not federal law being overturned. But you knew that, right?

    -Said congressional legislation had been supported by a pro-beer, pro-pork Senator,

    See above.

    -Prominent pro-beer, pro-pork politicians had solemnly declared that beer and pork should be “safe, legal *and rare*” (as Bill Clinton said about abortion)

    Which has nothing to do with anything. The law is not the result of presidential proclamations. But you knew that as well.

    Other than that, your analogy is perfect.

    Thank you.

    Look, I know you are a rabid pro-lifer who, like rabid pro-choicers, is not amenable to reasonable debate on the subject. I really don’t care. If you won’t do a legal job that is a condition of your employment, you get canned. It really is that simple.

    You will find nothing I wrote in this thread talking about the morality of abortion, only about the legality and morality of employees and employers obligations.

    I apologize to the board for the length of this post.

  35. J sub D,

    Is this, perhaps, the link you were asking for?

    To repeat, there is a federal statute by which grant recipients cannot discriminate against their employees for a conscientious refusal to perform abortions. The conscientious refusal can be based on religious beliefs or on secular conscience.

    I am not sure about what your reference to miscegenation means. Are you saying that opposition to abortion is morally equivalent opposition to mixed-race marriage? Yet you assure us that you were not ‘talking about the morality of abortion,’ so that cannot be what you meant. Miscegenation laws are *not* several thousand years old, like the Hippocratic Oath – they were adopted in some North American jurisdictions in the past few hundred years in defiance of the race-neutral definition of marriage upheld by Christendom before that time.

    Again, your analogy is flawed in that the convenience store industry does not have a tradition going back more than two millennia by which the sale of beer and pork was forbidden. Since I was talking about the convenience-store industry, I’m not sure of the relevance of the Jewish ban on pork, unless you wish to claim that the Jews have been operating the convenience stores for the last couple thousand years.

    Of course, the purpose of my analogy was to show the longstanding ethical prohibition on abortion in the medical profession – a prohibition predating the Christian religion which is often “blamed” for hangups on the subject.

    Legislatively protecting doctors and nurses who share the medical profession’s former attitude toward abortion – an attitude which subsisted until the past few decades – seems quite reasonable. Why should hospitals suck off the federal teat, getting taxpayer funds in exchange for providing allegedly quality health care, while firing perfectly qualified staff merely because they don’t want to violate a professional tradition going back millennia? How does a doctor or nurse’s moral scruples about abortion affect their ability to care for cancer patients? Bear in mind that the federal taxpayers are supposedly paying for the treatment of health problems, not for abortion (see the Hyde Amendment), so what is the basis of paying for providers who fire qualified personnel? Should the taxpayers also be forced to subsidize providers who refuse to hire black nurses and doctors, regardless of their qualifications?

  36. You have reading comprehensaion problems perhaps? Let me highlight for you:

    (b) Prohibition of public officials and public authorities from imposition of certain requirements contrary to religious beliefs or moral convictions …

    which says absolutely nothing about private health service providers.

    Have a nice day.

  37. Ah, J sub D, you seem to have left out (c) through (e). Let me reprint them for you:

    (c) Discrimination prohibition
    (1) No entity which receives a grant, contract, loan, or loan guarantee under the Public Health Service Act [42 U.S.C. 201 et seq.], the Community Mental Health Centers Act [42 U.S.C. 2689 et seq.], or the Developmental Disabilities Services and Facilities Construction Act [42 U.S.C. 6000 et seq.] after June 18, 1973, may-
    (A) discriminate in the employment, promotion, or termination of employment of any physician or other health care personnel, or
    (B) discriminate in the extension of staff or other privileges to any physician or other health care personnel,
    because he performed or assisted in the performance of a lawful sterilization procedure or abortion, because he refused to perform or assist in the performance of such a procedure or abortion on the grounds that his performance or assistance in the performance of the procedure or abortion would be contrary to his religious beliefs or moral convictions, or because of his religious beliefs or moral convictions respecting sterilization procedures or abortions.
    (2) No entity which receives after July 12, 1974, a grant or contract for biomedical or behavioral research under any program administered by the Secretary of Health and Human Services may-
    (A) discriminate in the employment, promotion, or termination of employment of any physician or other health care personnel, or
    (B) discriminate in the extension of staff or other privileges to any physician or other health care personnel,
    because he performed or assisted in the performance of any lawful health service or research activity, because he refused to perform or assist in the performance of any such service or activity on the grounds that his performance or assistance in the performance of such service or activity would be contrary to his religious beliefs or moral convictions, or because of his religious beliefs or moral convictions respecting any such service or activity.

    (d) Individual rights respecting certain requirements contrary to religious beliefs or moral convictions
    No individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.

    (e) Prohibition on entities receiving Federal grant, etc., from discriminating against applicants for training or study because of refusal of applicant to participate on religious or moral grounds
    No entity which receives, after September 29, 1979, any grant, contract, loan, loan guarantee, or interest subsidy under the Public Health Service Act [42 U.S.C. 201 et seq.], the Community Mental Health Centers Act [42 U.S.C. 2689 et seq.], or the Developmental Disabilities Assistance and Bill of Rights Act of 2000 [42 U.S.C. 15001 et seq.] may deny admission or otherwise discriminate against any applicant (including applicants for internships and residencies) for training or study because of the applicant’s reluctance, or willingness, to counsel, suggest, recommend, assist, or in any way participate in the performance of abortions or sterilizations contrary to or consistent with the applicant’s religious beliefs or moral convictions.

  38. One might think though that just because a business gets money from the government, maybe in the form of a contract or to perform some service, that the government should then tell that business who it can hire and fire or even that the government should condition such business on the personnel decisions of that business. In other words, they may think the gov should stay out of trying to influence that area in those ways.

  39. “Why should hospitals suck off the federal teat, getting taxpayer funds in exchange for providing allegedly quality health care, while firing perfectly qualified staff merely because they don’t want to violate a professional tradition going back millennia?’

    Because the hospital or enterprise in question should be able to decide when someone’s refusal to do certain tasks should be the basis of a personnel decision for that agency, not the government? As the libertarians say, that person can always go work somewhere else that thinks differently…

    Are we talking the government just yanking it’s funding if the enterprise does this or the government actually outlawing any enterprise doing this? Because the latter seems a bit different from the former MM. Concerning the former, as a taxpayer, I would not want the government to condition grants/contracts/etc on the enterprise getting them not discriminating in this fashion. But the latter involves something different, it involves the government making certain possible personnel decisions of employers illegal, and what they would be making illegal would involve someone who was refusing to do something the enterprise defined as job related…

  40. “That’s what the fetus might have said.

    Think about it next time you masturbate, and wipe those precious lives off of your keyboard.

  41. Also, arguing that an employee has a right to forgo their described duties based on a subjective interpretation of the Hippocratic Oath, is just silly.

    The Hyppocratic Oath is essentially a formality, and its principles do very little to address all of the inherent complexities of modern, medical ethics.

    Of course, leave to an anti-choice zealot to argue for any loophole that might help to stonewall a perfectly legal, and ethical practice.

    Here’s the reality: Abortion is not going to be made illegal.

    It’s clear that your primary concern is not for the appropriate application of laws, but for making sure that a potentially subversive form of protest is kept intact.

    Again, mind your own business.

  42. ‘Are we talking the government just yanking it’s [sic] funding if the enterprise does this or the government actually outlawing any enterprise doing this?’

    Yanking the funding, as required by the statute I quoted.

    ‘Of course, leave to an anti-choice zealot to argue for any loophole that might help to stonewall a perfectly legal, and ethical practice.’

    Ignoring the question-begging assumption that abortion is ethical, the laws I quoted were passed by Congres and named after Senator Frank Church, a pro-choicer.

  43. ‘Again, mind your own business.’

    More question-begging.

    Is the bailout bill your business? If so, why? You’re not a member of Congress, are you? Why, then, are you worried about some public-policy issue which is being discussed by your betters, instead of focusing on your own private life and ignoring irrelevant goings-on in Washington?

    Ah, you say, as a taxpayer and the parent and grandparent of future taxpayers, you have a right to protest against the bailout bill? Well, don’t taxpayers have the right to object to their money going to support instutitions which perform abortions, especially if this is in violation of a positive law passed by Congress?

    You protest against the bailout bill because it violates the principles of freedom on which America was founded? Well, America was founded on the principle that “all men are created equal.” Is it improper meddling to protest violations of that principle?

    In other words, please articlate a principle which makes the bailout bill your business while this issue is not.

  44. “But why should the religious beliefs of others trump those of patients and employers?”

    Why should the moral beliefs of a patient trump those of the person providing medical services?

    It’s good to know that Bailey thinks, for instance, a fertility doctor should not be allowed to deny treatment on moral grounds to, say, a single woman with no visible means of support who already has six kids.

  45. So, Mad Max, should a

    PETA member be able to demand a job in a butcher shop and then refuse to sell any meat?

    a Mormon convert who refuses to sell cigarettes and beer get to keep his job on the night shift at the Circle K?

    This could go on and on.

    MJ

    “…a fertility doctor should not be allowed to deny treatment on moral grounds to, say, a single woman with no visible means of support who already has six kids.”

    This is not about private practitioners who have always had the right to refuse service at any time and for any reason they choose (with a few exceptions for actual life-threatening situations).

    But, yes, a Fertility Clinic would be able to fire a staff doctor who refused a legal procedure to a patient who was willing to pay for it.

    I’ve always though that hit’n’runners were a smart lot. But when these threads come around the crazy runs deep.

  46. Kreel Sarloo,

    You are missing my point. Bailey keeps arguing that medical provider’s morals should not trump those of patients, i.e. the patient’s morals trump the provider’s. This would include the owner.

    It suggests that a physician has no ethical responsiblity for his actions if he is following his patient’s wishes and those wishes are not specifically illegal.

  47. ‘PETA member be able to demand a job in a butcher shop and then refuse to sell any meat?’

    What is it with these analogies? Whenever one of these analogies comes up – Muslim clerk at convenience store, Hindu waiter at a restaurant – I try to explain the difference in the situations. Rather than get any response, I am met with more analogies, each new analogy as inane as the one before it.

    Conscience-clause issues tend to arise in hospitals, most of whose work involves healing, not killing. The conscience clause provides that federal funds will be withheld from a hospital which wants to fire, say, perfectly qualified surgeons, X-ray technicians, and other healers because they don’t want to engage in killing which has traditionally been no part of the business of medicine.

    Imagine a hospital which fired a nurse for being a Methodist, on the grounds that Methodists are vile heretics. By federal law, a hospital with that sort of employment policy can’t get your tax money. That makes sense, because if they’re firing perfectly qualified personnel for things unrelated to the art of healing, then instead of taxpayer funds going to them, the funds should go to a hospital which actually evaluates its employees based on their healing skills.

    If medical centers want to change their paradigm to include abortion, there’s no right for them to pick the taxpayer’s pocket to subsidize that change of paradigm. Nor do the taxpayers have to pay for health providers who use non-health-related criteria in choosing employees, and instead select employees based on their willingness to kill.

    If someone goes to work at an abortion clinic, that would suggest, ipso facto, that they have no religious or moral objections to helping with abortions. Thus, I don’t see how a conflict of conscience should arise. This is the butcher-shop analogy you are pressing.

  48. MJ

    A physician has no obligation to provide every treatment a patient requests.

    An employee does have an obligation to sell any product that his employer stocks for sale to the public to any customer who requests it.

    If an employee has a problem with any product or service his employer provides he should seek employment at a place more amenable to his moral demands.

    To put it another way, a physician in private practice has the right to refuse to perform an abortion at any time and for any reason she chooses.

    A nurse employed by that doctor cannot refuse to assist if that physician to perform an abortion because of moral objections any more than he can demand that his employer perform an abortion if she has decided not to.

    These answers are equally for Mad Max. We’re not talking about people being fired for their beliefs, we’re talking about people being fired for refusing to perform their duties.

    Max, if you don’t like abortions fine, don’t get one or don’t perform one. Stop interfering with people who don’t have your problem.

  49. ‘Max, if you don’t like abortions fine, don’t get one or don’t perform one. Stop interfering with people who don’t have your problem.’

    You forgot to add, ‘don’t pay for them.’ Of course, that’s not an option, because I *have* to pay for abortions, according to the federal government. I have to pay hospitals which perform abortions.

    Not only that, according to you, I have to subsidize hospitals where they not only perform abortions, but fire perfectly qualified doctors and nurses, who may well be very well skilled in the arts of healing, because they refuse to branch out into the art of killing.

    How far do you want to extend that principle? Should I be required to subsidize hospitals where they fire qualified Asian doctors because of their race? Would you want to be treated at such a hospital, much less be forced to pay them for the substandard treatment they provide?

    If you think taxpayers should be forced to subsidize hospitals with such dysfunctional employment practices, you are welcome to lobby Congress to change the law. You can demand that Congress provide federal aid to hospitals which practice racial discrimination. You can demand that Congress provide federal aid to hospitals which discriminate against doctors and nurses for refusal to perform abortions.

    And if you want to really get a laugh, justify your lobbying efforts by claiming to be doing this in the name of freedom and nonintervention in the free market.

  50. Mad Max
    I’m not sure what it is you want here.

    1. Do you want government “funding” (which could be grants for services provided or contracts, right?) to be pulled from any enterprise which makes a personnel decision based on an employee’s refusal to do something the enterprise management thinks is job-related?

    If so, convince me why I would want my government money to be used in that fashion. At present I might just want my money to be spent in order to get the best services for the money and not meddle in the personnel decisions of the agency I contract with.

    2. Do you want it made illegal for any enterprise which accepts government funding to make these kinds of personnel decisions? What does that mean, that the enterprise not only loses its funding but that it is open to some kind fo civil or criminal penalties? If so, argue why the government should regulate the internal personnel matters of the enterpise in this fashion.

    As you may or may not know, I’m not a libertarian and I back some (but not all) meddling into employee-employer relations. But this is a libertarian site, and I’m not sure how this is not a case of such meddling, and if it is that, you need to convince the libertarians here (and me) why this meddling is important.

  51. “You forgot to add, ‘don’t pay for them.’ Of course, that’s not an option, because I *have* to pay for abortions, according to the federal government. I have to pay hospitals which perform abortions.”

    This is a bit of a problem with many government expenditures. For example, if I am a died in the wool union and the government contracts to build a bridge with a non-union company, I could complain “why am I forced to support this promotion of a union-busting company?” Or if I am a pacifist and my tax money is used to pay for a contract for bombs…

  52. Karlee Sarloo,

    “A physician has no obligation to provide every treatment a patient requests.”

    When Bailey questions this:

    “But why should the religious beliefs of others trump those of patients and employers?”

    He is arguing that a physician does indeed have such an obligation, otherwise including the patient’s beliefs is irrelevant.

  53. The employer has a business involving the sale of multiple medical services. The customer (the patient) asks for one of these services. The employee says “no, I will not provide that for I do not believe in that.” The government says the employer cannot discipline the employee. The beliefs of the employee have trumped those of the patient and employer.

    So I’m not sure what’s wrong with how Bailey put it.

  54. OK, so in RTFA I see that it’s just yanking of funds if employers engage in these kinds of personnel decisions.

    So if the government funds a hospital to treat the poor, and a doctor who is a Jehovah’s Witness refuses to perform a blood transfusion, and the hospital disciplines that employee, then the government funding would be cut off.

    That’s what we are talking about.

    And to be clear, that Jehovah’s Witness would be free to go work for a hospital that does not practice blood transfusions, and a hospital could make these personnel decisions either way, they just would lose their government contracts/grants/etc.

    I’m curious Max, if there were a medical lab which got government contracts/grants, and I worked there in some capacity, and this lab got a contract to do some animal experimentation, and a small part of my duties may overlap with this project, and I oppose animal testing very strongly (for religious or non-religious reasons), and I refuse, and the lab decides to discipline me, should I be protected by a similar measure (that the government funding would be pulled from the lab)?

  55. On the bigger issue, are there so many qualified medical practitioners and researchers that provider and labs can fire them for not wanting to be involved in practices that are secondary to their field of expertise?

    There does seem to be on the secularist pro-abortion side a seething intolerance for real, practical disagreement on these issues.

  56. ‘I might just want my money to be spent in order to get the best services for the money’

    So might I. So explain how a hospital which fires a well-qualified surgeon for reasons unrelated to his or her surgical skills, can get the best bang for the taxpayer buck.

    ‘OK, so in RTFA I see that it’s just yanking of funds if employers engage in these kinds of personnel decisions.’

    No offense, but do you mean to say you were confused on this point?

    ‘I’m curious Max, if there were a medical lab which got government contracts/grants, and I worked there in some capacity, and this lab got a contract to do some animal experimentation, and a small part of my duties may overlap with this project, and I oppose animal testing very strongly (for religious or non-religious reasons), and I refuse, and the lab decides to discipline me, should I be protected by a similar measure (that the government funding would be pulled from the lab)?’

    That’s not really the issue we’re dealing with. We’re dealing with the feds giving tax money to health-care providers so they can heal people’s diseases and other health problems. Are you telling me that a doctor or nurse who is fully qualified in doing surgery, setting bones, changing bedpans, etc., should be fired simply because they want to focus on healing people instead of aborting fetuses?

    Remember – I actually provided the citations – that Congress requires recipients of federal aid to abide by certain non-discrimination requirements. There are certain factors which are irrelevant to an employee’s ability to heal patients, and discriminating against an employee based on these irrelevant factors leads to a cutoff of federal funds. Among these irrelevant factors are the race or religion of the employee, and the employee’s unwillingness to engage in abortion.

    Please explain whether you support these anti-discrimination laws passed by Congress, and what changes you want made in these laws, so as to authorize federal grant recipients to discriminate against health-care providers based on factors irrelevant to healing ability.

  57. Max
    You didn’t answer my question involving the Jehovah Witness. Many of them have religious objections to blood transfusions. If you have a doctor who refuses to perform them, should they be protected from adverse personnel decisions or not?

    You’re also begging a big question by assuming that abortion, certain forms of birth control, perhaps euthanasia, etc., cannot be thought of as part of the “healing profession’s” duties and therefore you get to say “well here is a doctor that is willing to perform any duty of hte healing profession but won’t perform x, y and z which is not so isn’t it crazy to fire them?” The settled law of the land is currently that those things are now part of the healing profession (in the case of euthanasia only in some jurisdictions of course).

    Besides, who should decide what is “part of the healing profession”, you, me, the government or the actual hospitals, clinics and such.

    Now, as to my hypo, I ask you point blank: do you support similar government protections for this animal welfare situation? Let us stipulate that the fellow performs his abilities in the lab well by all accounts, but he refuses to do anything associated with the project involving animal testing because he morally abhors it. I don’t now see how this situation is any different than what you are talking about.

    Or put it this way, a Catholic employee of a lab which gets federal funding…The lab gets a contract to engage in stem cell research using embryos. The employee refuses to particpate in that project. Should he be protected?

  58. “Please explain whether you support these anti-discrimination laws passed by Congress, and what changes you want made in these laws, so as to authorize federal grant recipients to discriminate against health-care providers based on factors irrelevant to healing ability.”

    One’s race is certainly not related in how well one performs job related duties. But for many health care providers, the legal methods of abortion, blood transfusions, certain controversial birth control methods, are job-related duties (services they supply). Refusing to do them, whatever the reason, is going to affect how the person does their job (if only in the sense that it demonstrates a disagreement with the overall mission of the organization).

    That seemed too easy. Perhaps you meant something else?

  59. ‘The settled law of the land’

    . . . includes the Church Amendments. Glad to finish that sentence for you.

    ‘You didn’t answer my question involving the Jehovah Witness’

    So far, I’ve answered questions about Hindu waiters, Muslim convenience-store clerks, and animal rights activists in butcher shops. In each case, I’ve shown the difference between those situations and attaching conditions to federal health-care dollars.

    You continue to search for the perfect hypothetical situation which is *exactly* equivalent to a talented heart surgeon who is fired for refusing to perform abortions in a federally-funded facility, and now you get to the Jehovah’s Witness who won’t do blood transfusions.

    Congress has *not* protected such employees from being fired from federally-funded hospitals and clinics. Do you wonder why? Do you think Congress is being arbitrary? Could it be that blood transfusions actually can heal the patient, without destroying a human life, while abortion destroys a human life?(and *very* rarely heals the patient, certainly not in 99.9% of cases, so your overbroad definition of ‘healing’ won’t cut it)

    Apart from your creative definition of ‘healing’ to mean ‘destroying,’ you keep coming up with these curious analogies which don’t really relate the actual situation.

    Just to spare you the trouble, having dealt in turn with Hindu Waiters, Muslim clerks, PETA butchers’ assistants, and Jehovah’s Witness medical technicians, let me add that I also *don’t* see a parallel between pro-life heart surgeons in federally-funded hospitals and

    -Evangelical Protestant bookstore clerks who dislike *Harry Potter*

    -Atheist employees of the Hallmark greeting company who refuse to use the word ‘God’ in the cards they design

    -People with peanut allergies working on peanut farms

    -Jewish receptionists working at the Aryan Nations compound

    -or any other strained analogy of the same kind that you may come up with.

  60. Max
    I think you’re being silly now.

    1. You’re equivocating with the term “settled law of the land.” You know what I meant by that: that abortion, euthnasia, birth control, etc., those medical procedures which YOUR religion might object to (as opposed to blood transfusions, which Jehovah’s Witness’s will onhect to), are legal medical procedures.

    2. “You continue to search for the perfect hypothetical situation which is *exactly* equivalent to a talented heart surgeon who is fired for refusing to perform abortions in a federally-funded facility, and now you get to the Jehovah’s Witness who won’t do blood transfusions.”

    In both cases you have a medical employee who is fired for refusing to perform, for deeply held religious reasons, one of the legal legitimate medical procedures which the employer provides. What do you think is the crucial difference?

    For that matter, I don’t see the relevant difference between that and my animal welfare enthusiast’s case.

    And why no answer on the Catholic employee at the lab that takes the stem cell contract? Should he be protected or not?

    BTW-I’ve never made any analogy like the ones you then enthusiastically list. What gives there?

    3. Again, you’re begging the question by simply including abortion, certain birth control, euthansia, etc., as “not medical” or “destroying rather than healing”, etc.,. Legally all of those things are accepted as legitimate medical practices. When someone refuses to do them for an employer that offers them as one of many legitimate medical practices then I don’t see why that is any different than disciplining an employee who refuses to lance boils (or other legitimate medical practice).

    This is why you get to be silly with the Jehovah Witness question. You’ve defined some things as “legitimate medical practices” because they are about “healing” (i.e. blood transfusions) and other things as “non-legitimate medical practices” because they do not involve those things (a strong begging of the question) (i.e. abortion, euthanasia) and then you can say, well of course the Jehovah Witness’s refusal is not to be protected, because he’s refusing to do a legitimte medical procedure, but the Crazy Catholic should be protected, because all he’s refusing to do is something that is not a legitimate medical procedure, one that is not relevant to his job.

    But those are currently recognized legal, legitimate medical practices, just like blood transfusions.

    4. If the Church Amendments already bar what you are talking about and are the law of the land then these policies from Obama’s administration shouldn’t concern you at all, right?

  61. I mean, sure the wacky Catholic doctor who refuses to perform abortions or whatever can say that he refuses because he really, really thinks it is wrong, but so does the Jehovah Witness who refuses to perform the blood transfusion. They may even point to some non-religiou arguments concerning how the patient may be harmed (blood transfusions can transmit diseases or have complications for the patient) and wrap their argument in concern for “medical” values as the wacky Catholic does.

  62. “Just to spare you the trouble, having dealt in turn with Hindu Waiters, Muslim clerks, PETA butchers’ assistants, and Jehovah’s Witness medical technicians”

    Again, this is so strange. I didn’t make the Hindu waiter who refuses to bring the meat disch to the patron or the PETA butcher’s assistant who refuses to kill the animal or chop the meat analogies up because it’s obvious to me that they are not analogous. Bringing meat dishes to patrons is part of the job of a waiter and chopping meat is part of the job of butcher. Those are legal legitimte parts of those jobs.

    But performing abortions, prescribing controversial birth control and even in some places prescribing drugs for euthanasia are legal, legitmate medical practices that are part of the job at many medical establishments, the same as blood transfusions. So I fail to see how my analogy is not spot on…

  63. ‘one of the legal legitimate medical procedures which the employer provides . . .

    ‘lance boils (or other legitimate medical practice) . . .

    ‘those are currently recognized legal, legitimate medical practices’

    More question-begging. What makes abortion legitimate – the fact that certain health professionals do it? Deficit spending is ‘legitimate’ under the same rationale, since, after all, it is accepted practice in Congress.

    ‘Again, you’re begging the question by simply including . . . certain birth control’

    not on this thread I didn’t.

    ‘If the Church Amendments already bar what you are talking about and are the law of the land then these policies from Obama’s administration shouldn’t concern you at all, right?’

    Since people on this thread denied the very existence of the Church Amendments, claiming them to be a figment of my own imagination and saying that federally-supported medical establishments should fire anyone who refuses to perform abortion, then I certainly think my discussion is relevant.

    But I forgot the fact that the federal government always scrupulously obeys the law. I’m sure that the Obama Administration will obey the Church Amendments as zealously as the Bush Administration obeyed the Non-Detention Act.

  64. should *be able* to fire anyone

  65. Wow Max, that was just a terrible response…I hope you are in a hurry or something and that explains the poor quality. You failed to answer some pretty straight forward questions of mine.

    1. Do you support protections for the Catholic lab worker in the hypo I present? If so, how does that not equate to the animal rights lab worker hypo I presented?
    2. How is my Jehovah Witness/blood transfusion example not analogous?

    As to your “points,” as I note above it is you engaged in question begging, assuming certain medical practices are not legitimate medical practices and then saying that it should not matter if people employed in medical practice refuse to engage in them. The question of whether a medcial practice is “ultimately legitimate” is not the appropriate level of analysis here (might I point out that the Jehovah’s Witness can claim that while bllod transfusions are legal and performed all the time they still consider them not “ultimately legitimate” medical practices?). The question is, what are considered legally available medical practices? An employer can decide to offer such services, and to ask their employees to do so, as once they decide to offer them they are duties of the job, and refusal to engage in job duties are surely a legitimate justification for subsequent personnel decisions.

    Your asking for the subjective position of the employee on whether a medical practice is “legitimate” or not to guide what an employer can ask of them rather than the standard being that a practice is legal, sanctioned by medical bodies and commonly practiced. By that standard the Jehovah Witness gets to pass on the blood transfusion too, right?

    You may think some practices which are currently legal should not be so. Then work to change the law on that, and no employer would be allowed to make personnel decisions on whether an employee engages in those acts or not. But while those practices are legally available, accapted medical acts it’s confusing as to why an employer should not be allowed to require employees in that area to do them…

  66. ‘The question is, what are considered legally available medical practices?’

    According to you, there’s an extra standard: Whether the practice is ‘legitimate.’ You listed legality and legitimacy separately in your previous posts, thus conceding that these are two separate topics.

    ‘rather than the standard being that a practice is legal, sanctioned by medical bodies and commonly practiced’

    Finally, you propose a standard.

    Legality does nothing to advance your case, since you’ve conceded that it’s separate from legitimacy.

    ‘Sanctioned by medical bodies and commonly practiced’ used to be an excellent description of compulsory sterilization. Come to think of it, Paul Blanshard, in his 1949 anti-Catholic polemic American Freedom and Catholic Power, urged that Catholic judges should be disqualfied from hearing sterilization cases, because the Catholic Church had an irrational, superstititious aversion to compulsory sterilization. Good thing people like you and Blanshard are there to protect the public against religious bigots who refuse to participate in accepted medical procedures!

    ‘work to change the law on that’

    It is you who needs to work to change the law, since (as you acknowledge) the Church Amendments already protect the conscience rights of those who refuse to perform abortions (not to mention sterilizations) at federally-funded facilities.

  67. I’ll give him mild props for this. However, the Bush II conscience rule isn’t the only one on the books. If Obama only repeals that one, then he isn’t doing this to increase the freedom of employers, he is doing it strictly to increase the availability of abortions.

    Which may be fine with you, but you might want to be careful about giving him credit for being all economic libertarian when he really isn’t.

  68. Hmm, no answer to my questions, eh? What’s up with that? It appears you have the time to answer them…But not the wherewithal perhaps?

    Oh no, I think legality does a lot to establish legitimacy in the sense which is important to this debate. You’re using “legitimate” to mean something like “ultimately morally correct.” But I’m submitting that the standard for what an employee can refuse to do, and get protection from disciplinary personnel actions from their employer, can’t be “what the employee thinks is ultimately morally correct” but should be “whether the practice is legal (and in this case sanctioned by medical bodies such as state medical boards).” Otherwise the Jehovah Witness should get the same protection from refusing to do the blood transfusion (legal but he would argue “ultimately morally wrong”) as the Catholic who demands protection from his refusing to do the abortion/birth control/euthanasia (also legal but he would argue “ultimately morally wrong”).

    You see, there has been a debate in this country between people who, like you, argue that for something to be a legitimate medical practice it must “heal” and “not destroy” and that abortion, euthanasia, etc., fail to be the former, and people like me who think that for something to be a legitimate medical practice there is some other criteria, one that abortion, euthanasia, etc., meet. And we won. So that’s the law now.

    And until the law is changed then certainly it is appropriate for an employer to detemine that a “legitimate” practice to ask an employee to do, and punish if they refuse to do, is one that is legal and sanctioned by the relevant medical bodies.

    “Good thing people like you and Blanshard” wheeee! Now you’re going off the rails…

  69. I think you had a question about a prolifer working in an IVF clinic – I can’t always keep up with all the hypos which keep popping up like Whack-a-Moles, but I don’t see why a pro-lifer would be working in an IVF clinic, so your example is as silly as all its predecessors.

    ‘And we won. So that’s the law now.’

    The Church Amendments are also the law. So I suppose the Church Amendments are likewise ‘legitimate.’

    Your blood transfusion example, which you enjoy so much, might work if we accept that blood transfusion is the same as abortion. Of course it’s not, because conscience clauses for abortion are ‘legitimate’ (by your definition of being part of the positive law about as long as legalized abortion itself has been the law), and conscience clauses for blood transfusion are not legitimate (by your definition of not being part of the positive law).

    I would also note that some pro-choicers, like Naomi Wolf, acknowledge the moral problems of abortion. In a 1995 article, Wolf called for ‘an abortion-rights movement willing publicly to mourn the evil — necessary evil though it may be — that is abortion.’

    Do you imagine that a supporter of legalized blood transfusions would describe these transfusions as an ‘evil’ which ought to be ‘mourn[ed]’? If not, then your comparison falls flat on its face.

    Do you think that a politician would call for blood transfusions to be ‘rare,’ the way Bill Clinton (a pro-choicer) called for abortions to be rare? Certainly not, yet you persist in these bizarre analogies.

  70. Imagine for example a libertarian that works for the border patrol. He chose to go into the border patrol, though he believes that immigration restrictions are very immoral. In fact, just to flavor it to your liking, let’s make him one of the “sanctuary Catholics” who thinks his religion compels him to oppose many immigration laws. He went into the border patrol because he believes in its mission to police the borders for certain contraband (like bombs and such).

    So he gets assigned to do some targeting and arresting of immigrants and he tells his boss “sorry boss, my religion and deep seated beliefs think that is ultimately wrong, so I’m going to refuse to do that. I do good work on the contraband cases, I’d rather do that 100% of the time.”

    So your going to tell me the boss should be prohibited from firing this guy?

    That seems bizarre to me. And, because I foresee your cry of “not analogous”, I’m going to ask you to spell out why it is not when you say that.

    We’ve got a employee. Who refuses to do something that is legal, that organizations like his do routinely and which has been approved by the appropriate adminstrative bodies as a tool to be used in achieving the organization’s mission. Who does stuff he agrees with for the organization really well. Who wants protection from disciplinary actions because his refusal was based on “conscience” (the idea that what he is asked to do is ultimately immoral, no matter what the current law is).

  71. OK, I see that the question I supposedly refuse to answer is about ‘Catholic employee at the lab that takes the stem cell contract.’

    If the lab gets federal funds, I imagine the Church Amendments would apply. The Church amendment’s conscience protections, by your definition, are a legitimate part of medical practice, so I presume you wouldn’t want the lab to discriminate against the scrupulous employee – instead, the employee should be assigned to less deadly work.

  72. I’m not sure how the analogy is bizarre to you, other than that a bigger minority of Americans have religious objections to abortion than have religious objections to blood transfusions. Both are still minority views that have failed to have their views enacted into law. Both realy believe though that they are “ultimately” right regardless of what the law and common practice is.

    Of course you think abortions are “ultimately wrong” despite whether they are legal and common, but the Jehovah Witness thinks blood transfusions are “ultimately wrong” despite whether they are legal and common.

    And do you really want to argue that the difference is that at one time that bigger minority was able to get a law passed protecting folks in the way you like but the smaller minority has never gotten that kind of thing passed? Huh?

    Your argument seems to be “well the things my religion are against are plainly wrong while the things the Jehovah Witness is against are plainly not” (to which I can reply, to a majority of Americans and as reflected in our laws both are seen as plainly not wrong, so it’s not very plain), “more people find abortion to be a thorny issue than find blood transfusions to be a thorny issue” (I can’t understand why this would matter, but let’s just note that both are minority positions as reflected in our laws) and “the government has in the past given this protection to people refusing to do what I think is wrong but not to people refusing to do what the Jehovah Witness thinks is wrong” (and I’m not sure that is relevant as to whether it is correct for the government today to do so).

  73. “If the lab gets federal funds, I imagine the Church Amendments would apply.”

    But Maxie, I thought you admitted above that this only applies to abortion! The guy at the lab doing stem cell research isn’t “performing abortions” whatever else you might think of the morality of what he is doing…

    So he wouldn’t be protected by the Church Amendment…

    Now let me ask, is your position this whole time something like this: Obama’s regulations are illegal because they violate the Church Amendment? Well, shit, then maybe you are right if that is all you are saying. I thought we were talking about whether the Church amendment, or anything like it (Bush’s interpretation) is right or wrong or not.

  74. ‘We’ve got a employee. Who refuses to do something that is legal, that organizations like his do routinely and which has been approved by the appropriate adminstrative bodies as a tool to be used in achieving the organization’s mission. Who does stuff he agrees with for the organization really well. Who wants protection from disciplinary actions because his refusal was based on “conscience” (the idea that what he is asked to do is ultimately immoral, no matter what the current law is).’

    You left out, ‘and is protected by positive law against discrimination based on his refusal to do the activity in question, so long as the organization takes federal funds.’

    If Congress passes a conscience clause protecting conscientious Border Patrol agents, then of course the Border Patrol would have to respect the law. Isn’t that what the Border Patrol is all about-enforcing the law?

    Sorry, the recipients of federal largesse don’t get to unilaterally decide whether to accept the conditions attached to the money. They don’t like the conditions, they don’t take the money.

    The very fact that Congress (prompted by pro-choice Senator Frank Church) gave conscience protection to people in federally-funded entities who refuse to perform abortions, while refusing to provide similar protection to those who refuse to do blood transfusions, or sell pork, etcetera, etcetera, shows that public policy is more ambivalent about abortion than you are willing to acknowledge. The legitimacy of abortion doesn’t seem to have been fully established, so your question-begging won’t work.

  75. Max, I’m unclear, was Frank Church pro choice or pro life?

    So is your argument that employees who refuse abortions should be protected from disciplinary actions by their employers…because our law has given them this right?

    Then it’s actually you who are arguing that because something is legal it is right, right?

  76. ‘Now let me ask, is your position this whole time something like this: Obama’s regulations are illegal because they violate the Church Amendment?’

    Perhaps I should quote my own remarks on February 28, 12:47 (by the way, I would say as a general rule that if you would glance at my earlier remarks, you might realize that many of your questions are repetitive and have already been answered):

    ‘Not even President Obama is claiming the right to ignore the Church amendment. His claim is that the Bush administration has misapplied it – he claims, I suppose, that the Bush regulations apply to procedures other than abortion, among other objections. These are all debatable points, but it’s common ground that federal funds are *denied,* by law, to those who fire prolife staff for refusing to help with abortions.

    ‘In other words, Obama hasn’t taken the “Lincolnesque” stance of claiming the power to take money out of the federal treasury without Congressional authorization. His stance is based on an interpretation – a problematic interpretation, to be sure – of Congressional statutes.’

    ‘But Maxie’ etc.

    If you don’t think that destroying IVF embroyos is abortion, we can have a discussion on statutory interpretation. A truly fascinating discussion, I’m sure.

    ‘And do you really want to argue that the difference is that at one time that bigger minority was able to get a law passed protecting folks in the way you like but the smaller minority has never gotten that kind of thing passed? Huh?’

    No, that’s not my argument. I’ve already articulated my argument, and if you didn’t register it the first time, there’s no particular point in repeating it.

  77. Since I didn’t think we were arguing about the narrow question of “does the Church Amendment prohibit what Obama is proposing” (which would seem rather strange, eh, since Obama and Bush certainly knew of the Church Amendment and its provisions and if it were settled that it provided protection to every area that Bush tried to protect and Obama seeks to repeal then they really are wasting everyone’s time, eh?) I finally looked the law up.

    It strikes me that it works both ways, right, that is that if a medical enterprise gets federal funds they cannot discriminate against anyone FOR performing abortions, right? So a Catholic hospital that gets federal dough can’t discriminate against an OBGYN who performs abortions at another practice?

    Do you think that is right (morally correct) policy?

  78. ‘Then it’s actually you who are arguing that because something is legal it is right, right?’

    Let’s look at some of MNG’s greatest hits:

    ‘Oh no, I think legality does a lot to establish legitimacy in the sense which is important to this debate.’

    ‘You see, there has been a debate in this country . . . And we won. So that’s the law now.’

    ‘Both are still minority views that have failed to have their views enacted into law. Both realy believe though that they are “ultimately” right regardless of what the law and common practice is.’

    You sure like playing the legal positivist. The problem is that the positive law (the Church Amendments, whose very existence I had to prove against skeptical posters) protects the conscience rights of prolifers in federally-funded medical centers. If you want to play the positivist, you need to accept the consequences of your own positivism and acknowledge the ‘legitimacy’ of conscience protections as mandated by the Church Amendments.

  79. “I’ve already articulated my argument, and if you didn’t register it the first time, there’s no particular point in repeating it.”

    Can you repeat it then for me? I’m not clear on it.

    What are you arguing?

    For the sake of reciprocity I’m arguing simply that to require recipients of federal funding not engage in disciplinary actions against employees that refuse to do any job related duties (which I define as legal and sanctioned for those fields) is wrong. It’s wrong for the same reason that a border patrol agent cannot just refuse to do tasks legally sanctioned and ordered by his employer, for the same reason that a lab assistant who objects to animal experimentation cannot just refuse to participate in a project involving animal experimentation, etc., that is because it is morally acceptable for an employer to engage in disciplinary action to an employee who refuses to do something job related.

    This is why I support bans on racial discrimination (because skin color is not a job-related act) but think “discrimination” of an employee because he refused to do something job related is not only not wrong, but not discrimination at all…

  80. ‘I finally looked the law up.’

    You mean the law whose text I posted on this very thread?

    ‘So a Catholic hospital that gets federal dough can’t discriminate against an OBGYN who performs abortions at another practice?’

    Absolutely correct. Of course, the hospital could have a neutral rule prohibiting *any* form of outside practice, but it can’t have a rule allowing all outside practice but forbidding outside abortion practices.

    ‘Do you think that is right (morally correct) policy?’

    Of course not. *I’m* not the one whose definition of ‘legitimacy’ is so tied to the positive law. But I certainly support the conscience rights guaranteed by the positive law. You should too, if you’re true to your positivist convictions.

  81. Argh. I’m not only “playing” the legal positivist, I am a legal positivist…

    That said, then yes if what we are debating is “does the Church Amendment protect medical employees of organizations that get federal funds from discrimination for not performing abortions” then the answer seems to be yes (I note though that for refusing to engage in other things, certain birth control, euthanasia, stem cell research, etc., the answer is certainly at the least not as clearly yes).

    But as I said upthread, I am not sure that is waht we are arguing. I at least am arguing that anything like the Church Amendment (or the Bush regulations) is a wrong law/policy.

  82. “Of course not. *I’m* not the one whose definition of ‘legitimacy’ is so tied to the positive law.”

    Max, I think you misunderstand what it is to be someone who believes the positive law should be followed, or a proponent of positive law. It doesn’t mean I think all positive laws are correct! You realize that, right? Because otherwise a proponent of positive law could never advocate change of that law, which is pretty silly.

  83. ‘refused to do something job related’

    What if the employer decides that the duties of the job include attending the meetings of the local Ku Klux Klavern?

    Or maybe, if you’re sucking off the federal teat, you don’t have unlimited discretion to decide what’s job-related or not?

    If you get federal funds because of your institution’s putative skill in healing people, and the feds expect your healing to revolve around curing diseases and that sort of thing, not killing people, can you impose an alternate business model on the taxpayers? ‘My definition of healing involves killing, and you have to subsidize me whether you agree with this or not, no matter what the law says!’

  84. “What if the employer decides that the duties of the job include attending the meetings of the local Ku Klux Klavern?”

    Well of course in a case of alleged discrimination the employer would have to show that there was some relation to of the activity to the job. I doubt asking people to attend KKK meetings would meet this test.

    But asking doctors and other medical employees to perform medical practices that are legal and sanctioned by the relevant medical bodies would certainly pass that test.

  85. And, yes, I believe the federal government is correct to the extent to which it chooses to define healing worthy of subsidy as constituting using medical arts to save life, extend life, cure diseases, and improve health, not to kill. If the feds are to be involved in medicine at all (a problematic assumption) at least they should subsidize real medicine, not killing in the name of medicine. And if true healing is their definition of proper medicine (and it should be) then factors irrelevant to an employee’s skills at true healing should not be permissible considerations for a federally-subsidized hospital, etc. to consider with respect to an employee.

  86. ‘But asking doctors and other medical employees to perform medical practices that are legal and sanctioned by the relevant medical bodies would certainly pass that test.’

    Again, you haven’t responded to my point that compulsory sterilization used to meet that definition. Should that be subsidized, too?

  87. “because of your institution’s putative skill in healing people”

    But the law and relevant medical bodies find things like euthanasia (in the jurisdictions which legally allow it of course), abortion and certain controversial birth control to be “healing” techniques (meaning “medical” techniques). It’s you and a minority of Americans who maintain that they do not constitute medical techniques.

    And it seems like the right guide to what is job related and therefore OK to be the target of discipline from an employer in that field should be what the relevant medical bodies find to be and not what some employees and a large minority of Americans might think.

  88. If compulsory sterilization were legal and approved by the medical bodies that oversee the profession, and a federally funded hospital asked a doctor to perform one and he refused, then yes I don’t think his refusal should be protected from disciplinary action from his employer.*

    As I’ve said, the alternative is to let the employee decide (and give him protection) whether any given act is wrong or not. And that would lead to protecting the Jehovah Witness when he refused to do the blood transfusion. The argument that the anti-abortionist should be protected and the anti-blood transfusion should not because there is more widespread ambivalence about the former than the latter strikes me as amazingly silly.

    *Of course I’d be against any measure supporting compulsory

  89. I mean, your argument is certainly not that employees refusing to perform abortions should be protected but employees refusing to perform blood transfusions should not (both on religious/moral conviction) because the former conviction is more wide spread among the public than the latter is it? That would be goofy.

    So it seems to be something like this: the former should be protected because abortion is actually wrong and not really medecine and so it is not job related.

    But of course the Jehovah Witness is going to say the exact same thing (and I need not bring up Christian Scientists and how much fun they could provide!).

    And should we let you and the Witness, as employees of organizations, make this choice about what is “really” actually medecine and therefore job-related and what is not, or are we going to let the relevant governing bodies make those decisions (by allowing the procedures to those in the field)?

  90. ‘The argument that the anti-abortionist should be protected and the anti-blood transfusion should not because there is more widespread ambivalence about the former than the latter strikes me as amazingly silly.’

    I didn’t say ‘ambivalence’ – I pointed out that even many pro-choicers acknowledge the morally problematic nature of abortion, to an extent you won’t find for blood transfusions. Some pro-choicers are even willing to acknowledge that abortion destroys a human life – does blood transfusion do that?

    In other words, yes, abortion is different from blood transfusions.

    ‘I mean, your argument is certainly not [straw man silliness omitted] is it? That would be goofy.’

    Yes it would be. Good thing I didn’t say it.

    ‘If compulsory sterilization were legal and approved by the medical bodies that oversee the profession, and a federally funded hospital asked a doctor to perform one and he refused, then yes I don’t think his refusal should be protected from disciplinary action from his employer.’

    ‘the relevant governing bodies’

    That would include Congress, if Congress is funding the enterprise in question.

    Your argument seems to be (a) ha, we won, abortion has been decreed to be legitimate medicine through the impeccably scientific process of majority votes, and (b) hey, the majority is oppressing us by putting in conscience protections as a condition of getting federal money.

  91. ‘If compulsory sterilization were legal and approved by the medical bodies that oversee the profession, and a federally funded hospital asked a doctor to perform one and he refused, then yes I don’t think his refusal should be protected from disciplinary action from his employer.’

    All right – taking your principles to the next level!

  92. The medical profession is somewhat double-minded on the subject of healing versus killing. The AMA’s ethics committee says physicians should not participate in executions.

    So, participating in abortions is part of the legitimate practice of medicine, but participating in executions is not.

    This simply shows that medical profession’s criteria on abortion and the death penalty are based on policy judgments, not some special insight into the value of human life. Medical expertise is on how to diagnose and treat illness – these skills don’t make you the World’s Greatest Philosophers or entitle you to spend taxpayer money on anything you want.

    If you want to defer to medical ‘expertise’ on political issues, why not take a poll of doctors to see if socialized medicine is a good idea, then abide by the result? That’s just as scientific as basing a decision on the medical legitimacy of abortion on a nose-count of the medical profession.

    By what scientific reasoning do we conclude that a majority of physicians in favor of abortion (assuming there is such) is right, while the prolife minority (including Physicians for Life and Dr. Ron Paul) are automatically wrong by virtue of being outvoted)?

    And has it occurred to you that physicians who say abortion is legitimate medicine may not be fully impartial? If abortion is legitimate, then physicians can make money from it. Do you think that this might potentially influence the views of at least some ‘pro-choice’ physicians?

  93. Max
    You’re begging the question on whether abortion is killing and not part of medecine, something that the majority of Americans seem to have decided the other way.

    You say that I’m correct when I say that it would be silly to classify refusals to commit abortions as different than refusals to do blood transfusions based on the fact that the resistance to one is more numerous than the other, but then you go on and seem to argue that somehow the fact that “even some pro-choicer’s” are ambivalent about abortion somehow makes the cases different. Again, the number of people and how strongly or ambivalently they feel about either procedure certainly can’t be the criteria that makes abortion or blood transfusions morally correct, right? Because that would be silly (you’d have to admit then that if such ambivalence did not exist among most people and if anti-abortion refusals were small in number, then abortion would be morally correct, and I doubt you think that).

    So what makes abortion or blood transfusions right or wrong has to be something else than how many people feel some kind of way. One thing is for sure is that you have some people who feel that abortion is wrong and not good medecine (not medecine at all) and some people (a smaller number) who feel blood transfusions are wrong and not good medecine (again, not medecine at all), though majorities of Americans, no matter what their levels of ambivalence, along with the law and sanctioning medical bodies, state that BOTH abortion and blood transfusions are practices that doctors can legally engage in. Now the question becomes, who should an employee decide, and recieve protection for that decision, what duties that are legally available within their field are properly job-related, or should the relevant governing medical bodies decide that? And should the government grant a protection to one case of refusal seemingly just because a significant minority of people oppose the practice in question and there is a certain level of ambivalence about it?

    As we’ve said that the amount of ambivalence and number of people opposing something can’t make it morally different then a policy based on that would be silly, right? So the only way such a policy would make sense would be if abortion, as opposed to blood transfusions for example, REALLY WERE “not medecine” and morally wrong. And again, we can’t have every single employee getting protection for refusals to do things ordered by employers because of THEIR PERSONAL ideas of what is “really not medecine” (or else the JW gets protection). SO what then can be the criteria for what is “really medecine?” What is legal and currently sanctioned as such by the relevant medical bodies is the best we can do.

  94. ‘So what makes abortion or blood transfusions right or wrong has to be something else than how many people feel some kind of way.’

    Really, you need to get off that. I’ve made clear that I’m basing my criticism on other grounds. There’s no need for me to keep repeating myself. The concessions by pro-choicers show that abortion is *objectively* different from blood transfusions. I’m not sure how many times I need to reject you silly straw men before you give up on them.

  95. In other words, they don’t want people to have the right to treat cancer or heart disease unless they have first mastered the skill of doing abortions.

    Of course.

    Must one know how to conduct surgery on the spinal cord to practice general pediatry?

  96. Imagine for example a libertarian that works for the border patrol. He chose to go into the border patrol, though he believes that immigration restrictions are very immoral. In fact, just to flavor it to your liking, let’s make him one of the “sanctuary Catholics” who thinks his religion compels him to oppose many immigration laws. He went into the border patrol because he believes in its mission to police the borders for certain contraband (like bombs and such).

    So he gets assigned to do some targeting and arresting of immigrants and he tells his boss “sorry boss, my religion and deep seated beliefs think that is ultimately wrong, so I’m going to refuse to do that. I do good work on the contraband cases, I’d rather do that 100% of the time.”

    It depends on if he had informed his employers of his view before hire, and the employer agreed to hire him and not assign him to interdict immigrants.

  97. If the claim is the Church Amendments need to be repealed because they conflict with the medical consensus on abortion, then I suppose you have evidence of a medical consensus in favor of firing (say) heart sureons because of their refusal to perform abortions?

  98. ‘It depends on if he had informed his employers of his view before hire, and the employer agreed to hire him and not assign him to interdict immigrants.’

    Good point – hospitals and other medical employers are aware that a good many of their employees have objections to abortion, so they know full well that many of the doctors, nurses, medical technicians, etc. whom they hire are afflicted with the pro-life virus. It’s hard for emplyers to claim, with a straight face, that they had *no idea* any of their employees might take their healing resnsibilities so literally as to refuse to take part in the killing of innocent embryos, just as they are supposed to avoid taking part in the execution of convicted murderers.

  99. …proving once again that libertarians don’t actually care about the founding principles of our country.

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