Religion and the Law

Hearing Examiner Recommends Approval of Women-Staffed Volunteer Ambulance Service for Orthodox Jewish Women,

but the New York City Regional Emergency Medical Services Council denied the application, by a 12-7 vote.

|The Volokh Conspiracy |

You can read the report, about the Chasedi Devorah / Ezras Nashim service, here. The rationale:

The Applicant, Ezras Nashim, has the burden of proving the need to establish a new ambulance service. As has been discussed, need must be distinguished from the mere desire to expand services. The question of need can only be determined when all circumstances are considered.

Several circumstances tend to argue against the grant of an ambulance operating certificate. The chief reason is that the observant Jewish community is served by perhaps the most rapid medical response service in New York, Hatzolah. The size and swiftness of Hatzolah's volunteers cannot be ignored.

Yet, we have the equally undeniable fact that perhaps 60% of women-involved emergency medical needs are either being [not] met or are being met to some degree in contravention of their cultural/religious concerns.

The Ambulance Committee is fully entitled to weigh the factors present here.

A conservative approach would deny the request for an ambulance certificate on the strength of faster response times by all-male Hatzolah, or slower non-culturally aware FDNY and other responders. But that approach ignores the clear need that exists among the Orthodox Jewish women.

This need is unique because of the insular community whose medical care this Application seeks to serve.

The Ambulance Committee need not fear of splintered "needs" being proposed for other societal groups. The Orthodox Jewish community is so inherently unique that an application like this one is not likely to be repeated or seen again.

The grant of a certificate of need for a discrete service area in the borough of Brooklyn is warranted.

The Ambulance Committee should take a proactive, prospective viewpoint when considering this application, not necessarily limiting its view to what worked in years past.

Though it is not readily a clear decision, I recommend that the Ambulance Committee grant the requested certificate of need based upon the totality of the evidence and circumstances presented by the Applicant, Ezras Nashim.

The report about the denial of the application is here (The Yeshiva World); there's also a somewhat opinionated report of the controversy here (also at The Yeshiva World), noting the tension between Ezras Nashim supporters and Hatzoloh supporters.

I assume that Ezras Nashim won't deny service to male callers, even though it will promote itself as a service for female callers; I expect that this would avoid claims of discrimination in public accommodations. (New York law defines "public accommodation" broadly, seemingly to include free services.) Also, being a volunteer service, it's not covered by bans on discrimination in employment, assuming it really offers no compensation (including health insurance, retirement benefits, disability insurance, and the like). In any event, the report does not discuss these issues, and the Yeshiva World story doesn't mention any discussion of the matter at the EMS Council meeting.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

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  1. “The Orthodox Jewish community is so inherently unique that an application like this one is not likely to be repeated or seen again.”

    Unique? Is there no other religious community with similar or perhaps identical attributes?

    Does this application envision public funding, or will that develop later?

    1. incredibly insular ultra-religious community living mostly in urban areas?
      Not the amish, mennonites etc.

      1. Mennonites do live in urban areas and can be extremely insular. Fundamentalist Mormon communities are similar, though many are rural. There are decently sized ethnoreligious refugee populations (Yazidi, Buddhists, Muslims, Balkan) located almost entirely in cities.

        It might be unique in NYC (though I rather doubt it) but there are similar groups outside.

  2. I’m guessing that Prof Volokh is interested in this for the First Amendment implications. To me, though, the root problem is the entire “certificate of need” concept. The government’s involvement serves no legitimate purpose and is an invitation to blatant corruption and protectionism.

    1. Agree – I imagine that an ambulance service should be required, in exchange for special privileges like running red lights, etc, to show it’s a bona fide ambulance service, but that should be it.

      This case seems to concede they’re a real honest-go-goodness ambulance service, but requires them to show to the government that they should be permitted to compete with an existing service. That’s messed up.

    2. I agree, and I was hoping that readers would discuss that as well. My scholarly interest here is more on the religious freedom side, with a dash of antidiscrimination rights law thrown in (that’s not my core area, but I’ve written a bit about it, especially as it interacts with First Amendment law). But the objections you raise generally strike me as quite sound.

    3. Exactly.
      Please check me that I’m understanding the proposal correctly…

      * This is an entirely volunteer organization.
      * They intend to operate at no charge, no insurance, etc.
      * They will only be responding to people that call them directly, there is no plan to get referrals from 911 etc.

      So, if I understand this correctly, the only thing they’re applying to the EMS council for is permission to run emergency vehicle lights and to violate various traffic laws. Excepting that, the service could operate without lights and siren obaying traffic laws no differently than your neighbor coming over and helping you or taking you to the hospital.

      I fail to understand the council’s reasoning for turning this down. I do understand that the City has some interest in deciding who can operate lights and sirens, but it would seem to me that “need” is an incorrect criteria an like most government regulation seems designed primarily to prevent competition to existing suppliers and allowing market forces to improve rates and services.

      1. I’d imagine that to operate they also need to provide trained personnel with EMT certifications.

        1. I dunno. Consider the ‘El Cheapo Ambulance Service’ with the motto ‘We skip EMT training and pass the savings on to you!’. The people impacted (negatively) by the lack of training (and positively by the low price) are the consumers. Why can’t they decide that tradeoff for themselves?

          Even if it’s the uber-expensive Witchdoctor Ambulance Service, which provides no actual medical care but will murmur mystic incantations during the ride, it still seems to me like something the customer ought to get to decide.

          (in contrast, training requirements for the drivers, who are interacting with everyone else on the road, seem entirely appropriate. And the city can of course decide what level of training is required to get referrals from calls to 911)

          1. Whether they do or should provide trained EMTs is irrelevant since that’s not part of the Certificate of Need decision process. Their application was not rejected for a lack of qualifications.

  3. Of course, that dispute obscures the broader question of why the government should be in the business of deciding “need” in the first place.

  4. You know in Saudi Arabia, there have been situations where girls have died in building fires because the religious police refuse to let men go in there and save them, because the girls are not wearing proper hijab.

    How about, when it comes to life and death issues, you have to join the 21st Century, and if anything a religious leader does causes the death or injury of someone who could have gotten an ambulance, that religious leader compensate the victim or victim’s family for the harm that he caused?

    The government has an overriding interest in protecting human life. Heck, a lot of religious conservatives want that imperative strictly applied when it comes to life within a woman’s womb. But here’s a situation where sexist beliefs cloaked in religion are endangering the lives of citizens.

    The government should provide ambulances, they should not be sex segregated, and anyone who is out there doing anything that will prevent lives from being saved should be subject to tort liability.

    1. Hmmm…what if it’s an adult woman who refuses to be rescued, and she dies? Should she sue herself?

      1. Take her anyway. There isn’t an absolute right to refuse medical treatment, nor should there be. This is a classic situation where it shouldn’t apply.

        1. That’s interesting…AFAIK they don’t force adult Jehovah’s Witnesses to get blood transfusions.

          Anyway, if other make health-care decisions for you, then the next step is to decide you don’t need lifesaving care because you’re just going to die of old age anyway.

          1. I know that Christian Scientists opt out of vaccinations, which are clearly medical treatment.

          2. I wouldn’t have a problem with requiring Jehovah’s Witnesses to get blood transfusions either. As you imply, many jurisdictions already have that policy with respect to minors.

            It isn’t a matter of “making health care decisions for you”. Various forms of suicide are illegal. They are not treated the same way as deciding the risks and benefits of a medical treatment (which IS a fundamental freedom), because there’s no actual doubt that certain things will end your life. This is why Washington v. Glucksberg and Cruzan come out the way they do.

        2. Technically true, but effectively false.

          You have an absolute right to refuse treatment unless you have been admitted to a hospital involuntarily as a risk to self or others.

          Do you have a right to refuse rescue? Theoretically yes, effectively no, the fireman will probably just pick you up and let the lawyers work it out later.

          1. Your last sentence is completely true.

            Indeed, let’s say that the woman in question is unconscious, and is picked up and taken in a gender integrated ambulance. Can she sue later for violating her religious beliefs? I think the obvious answer is “no, they were saving your life”.

        3. But the service as described isn’t something like the firemen are there anyway to fight the fire and she’s refusing rescue. It’s more that women are refusing to call an ambulance at all because they know it’s an all-male service. It’s not a “take her anyway, ignore what she wants,” it’s no one knowing that she needs it until she dies because she didn’t call for help. It’s easy and callous to just say “she shouldn’t believe that way,” but it doesn’t help her. The statistic given is that 60% of women in the community aren’t getting needed emergency help because of that. How is that not significant enough to approve another ambulance?

        4. “There isn’t an absolute right to refuse medical treatment, nor should there be.”

          I’d love to hear the legal details there. My IANAL understanding is that people who are unconscious or otherwise incompetent may be deemed to have given consent, but that anyone else does indeed have an absolute right to refuse medical treatment. In fact, I daresay it’s a fairly common thing. People just decide they just aren’t going to go through chemo again, or they think that crystal therapy, acupuncture, meditation, or homeopathy will be more effective than western medicine. In the latter case, they are wrong, but it’s surely news to me that it’s not the patient’s right to decide for themselves.

        5. Take her anyway. There isn’t an absolute right to refuse medical treatment, nor should there be. This is a classic situation where it shouldn’t apply.

          It’s certainly a bold choice to argue that killing babies is a fundamental human right, but killing oneself isn’t a right at all.

    2. The issue doesn’t seem to be that the current services won’t help the women, it’s that the women have religious objections to be treated by men and are therefore in no win situation where their needs aren’t met. Orthodox Jewish women object to being touched by men who are not their husband or close male family member.

      1. Those beliefs are produced by men who teach them that sexist garbage.

        I mean, it’s usually women who cut off clitorises too. The government has an overriding interest in counteracting cultural practices that threaten lives and health and are gender discriminatory.

        1. Those beliefs are produced by men who teach them that sexist garbage.

          There is nothing “sexist” about it; it’s mutual. Women object to being touched by unrelated men; men object to being touched by unrelated women. (Now, if you wanted to beclown yourself (even more) you could claim it was transphobic, but not sexist.)

          1. Of course that’s sexist. In the exact same way that a segregated lunch counter or school is racist.

            1. You are showing what a horses rear-end you are.

              Are you seriously suggesting that gender segregation is the same as race segregation? Why is it that we did away with racial segregation 50 years ago, and yet still maintain separate bathrooms and locker rooms for men and women (not only among religious people)? Does that suggest a difference?

              And many women, even those not particularly religious, prefer to go to women doctors, and certainly women OBGYNs. Are they all infected with patriarchy? Or perhaps they disagree with you and have other concerns in mind.

              As far as this situation, we are talking about a community that generally avoids physical contact with adults of the opposite gender who are not immediate relatives. Then you are talking about someone in that community who is under severe stress with an emergency, which could include delivering a baby. Why is it crazy for them to prefer a trained woman EMT over a male?

              Granted the government does not owe them that. But if there is a volunteer group that wants to do it, what is the objection?

            2. That’s a very bad analogy because in this situation all individuals involved are exercising their own discretion on who to associate with (in this case, based on gender) and in what ways (in this case, based on touching).

              Your analogy would work if there was an ER where all the doctors and nurses were observant and refused to touch the bodies of the opposite gender and, as a result, patients (including non-observant ones) suffered harm that otherwise would not have been suffered.

            3. Of course that’s sexist. In the exact same way that a segregated lunch counter or school is racist.

              That’s just, well, stupid. Sex and race are not the same thing. Sex classifications are not arbitrary the way race is.

              When you walk into just about any public building in the country and see men’s & women’s bathrooms, do you react “in the exact same way” that you would if you saw black & white bathrooms? You don’t. You know you don’t. Neither does anyone else. Why? Because sex and race are different concepts.

        2. “cut off clitorises”

          It’s generally children, not adult women, being subject to this sort of thing.

          1. (which is bad, is my point, but also that it’s not the same thing as an adult woman refusing treatment)

        3. The government’s responsibility to “protect life” is to protect it from those who would willfully take it. If a woman believes that protecting her female modesty is more important than receiving immediate medical treatment, that is her call to make. Not the government’s. (I’m surprised that Hatzolah doesn’t have female staff on it’s ambulances precisely to deal with such issues. Maybe the “certificate of need” system, which is the real problem here, prevents them from doing that too.)

          I remember hearing a story many years ago about the Soviet Union introducing a resolution at the United Nations proclaiming that the right to life was the “supreme right”, and that protecting it justified the violation of other “lesser” rights. As I heard it, the United States made clear that it would veto any such resolution.

          1. Hatzalah employs mostly Orthodox Jews and is run according to Orthodox beliefs. That effectively prohibits men and women working together, especially in emergency medicine where it’s more likely to necessitate violating the relevant tenets.

            1. Assuming they have more that one ambulance couldn’t some be manned by women?

              1. Hatzalah originally had an all-female program but the organization became worried that it would lead to gender-mixing, so they nixed it. The current female program was launched in order to eventually integrate into Hatzalah but the organization refused, citing religious law and that men were better suited (physically) for the work. That’s why they’re now seeking NYC approval themselves.

                1. It seems odd that an all-male operation (Haztolah, or Haztoloh, or Haztalah) appears to have been approved while an all-female proposed was rejected.

                  1. Haztalah (all the spellings are okay, but with the ‘z’ and ‘t’ switched) was formed decades ago when NYC wasn’t even meeting its obligations to non-Jewish citizens, much less the insular, attention-averse Orthodox Jews. If we are to give them the benefit of the doubt it’s because conditions have changed.

                    I doubt that it’s directly due to the gender makeup and more due to some low-level animosity between parts of the community. A lot of the complaints either way seem to deal more with perceived slights on groups than the substance of the matter.

        4. If you look at religious attitudes across the world, almost everywhere has women as more religious than or similar to their male counterparts and more willing to enforce religious gender norms. Israel and Mozambique are the exceptions. The people doing the hard work enforcing veiling in Muslim countries are women just assaulting people on the street. The people most against abortion pretty much everywhere are women. The people who perpetuate female circumcision are women, while male circumcision (which is still male-dominated) past the Biblical point persists only in isolated or extremely tribal groups.

          1. That’s actually a tribute to how patriarchy works and a reminder of why it is so important to fight it.

            1. Men oppressing women? Patriarchy. Women oppressing women? That’s patriarchy too.

              I love the brazenness of a worldview that says that everything is patriarchy, but it simply isn’t very realistic.

    3. I remember that fire where the women died; memory hints they were actually forbidden from coming out, or blocked in, or something really stupid.

      Joining the 21st century at the expense of destroying men’s souls for seeing an uncovered female face or ankle? No thanks, they’d rather stay in the 7th century.

      1. I don’t know much about Moslem law, but Jewish law and tradition specifically says laws may be broken in order to save a life.

    4. The government should provide ambulances, they should not be sex segregated

      Should it forbid a private service to meet religious needs?

    5. If it was really a life or death situation, wouldn’t you want a mobile intensive care unit with professional paramedics, and not the sort of ambulance service with volunteer first aid that this service provides? And for a broken leg, beginning of labor, etc. where you just need transportation to a hospital and basic first aid, And five or ten minutes earlier or later doesn’t really matter, is your argument really relevant?

      1. You are mistaken in your assumptions. These ambulances are staffed by trained and certified EMTs – [the women’s group also comprises certified EMTs], and are extremely well equipped. Hatzoloh participated in the emergency response on 9/11, and is known as having a far better response time than the city services.

        They are not a simple volunteer ambulance organization.

    6. The government DOES provide ambulances. Those aren’t sex-segregated. They just have a longer response time than Hatzalah, which is sex-segregated but is also private volunteer group.

    7. Isn’t this pretty much the same argument as the one that Muslims shouldn’t be allowed to build mosques in America ‘cause Saudi Arabia?

      Or the one that homosexuals shouldn’t be allowed around children ‘cause perversion, you know, they aren’t willing to mix socially like proper Americans, there was this incident where a child was raped by a homosexual, you can’t trust them? Maybe that incident also happened in Saudi Arabia.

      Anecdote based, “can’t trust the perverts cause this incident happened” bigotry kinda bites, doesn’t it.

  5. What about insurance? Emergency responders need a extreme-coverage liability insurance and volunteer services are normally covered by the local government; which in turn means enforced training and standards.

    Will EMS call center need to question the victim’s religion before dispatching a response? (Under Nordic socialized medicine, victim’s age is the second factor in response prioritization)

    1. Good questions…I suppose if this service were legalized then the Orthodox would put out their number, so people would call them rather than 911. That would also – or so I imagine – reduce the 911 workload.

      1. The service already exists in other places. The legal issue here wasn’t that it was illegal, just that it wasn’t needed (existing service was considered adequate.)

    2. It might be one of those “normal” ambulance services, transporting patients between hospitals or rest homes; not an emergency first responder service.

    3. The government could require that any proposed service have a given level of liability insurance. That’s no reason to forbid the service from operating.

  6. Question. Why is the disgust felt about segregated volunteer medical care different from the disgust felt about segregated families? If government really has a compelling interest in eradicating cultural practices that result in men and women living and going about their activities apart, on grounds that such practices represent a stain on a decent society that needs to be eradicated, why wouldn’t same-sex marriage be on the top of that stain list?

  7. Simply put, the ‘need’ of the orthodox women for only women ambulance personnel is directly in conflict with my immutable maleness. As with other immutable characteristics, sex, race, age, discrimination is a strict no-go.
    As for orthodoxy, that is a lifestyle choice. Choosing to be bigoted against males should be denied just as vigorously as being bigoted against females.

    1. This is rather irrelevant, since Hatzalah is discriminating against women and the problem isn’t that women are refusing the ambulances once they show up, it’s that they aren’t calling at all 60% of the time.

      1. but then they come to my hospital, a nice secular one, where they create all sorts of problems by telling certain members of the medical, nursing, and ancillary staff who can or cannot provide care based on the sex of the health care worker.

  8. I’m 90% sure there’s something else behind this. It seems to be that there is an long-standing issue and unaddressed that caused this weird outcome. I think it stems from Hatzalah being a point of pride for the communities it serves and the extremely negative reaction when it was suggested that Hatzalah should accept women, just before this service was founded. There’s a lot of animosity there and I think it may have unduly influenced the outcome, since there isn’t really anything that would make it bad to have another service, even if it’s slightly worse.

  9. I don’t share the beliefs involved here, but the idea of a competent adult sincerely believing that certain things are more important than life – the concept in itself is hardly alarming.

    In this situation, we have women who would rather die than violate certain standards of modesty. That’s not the hill I’d die on, but if they’re not imposing their preferences on others, only on themselves, and if some private group is willing to accommodate their preferences by letting them keep their modesty *and* stay alive – it sounds like a win/win.

    Or we could discuss how they shouldn’t believe such things and forbid a voluntary group from giving them the kind of emergency help they prefer.

    Now, *that’s* a dangerous belief!

    1. Consider the things people *are* willing to risk death for – luxurious eating, guarding foreign oil wells, hang-gliding, driving on the roads, etc., etc. – why dis the preference to die for modesty?

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