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The Broadest Rule Ever Told

March 11th, 2009 No comments

The War in Iraq, the erosion of our global political capital and standing, the response to Katrina, the economic collapse — with so many delicious delicacies of abject failure ripe for ingestion (and expulsion!), it’s little wonder that other Bush Administration disasters got lost in the shuffle. It’s kind of like being the fourth Baldwin brother.

As is generally known, and as is to an extent common to all lame duck presidencies, Bush et al. pushed through a number of “midnight regulations” designed to perpetuate their policy preferences. In this case, though, many of these last-minute changes had the effect of leaving a residue not unlike the smell of Limburger cheese.

Among the most pernicious is the “Provider Conscience Act,” which isn’t a legislative “act” at all, but a rule created by the Department of Health and Human Services (“HHS”). This rule, which went into effect on the last day of Bush’s historically inept tenure, creates an amazingly broad “safe harbor” for anyone who refuses, for reasons of “religious beliefs” or “moral convictions,” to perform any “health service” at all. (The rule applies to any entity that receives federal funds; effectively, almost all of them because of Medicare and Medicaid.)

This language could hardly be broader. HHS refused to define “health service,” or to specify what will count as valid “moral convictions.” As a practical matter, anyone who is remotely connected to any health-related procedure (because those who assist medical personnel are also covered by the exemption) can refuse to do anything that conflicts with whatever they believe. (Good luck winning a challenge to the sincerity of the “belief” after the fact.) They don’t need to refer the patient to another provider who might be willing to perform services that the patient is actually legally entitled to. Nor does the provider need to inform the patient of these “limitations” until the moment of refusal.

Before this blunderbuss rule was put into place, there were already several sources of federal legal protection for those providers who refused to provide abortion services. Over the years, parties offering, seeking, and declining to provide such services have all learned how to live with these restrictions. But this new “act” goes well beyond the context of abortion, potentially applying to birth control, as well. And not only birth control: In principle, there is no service, operation, or procedure that isn’t covered by this rule.

Does a doctor, or her assistant, oppose vaccination? Don’t vaccinate. (Will the parent take the child to another physician who will vaccinate? Perhaps not, and you can expect a public health peril to develop.) And the doctor can’t fire the person who refuses, because the law protects the “conscientious objector.”

Refusing to provide blood transfusions? Not willing to fill prescriptions for birth control drugs needed to ensure a woman’s health? These and countless other decisions are protected under this rule. HHS was impervious to arguments that this open-ended rule could lead to health care providers refusing to perform any task for any reason at all, but it’s less understandable that a law professor would agree. Yet in an installment of Radio Times (search for 12/16/08 show), St. Thomas University law professor Teresa Collett brushed aside these concerns, telling me that the law, while broad, wouldn’t lead to the kinds of problems I’ve just identified. There is no basis for her confidence.

There’s likely good news. The Obama Administration opposes the rule and has already begun the process that could repeal it.  And the Attorney General of Connecticut, one Richard Blumenthal, has sued (along with others) to enjoin the rule. But for now, the rule threatens public and private health and places providers’ whims over patient safety and autonomy.

Is it Trash Day yet?

{an acknowledgment to Dan Whitney, a student whose solid paper relating to this topic saved me research time and effort}

The Worst Op-Ed, Ever

February 22nd, 2009 No comments

OK, probably not the worst, but pretty bad: This piece, which appeared in the Sunday (2/22) NY Times. Two well-respected think-tankers — one a marriage equality advocate and one an opponent — called for a compromise that would take some of the heat out of the marriage controversy.  I’m all for reconciliation, but “A Reconciliation on Gay Marriage” is fairly brimming with bad ideas.

Just when I was about to give this issue a break.

The authors suggest the creation of a federal civil union, that would recognize same-sex marriages or civil unions to the extent that such unions were recognized by particular states, but only if those same states allowed,  in their words, “robust religious-conscience exceptions, which provide[d] that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own.” Their proposal is both procedurally and substantively nutty.

Before I get there, a preliminary issue needs explaining. It’s odd that the federal government should be creating “federal” marriages or “civil” anything. Until the evil and desperately named “Defense of Marriage Act” (“DOMA”) defining marriage for federal purposes as the union of a man and a woman, Congress pretty much left the states alone to define marriage as they wished. Then federal benefits depended on whether you were married according to your particular state’s law. So, why not just repeal DOMA?

It’s not that simple. DOMA has inadvertently provided cover for states wanting to have their equality cake as long as gay couples don’t get to eat it, too: Since federal benefits are tied to marriage, the “civil union” (or domestic partnership) that several states have created don’t get you any kind of federal benefits, and wouldn’t — even if DOMA were repealed. Civil unions aren’t marriage, DOMA or no DOMA. But the federal goodies constitute most of the economic benefits of marriage.

Thus, the authors of this piece, David Blankenhorn and Jonathan Rauch, are right to suggest that something like a federal civil union would be needed to recognize the couples for purposes of granting benefits to couples in “civil union” states. (Couples in states recognizing full marriage equality don’t need this new “federal civil union”contraption.) But then their proposal goes seriously awry.

Procedurally, their measure is seriously underthought, even though they get paid to do nothing but think. What, exactly, do they mean by “robust protections”for religious organzations, and what would constitute “recognizing them”? And if the states are to be required to enact such provisions in order for their civil unions to “count,” why is a federal overlay needed? (Such a law, to the extent it conflicted with state laws, would supersede them in any event.) When I read this, I thought: I’ll bet neither of these guys, accomplished as they both are, has had any legal training. Turns out, I was right.

Perhaps these procedural issues could be dealt with if the underlying substance of their proposed protection for religious groups was sound. But it is not. As the authors recognize, the issue is not whether a church would have to perform a same-sex union if doing so would violate their tenets; everyone agrees that the First Amendment  shields churches from having to do so. Gay couples, please — pick another church, already.

The tougher questions arise once we move beyond the “sanctuary” of the church and its right to protection for belief there. Let’s discuss the two examples they use, where I strongly disagree with their conclusions. First: “What if a church auxiliary or charity is told it must grant spousal benefits to a secretary who marries her same-sex partner….?” Blankenhorn and Rauch believe that the organization’s decision not to provide such benefits should be protected.

The first issue is whether the work of the “auxiliary or charity” is so closely tied to the church’s core beliefs that it could, for example, exclude all non-church members from employment.  If so, then this issue would  not arise in the first place. But if the church can be forced to hire “non-believers” under pain of liability under state anti-discrimination laws, then why should sexual orientation be singled out for exemption? And, anyway: If the “auxiliary” (whatever that means)  is going to hire this woman in the first place, am I the only one who sees the cruelty in denying “spousal benefits” — which really means “health care benefits” — to her wife? Please tell me which church this is, so I can avoid even driving past it. (There’s another topic here about tying benefits to marriage in the first place, but this isn’t the time….)

The next example: “What if a faith-based nonprofit is told it will lose its tax-exempt status if it refuses to allow a same-sex wedding on its property”? Well, is the “non-profit” charging for the use of the property? If so, it’s squarely in the realm of the “secular” for this purpose and shouldn’t be allowed to discriminate any more than should a landlord whose “morals” counsel against renting to same-sex couples.

The provenance of the problem comes from the authors’ starting “agreement” that “many Americans of faith and many religious organizations have strong objections to same-sex unions.” Well, so do many “Americans (not) of faith.” We don’t protect the latter, and we shouldn’t protect the former if they wander out of the properly protected enclave of religious expression that the constitution clearly privileges.

To realize how crazy this is, substitute “race” for “sexual orientation” and see how the results play out: A church doesn’t believe in interracial marriage. This example isn’t from the year 1650; Bob Jones University didn’t allow interracial dating — never mind marriage — until 2000. And it tried to justify its position even in 1999, as seen in this letter:

“Bob Jones University [has] a rule prohibiting interracial dating among its students. God has separated people for His own purpose. He has made people different from one another and intends for those differences to remain.  Bob Jones University is opposed to intermarriage of the races because it breaks down the barriers God has established. It mixes that which God separated and intends to keep separate.”

So, what if Bob Jones hires a white secretary who then marries a black man. Should the church be able to deny benefits that are otherwise tied to marriage? To fire the secretary for her transgression of church law? I didn’t think so.

In fact, Bob Jones had long since lost its tax-exempt status for just the kind of racial policies that Blankenhorn and Rauch now defend (at least as a matter of right) in the case of sexual orientation.

La plus ca change, or something like that…

10 Items or Fewer

February 4th, 2009 No comments

Recently, I was shopping for groceries on the way home from working out. It was late, and there were few people in the local Acme. When I completed my shopping, there were only two lanes available (and the scan-it-yourself wasn’t working). In one lane was a woman who must have been expecting some kind of siege: her carts(!) were overflowing with all manner of long-lasting canned goods. She was moving glacially, so I expected that it would take me, oh, six to seven hours to check out there.

The alternative was the Express Lane, ungrammatically reminding me that it was for “10 Items or Less.” I had twenty items (yes, I continued counting even after reaching ten), but decided to throw myself on the mercy of the cashier.

But mercy, she had none.

Despite the absence of any other shoppers even approaching the line, the lateness of the hour, and the serio-comic carts piled to overflowing in the next aisle, she simply said: “Sorry, 10  items or less.”

Recognizing that correcting her grammar wasn’t my best bet, I appealed to her common sense and human decency.

“But there’s no one else here, and the only other lane will take forever. Can’t you make an exception?”

“10  items or less.”

“But I have an exact multiple of 10.”

[Silence]

“Might I speak to the manager?” I wondered.   By this time, the survivalist in the next aisle was excavating her second cart. The cashier, heavy of foot and heart, telephoned the manager (who was some eight feet away).

This went no better. Upon hearing my story, the manager said: “Sorry…10 items or less.”

At this point, I did what any sane person would do: I placed ten items on the belt and left the other ten in the basket. After paying for the first ten items, I bagged them and carried the bag  back to where the basket was sitting. I then removed the remaining 10 items, placed them on the basket, and paid for them. The cashier, who may not have recognized me as the same person, didn’t blink.

After all, I had followed the rules.  

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