Freedom to Defend Constitutional Rights

            The liberty principle for this Freedom Friday involves the freedom to defend constitutional rights of religious freedom, free speech, and freedom of conscience. These rights or freedoms are guaranteed by the U.S. Constitution, yet many people, media outlets, and other organizations continue to deny them to freedom-loving Americans.

            A recent editorial at The New York Times challenges the rights of conscience of doctors, nurses, and hospitals. The article starts with a report of a woman going to a Catholic health center when her water broke at 18 weeks. The woman went home only to come back the next day in great pain. She was sent home again but returned the next day in the midst of a miscarriage or natural abortion. She could have gone to a different hospital at any time, even though the Catholic facility was the only one available within thirty miles of the woman’s home.

            My water broke with my first child at 35 weeks, so I understand the fear and concern of the experience. I went to a hospital where I was soon in labor and later delivered a 4.5 pound baby. Because of my experience, I would expect a hospital to keep the earlier-referenced woman in order to watch her as the situation evolved. The woman may or may not have rejected the idea of staying at the hospital until the miscarriage took place.

            Three years later the ACLU brought a negligence suit in behalf of the woman against the U.S. Conference of Catholic Bishops – the hospital or the doctors - and others for promulgating and implementing directives that cause pregnant women who are suffering from a miscarriage to be denied appropriate medical care, including information about their condition and treatment options.” The suit complains that the hospital did not tell the woman that her baby had no chance of survival, that the safest thing to do would be to start labor to terminate the pregnancy, and that the pregnancy could not be terminated at that hospital. The case was dismissed in July 2015. The Court ruled as follows. 

The Court must defer to religious institutions in their articulation of church doctrine and policy… However, the Court’s consideration of the legal duty of a physician to provide adequate medical care is not a matter of church doctrine. Plaintiff has a right to remedy in a secular court for medical malpractice without needing to resolve doctrinal matters.

            The ACLU appealed the decision, but I could not find any later decision. The conscience of that medical facility would not allow them to terminate a pregnancy involving a baby that was still living, but it would allow them to help the mother when she was in the act of miscarriage. I do not pretend to understand the situation, but I would expect a hospital to keep a woman who was obviously in the process of losing her baby. This expectation does not, however, include forcing anyone to take any action that would kill the baby.

            The editor at the Times, however, seems to believe that the doctors should have aborted the baby on the first visit of the woman to the health center. In fact, the editor seems to fear that there will be more such cases because of a recent announcement by the Department of Health and Human Services that it had created a “Conscience and Religious Freedom Division.” The purpose of this new division is to enforce the present laws that protect the right of health care providers to opt out of certain procedures for religious objections.

             David French at The National Review http://www.nationalreview.com/article/455968/nyt-gets-religious-liberty-wrong says that the Times editorial is another example of civic ignorance. He writes that “Civic ignorance is the enemy of liberty” because too many Americans do not understand “the relationship between the Constitution, statutes, and individual decisions. Censors elevate lesser values, denigrate the Bill of Rights, and ignore the role of individual choice in achieving the outcomes they desire.”

            French emphasizes that there are already “federal statutes that protect health-care workers’ rights of conscience” and that the Trump administration “is obligated to enforce – protect health-care workers from being forced to assist or participate in abortions, sterilization, or assisted suicide.” He reminds his readers that these rights are “grounded in the First Amendment provisions that guarantee religious liberty and freedom of speech.”

            The Times editorial is calling for a “balance” between honoring the First Amendment rights of health care providers and providing needed health care. French frames his argument as follows.

I often hear statists describe religious-liberty or free-speech claims as a form of “special pleading” – with people of faith seeking special protections unavailable to the rest of America. This is exactly backwards. Liberty is the supreme law of the land, and it is governments that must secure special permission before encroaching on individual rights. Governments are engaged in special pleading. Governments are seeking the special privileges. In other words, the “balancing” isn’t a neutral process but rather a process in which the Constitution itself puts the thumb on the scales for freedom.

The battle isn’t as the Times phrases it – as the Bible versus the Hippocratic Oath – but rather constitutionally guaranteed liberties (endowed by our Creator) versus preferred progressive public policies. This should not be a fair fight. It’s not a contest between competing, equivalent interests. Rare is the public policy that can meet the traditional test for overriding a First Amendment liberty interest.

This is especially true when the First Amendment protects the Times and its allies in their efforts to persuade doctors and nurses to make different choices. It’s especially true in a world where virtually every literate adult and child has access, in the palms of their hands, to all the information they ever need to find the doctors they want. But for too many Americans, persuasion and information are not enough. They demand coercion, and complain when Christians appeal to the supreme law of the land to preserve their liberties.

In the battle over freedom of conscience, honest framing is essential. The Trump administration is doing what it must do – enforcing laws that are not just passed by Congress but also (in many instances) required by the Constitution. The oath of office says nothing about balancing competing interests against a backdrop of a blank legal slate. It demands that a president and his officers “preserve, protect, and defend” the Constitution of the United States. Simply put, protecting conscience isn’t choosing the Bible over anything. It’s the president fulfilling his oath.

            It is difficult to see or hear of people who suffer such as the woman having the miscarriage. It is tempting to say that the Catholic Church is wrong in its doctrine or the medical center was wrong in the way that it carries out its instructions. However, the fact remains that the woman could have gone to a hospital outside her county for further treatment and she did not.     

            This case is similar to those couples demanding that florists, photographers, and bakers yield to their demands to serve them at their gay weddings even though there are other florists, photographers, and bakers who would be happy for their business. These kinds of cases could be reduced if a greater percentage of U.S. citizens were educated about civics and the Constitution.