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"For God So Tough-Loved the World. . . "

Stephen Colbert on Christian physicians and conscience.

Key ethical distinction:
"But this latest case is a real breakthrough. It's not Christian medical professionals refusing to provide treatment they don't approve of. It's Christian medical professionals refusing to provide treatment to people they don't approve of."

About the Author

Cathleen Kaveny is the Darald and Juliet Libby Professor in the Theology Department and Law School at Boston College.



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This is a fabulous example of the church of dogma. The Good Samaritan is definitely discredited since he helped a real enemy of God. Preemptive war is ok since we can send evangelicals to convert them. And pedophilia is tolerable since the reputation of the clergy is a priority and these kids wanted it anyway, especially the female ones.Now that one has refused service to a mother who has a tatoo we can celebrate the triumph of Christendom and prepare the next crusade. Maybe Iran.Now let's talk about what being a Catholic/Christian really means.

"Soddom and GUMmorrah"That's classic.Is this guy the only doc in town? There's no hospital? No ER?Aside from the fact that the doc in this case is a genuine butthead, my other reaction was what kind of mother would say, "She had to go the WHOLE night with this ear infection."Why? If the doc's office had been closed, would she also have gone the whole night with an ear infection, or would the mother have sought treatment elsewhere?I'm not debating the idiocy of the doc in question because I think that's pretty clear, but it's also clear that he's not a doctor I would want treating my child anyway. One does wonder how far such thinking will go. I didn't notice any piercings on the mother, but I did notice she was overweight. Will refusal of treatment based on the grounds of engaging in a deadly sin soon become another item on the list of sins docs who call themselves Christian will say they can't tolerate?I refuse to call them "Christian docs". To call them "Christian" at all would be as dishonest as their claim to love Christ.

Cathleen Kaveny often posts items here based on "hip" or young-bloods media. I complain these fail the old-style clarity of explaining "who, what, where, when, and how." I had to search around to learn that Colbert's story came from 2920 F Street in Bakersfield, California, and that Gary Miller, M.D., was a med school grad of the State University of New York at Buffalo, of all places. May I urge Commonweal's contributors to identify where things happen? Comedy Central is not an address in the real world!Joe McMahon, of Seaford, Long Island

Mr. McMahon,I'm sorry you don't like the posts. But I think it's imprtant to pay attention to what's going on in these veunues, if Commonweal hopes to engage the next generation on the relationship of religion and culture. Furthermore, I don't think Jon Stewart and Stephen Colbert can be relegated to the kiddie corner. I think their prominence demonstrates that they have broader appeal than that.Commedy Central is a television network-- just like NBC or ABC; it's available on basic cable. The Daily Show and the Colbert Report are political commentary, largely in the form of satire. What I posted from Colbert is the equivalent of a video editorial-- it's the equivalent of a column on the op -ed page, it's not a news report. You shouldn't expect full information here, any more than you do from an editorial in newsprint. It ran a couple of days ago on the Colbert Report in precisely the form it was posted here.

Re: Donna's comments -- since we don't really know the circumstances of the parents, it's possible that they would have had to pay much more out of pocket for an emergency visit for a non-emergency condition such as an ear infection. It's possible that they lack insurance and were paying the total cost, which would be much cheaper if it was limited to a doctor's visit. It's true that this is a private doctor's office, as the sign says, but it's also true that doctors are expected to conform to some objective professional standards for the care they provide, and denying care to a child for an acute condition with potentially adverse consequences because of the mother's appearance or lifestyle is, in my opinion, a gross dereliction of duty, and the fact that she could have gone somewhere else is not much of a defense. This guy truly gives Christians a bad name. I doubt if the mother or the child, for instance, is more interested in becoming Christian today as a result of their encounter with this medical office. When Christianity is treated like a private country club (Dinner jackets and tie required, ladies must dress appropriately, no bathing suits except in pool area, no gum, no smoking . . . ) so-called Christians might as well not bother pretending it's a religion anymore.

I'm certainly not defending the doctor, nor am I blaming the parents.I was simply noting the dramatic effect with which the mother stated her kid went the whole night with an ear infection, which I personally do not find to be very plausible. There's a whole lot of stuff we don't know. We don't know their financial circumstances, we don't know how long the child had been sick, we don't know if they had a scheduled appointment or if this was a walk-in off the street, or if they had called the office in the middle of the night, if they have insurance or not, if there's a clinic in Bakersfield, CA or other health care providers.... And given the fact that doctors are less quick to prescribe antibiotics to young children and more likely to watch and wait, who's to say that the doctor would have given this kid anything even if he had seen her?The doctor is expected to conform to an objective professional standard for the care he provides. The problem here is that he didn't provide ANY care and is there an objective standard that requires a doctor to provide services at all. Catholic doctors in family practice have an out with HMO's so they do not have to write referrals for their women patients to obtain an abortion. The woman can obtain the referral directly from their HMO. I know this because I worked in such an office with such a doctor, and this was written into his agreement with the insurance companies. Without it, he would not legally be able to refuse treatment or services to a patient participating in a plan he agreed to accept.Were I to make a guess at this particular doctor's situation and his emphasis on his "private practice", I would guess that this doctor does not participate in any insurance plans at all so that he cannot be hamstrung by their rules.

"...if Commonweal hopes to engage the next generation on the relationship of religion and culture."Cathy,As part of the next generation, I have to say that I have no idea what message you are trying to send me about the relationship of religion and culture. From what I can tell (based on your other writings), it seems that you're largely contemptuous of orthodoxy. If that's not your message, might I suggest that you make it a little clearer? It would be most helpful.God Bless,FM

Donna, if he did not provide any care it is not a defense at all, in fact, it would make the situation worse. If he looked at the child and said, "she's stable, you can go find another doctor who's willing to deal with lowlife trash," to get treatment or the next follow up evaluation, that would be rude, but he would have satisfied, IMO, a minimal professional obligation to the patient. It's not the parents' job to figure out whether she needs care RIGHT NOW or can wait until the morning. Maybe the doctor did that much, it's hard to know from the clip provided.

As for HMOs and Catholic doctors, they get outs depending on the HMO and the state. It varies a lot. Most health plans don't try to characterize doctors by practice style or what have you, unless the doctor is viewed as being extreme and generates a lot of complaints from patients (for instance, berating female patients for asking for contraception).

Ferdinand Mary That's quite an insult. 1. How do you define "orthodoxy"? 2. Where, precisely, have I been contemptuous of orthodoxy, as you understand it?3. Where, anywhere, does Catholic orthodoxy require physicians not to treat persons with tattoos?I am utterly contemptuous of pharisees. I think this doctor is a pharisee. Christians like him pervert the faith; they give Christianity a bad name. Furthermore, they are not likely to win any converts What would a person--young or old-- not too familiar with Christianity think about the faith after being exposed to this story?Not exactly in line with Deus Caritas Est. No sign of love of neighbor, no sign of love of God.

Not knowing the particular circumstances and commenting in a more general way, I would think a written complaint to the state's medical licensure board and/or attorney general might be in order. At the very least, submission of a complaint helps establish a record that might, at some point, be actionable by the state.

Ferdinand Mary,Orthodoxy is caring about and for enemies, forgiveness, genorosity and challenge that will allow one to live the life in God that Jesus promised.If you are not challenged about spiritless "orthodox "people who sent clerics out again to abuse children then you might rethink what is responsible. Who do you believe the bishops or the abused? This is one of the central questions of our times.Cathy challenges us to rise above the letter of the law for the Spirit. The leaders, the orthodox, of the time of Jesus were severely rebuked by him because they were legalists and forgot the spirit. The answer might be that you may need to give your self permission to think outside of the Scribes and the Pharisees as to what someone might mean.'s a news story on it. There is an insurance company--Health Net of California. I'd want to look at the provider agreement he signed with the insurance company.

For what it's worth, here's why I think Catholics ought to be concerned about this story. As the Colbert video mentions, there is a national clash about Christian physicians refusing to perform certain procedures--to do an abortion, to provide IVF services, etc. They want an exception to any relevant state or provider requirement that they do so-- "a conscience" clause.Now, there is no constitutional requirement that the state give them an exception to state mandates-there is also no constitional requirement that private parties hire doctors who claim an exception to perform services within the scope of employment on religious grounds. They can try to negotiate an exemption to the requirement with their providers, or in case of licensure or other state requirements, with the legislature. But tin my view, their ability to gain the desired exemption depends on their ability to persuade the others that 1) they are acting reasonably; 2) tthe exception is narrowly tailored, and will not affect a broad range of necessary medical services; 3) the exemption they demand will not undermine the ideals of medicine and of good medical care more generally.You might claim that no one ought to be forced to provide services they don't agree with. You might claim that it is a type of coercion. But this is untrue. The response is that they don't have to be physician. They can choose another profession which doesn't present them with problems of conscience. Furthermore, the commnity invests a great deal in the training of physicians-- they reasonably expect ones who will provide the general run of services valued in the community--conscience clauses will, of necessity, be an exception, granted because you respect the class of people claiming it, and because you don't think that granting it will undermine your program of providing genreally accepted medical services to the population. So what in particular should the exception be based on? Colbert's distinction is key: It's one thing not to provide SERVICES that you think are immoral --especially if you think they harm other people. You're claiming freedom from engaging in an immoral act. It's something different to refuse to provide treatment to PEOPLE whom you believe to have performed an immoral act (chewing gum, getting a tattoo) --and especially, to the innocent children of thhose people. Your claim here is for freedom not to treat immoral people. Christianity has never taught that physicians should refuse to provide moral services to immoral people. We have no problem binding gunshot wounds, comforting drug addicts, curing prostitutes. These are not immoral acts. They are corpral works of mercy. If, in the public mind, the "conscience clause " exception claimed by Catholic physicians is associated with people like Dr. Merrill, they will see little reason to protect such consciences. Why? Go back to my three reasons. It does not seem he was acting acting reasonably or even in good faith on his own terms--what did the baby do wrong? Second, there is a wide range of common medical services at stake -- in this case penicillin. Third, his version of the conscience clause goes against the whole ideal of medicine: treating people who are hurt, no matter how badly they have behaved.So, I belive that people like Dr. Merrill actually undermine the likelihood that states like California will respect the consciences of physicians with respect to procedures they believe to be immoral. He will be the poster child for the Christian physician--and not a very attractive one at that.Rather like Bill Donahue functions in his sphere.So I think Christians need to 1) criticize Dr. Merrill, and 2) distinguish between the legitimate freedom not to perform immoral procedures and the illegitimate freedom not to treat immoral people.Which is precisely what Stephen Colbert did.

I realize that this blog emphasizes Catholic thought, but I thought this discussion might benefit from two quotations from one of my favorite Protestants, John Wesley:"In the afternoon I visted many of the sick; but such scenes, who could see unmoved? There are none such to be found in a Pagan country. If any of the Indians in Georgia were sick, (which indeed exceedingly rarely happened, till they learned gluttony and drunkenness from the Christians) those that were near him gave him whatever he wanted. O who will convert the English into honest Heathens!" (Journal, Feb. 8, 1753)."Whether they will finally be lost or saved, you are expressly commanded to feed the hungry, and clothe the naked. If you can and do not, whatever becomes of them, you shall go away into everlasting fire" (Sermon on the Mount, Discourse IV)

Joe, never apologize for bringing John Wesley into the discussion! I have always thought he and his brother Charles made tremendous gifts to the entire body of Christ.

Cathleen,I understand your point, but I don't see this as a real problem for Catholics who want to see conscience exceptions for physicians and other health care providers.This doctor may say his reason for denying care is because he is a Christian, but the reason he is not obligated to do so is has nothing to do with his stated reason. He could just as well have said, I think tattoos are trashy and disturb my other patients, and denied care. As the AMA spokesman says in one of the news articles on this, he has rights as a "businessman."The situation with Catholic health care providers is very different.I suppose your point is born out to some extent by Bill's reaction in equating this man's behavior to the "church of dogma," but I think most serious observers, and even more casual ones, see the difference.

"Rights as a businessman?" What church does that stem from? Or perhaps one cannot cure on the Sabbath. Surely the Good Samaritan had "reasonable" grounds for refusing since the robbed man was a known enemy. Just who is our neighbor?

I'm somewhat amazed that we're even debating this. There are two reasons for us as Catholics to be concerned about this story. The first, as Cathleen pointed out, is its potential relationship to what we might see as legitimate conscience clause issues. Unlike Sean, I'm not sanguine about many observers' ability to tell the difference. I can see this example brought up as a type of reductio ad absurdum. "If we legislate a conscience clause for Christian doctors, where will it end?"Regardless of the conscience clause issues, we who claim the title of Christian have a special responsibility to stand against those who use the name of Christ to try and justify immoral acts. Sean's point about the doctor's possible legal "rights as a businessman" is irrelevant. It might be an interesting legal issue to debate whether and in what circumstances doctors should be able to withhold treatment based upon their personal opinion of the patient. But the legal and ethical argments are not the same. As Catholic Christians, I would hope we could agree that the doctor's action was immoral and opposed to the teachings of Christ.

Bill,My point was that his legal right to deny care had absolutely nothing to do with his beliefs, Christian or not, and therefore have no relationship to any conscience claim.Why do you insist on equating traditional Catholic doctrine with lack of care for others? You could find no one more orthodox than Mother Theresa, and all of us would have a hard time matching her care for the poor. Why also do you insist on bringing the sex abuse crisis into any discussion? Frankly, the crisis had very little to do with where anyone falls on the doctrinal spectrum. There were as many "progressive" priests and bishops involved as "traditional" ones - some even think more.Gina,I don't claim that this doctor acted morally or as a a Christian. My only point is that some guy in Bakersfield says his Christian beliefs motivated him not to provide routine treatment to a child who's mom had tattoos is not the same thing as a physician refusing to perform abortions. I just think it is kind of a leap - and absurd, as Colbert is demonstrating.

Sean,1. First, the Doctor and they hypotheical Catholic doctors are in precisely the same place legally. The doctor's "right" not to provide care can be limited by statute, by regulation, and by contract. In fact, it's my strong suspicion is that this doctor's failure to treat the patient violates a provision in his contract , even if they haven't found it yet. (assuming this is a medicaid patient some contractual provision required by the federal or state law to be incorporated by reference in in medicaid provider contracts). So whatever right they have not to treat can be contractually or legally aborgated.2. Both this doctor and the hypothetical doctor refusing to perform abortions (say) are going to have to make their case to be treated differently than the norm, once non-discrimination clauses (in the first case) and willingness to provide a specified range of services (in the second case) are made the norm. In making that case, religion is relevant to both as motive. Motives matter--good motives help, bad motives really hurt. But motive is enough for neither. The distinction between not performing certain procedures not treating people is extremely important, but not conclusive in and of itself. In other words, just because you claim to be exempt from a requirement that one provide certain treatment , you're not home free.We would not allow a Muslim physician to say she doesn't want to accept male patients; we wound't allow an old style fundamentalist to say that he wouldn't give women an epidural during delivery because the Bible says women should bring forth children in suffering (I believe this argument was in fact raised when anesthesia became widely available for this purpose). 3. So I think we can't take for granted that most people see these distinctions. Abortion is a constitutional right. Many people believe it contributes to women's autonomy. So from their perspective, in both cases you have 1) doctors who are refusing to do their jobe; 2) for crazy religious reasons); and 3) with cruel and bitter consequences. No one is going to make exception for the conscience of someone they categorize like that.Why the video? I think Colbert make the point in two minutes, entertainingly.

Recent conversations with my fellow volunteers at the local version of the St. Vincent de Paul's Society reinforce for me the importance of emphasizing among our fellow Catholics the demands of our faith concerning how we deal with people, any people, who do not have the means for satisfying their elementary needs. Quite simply, our faith forbids us to play the judge and decide which needy people are "deserving" and which are not. Whatever distinctions the state's laws may allow are irrelevant for how we ae to conduct ourselves as Catholics. The conversations I've had with my fellow volunteers concerned how we deal with illegal Hispanics. For the Catholic, their legal status is in principle irrelevant. (Prudence of course is relevant in all cases.)When the state law is morally defensible, then Catholics, like all citizens, can follow its guidance. But more frequently than we might like to admit, Catholicism and state law clash. It's hard, I've come to see, for many good Catholics to recognize and deal with these clashes in a Catholic way.I know that these comments are more or less tangential to the main issues on the table here. Nonetheless, I trust that they're not useless.

Sean, The pedophilia crisis is about bishops not caring about victims of sex abuse by clergy by sending them out again to abuse children. 99% of those bishops are orthodox. The problem is the bishops are still resisting as the movie posted on this blog, and countless other incidents, shows. Make no mistake about it the bishops are the issue. These hierarchs were called "The Cosa Nostra" by Frank Keating who was selected by them. Also, the National Lay Review Board, selected by the bishops called their actions "tyranny."The bishops are still stonewalling on the issue as they are on the latest issue, finances. The bishops are the issues, make no mistake about it. They make the term "orthopraxy over orthodoxy" more true and poignant than ever. They have lost their moral edge. So much so that Marci Hamilton said that the pedophilia scandal would have never been exposed without the courts. The glaring fact is that the bishops have not truly repented of their because they are continuing. Unfortunately, both conservative and liberal Catholics are overlooking this since it is exhausting. We give the bishops a bye at our peril. But the issue is still pertinent and cuts the moral authority of a criminal bishopric. Is this apostolic leadership when the courts have to force Christian leaders to be moral? Is this the leadership that you will tolerate?

Bill,You said, "The pedophilia crisis is about bishops not caring about victims of sex abuse by clergy by sending them out again to abuse children. 99% of those bishops are orthodox. ' Frankly, that's hogwash, and I challenge you to back it up with facts. Today, Cardinal Mahony, one of the most liberal bishops in the US, is perhaps the posterchild for poor handling of this problem. As I said, I for one won't tie resposibility for this crisis on to one end of the theological spectrum or the other. There is plenty of blame to go around.I am not talking about giving the bishops a "bye." But I am also suspicious, rightly I think, of those who have used the crisis to promote completely unrelated ideological or theological agendas. It becomes tiresome when every discussion, whether it is about abortion, or church governance, or women's ordination, or even contraception, the answer is always "abuse crisis - bishops bad - don't obey them."You like to point to the example of the scribes and pharisees. Our Lord, even as he condemned their hipocrisy warned the disciples, "Therefore, do and observe all things whatsoever they tell you, but do not follow their example. For they preach but they do not practice." The human failings of the Church cannot be an excuse for ignoring her teachings.

Sean, the rights of doctors as "businessmen" would be easier to accept if doctors accepted their status of businessmen in other ways. For various reasons, I am well aware of the ways in which doctors have persuaded state legislatures to protect them from competitive pressures, particularly as it pertains to their dealings with health insurers. They have found a receptive audience precisely because they have been able to convince state regulators that their interests are aligned with those of their patients, and that they are thus a well-suited proxy for advancing those interests. In other words, "As doctors go, so go their patients." Doctors who are picky about who they serve based on extraneous or even frivolous factors are setting up a conflict between their interests and those of their patients. The more conflicts there are, the less respect and deference to their wishes doctors will find among the public at large, as well as those that represent them. What does this mean for Catholic health care providers? Pretty much what Cathy says -- those that object to specific procedures or treatments will be told to either find a different profession or that their employer is not required to accommodate their views. In other words, conscience clauses are considered to be okay because the people who assert them are generally believed to be sincere in their desire to help others, therefore, their unwillingness to engage in this or that procedure could only be the result of sincere moral position on their part. When the first presumption fades away, so will the follow on conclusion. The other interesting thing was the MSNBC report in which a lady with a tattoo stated that she had been treated by the doctor's office. One wonders whether the "No tattoo rule" is selectively applied as a subterfuge for avoiding patients based on other reasons. If that were the case, the doctor would clearly have a problem.

A few points hereFirst, I am not approving what this guy did. My point is that his "right" such as it is has nothing to do with his claim that it is based on his "Christian" belief. He could have said whatever he wanted for a reason, but his "right" not to treat this woman would only be the same right he would have not tot treat anyone. Except in some emergency situations, a physician has a right to refuse treatment unless he is governed by aome other set of standards. This could be governed by any number of factors including contracts he may have with insurers, whether he takes medicare or medicaid, etc. But he is in no way invoking a conscience exception.As for doctors using the law and regulations to promote their own economic agenda, even at the expense of patients - no argument from me there. I only made the statement about his rights as a "businessman" because that's what the AMA says his rights are - i.e. not a conscience based legal exception. In that regard, however, show me any group in our society that doesn't do this - including teachers, nurses, lawyers, social workers, and any other professional service - and I'll give you a dollar.Cathleen,You speak of the state's right in establishing rules of licensure are nearly absolute - that the first amendment would have absolutely nothing to say about it. Is it your opinion that a state would withstand a first amendment challenge to a licensing rule that required obstetricians to perform abortions?

You know, Sean, that's a really interesting question. I doubt if the state could go so far as to make licensure contingent on a doctor's willingness to engage in any specific procedure. On the other hand, I think the state could go pretty far in the direction of not protecting doctors who refuse to render care on the basis of conscience. For instance, not prohibiting health plans or employers or hospitals from refusing to contract or terminating a contract because a doctor won't provide certain types of care. As for your first point, there is no doubt that many professionals might choose not to deal with people based on non-morally based extraneous grounds. But most of these professionals wouldn't think of running to state legislatures and asking for protection based on their important role they play in protecting the public. Well, they might think of it, but for the most part, they won't be taken very seriously. To whom much has been given . . .

I am sorry that this is now becoming ad nauseam, again. Mahoney might be left of Mother Angelica but he is not a liberal. Gumbleton is a liberal. The reason I bring up pedophilia is because it is still not being addressed properly as the bishops continue to withold information and reconciliation for the victims. It must be in the forefront until the bishops do the right thing. And they are not.So the bishops are like empty, tingling brass until they get square with this one. It will be a long decade.

The first amendment does not protect people from generally protected laws or regulations not specifially aimed at punishing the members of a particular religion. It doesn't require special treatment because someone has a religiously based objection.So, I think a state could say: 1) You need to have a medical degree to be a doctor; 2) I think a med school could say, you need competent obgyn training to be a doctor, and a doctor needs to know how to perform an abortion. Also, if a state is licensing HMOS,or contracting with providers, it might say that abortion is one of the services that has to be made availab.e The HMO would then be on be able to say --any obgyn who works here has to know how to perform abortions, and take their turn if necessary.Cf. Employment Division v. Smith --Scalia wrote the majority opion. A quick Google summary: "Facts of the CaseTwo Native Americans who worked as counselors for a private drug rehabilitation organization, ingested peyote -- a powerful hallucinogen -- as part of their religious ceremonies as members of the Native American Church. As a result of this conduct, the rehabilitation organization fired the counselors. The counselors filed a claim for unemployment compensation. The government denied them benefits because the reason for their dismissal was considered work-related "misconduct." The counselors lost their battle in state court. But the U.S. Supreme Court vacated the Oregon Supreme Court's judgment against the disgruntled employees, and returned the case to the Oregon courts to determine whether or not sacramental use of illegal drugs violated Oregon's state drug laws (485 U.S. 660 (1988)). On remand, the Oregon Supreme Court concluded that while Oregon drug law prohibited the consumption of illegal drugs for sacramental religious uses, this prohibition violated the free exercise clause. The case returned to the U.S. Supreme Court in this new posture.QuestionDoes the state law violate the Free Exercise Clause of the First Amendment?ConclusionNo. Justice Scalia, writing for the majority, observed that the Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws.

I think there is an important distinction in the case of licensure. The case you cite and the other examples that Scalia cited are laws of general application with incidental impact on certain people because of their religious beliefs. In a licensure situation, there is an individualized inquiry into qualifications and is more like Sherbert v. Verner. Scalia said in Smith that the critical distinction was that the law generally prohibited an activity.

Two points. First, I don't think much of the basic framework of Sherbert (1963) survived Smith. The Religious Freedom Restoration Act tried to put the Sherbert framework back, but it was struck down. In an case, FFRA was a statute, not a constitutional requiremrentSecond, the licensure is a generalized requirement. If you're going to be licensed, you need a medical degree. Schools can set the requirements of medical degrees. You might argue that the law is targeting Catholics specifically--but I don't think that argument would succeed. It's targeting people who won't perform abortions--no matter why.

There's a difference between what the state requires for licensure and what a medical school requires for its students. I think the distinction that I made is valid: It would be problematic (not necessarily but very possibly prohibited depending on how it was done) for a state to condition medical licensure on being trained in abortion. "Medical licensure" is a very broad certification and no matter what the state says, because most doctors never perform the procedure, and the state would likely have to show that there is more than a rational relationship between being so trained and the state's interest. However, if a medical school or a training program considers D&C an important procedure for ob-gyn training, it's doubtful that it will be required to exempt students or residents. Students probably have a better chance of being protected than residents or other employees. Just so you know, this issue has already played out when the accrediting body for graduate medical ob-gyn programs refused to certify some training programs conducted by Catholic hospitals, not because they didn't perform abortions, but because they wouldn't train residents to do D&C procedures -- the procedure used in first trimester abortion, but also used in "missed" or incomplete miscarriage. I think some accommodation was reached, but the hospital lost the lawsuit that it brought. In looking at these cases, it's important to trace the state and/or federal law nexus between the condition and various benefits conferred by accrediting bodies, and the penalties associated with loss of accreditation, etc. The unemployment cases are really vexing. I worked on one of these where the employee quit on asserted religious grounds (though many people quit for the same reason but not on religious grounds) and the court ruled against the employee.

Barbara, I see the point of your distinction --In a way, that's what I'm trying to get at in my "second. .. " in the above post. I see that it is morally problematic for a state to make abortion training directly a condition of licensure, but I still don't see why would it be problematic constitutionally. Although it's not generally done, I see no reason why a state couldn't specify its own requirements for licensure rather than ceding those requirements to medial schools. It could appoint a medical board to do so, for example. And for people who practice in the area of obtetrics, the procedure used in abortion can be medically necessary after an incomplete abortion, as you know. Because abortion is such a common procedure, I don't know why states couldn't require people who work in that general area to know how to do an abortion--even if they don't plan on doing them down the line.It might be bad policy for the state -- or an employer --to require such things. But I just don't see how it is unconstituitonal after Smith.

It would be unconstitutional if it were a subterfuge for enforcing a condition of licensure based on moral/ethical/religious viewpoint as opposed to being based on actual concerns about the training of doctors. That's also why students stand a better chance of getting out of medical school requirements than residents do of getting out of training requirements. As the "category" becomes less and less general the requirements are easier and easier to defend on the basis of real concern over a doctor's skills rather than made up concerns that are based on rejection of someone's beliefs. It's for the same reason you can't teach creationism in schools -- the mere statement of a permissible reason will not be accepted at face value by courts trying to untangle the intent behind the requirement, which is relevant to the inquiry.

I'm not so sure about "ethical" viewpoint. There is nothing that requires the state not to enforce express certain moral norms in the law--just because they either track or fail to track religious beliefs.We believe it is morally wrong to discriminate against women and African-Americans. That moral norm is enforced by law, whether or not it tracks the moral norms of each and every religious community in the country.Massachusetts licensure requirements for adoption agencies prohibited discrimination against homoexuals. No religious exemption for Catholic Charities.

Well, generally, regulation has to be "viewpoint neutral." The first amendment doesn't just protect religious beliefs, it also protects political belief and, generally, free expression of all kinds. The Massachusetts adoption example can only be analyzed in light of the fact that CC was carrying out a specific state function (if I understand correctly, placing children in the state's custody for adoption) and would not or could not agree to place children in compliance with the state's non-discrimination requirements. It would be much more problematic if Massachusetts ordered private adoption agencies placing children on behalf of their biological parents (rather than the state as custodian) not to discriminate against homosexuals. It would be even more problematic if Massachusetts refused to let CC handle adoptions because of the Church's stance on gay marriage, notwithstanding its agreement that it would adhere to the state's ostensibly neutral standards.

But viewpoint neutrality has to do with freedom of expression, not freedom of action. Laws against discrimination are not themselves "viewpoint neutral" between discrimination and non-discrimination. The state is imposing a moral view on discrimination.Nutshell: the first amendment protects your right to speak freely against anti-discrimination laws; not to violate them.Boston Catholic Charities IS a private adoption agency--the non-discrimination requirement is a licensure requirement --all private adoption agencies have to be licensed. It's not merely a requirement having to with kids in state care. That's part of why the battle was so harrowing.So I'm not sure why you think this is "much more problematic" from a legal point of view. This is precisely what happened in MA.From a moral point of view, that's another story, of course. Now, consider your third case "If MA refused to let CC handle adoptions because of the Church's stance on gay marriage, notwithstanding its agreement that it would adhere to the state's ostensibly neutral standards." I agree, but with a caveat--I think MA would have the legal right to seek special assurances from CC, given the pressure on top from the Church not to comply with the requirements, and perhaps even to impose special monitoring requirements. (by analogy with UCC's reasonable grounds for seeking assurance).

You're probably not reading this anymore, but based on your last comment, I looked around to see whether I understood the law correctly (that is, the scope of the law), and I couldn't find anything that was definitive. To me, requiring an agency that is placing children on behalf of the state to conform to state standards on discrimination is mostly fine (still subject to some review regarding the legitimacy of the standard). The second, regarding privately placing children of bio parents who retain the agency on their own -- that is a more challenging requirement to defend. The Church clearly believed that was the scope of the law, at least from what I could find, but I couldn't find supporting documentation. Also, I've never understood exactly what it means to be "non-discriminatory" in the provision of adoption services, because women who voluntarily give up their babies pretty much have an all but inalienable right to reject placement on any grounds at all and the state's role is basically to ensure the safety of the child and the "fitness" of the adoptive parents. Not so with parents whose rights have been terminated on fitness grounds. Then the state is acting in its role of parens patriae and can reject candidates on any number of grounds (for instance, I am guessing that it could refuse to place children with parents who acknowledge a penchant for spanking as a form of discipline, even though lots of parents spank and are not considered to be unfit.) The state is allowed to define a higher standard. So the issue would be, is it constitutionally proper for the state to force a private adoption agency placing children only on behalf of their biological parents to accept applications from gay applicants for consideration as adoptive parents? I think I could argue this in both directions, and I suspect that where I would come out is that so long as the state doesn't trample on the parents' legitimate rights in placing their children it's probably okay for the state to control how the agency itself handles the process. I think one of the things that would be challenging for the Church to show is that it deserves a religious exemption based on the notion that it is carrying out a "core mission" that requires it to discriminate against people who do not share its convictions. There's probably no question that the Catholic adoption service places babies with Protestants and Jews and Muslims and Hindus -- as it deems appropriate.

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