Comments on: Leftist tactics to scare the uninformed about America’s religious freedoms UPDATED

By: Mike Devx

Mike Devx — Mon, 22 Feb 2010 02:47:14 +0000

Doug, I do have one further comment…
> You seem to have a different understanding of this new federal statute–and my suggested revision of it–than I do.

I’d missed the fact that you were discussing a specific statute. I’m still unclear on the specific statute you’re referring to. I waded through all the discussions above – and what wide-ranging ones they all were! – and I did find a link to the “Carlson” paper in #85 that may be the statute you refer to.

That paper was interesting. This leapt out at me:

Pharmacists are in a unique position of power in these situations. If they refuse to refer the patient to another willing pharmacist, or worse, keep the prescription, the pharmacist has made it much more difficult for the woman to gain access to contraception. The refusal to give EC to the patient or refer her to a willing pharmacist may literally make it impossible for women in low-income areas and rural communities to get access to the drug.

I’ve never heard of a pharmacist “keeping a prescription”. That sounds like theft to me. In any health care program I’ve been under, I’ve been free to take my prescription to any pharmacy I choose. I thought that was the case for everyone. A pharmacist who “keeps” my prescription because he or she doesn’t like its contents is risking me coming over the counter to take it back, violently. And with a hell of a lot of shouted words and expletives directed at them. I’m probably just fantasizing on my violent reaction here, but the idea of a pharmacist daring to do that REALLY pisses me off no end.

I’m actually surprised that “conscience clauses” allow an individual pharmacist to refuse to honor a legal prescription. I don’t agree with that. I don’t agree that an Islamic taxi driver be allowed to refuse me taxi service because I am carrying a bottle of liquor in a bag; or such a cashier in a grocery store be allowed to refuse to ring up my wrapped-in-plastic pork product either. Perhaps as a side note, I’ve heard at least a few stories of military contractor programmers leaving their jobs because they no longer could justify, to themselves, working on software programs that advanced certain destructive weapons systems. That’s the proper response to me: If you’re confronted, as an employee, with something you conscientiously object to, but is legal, your choice is to leave or stay. That’s how I see it, anyway.

By: suek

suek — Mon, 22 Feb 2010 02:09:22 +0000

>>One cannot defend against a charge of slander by invoking the freedom to say whatever one wants. Similarly, freedom of speech does not protect speech presenting a “clear and present danger,” e.g. falsely shouting fire in a crowded theater or giving a spy secret information on military matters.>>

You’re repeating yourself.

If you slander someone, you are not prosecuted by the State _for_ the State – you are sued by the person slandered. That is not a government limit on free speech.

If you yell Fire in an empty theater, no problem. Crowded theater, problem. But once again, the problem isn’t with the speech, it’s with the harm. If all of the crowd managed somehow to exit without any harm, it’s unlikely that any prosecution would occur – though they might ban you from the theater. If someone _is_ harmed, then no doubt that person would hie themselves to the nearest injury attorney and sue the socks off you. Again, probably not a criminal prosecution unless multiples of people are injured – in which case – yes. You would be criminally liable – not for a free speech violation but for an action that endangered others. Giving the enemy spy secrets is not a free speech violation – you don’t even have to verbalize the secrets – it’s an “aid and comfort to the enemy” issue. Not a free speech issue.

By: Ymarsakar

Ymarsakar — Mon, 22 Feb 2010 00:34:53 +0000

“You say that I would impose a “special burden” on refusals to provide services for religious reasons, a burden not placed on refusals for other reasons.”

If we speak of the law, necessarily we speak of the law’s enforcement. I don’t believe you should take on the persona for the enforcer of the law when your powers as a lawyer are rather disparate.

Although it would help if you separated your own personal views from what you say is the view of the law in question. It’s not a particularly good idea to mix and match personal beliefs with that which you are representing without a clear dividing line.

By: Ymarsakar

Ymarsakar — Mon, 22 Feb 2010 00:26:23 +0000

“You seem to suggest, as has Earl and suek and Ymarsakar, that this right or freedom is or should be absolute.”

It is more accurate to say that what has been constituted in the US Constitution simply cannot be replaced on the say so of any law or opinion.

Not only are the laws you raised in contention over whether they are Constitutional, but whether people “understand” the law or not is completely apart from whether the law is just or not, constitutional or not. Those are issues you choose to ignore at the peril of serious debate.

By: Doug Indeap

Doug Indeap — Mon, 22 Feb 2010 00:07:52 +0000

Mike,
I think you see “positive rights” in this discussion where they just aren’t. You seem to have a different understanding of this new federal statute–and my suggested revision of it–than I do. I have said nothing about this positive rights idea you are eager to oppose. Neither this new federal statute nor my comments on it are predicated in the least on any such positive rights.

Here is my understanding of this law: Various existing laws (primarily state laws) either grant patients rights to certain services or obligate physicians or pharmacists to provide certain services in various circumstances. For instance, perhaps a doctor or pharmacist may be obligated by his or her employment contract to provide professional services to certain people. Or perhaps if a doctor or pharmacist already has a professional relationship with a patient, state law and/or professional codes of ethics limit his or her ability to discontinue or refuse professional services. I am hardly expert in these areas of law, so cannot recite all of the various circumstances in which EXISTING LAW obligates these professionals to provide services and imposes consequences (e.g., demotion, termination, loss of license, or civil liability) on them if they wrongfully refuse. Realize the circumstances in which existing law imposes such obligations may be relatively few and far between; I don’t really know. (I did not mean to somehow “limit” discussion to pharmacists or anything else in particular; I merely observed that they likely were most often in circumstances where existing law obligates them to provide pharmacy services to members of the public.) In any event, the risk apparently was sizeable enough that Congress saw fit to pass a statute to relieve doctors and pharmacists of such legal consequences if they refuse to provide services for religious reasons.

So, that is my starting point. I do not posit any new “positive rights.” I merely suggest that, as a matter of policy, this provision relieving doctors and pharmacists of the consequences of failing to fulfill obligations they have under existing law would be better if it included at least some measures aimed at assuring that those to whom the doctors and pharmacists owed the obligation (i.e., their patients) are not harmed as a result. This suggestion calls merely for adjusting or tempering the grant of immunity to doctors and pharmacists; it does not impose on them any obligation that they don’t already have under existing law (by that, I mean existing law before the recent grant of immunity).

You say that I would impose a “special burden” on refusals to provide services for religious reasons, a burden not placed on refusals for other reasons. Existing law, though, does not obligate a doctor or pharmacist to make a particular career choice, nor does it obligate a doctor or pharmacist to provide a particular service against his or her professional judgment. Nor do I propose any such obligations. (Indeed, in my view, when a doctor refuses to perform an operation or a pharmacist refuses to fill a prescription for professional reasons, he is not refusing professional service, but rather is providing it; perhaps the most important aspect of that service is the doctor or pharmacist exercising his professional judgment. It is an entirely different matter when a doctor refuses to perform an operation or a pharmacist refuses to fill a prescription for religious and not professional reasons; that is refusing to provide professional service.) Again, I simply accept as a given whatever obligations existing law imposes on doctors and pharmacists and suggest that they be relieved of the legal consequences of refusing to fulfill those obligations for religious reasons provided that at least some measures are taken to assure that their patients don’t suffer as a result. Relieving a professional of his existing obligations on the mere condition that something be done to protect those to whom he was obligated hardly seems too much to expect of any professional worthy of the name. Realize that if a doctor or pharmacist did not have any obligation under existing law to provide service, then under the immunity provision as well as my suggested revision of it, the doctor or pharmacist would remain unobligated and free to refuse the service for religious, or indeed any other, reasons. This is not about creating or extending rights beyond those currently existing. Rather, this is about whether and how to relieve professionals of whatever existing obligations they may have.

It appears we have come full circle on this–and then some–so perhaps we’ve about exhausted what we can get from this discussion. I appreciate your–and others’–thoughtful comments. I have enjoyed the conversation and have learned from it. Thanks.

By: Doug Indeap

Doug Indeap — Mon, 22 Feb 2010 00:06:10 +0000

BrianE,

I have not said that said that separation of church and state is absolute. Indeed, I said just the opposite. See #94, last paragraph.

You suggest I am willing to limit the free exercise of religion to convenience (whatever that means), but I said nothing of the sort. You seem to suggest, as has Earl and suek and Ymarsakar, that this right or freedom is or should be absolute. My point is that it is not and cannot be so. I have mentioned the Wake Forest paper several times, not because it is the be all and end all of the subject, but because it offers a good, readily accessible summary of what the law is on this subject. A quick perusal would put to rest this “absolute” discussion.

By: Doug Indeap

Doug Indeap — Mon, 22 Feb 2010 00:04:02 +0000

suek,

Of course, many limitations of rights are of the time, manner, and place variety. They are nonetheless limitations, and the rights thus are not “absolute” in that respect.

But you want to focus on a particular type of limitation on freedom of speech, i.e., limitations on the content of what someone can say. Okay. Such limitations are perhaps the most disfavored (with good reason) and thus rare sort the law recognizes. They do nonetheless exist. For instance, obscenity. Freedom of speech does not preclude government from prohibiting or punishing obscenity. (There are, of course, problems defining obscenity, but that’s another subject.) Similarly, freedom of speech does not preclude the government from prohibiting or punishing slander. One cannot defend against a charge of slander by invoking the freedom to say whatever one wants. Similarly, freedom of speech does not protect speech presenting a “clear and present danger,” e.g. falsely shouting fire in a crowded theater or giving a spy secret information on military matters. See, e.g., http://en.wikipedia.org/wiki/Schenck_v._United_States

By: suek

suek — Sun, 21 Feb 2010 23:31:45 +0000

>>Utilizing the authority of the Constitution, as it was written in the past, does not bolster your case now.>>

Hmmm.

“Make them obey their own rules … all of them … to the letter.”

This has a familiar feel…

By: Ymarsakar

Ymarsakar — Sun, 21 Feb 2010 23:26:24 +0000

“I’m simply urging an effort to find a balanced solution that frees doctors and pharmacists of adverse legal consequences of refusing services without thereby throwing patients under the bus.”

There’s no way to preserve people’s self-interest by sacrificing one group to appease the other. That is neither alpha leadership nor is it particularly stable in the long run.
You can try to find a balanced solution, by the methods you advocate are inherently designed to exploit one class in favor of another. Not all goals can be achieved through any means. Some goals require a specific method or methods.

By: Ymarsakar

Ymarsakar — Sun, 21 Feb 2010 23:20:59 +0000

” I’m merely pointing out that the right is not absolute since it is subject to well recognized limitations. ”

You are not a Founding Father. Utilizing the authority of the Constitution, as it was written in the past, does not bolster your case now.

Comments on: Leftist tactics to scare the uninformed about America’s religious freedoms *UPDATED*

By: Mike Devx

By: suek

By: Ymarsakar

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By: Doug Indeap

By: Doug Indeap

By: Doug Indeap

By: suek

By: Ymarsakar

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Comments on: Leftist tactics to scare the uninformed about America’s religious freedoms UPDATED