Monday, December 03, 2007

Plan B and conscience

The Wisconsin State Assembly is considering a bill to require hospitals to administer emergency contraception to rape victims. Many people believe that the drug, known by the infelicitous brand name "Plan B", is considered by many to be an abortifacent because it tends to prevent a fertilized egg from implanting in the uterine wall.

The bill originally had conscience protection for individual doctors and nurses, but not for the hospital as an association. In other words, a Catholic hospital with a policy against the drug would have to administer it.

An Assembly committee adopted an amendment by Mark Gundrum that provided such protection to hospitals who adopt policies against administration of Plan B on religious or moral grounds.

For reasons that I won't get into here, I support that. But doesn't it defeat the purpose of the bill? Are there any hospitals that refuse to administer Plan B except on moral or religious grounds? It seems to me that if you don't think that it is wrong to do so, then giving the drug would be a rather obvious and simple thing to do.

This brings me back to my original reaction to the unamended bill. It seems clearly targeted at the practices of hospitals and health care providers who have religious objections to Plan B.

Does that raise constitutional concerns? Does it interfere with the right to free exercise of religion. The US Supreme Court has held that a neutral law of general applicability will usually not be unconstitutional even if has the collateral effect of interfering with someone's religion. The leading case involved Native Americans whose sacramental use of peyote violated state drug laws.

There is, however, an exception when the law was, in fact, aimed at a religious practice. But it has been often been narrowly interpreted and I think it would be a tough slog here.

The free exercise guarantee in Wisconsin's constitution has, however, been more generously interpreted by the Wisconsin Supreme Court. That,too, is New Federalism. In Wisconsin, a law that substantially burdens religious exercise must be necessary to achieve a compelling state interest. This is a tough standard but there has been surprisingly little action following the case that established it.

So ... will the legislature strip out the exemption? If it doesn't, will there be any pro-life energy against the bill? Is this the battlefield that you want to die on?

But don't the sponsors of the bill (if they are doing something other than posing for a press release) have to try to strip the amendment?

If so, will there be a constitutional challenge?


Dad29 said...

Maybe a challenge.

So far the Wisconsin Catholic Bishops have not objected. Only a Catholic physicians' group has, and individual practitioners are exempted.

Anonymous said...

An exemption-from-the-laws-of-the-U.S.-or-state for the Catholic Church?

Not a slope to start slipping down. If so, then other churches can argue for exemption from other laws.

And hospitals that want exemption from some laws also ought to find themselves exempted from other laws -- like the tax laws from which they are exempted.

And as with other policies, they also ought to find themselves no longer able to accept any governmental funding. Medicare, Medicaid, etc. . . .

Actually, of course, and as Dad points out, it's an exemption asked by Catholic hospitals and Catholic physicians who may be disagreeing with their bishops.

No legislature ought to go anywhere near that one. Let the Catholic church take care of its internal messes -- and not push them on the rest of us who help to fund them.

Dad29 said...

It's awfully NICE of you, Anony, to "fund" Catholic (and other denominational) hospitals.

Only 50 years ago, almost every hospital in the Milwaukee area was denominational--except County, and the old City hospital on the South Side.

St Luke's and Deaconess were Episcopalian, there was a Lutheran hospital, and all the rest (except Columbia) were Catholic.

But enough history.

You propose to tax hospitals which willingly violate their conscience? Or better put, NOT tax hospitals who succumb to State imperatives?

My. You value the First Amendment, don't you.

Now let's get to "Freedom of Speech"--like in blogs.

Anonymous said...

Dad, nice try, but tangling tax code and the First Amendment in this case is . . . just nuts. Nobody is precluding people who work at hospitals from speaking or assembling about their beliefs. You've topped yourself, and that's saying something. And what the heck does it matter which hospital was what when I was born? This is about the unborn, as you put it.

But if you're gonna go there, that's a lot of the problem here today. Columbia's merger with a Catholic hospital, and now that Catholic hospital's pending merger with what used to be our public county hospital already has had serious impact on prescription coverage for women workers at those places.

Now you want these business decisions, which drove mergers in for-profit hospitals that still get tax exemptions for nonprofits, to also preclude this prescription for rape victims.

If they're tax-paying rape victims, that's really ripping them off and making them pay the price of your moral code for what could be the rest of their lives as parents of unwanted babies.

And you do want to animate, give life, to everything, dontcha? people have consciences, bricks and mortar don't. People who don't like the professional oaths they will have to take ought to find other professions.

And people who want to live in a Catholic state can move to Rome. This is, as you say, a free country -- free from imposition of others' religions on the rest of us.

Keep it up, and I may have to drag out Biblical injunctions on you about spilling your seed on the operating table if you need surgery for prostate cancer. What goes around comes around, even to those with other anatomical equipment.

Anonymous said...

This bill is nuts...what significant interest does the state have in turning hospitals into abortion clinics? Furthermore, what if the woman was pregnant prior to the rape? What if she doesn't know she was pregnant before the rape? And, it was a pregnancy that she wanted?

The pregnancy may not be wanted but that doesn't mean that the baby will be unwanted. Rape is a terrible thing but does two wrongs make this right?

Dad29 said...

tax code and the First Amendment in this case is . . . just nuts. Nobody is precluding people who work at hospitals from speaking or assembling about their beliefs

Your narrow-read of the 1st is about what one expected.

The 1st also allows "conscientious objection" to practices which are antithetical to religious beliefs--and in Wisconsin, that protection is even more broad than under SCOTUS decisions.

And if your convoluted prose at the end of your rant is some sort of threat, feel free to bring it on--so long as you have a Class3 vest.