Submitted to a Candid World
Archive for December 3, 2008
Right of Conscience as Parthian Shot
His horse must be exhausted! In the last weeks of his presidency, Bush has been taking endless Parthian shots at labor, consumer, and environmental protections. Yesterday, the Los Angeles Times ran a story that Bush plans to expand the recently adopted “provider conscience” rule to cover a wide range of legal medical procedures and every potential objector from doctors and nurses to janitors and cafeteria workers. This is Bush’s most dramatic shot, and how completely predictable that it aims at the heart of women’s health.
It is a freshly laid mound of B.S. to argue that provider conscience rules protect heretofore neglected rights of doctors not to provide services with which they have moral disagreement. The AMA’s Principles of Medical Ethics has long provided that
A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care.
A physician, however, needs to be upfront with a patient, from the outset, about what procedures the physician will not perform. The physician who will not perform a specific procedure must always refer his or her patient to a physician who will provide such services.
What makes “right of conscience” rules so dangerous is that they conveniently ignore the “ethical duty of referral” and make the provider’s duty not one to ensure access to medical care but one of moral judgment.
Even Pope John Paul II (!!!) recognized the capacity for abuse back in 1991:
Provider-conscience rules are most obviously meant to limit access to legal abortion. Bush’s expansions will cover other areas of women’s health: birth control, artificial insemination, surgical sterilization … just about anything having to do with ovaries is at risk. The expansion of protection to EVERYONE in the chain of care: from janitors to receptionists to file clerks to nurses and, finally, to doctors turns women’s health into a Kafka-esque display of prosecution and condemnation, where one woman is rendered 100% helpless against the judgment of dozens.
As easily as the Bush Administration was able to install the rule in HHS, we can only hope the department, under the Obama Administration, can just as easily undo it. Back in September, when HHS was receiving public feedback on the rule (a lot of good that did), I wrote to both of my senators with my concerns. Yesterday, I received a canned response from Hillary Clinton. Needless to say, she is absolutely opposed to the rule, saying
The Administration’s proposed rules would allow health care providers to classify many common forms of contraception as “abortions”, and therefore they can refuse to provide contraception to women who need it, even when states have laws on the books to ensure access to contraception.
At first I didn’t want to write this post because I feared it would drag me into another intractable debate about abortion, which usually amounts to several men waxing philosophic and no one hearing what anyone else is saying. But this rule is such an insult to our collective intelligence, and it puts pro-lifers in a pickle, requiring acceptance of the draconian belief that any contraception is abortion. Reasonable pro-lifers should be opposed to this unnecessary and ludicrous rule and should support any effort to strike it from the HHS mandate.
PUMA-Watch: Conspiracy Theorists Still Trying to Disqualify the President Elect
By Ames: a Submitted to a Candid World EXCLUSIVE,
Copyright © 2008. All Rights Reserved. ((Pretentious title is only to mock “Judah Benjamin,” and “TexasDarlin,” who just love such over-inflated nonsense.))
UPDATE: Dear PUMA/Obama denialist trolls: before you start going off about the “natural law” of citizenship, read the resources I cited in this article. This law review is a good start.
I haven’t touched this issue in a while, but here we go: despite Barack Obama’s electoral victory, a few conspiracy theorists are continuing to press the idea that, somehow, Barack Obama is unqualified for office, as he is not a “natural born citizen.” The latest in this parade of pitiful plaintiffs, Leo Donofrio, claims that New Jersey electoral officials failed to verify that then-Senator Obama was “natural born,” and (after having a request for a pre-election stay dismissed) is now asking the Supreme Court to intervene before the Electoral College certifies Obama’s victory on December 15th. He’s excited because, this Friday, all nine justices will read his certiorari petition (request for appellate review). Big deal. Call me if they take cert, but I won’t be waiting by the phone.
A point to consider: Donofrio’s lawsuit does not challenge Obama’s eligibility. It merely alleges that the Secretary of State failed to evaluate his eligibility, and asks that she do so. Apart from this suit – doomed to failure, of course – Donofrio has a number of, ahem, interesting theories as to why Obama is not a “natural born citizen” as required by the Constitution. ((U.S. Const., Art II., s.1.)) Since the real story here is in Donofrio’s theory on why Obama should be ineligible, we’ll skip to that.
As Patrick McKinnion (my colleague from YesToDemocracy) points out, Donofrio’s theory of Obama’s ineligibility is substantially similar to that posed by “Judah Benjamin,” TexasDarlin’s neo-confederate pseudohistorian. Both argue that while Obama would otherwise be a “natural born citizen,” some aspect of his dual citizenship, or family origins abroad, renders him ineligible. The only difference between their arguments is the source of the law. Here’s the breakdown:
- Judah Benjamin argues that Obama’s common law “dual loyalties” kill his natural-born status, per Blackstone’s commentaries.
- Donofrio specifically disclaims reliance on the common law (correctly so: apart from the fact that Blackstone doesn’t bind American courts, in whatever sense the U.S. received British common law, it’s been legislatively amended), and instead argues that a “natural” citizenship, acquired at birth, must be unencumbered by other allegiances or citizenships. In Donofrio’s mind, the dual citizenship Obama gained at birth, and has since disavowed, represented such an encumbrance.
They’re both wrong. Benjamin is wrong for the reasons that Donofrio states in his post (erroneous analysis of the vitality/applicability of common law; incorrect statement of the holding of U.S. v. Rhodes). Although Benjamin seems to think that “Donofrio is the first to address a refutation” of his arguments, many of the arguments that Donofrio raises against Benjamin are the same damn things I said months ago. Nice try, Bennie, but you’ve been a loser much longer than that. That Donofrio is the first one to get your attention isn’t my fault: if you didn’t censor all opposition at TexasDarlin, you would’ve heard about this earlier.
So much for Benjamin: even people on his side of the issue think he’s wrong on the law. Donofrio, though, is no better. Donofrio can cite no authority for the critical proposition that dual citizenship at birth is dispositive of “natural born citizenship.” I can cite several to the contrary. ((J. Michael Medina, “The Presidential Qualification Clause in this Bicentennial Year: the Need to Elminate the Natural Born Citizen Requirement,” 12 Okla. City U. L. Rev 253, 256 n.12 (1987).)) ((Sarah Helene Duggin & Mary Beth Collins, “‘Natural Born’ in the USA: The Striking Unfairness & Dangerous Ambiguity of the Constitution’s Presidential Qualifications Clause and Why We Need to Fix It,” 85 B.U. L. Rev. 53, 108 & 108 n.29 (2005) (“[T]he Constitution does not bar dual nationals from becoming President, and, in recent years, United States nationality law has become increasingly tolerant of multiple citizenship, thereby increasing the possibility that a dual national will become President.”).)) While no mandatory authority – meaning, court case, statute, etc. – has confronted the question, academic analysis is 100% on my side of the issue.
Thus, even if Donofrio manages to force the Secretary of State to investigate claims of Obama’s ineligibility, it will amount to sound and fury, signifying nothing. At the end of the day, Obama will still be President, Benjamin will still be a closet-racist who can barely string two sentences together, and Donofrio will still be a crappy lawyer who should probably stick to poker. ((Apparently, Leo Donofrio is a fairly successful poker player.))
