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…On Those Proposed HHS Regulations.

Posted by Steve on August 31, 2008

It’s been now nine days since I reported the Department of Heatlh & Human Service’s release of a draft regulations for public comment. I wanted to talk about those some. This will probably get hell of long, so…

The regulations state that they’re being put in place to enforce the terms of a set of statutes, “The Church Amendments” (42 U.S.C. 300a-7), Public Health Service Act Sec. 245 (42 U.S.C. 238n), and “The Weldon Amendment” (Consolidated Appropriations Act, 2008, Public Law No. 110-161, Div. G, Sec. 508(d), 121 Stat. 1844, 2209 (Dec. 26, 2007)), that establish a set of protections, including prohibitions on denial of funding and any sort of discrimination, for medical service providers who, based on their conscience, refuse to participate in a) abortions, and b) sterilizations.

That second bit took me for a loop. Since when have doctors ever refused to perform sterilizations, even sterilizations on unwilling people? Off the top of my head, three U.S. Supreme Court cases have all upheld compulsory surgical sterilization of unwilling – or flat-out unknowing – victims as constitutional (Buck v. Bell, 1927) as long as everybody gets it done to them equally (Skinner v. Oklahoma, I think in the late 40s) even if laws are broken in the process (Stump v. Sparkman, 1978). Those don’t happen if doctors are objecting to performing surgical sterilizations. I mean, take a look at the facts underlying Stump v. Sparkman: a woman gets a lawyer to help her file a petition with a state court judge asking him to issue an order for her daughter to be sterilized. He grants it (without any sort of hearing, guardian ad litem to defend the girl, or statutory authorization to give such an order to begin with), whereupon three doctors participate surgically sterilize the 15-year-old girl – after telling her she’s going to the hospital to get an appendectomy. In a just world, that wouldn’t have happened to begin with but having happened would have put six people in prison, with at least one of them there on only a temporary basis until their visit to the firing squad. Instead, of course, Byron White stretched a poorly reasoned precedent (Bradley v. Wall, from the 1800s, which attempted to distinguish “in excess of jurisdiction” from “absence of jurisdiction”, despite jurisdiction being like all authority a case where Expressio unius est exclusio alterius should apply without exception, making “in excess of jurisdiction” equal to “absence of jurisdiction”) and the definition of a judicial act in order to give the state judge absolute immunity in a 5-3 decision. I have to wonder if some part of the perfection in Blackmun’s DeShaney v. Winnebago County dissent was an expression of guilt for having been part of that 5. I hope so, he should have felt guilty for it, as John Paul Stevens should to this very day. Justice, in a sentence, is Newtonian: “For every action, there is an equal and inescapable punishment.” By embracing an immunity doctrine, the Supreme Court created a way that some people go unpunished. That is not justice. A legal definition of innocence in spite of factual guilt is not justice. Ora Spitler McFarlin should have been executed for what she did to her daughter. Leonard Stump (the judge), Warren Sunday (the lawyer), and John Hines, Harry Covell, and John Harvey (the doctors) should all have been punished as well – imprisoned for sure, with I think a case to be made for executing Sunday and Hines (who was in charge of the operation). Instead, Stump got absolute immunity and the 7th Circuit ultimately (in the 1979 Sparkman v. McFarlin – the 1977 case by the same name is the one that the SCOTUS reversed in ’78) dismissed all the civil claims against the others. Civil claims, mind you – criminal proceedings never entered the picture. There was never a possibility of prosecuting those six.

To say nothing of prosecuting the (granted, now mostly dead anyway, but of old age, not justice) multitudes of doctors, legislators, and others responsible for some tens of thousands of eugenics-based sterilizations in the U.S. (8000 in Virginia, per Mark Warner, and 2600 in Oregon per John Kitzhaber, and that’s 10,000 just in two states). For every wrong, there is an equal and inescapable punishment. There must be, or there is no justice.

So, since doctors are willing to participate in sterilization of the unwilling, and to lie to their victims in order to keep them from even knowing, I don’t see why there’d be any point to federal laws protecting doctors who refuse to perform sterilization surgeries, since I’m hard pressed to imagine a doctor refusing to sterilize someone.

Good thing the regulations included a reference to Taylor v. St. Vincent’s Hospital, a 9th Circuit case in the 70s. Apparently, doctors have indeed refused on the basis of conscience to perform tubal ligations or vasectomies. Yep, refused to perform them – on mentally competent adults who’ve asked for them.

I have trouble respecting a legal system wherein one part stipulates that doctors must perform hysterectomies and castrations on people who don’t want them (Oregon until 1983) while another part simultaneously allows them to refuse to perform tubal ligations and vasectomies on people who do want them (Church Amendment was passed in 1973).

Look, I’m all for preventing pregnancy. I think it’s an STD every bit as much as syphilis or gonorrhea, although I do respect a woman’s right to choose to become and remain pregnant. I’ve thought about getting myself a vasectomy, but just plain don’t have enough sex to justify it (I have had sex on less than 0.16% of days lifetime, less than 0.31% of days since first wanting to have sex, on less than 1.7% of days since getting rid of my virginity, and on less than 14 days total), especially since if some woman ever does file fertility papers for me… Oh, I realize they don’t exist yet, but I want them to. It’s the perfect system. Like fluoridation of water, drugs that inhibit sperm production pumped into the air or water, with temporary prescriptions of antidote available to men only after a woman files paperwork declaring an intent to become pregnant and requesting by name that his fertility be restored for her use. The antidote being distributed on a shall-issue basis, of course. Like every drug should be, since pharmacists are just vending machines that can read a prescription. But all of that, ALL of that, is either A) voluntary (me getting myself a vasectomy) or B) chemical rather than surgical and not inducing permanent sterility in anyone (the world instituting my science-fiction proposal). And yes, I do regard the chemical-vs.-surgical and permanent-vs-temporary aspects as Big Deals. There’s a right to refuse surgery – or rather, performing surgery without the patient’s consent is properly a crime. Any sort of mandatory surgery law would be immoral, not just a eugenic mandatory sterilization law. There’s no right to refuse vaccination (or fluoridated drinking water!), and there’s nothing wrong with mandatory vaccination laws – nor any moral need to allow exceptions in them.

And I’ve strayed far afield from my stated topic, the proposed HHS regulations.

As to those, most of its content is only objectionable based on the objectionable nature of the statutes it enforces. Enforcing statutes is, after all, the duty of an executive agency. So the fact that these regulations sanction behavior that should be felonious isn’t a problem with the regulations, it’s a problem with Federal statutes. Congress took an action that should be criminal, refusing to perform an abortion for a woman who requests it, and gave it legal protection. HHS does, unfortunately, have a duty to enforce that law, unconscionable though it is. There is no place in a just world for interfering with desired abortions.

Now, the regulations contain a paragraph:

This regulation does not limit patient access to health care, but rather protects any individual health care provider or institution from being compelled to participate in, or from being punished for refusal to participate in, a service that, for example, violates their conscience.

That statement, as far as I can tell, isn’t discussed elsewhere in the text, which means I can’t be sure of what reasoning’s used to back it up. I can only assume it’s that {the policy protects/permits an action} is being treated as unlinked to {someone performs that action} and thus {consequences of the action} ≠ {consequences of the policy}. I don’t think that’s valid reasoning. I look at it as {the policy protects/permits an action} -> {someone performs that action} and thus {consequences of the action} = {consequences of the policy}. The chain of cause-and-effect isn’t severed simply by the insertion of additional links unless the inserted links aren’t really linked. At least, not in reality.

My other dislike for the regulations’ content, specific to the regulations, is dislike of the Definitions section. One problem I see is that it provides no definition of abortion or sterilization procedures. I speculate that this is because following the reaction to public discovery of a draft that included contraceptives in the definition of abortion procedures (or, perhaps, sterilization procedures), definition of abortion and sterilization was scrapped altogether (as opposed to scrapping just the part that included contraceptives). I think those would be some very basic terms to address, even if just sticking in the plain-language definitions of “surgical procedure that ____”.

The other thing I don’t like is the following:

The Department, in considering how to interpret the term “assist in the performance,” seeks to provide broad protection for individuals’ consciences. The Department seeks to avoid judging whether a particular action is genuinely offensive to an individual. At the same time, the Department wishes to guard against potential abuses of these protections by limiting the definition of “assist in performance” only to those actors who have a reasonable connection to the procedure, health service or health service program, or research activity to which they object.
Therefore, the Department proposes to interpret this term broadly, as encompassing individuals who are members of the workforce of the Department-funded entity performing the objectionable procedure. When applying the term “assist in the performance” to members of an entity’s workforce, the Department proposes to include participation in any activity with a reasonable connection to the objectionable procedure, including referrals, training, and other arrangements for offending procedures. For example, an operating room nurse would assist in the performance of surgical procedures, and an employee whose task it is to clean the instruments used in a particular procedure would be considered to assist in the performance of the particular procedure.

I dislike that section, the definition of “Assist in the procedure”, for the following reasons.

  1. I look at this as being along the same lines as conscientious objection to military service and the exceptions for that written into the Selective Service Act. Actually, strike that: I look at this as like any claimed exception to a rule of general applicability. Namely, I think that the person claiming the exception should always have a burden of proof that the exception for a category of people should include this specific individual person because they really are a legitimate element of that category. So, I think it’s inappropriate for “The Department [to seek] to avoid judging whether a particular action is genuinely offensive to an individual.” Not that this is a situation where I think anyone except those who find the action genuinely offensive would want the exception, as opposed to situations like the RLU half of RLUIPA where everyone wants the exception but only those with certain special motives for claiming it can get it. Still, there’s a right way and a wrong way to grant exceptions (assuming you’re going to), and the right way is “Ok, you say you qualify. Prove it.”
  2. A desire “to guard against potential abuses of these protections by limiting the definition of “assist in performance” only to those actors who have a reasonable connection to the procedure, health service or health service program, or research activity to which they object” seems to be contradictory with a broad definition – which is what the next paragraph provides. I could be construing the second paragraph differently from how its authors intended for people to, but…
  3. Referrals strike me as tenuously connected, not reasonably connected. As I read it, this regulation would apply even to the receptionist who pencils in the appointment for a procedure, which I don’t think the term “assist in the performance” should include. A definition based on language such as “directly participates in” would be far more appropriate, I’d think.

And that’s what I think.

One Response to “…On Those Proposed HHS Regulations.”

  1. […] Blog. For a thorough run-through of the proposed regulation itself, see my longtime friend Steve. For suggestions for immediate action – like writing your representatives – see our […]

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