Newspaper column: State should not violate one’s moral convictions

And you thought the 13th Amendment prohibited involuntary servitude.

This past week Nevada’s Democratic Attorney General Aaron Ford joined a coalition of 23 states and local governments in filing a lawsuit against the Trump administration’s Department of Health and Human Services (HHS) rule aiming to protect health care providers from having to provide services contrary to one’s “religious beliefs or moral convictions” — such as abortion, contraception, sterilization, assisted suicide or transgender hormone treatment or surgery.

The so-called Final Rule was announced in early May by Roger Severino, director of the Office for Civil Rights at HHS. He said in a statement that the rule “provides enforcement tools to federal conscience protections that have been on the books for decades” and “does not create new substantive rights.”

Severino added, “Finally, laws prohibiting government-funded discrimination against conscience and religious freedom will be enforced like every other civil rights law.”

HHS Office of Civil Rights Director Roger Severino. (Getty Images via National Catholic Register)

Ford said in a statement accompanying the announcement of Nevada’s role in the litigation, “The Department of Health and Human Services’ rule would allow individuals and entire institutions to deny lawful and medically necessary care to patients, even in cases of emergencies,” though it is difficult to conjure what constitutes an “emergency” abortion, assisted suicide of transgender treatment.

Nevada Attorney General Aaron Ford

The crux of the lawsuit is money.

The lawsuit and Ford’s press release note that noncompliance with the 440-page Final Rule could result in the denial of federal funding. The lawsuit alleges this could amount to hundreds of billions of dollars each year.

Ford’s statement further argues “the Final Rule, which will take effect in July 2019, would undermine the delivery of health care by giving a wide range of health care institutions and individuals a right to refuse care, based on the provider’s own personal views. … The Rule makes this right absolute and categorical: no matter what reasonable steps a health provider or employer makes to accommodate the views of an objecting individual, if that individual rejects a proposed accommodation, a provider or employer is left with no recourse.”

The Wall Street Journal noted at the time the Final Rule was announced that it is an outgrowth of President Trump’s 2017 executive order that included a section on “conscience protections.” The order was seen as a direct response to some Obama administration orders.

“Several religious groups, for example, battled the Obama administration over the Affordable Care Act’s mandate that employers and insurers provide no-cost contraceptive coverage for employees,” the newspaper reported.

Kevin Theriot, vice president of Alliance Defending Freedom, told the National Catholic Register earlier this month that those who have conscientious objections to procedures are not discriminating.

“Our clients that have conscientious objections to participating in abortion or participating in, for instance, sex-change therapy or any of those kinds of things, they don’t discriminate based upon a person’s sexual orientation or their sex or anything like that,” Theriot was quoted as saying. “What they’re saying is they shouldn’t be forced to participate in a procedure that violates their convictions. They won’t do that procedure for anybody, so there’s no discrimination going on at all. What’s going on is acknowledging our time-honored practice here in America of respecting rights of conscience.”

As an example of the problem, the Catholic publication noted an example of a New York nurse who was forced to participate in an abortion procedure despite her conscientious objection as a Catholic.

“I’ll never forget the day my supervisor ignored the law and forced me to participate in an abortion. I still have nightmares about that day,” the nurse said in a statement. “As an immigrant to America because of the freedom and opportunity I saw here, today I’m hopeful that HHS’ new rule will help make sure that no other nurses or health care professionals will be forced to go through what I did and that their rights will be protected.”

Theriot noted that the Supreme Court has repeatedly found that each person determines his or her own conscience, not the government.

And you thought the First Amendment prohibited Congress from abridging the free exercise of religion.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Editorial: Universal public service has constitutional flaw

For the past year a national commission has been studying the issue of whether all young Americans should be required to perform public service — either military or some form of civilian service — and whether women should be required to register for the draft as men are currently required to do, even though the draft has not been used since 1973.

The National Commission on Military, National and Public Service is chaired by former Nevada Congressman, emergency room physician and Army Reserve Brig Gen. Joe Heck. He was interviewed on NPR public radio this past week about the status of the commission’s endeavors.

“For the first time in our nation’s history, a commission was tasked to holistically and comprehensively review the Selective Service system along with Military, National and Public Service. It is truly an historic opportunity,” Heck said on the air.

On the topic of whether women should register for the draft, he said, “People have very definitive opinions on this issue. It’s not like when you ask the question, they have to take a moment to think about it. It’s a visceral response. It’s either, yes, they should have to register, it’s a matter of equality — or no, they should not have to register because women hold a special role in American society. I mean, that’s what it basically comes down to. I don’t think there are many people that are on the fence when it comes to deciding whether or not women should have to register.”

Heck said the commission has not yet come to a decision on this aspect of the commission’s mission.

But beyond the draft, Heck signaled a desire to require universal service of some sort, “Our goal is that there should be a universal expectation of service, that instead of the person serving being the odd person, it’s the person who doesn’t serve is the odd person. So that within a generation or two, every American is inspired and eager to serve.”

Fourteen more public hearings are planned, with a final report and recommendations due in a year.

There might be one thing the commission should take into consideration before making its final recommendations. That would be the 13th Amendment. Passed after the Civil War, that amendment states categorically: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

Involuntary servitude.

In fact the 13th Amendment was used during World War I — ineffectively as it turned out — to argue against conscription itself as involuntary servitude.

Charles Schenck was convicted under the 1917 Espionage Act for distributing pamphlets urging resistance to the Selective Service Act. The pamphlet on its first page quoted the 13th Amendment.

Justice Oliver Wendell Holmes wrote in his 1919 U.S. Supreme Court opinion that was unanimously supported by the court: “In impassioned language, it intimated that conscription was despotism in its worst form, and a monstrous wrong against humanity in the interest of Wall Street’s chosen few. It said ‘Do not submit to intimidation,’ but in form, at least, confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed ‘Assert Your Rights.’ It stated reasons for alleging that anyone violated the Constitution when he refused to recognize ‘your right to assert your opposition to the draft,’ and went on ‘If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.’”

Holmes famously declared this rhetoric was a “clear and present danger” and was tantamount to “falsely shouting fire in a theatre and causing a panic.”

The Espionage Act of 1917 is still on the books, but so is the 13th Amendment. Mandatory public service does appear to be a lot like involuntary servitude. Voluntary service, of course, should be encouraged.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Falsely shouting fire in a crowded theater, am I?

Draft lottery (AP file photo via R-J)

Only 78 percent of young Nevadans are registering for the draft. That factoid was buried deep within a story in the Las Vegas newspaper under the hed: “Nevada draft registration lags.”

There was a draft during the Civil War or War Between the States, if you prefer, but in December of 1865 the 13th Amendment was ratified. It reads:

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

When I was judging the “We the People” competition among high school students, I’d often drill them about the limits on free speech and someone would invariably say you can’t shout fire in a crowded theater. Only one had a clue as to what the origin of that analogy was.

I wager few people do. (scroll down)

 

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Fire!