Sunday, April 10, 2011

professional protection for religious beliefs

Arizona is considering a law that would provide very broad protections for professionals who find their religious beliefs in conflict with their professional licensing boards and other certifying bodies. This law, for example, seems to protect a doctor from losing his license to practice medicine because he refuses to discuss the option of abortion with patients, even if the medical board thinks he has a responsibility to do so.

Eugene Volokh is concerned that this religious immunity is too broad and offers several examples that he considers problematic. Let's take one of the more outrageous ones:
Even a doctor who feels a religious motivation to affirmatively lie to a patient to prevent an abortion — on the theory that lying is religiously justified when necessary to prevent murder — would be free from professional discipline, unless this somehow fits in the category of criminal fraud (which I doubt).
Presumably, this is problematic because Eugene thinks that a doctor who does this should lose his license to practice medicine. But let's put things in perspective: what we have in the real world is not typically a set of undisputed facts, but a dispute. The doctor may say one thing and the patient another.

Eugene seems to want the situation where if the patient can convince the medical board of her side of the story, then the doctor loses at once both his means of making a living and his enormous investment in medical school. Doctors, therefore, are subjected to a huge risk, far beyond the risk that most other professionals have in disputes with their customers.

What would happen if a computer programmer did something similar? Suppose that a computer programmer wrote a program for a medical doctor that is intended to send out emails reminding women about their appointments. Suppose he deliberately wrote the program so that instead of sending a reminder notice for an appointment for an abortion, it would send an email telling the woman that the doctor had determined that an abortion was unsafe for her and she has to have the baby.

What would happen to this programmer? Well, he might have committed a crime and could be prosecuted for that. If not, and if some harm actually resulted from his actions, he could be sued. He could also be subjected non-legal consequences such as being fired and being unable to use his former employer as a reference. If he owned his own consulting firm (as many doctors own their own practice) he could be subjected to negative publicity and have his office picketed. Such things could very well destroy his business.

What would not happen is that the state would not tell him that he could never again program computers for money. They would not take away his means of livelihood. They would not take away his educational investment and his years of experience and turn him essentially into an unskilled laborer.

Nor should they. The primary justification for state licensing is that it protects consumers from professionals who can not or will not perform the services properly as expected of such a professional. It should not be an extra-judicial mechanism for the state to punish wrong doers. It is too lopsided for such a purpose, effecting only certain restricted classes of people and subjecting these people to much harsher punishments than other people face for similar offenses.

With this, let us return to Eugene's example. Does the doctor's lie to his patient mean that he is incapable of carrying out his professional duties as a doctor? Clearly not --does not effect his ability to practice medicine. Does it mean that he is unwilling to carry out his professional duties? There's the rub. What the doctor's professional duties are depends on who his patients are. If his patients do not want any abortion services or abortion advice, then the doctor's unwillingness to provide such services or advice do not effect his ability to provide medical services to his patients.

If the medical board takes away his medical license, they are doing so because he is unwilling to provide service for some patients, not because he is unwilling to provide service to any patients. But that is not a reason to deny anyone a license. Some licensed doctors cannot provide effective medical care to patients who need heart surgery. Should they lose their license over this? Clearly not.

However, a doctor who was not qualified to perform heart surgery could lose his license for attempting to perform heart surgery. Similar rules should be followed in the religious exemption cases. If a doctor is unwilling to even discuss abortion with a patient, then he is obligated not to take patients that want an abortion. This is not always easy to do, and there will be issues involving treatment of minors where the state does not give parents full discretion over the minor's medical care, but reasonable steps can be taken.

In general, the state should not prevent anyone who provides a service, whether a licensed professional or not, from modifying his service to comply with religious beliefs as long as he restricts his service to people who want (or are willing to accept) that modified form of service.