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04/09/2015

Ideological Struggles Old and New in America: The Inappropriate Use of Coercive State Authority

The history of America from the
beginning was a struggle of opposing ideological perspectives over the role of
the state’s power vis-à-vis the consciences of individual citizens. The 17
th
century Puritans in the Massachusetts Bay Colony basically transported to
America the same kind of religious, state intrusion into the lives of
individuals they were trying to escape in England by requiring citizens to subscribe
to the official state religion. Fortunately, there were courageous individuals
there at the time, like Roger Williams (1603-1683), who strongly resisted such
requirements. Williams, prior to coming to America, had been educated at
Cambridge and worked for Lord Chief Justice
Edward Coke. (1552-1634)  Coke was the famous English jurist whose work
provided much of the foundations of the Anglo-American legal system, and who
famously “declared the king to be subject to the law, and the laws of
Parliament to be void if in violation of “common right and reason”.
  No doubt Williams’ prior education and
influences from Coke, and from others like Francis Bacon (1561-1626) who taught
him the way of learning through experiment and observation, helped temper his strong
theological commitments in relation to his views about the proper relationship
between the authority of the state and religion, and the extent to which the
state could have control over the consciences of free individuals, what
Williams called “soul liberty”. Williams himself did not have theological
quarrels with the Puritans; however, he did not believe religious conviction
could be coerced. It was on this moral and political basis, that Williams
founded Rhode Island, the first state ever to have a constitution guaranteeing
expansive freedom of conscience to individual citizens. Fortunately, the
thinking of Williams became the mindset of the key founders, particularly
Jefferson (1743-1826) and Madison (1751-1836), of the American constitutional
system. (For a full account of Roger Williams’ life and influence, see the
wonderful book,
Roger Williams and the
Creation of the American Soul: Church, State, and the Birth of Liberty
by
John M. Barry)

In spite of
America having the good fortune to have progressive framers of the Constitution
who created a system that protected the right of individual freedom of
expression in matters related to life, liberty and the pursuit of happiness,
the tension between progressive secularists (which I take to be in the
tradition of Jefferson and Madison) and religious fundamentalists has
continued, especially in the last 20 years or so. Perhaps no single issue has
unified the religious fundamentalists more than Roe v. Wade in 1973, which gave
American women the right to make reproductive choices for themselves according
to their own consciences, in consultation with their physician, as they saw fit
for themselves. Of course there was much more at stake than just the moral
status of fetal life; it was, in my opinion just as much, the role of women in
society and their right to full status as moral agents qua citizens.
 

With the Supreme Court Casey decision of 1992, it was ruled that though the
states may require physicians to disclose to pregnant women information
designed to reconsider a possible abortion, the state may not impose an “undue
burden” on a woman. Not surprisingly since Casey, states have tested the limits
of the interpretation of “undue burden,” 
in an effort to prevent women from having access to legal and safe
abortions. Over time greater and  greater
intrusions have been made into the physician-patient relationship. Some states
attempt to use the coercive force of the state to force physicians to disclose
specific information and to perform certain medical procedures providing care
for pregnant women considering abortions, quite independently of the medical
appropriateness of how this information and these procedures pertain to the
care of an individual patient. Let’s be clear what is happening: state
legislators are requiring physicians to set aside their medical expertise and
judgment and instead follow the state’s ideological recommendation. There are
too many examples this type of state overreach to go into here, but one
egregious example from my home state is stands out. A 2011 North Carolina law
required women seeking abortion to have an ultrasound performed and the images
described to them by an attending physician. From a medical point of view, of
course this would not really be a medical procedure but rather a state-coerced
action required of physicians to discourage women from having abortions. It is
a blatant intrusion into the physician-patient relationship using the bullying
force of the state into a private, near sacred relationship. The U.S. Fourth
Circuit Court of Appeals agreed which
upheld a judge’s decision to strike down
the law. 

The North
Carolina legislature argued they were within the limits of the Casey decision
of1992. However, the 4th Circuit described the provision as
“ideological” and conveying “a particular opinion” as opposed to providing
reasonably needed information for the woman so she can make an informed
decision.

The 2011
North Carolina law and others like it are blatant attempts to use of coercive
state authority to interfere in the professional work of physicians by imposing
non-medical standards, and at the same time, to presumptuously intrude into the
private lives of women and their autonomy as patients and moral agents; and,
sadly, these efforts continue. Just yesterday an article appeared reporting
that the state legislature in North Carolina is attempting to impose its
ideological views on the Department of Obstetrics-Gynecology at University of
North Carolina at Chapel Hill and East Carolina University. Because these are
state schools, they are attempting to stop the teaching and practice of all
abortions at those institutions. As one faculty member responded, this is an
unwarranted intrusion” in the lives of physicians and women.
 And it is by individuals who know little to nothing about the practice of
medicine and their ignorance, if acted upon, will compromise the care of women.

To me these
actions smack of what was going on in the 17
th century when the
Massachusetts Bay Colony attempted to require their citizens to follow the
state religion. Let us hope that there will be plenty of modern day people as
courageous and enlightened as Roger Williams to resist such actions. Such
resistance will be necessary if our democracy if to remain a system to protect
individual freedoms. No one is saying individuals should not have strong
religious or ideological commitments to use in regulating their own lives. But
when they filter up to the political level and are used to coerce free
individuals, we are no longer living in a democratic, free society. These
ideological struggles should be “front burner” concerns in a democratic society
and bioethics should pay close attention.
 

The Alden March Bioethics Institute offers a Master of Science in Bioethics, a Doctorate of Professional Studies in Bioethics, and Graduate Certificates in Clinical Ethics and Clinical Ethics Consultation. For more information on AMBI’s online graduate programs, please visit our website. 

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