Conscience in the Obama Era

April 15, 2009 | 50 comments
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I linked yesterday on the sidebar to Stanley Fish’s latest editorial in the New York Times, which takes as its occasion the possibility that President Obama will revoke the “conscience clause” allowing health care providers the right to refuse to provide certain services. I thought I’d add a few thoughts here.*

I like a lot of what Fish says, although I ultimately support the conscience clause and, upstart crow that I am, I differ a bit with Fish’s interpretation of early modern conscience. I think his reading of Hobbes is good, but from my work in the primary sources on early modern English conscience, I think both he (and Hobbes) mischaracterize what early modern private conscience was about. It wasn’t that conscience lent legitimacy to private judgment on particular moral matters, though some of the later casuists were heading that way—that would be “every citizen a law unto himself,” as Fish worries. Rather, private conscience was a kind of arbitrator of competing institutional claims to moral judgment and commands to loyalty. The individual conscience didn’t reach the moral conclusion on its own, but rather decided between, usually, the moral decision of the church and that of the state, or between the truth claims of competing religious sects.

In that sense, I think the conscience question with regard to contemporary healthcare providers is actually quite germane. These providers must choose between the demands of their profession and the claims of their religious affiliation; in other words, they must arbitrate between competing claims on their loyalty, or between what critical theory would call opposing subject positions. They are not, generally, putting forth their own closely reasoned moral judgment to justify their refusal; instead, they are deciding whose flag to fly—pharmacist or Protestant, or whatever—in particular contexts. In this sense, I think the earliest discourses of private conscience, engrained as they are in the boundaries between public and private that underlie liberal thought, indeed support their right of refusal.

*It’s always a good idea to mark one’s (at least temporary) return to blogging after a hiatus with a light post of general interest sure to garner many comments.

50 Responses to Conscience in the Obama Era

  1. Dan on April 15, 2009 at 9:27 am

    I like what the Supreme Court said in Reynolds:

    “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

    Doctors and photographers, and well, most workers out there (I was a librarian and had been asked to help someone search for things I was uncomfortable with), have to do things that don’t match their religious preferences. The point has to be said again and again, the United States is not a Christian nation. It is not theologically based. It is based on a secular rule of law. And that is because if we attempt to moralize our nation on one religion, it will come at the expense of another, including anti-religions (atheism). The Founders attempted to create a nation where all will feel welcome, or as close as they could come to creating such an environment.

    I like that Obama is trying to hearken back to what the Founders tried to create. While 75% of this nation is Christian, 15% is not. They deserve the same rights and protections as Christians do.

    What Christians need to do is to realize that the world does not revolve around them. That other faiths and non-faiths should not be bending over backwards for them, but that all parties should be able to bend for each other.

    Christianity, if threatened by such silliness, is weak. But see, Christianity is not weak. Its strength comes from the fact that we can do the things we need to do while still believing in Christ.

  2. Dan on April 15, 2009 at 9:35 am

    oops, that’s 25% not 15%

  3. Frank McIntyre on April 15, 2009 at 9:38 am

    Rosalynde,

    I think the early understanding of conscience has a lot to recommend it. The earlier definition can perhaps be thought of as attempt to decide who is more likely to be right. Whereas the modern one is more along the lines of claiming that the individual is most likely to be right. But if there is no group that has adopted your view (or flown your flag, as it were), then the chance of you being right and all others wrong gets absurdly low.

    I realize that this is surely not the way the discussion was framed in early England…

  4. Nate Oman on April 15, 2009 at 9:38 am

    Dan: It seems to me that the citation to Reynolds in this case is mistaken. The conscience clause was not a constitutional claim that one should be exempt from an otherwise applicable law. Rather, it was an accomodation of religion written into the law itself. The notion that otherwise applicable legal requirements can be written so as to accomodate the conscience of religious believers has been repeatedly endorsed by the Supreme Court and is written into the constitution itself in the Oath or Affirmation Clause.

    Generally speaking we don’t say that people in the marketplace have a legal duty to provide services to others. We create exceptions to this, of course, but the default has traditionally been that one is free to contract or not contract with another person.

    Finally, your personal example as a librarian is not really a good analogy because unless you worked at a private institution, you were a state actor. If you were working at a private institution, then there would have been no legal sanction against you for refusing to help any particular patron find the p*rn or whatnot. Your employer may not have liked it, but if the employer itself was uncomfortable with helping the patron that would have been the end of it.

    It seems to me that your objection is less with the accomodation of the claims of conscience than with the particular claims of conscience made in these cases.

  5. Nate Oman on April 15, 2009 at 9:39 am

    For a different take of Fish’s post see here.

  6. canadiancynic on April 15, 2009 at 9:41 am

    As someone who is dependent on a drug created through one of the controversial techniques that have sparked these kind of ‘principled’ stands I can’t be neutral.

    Without this drug I would not be moving into a solid career, I wouldn’t be the parent I am, I would be crippled. While I agree that strongly held beliefs should be respected, I do not see anything holy about my acceptance of a life filled with pain to respect someones religious beliefs.

    As a pharmacist they are expected to dispense a range of drugs with proper authorization from a doctor. If they don’t dispense the drugs, or refer the patient to someone nearby who can, they are not a pharmacist. They can be a protestant and find another field of work. If I go into the pharmacy, I expect to be able to get the drug, have the drug ordered for me or be told where I can get the drug. I will not accept a moralizing lecture in its place.

  7. bbell on April 15, 2009 at 9:47 am

    Hi RW,

    Glad you are back.

    I personally am in favor of conscience clauses. Since I am LDS I feel strongest about them on the abortion issue and less strongly about BC.

    I would hate to see a situation develop where in order to become a DR you would be forced to perform abortions as part of your training. I think we are a long way off from this actually developing but there is a mindset amongst some on the left that this would be just fine. One of the probable outcomes of such a situation would be a dramatic drop in the number of peopole who would in fact attend medical school. We would be left with a pool of potential MD’s drawn largely from only one segment of society.

  8. Dan on April 15, 2009 at 10:00 am

    bbell,

    One of the probable outcomes of such a situation would be a dramatic drop in the number of peopole who would in fact attend medical school. We would be left with a pool of potential MD’s drawn largely from only one segment of society.

    Or we would attract a lot of foreigners to this country whose morality allows them to perform such acts without feeling their conscience threatened.

  9. Kari on April 15, 2009 at 10:05 am

    The problem with the conscience clause is that it allows anyone to claim anything is against their conscience. Even things they knew they would have to do when they chose their profession. A catholic who becomes a pharmacist knows that she’ll be called upon to dispense birth control pills. If she’s against such things, then she should have chosen a different line of work. Same for the woman who chooses to become an obstetrician/gynecologist, she may have to destroy a fetus to save the mother’s life. If she’s a hard-core right to lifer and feels that there is never a just cause for so doing, she’s chosen the wrong profession.

    So then the question becomes where do you draw the line? Elective abortions? Most people, myself included, feel that is a reasonable procedure to allow the invocation of conscience. But what about a physician who refuses to treat someone she knows is an atheist, because by so doing she would be supporting God’s enemy. It’s against her conscience, so it must be acceptable. What if that physician is the only one of her specialty for a hundred miles?

    And why should the conscience clause be limited to medicine? I used to be in the military. Should I have been allowed to say, “I won’t go through firearms training, because carrying a weapon is against my conscience and I’ll never do it”? When I joined I knew that even as a physician I would have to be trained, and may be called upon to carry a weapon (although it was legally only for self-defense). Can a plumber refuse to work a job he has contracted to do if he learns he’s working for a homosexual couple? Can the local McDonald’s worker refuse to serve an African American because it would violate his “conscience” that tells him a white man shouldn’t be subservient to a black.

    Ridiculous examples all, but all can be claimed to be against one’s conscience. If you don’t allow them all, you are now in the position of having to decide whose conscience is valid, and whose isn’t.

  10. Rosalynde Welch on April 15, 2009 at 10:26 am

    Frank, in early modern England the issue was often framed in terms of jurisdictions: which institution’s authority should prevail in a particular context. The ideas of public and private spheres were emerging during this period, and conscience was confined to/found protection in (however one chose to look at it) the private sphere—but the boundary between the public and the private was constantly contested.

    I think we see the same contest in some of the comments above: does the dispensing of medicine, for example, fall within a protected private sphere, or does the pharmacy properly belong to the public sphere, in which conscience has no claim? How one answers that question matters for the conscience clause (and makes me wonder whether the introduction of universal healthcare would redraw the boundaries somehow).

  11. Mark Brown on April 15, 2009 at 10:40 am

    Dear Times and Seasons,

    Please take whatever measures are necessary to keep Rosalynde from going inactive again.

    Rosalynde, believe it or not, your thoughts on our understanding of conscience from a couple of years ago have influenced me ever since. The biggest research paper I ever did in college was on Martin Luther, and I always thought of the 95-theses-on-the-door as the ultimate courageous act of conscience. You helped me to see the complications, and I’m thankful for that. I guess I ought to thank you for all the newly discovered insecurity, too. :-)

  12. Kaimi Wenger on April 15, 2009 at 10:58 am

    Mark,

    We’ve offered Rosalynde a contract that will more than double her T&S pay, and we’re crossing our fingers that that will be enough to keep her active around here.

  13. Marc Bohn on April 15, 2009 at 11:01 am

    Great post Rosalynde. I think this issue is a pretty difficult one. At the margins the lines can get pretty blurry. In #9 you asked whether the dispensing of medicine falls within a protected private sphere, or does the pharmacy properly belong to the public sphere, in which conscience has no claim. For me the answer to that question depends, in part, on the overall access to health care. If there is someone else who can/will provide the services in question, I think the argument for placing the provision of medical care and goods in the private sphere is stronger. However, if allowing providers to recuse themselves in certain situations places material strains on the health care system (because of availability, etc.), I think it can change the equation significantly.

  14. ESO on April 15, 2009 at 11:08 am

    I too am disinclined to accept conscience clauses for the reason already stated: it’s your job.

    If I, as a teacher, have a problem giving standardized tests (I do) to the extent that I don’t proctor them (I proctor them anyway), I am out of a job.

    If I, as a fireman, have a problem with smoking and decide not to put out fires started by cigarettes, I am out of a job.

    If I, as a police officer, believe it is a right for a man to beat his wife and refuse to arrest a man for that, I am out of a job.

    If I, as a nurse, decide I am against the affects of a drug a doctor has prescribed for a patient and refuse to administer it, I am out of a job.

    It seems pretty easy. Don’t go into that field if you are not ready to do everything that is legal within it. OR become a private practice where you practice “Christian” medicine and don’t deviate. I have no problem whatsoever with the idea that fewer LDS or Evangelicals or whatever may go into medicine because they don’t want to perform abortions. Find another job. I have a great job and I never have to perform abortions.

    There are many precedents in world history/culture of people who avoid entire fields (banking) for fear of running amok of their conscience. Mormons already, I am guessing, largely avoid the tobacco and alcohol and gambling industries. Add medicine and pharmacy if you want. No biggie.

    (I read a fascinating article many years ago written by a former nurse at an abortion clinic where she clarified that everyone in her clinic had their own private limits: some people wouldn’t participate in an abortion that was “habitual,” or the patient had already had “too many”–they wouldn’t do the third abortion, for example; others had a date limit to the pregnancy–they wouldn’t participate in an abortion past 20 weeks, or something. I thought that was interesting, since we usually think of people comfortable with abortion as being comfortable with any and all abortions–not the case. That said, did these personal limits make for a chaotic workplace?)

  15. Marc Bohn on April 15, 2009 at 11:10 am

    [ADMIN NOTE]: Please be aware that discussions on these subject matters can sometimes trigger the automatic comment filter. If you think your comment got snagged for some reason, just email one of us to retrieve it and get it posted.

  16. Rosalynde Welch on April 15, 2009 at 11:18 am

    Wow, Mark, what a compliment, thank you! Please know that it is my four kids that keep me from blogging, nothing to do with T&S. I am entertaining offers of free babysitting, however.

    Marc, thanks for the comment. I agree that it’s a difficult issue, especially when push comes to shove. The stated Elizabethan policy was not to “make windows into men’s souls”—that is, to allow the flourishing of private conscience—as long as it didn’t impinge at all on outward observances. It sounds like you’re advocating something similar: the exercise of private conscience is fine as long as it doesn’t materially change others’ access to health care.

  17. Frank McIntyre on April 15, 2009 at 11:19 am

    Kari,

    “Ridiculous examples all, but all can be claimed to be against one’s conscience. If you don’t allow them all, you are now in the position of having to decide whose conscience is valid, and whose isn’t.”

    The lawyers will know better than I, but I believe it is for this sort of thing that there exists a “strict scrutiny” standard for some kinds of actions or parts of the law. I have not the foggiest idea of whether strict scrutiny applies to the conscience clause generally, but I think it might be relevant to your military and racism examples.

    Also, it is worht differentiating several activities:

    1. working for yourself — in which case you probably have a great deal more leeway in what you decide to do or not
    2. working for someone else– in which case you make a deal as part of employment and could be fired for not doing what you were hired to do
    3. working in the public sector where you represent the government

    I think mashing these three cases together leads to trouble, as they tend to have different outcomes. For example, as Nate noted working as a librarian is not the same as working in McDonald’s. And working in McDonald’s is not the same as running your own hamburger joint.

  18. Kari on April 15, 2009 at 11:24 am

    bbell – One of the probable outcomes of such a situation would be a dramatic drop in the number of peopole who would in fact attend medical school. We would be left with a pool of potential MD’s drawn largely from only one segment of society.

    That’s a completely off-base assumption. While it might decrease the number of medical students who choose obstetrics/gynecology it is not likely to make any dent in the number of applicants to medical school. Medical school is already highly competitive, and to think that forcing someone to learn and perform abortions if they choose obstetrics would cause a dramatic drop in medical school applicants is baseless. Those applicants know that there are lots of other specialties from which to choose. And the students who do choose ob/gyn would be those for whom abortion is not a moral problem.

  19. Frank McIntyre on April 15, 2009 at 11:25 am

    Let me second Marc’s point about access. Because market effects are determined at the margin, you can actually allow a behavior by _some_ individuals (or possibly many, depending on the market) that you may be more worried about allowing for _everyone_. Thus if the only racist hiring firm is the head office of the KKK, it really is not worth making a law over racist employment practices, practically speaking, because the effect on black workers is zilch. They can costlessly work somewhere else and be unaffected by the KKK’s racist hiring.

    Now, of course, some people will still want a law to “send a message”. But in the case of pharmacies I am not sure we want the government in the business of “sending the message” that some people’s religious beliefs are illegitimate.

  20. Frank McIntyre on April 15, 2009 at 11:28 am

    Kari,

    I know an ob/gyn who told me he was asked in an interview what he would do if someone came in wanting an abortion. He simply said abortions are typically handled by specialists, not general ob/gyns and he’d refer them to the abortionist. So the issue for ob/gyns is actually less pertinent than it may seem.

  21. Kari on April 15, 2009 at 11:34 am

    Frank,

    Let’s keep the lawyers out of this.

    I agree with the different employment scenarios you mention. My point is that conscience clauses automatically make us, as a society, have to decide in a variety of different situations, whose morals get to take precedence. Whose morals are sufficiently “moral” to allow a conscience clause to be in effect, and whose morals are not sufficient and we tell them “can it and do your job.” I don’t like this. You know in advance what a job is going to require. If you don’t like the possible situations you might find yourself in, then pick a different job/career.

  22. Kari on April 15, 2009 at 11:45 am

    Frank – I know an ob/gyn who told me he was asked in an interview what he would do if someone came in wanting an abortion. He simply said abortions are typically handled by specialists, not general ob/gyns and he’d refer them to the abortionist. So the issue for ob/gyns is actually less pertinent than it may seem.

    The problem with this scenario, is that under the Bush administration’s conscience clauses, there was nothing more than lip service paid to the requirement to refer someone to a different provider (whether pharmacist or physician), and there are plenty of anecdotal reports of people who were unable to obtain a timely abortion or the morning after pill because they couldn’t get adequately referred.

    So we were left with allowing pharmacists to not only say it’s against my conscience to give a legal medication, but it’s also against my conscience to assist anyone in getting it.

  23. Frank McIntyre on April 15, 2009 at 11:50 am

    “I don’t like this. You know in advance what a job is going to require. If you don’t like the possible situations you might find yourself in, then pick a different job/career.”

    What we’re arguing about is what a job “requires”. A job is what you make it, especially if you are self employed. What you are talking about is tying services together and saying that if I perform service A, I must perform service B. There is nothing particularly beautiful about that. It requires you to define every “job” in some arbitrary way according to some social standard. That seems kludgy and bureacratic.

    The alternate approach is to let anybody make contracts as they wish, but make a list of “strict scrutiny” standards under which we are going to get picky — national defense, racism, selling children or organs, stuff like that.

  24. Frank McIntyre on April 15, 2009 at 11:58 am

    “and there are plenty of anecdotal reports of people who were unable to obtain a timely abortion or the morning after pill because they couldn’t get adequately referred.”

    I don’t know how many is plenty of anecdotes. Nor do I know how much of a delay makes an abortion “not timely”. And I am doubtful that you must wait for a referral from a pharmacy to go to another one. As for the ob/gyns who won’t give referrals, I am not so sure that there is a ton of this. Is there any systematic evidence that this is a big problem?

    I had a longer comment, but I have to go. later!

  25. Jeff on April 15, 2009 at 12:27 pm

    Fish says, “But should patients be asked to add to the problems they already have the problem of having to figure out (if they have the time) which providers will be willing to treat them?”

    First, yes the patients should figure out which providers would be willing to treat them. I’m not going to a respiratory specialist for a hip replacement. I think it’s also a little odd to seek an abortion from a doctor who has never performed one. In that case, I’d REALLY want a specialist.

    Sounds like this could be fixed with a straightforward national specialist/classification strategy to determine which doctors do which procedures, especially those which may cross religious/belief lines.

  26. MAC on April 15, 2009 at 12:32 pm

    These providers must choose between the demands of their profession and the claims of their religious affiliation; in other words, they must arbitrate between competing claims on their loyalty, or between what critical theory would call opposing subject positions.

    The problem with your analysis and Fish’s, is that they presuppose that abortion is accepted by the entire medical community (and/or the nation) as an ethical demand of the profession.

    The AMA used to say (as late as 1992) “. . . the early termination of pregnancy is a medical matter between the patient and the physician, . . .” “. . . the issue of support or of opposition to abortion is a matter for members of the
    AMA to decide individually, based on personal values or beliefs.” “The AMA shall take no action
    which may be construed as an attempt to alter or influence the personal views of individual
    physicians regarding abortion procedures.” As far as I can tell they have no current stance on the ethicality of abortion accept to say that a physician should not be prohibited from performing abortions where legal and “Physicians should try to ensure that minor patients have made an informed decision after giving careful consideration to the issues involved. They should encourage their minor patients to consult alternative sources if parents are not going to be involved in the abortion decision. Minors should be urged to seek the advice and counsel of those adults in whom they have confidence, including professional counselors, relatives, friends, teachers, or the clergy”

    Dan,

    Being pro-life isn’t exclusively a Christian position. Your whole comment is white noise.

  27. Dan on April 15, 2009 at 12:39 pm

    MAC,

    But we’re not talking about just abortion. I realize you don’t like my views.

  28. MAC on April 15, 2009 at 12:49 pm

    Your whole comment is white noise.

    But we’re not talking about just abortion. I realize you don’t like my views.

    That’s what I like about these back-and-forths with you Dan, you always com around to my way of thinking.

  29. ESO on April 15, 2009 at 12:58 pm

    Frank–every time I hear this issue discussed, I hear about the pharmacist who not only would not issue the morning-after pill but also would not tell the customer where she COULD get one. I can easily see a conscience-laden healthcare worker NOT sharing that an abortion would solve xyz problems, that some doctors would advise her not to continue the pregnancy/get pregnant, and not giving the girl a card/pamphlet leading her to the local Planned Parenthood, or whatnot. Have you really not ever talked to two doctors about the same issue and realized that they went about things in totally different ways?

  30. Last Lemming on April 15, 2009 at 1:14 pm

    Another important distinction that frequently gets blurred (see comment #8) is that between the types of services provided and who you provide them to. I am much more sympathetic to objections of conscience when they relate to the former (e.g. I won’t do abortions) than to the latter (e.g. I won’t serve gays).

    On a different track, some of this could be finessed with more precise labeling of advertised services. For example, a pharmacy calling itself “full-service” would be required to dispense anything a doctor prescribed, but those forgoing that label would be allowed to dispense whatever they are comfortable with.

  31. aloysiusmiller on April 15, 2009 at 1:14 pm

    Well I wonder what our librarian might have done if the FBI asked for the list of people who may have read a certain book in his library. Would he have said yes of course or would his conscience have provided him an out?

    Or have we nuanced this into different things?

  32. gst on April 15, 2009 at 1:58 pm

    Once a friend of mine couldn’t get a “timely referral” for an abortion, resulting in an unwanted childbirth. Fortunately, a few years later, she accidentally backed over the kid in the driveway, so no harm, no foul.

  33. Raymond Takashi Swenson on April 15, 2009 at 2:00 pm

    There are not very many doctors (comparatively) who practice elective abortion. Yet they are sufficient in number to perform millions of these procedures each year in the US alone. Since the courts have made it difficult to regulate abortion even close to full term delivery, a woman intent on getting one has several months to identify a provider.

    This is just one situation where people who have specific needs are not in any way materially prevented from having their needs satisfied by service providers who are willing to do so, despite the fact that many other service providers are unwilling, for reasons of conscience, to do it.

    The harm that is done to the customer is usually an inconvenience, on a par with finding out that they can’t pay the fee charged by the service provider, or the provider doesn’t have an appointment open for several weeks, or their office/clinic/studio/store is not conveniently located. On the other hand, when someone believes that, for example, abortion is a form of homicide (actually an obvious fact, biologically and genetically), government coercing that person to be instrumental in committing homicide is very harmful. Saying “It’s all part of the job” is not true. It was NOT “part of the job” for years, and the religious freedom clause of the First Amendment is a rational basis for many people to believe that government has no authority to force them into such involuntary servitude.

    Washington has now adopted a law to allow “physician assisted suicide.” It was definitiely not “part of the job” when all current physicians in Washington joined the profession. These are significant changes to the understanding of what particular professions understand as their duties under the law.

    There are millions of lawyers, but no lawyer, even one who regularly works in criminal defense, has an obligation to work for anyone who walks in the door. No client is obligated to hire every attorney he talks to. In a situation where a defendant cannot find counsel on his own, the courts will appoint someone, but the attorney still has the right to ask the court for permission to withdraw if he has a conflict of interest or his client has made it clear that he intends to commit perjury.

    How is the relationship between attorney and client any more intimate than that between a doctor and patient? If it is a matter of providing basic life-saving medical care, a doctor has no legal duty to act as a Good Samaritan at a traffic accident, though if the same victim is presented at his clinic or hospital the law is different. On the other hand, a physician cannot be compelled by government to go beyond ordinary care, to use costly or innovative treatment methods.

    In short, if customers for services think they are entitled to get any service they want from any provider of similar services, unconditionally, they are sadly mistaken. There are lots of reasons they may be unable to get care from a particular provider, even trivial ones like a scheduled vacation. Since consumers need to be prepared to seek services elsewhere, it is just “part of the job” of being a consumer when they are turned down. Allowing the service provider to add religious conscience to the list of mundane reasons why he or she cannot provide a service to a particular person does little or no material harm to the customer, while it avoids serious harm to the provider.

    Let us examine the “conscience clause” in another context. Let us say that the person with religious objections is a soldier who has been ordered by his superior officer to fire a weapon at a target that has a high likelihood of killing innocent noncombatants. Do you tell the soldier “killing is just part of the job you signed up for”? Or do you allow the soldier to decline to follow the order and step aside so another can take his place? Due process over sanctions for his action would include an inquiry into the lawfulness of the order under the laws of war, and end up placing sanctions on the commander.

    Do we as a society value the process of people being willing to state their moral objections? Do we value genuine and sincere conscientious objectors? Do we value dissenters from the societal consensus, such as that which raised Hitler to power? Or do we want a society where everyone is a “good German” and lets the leaders do all the thinking for them, especially about matters of moral responsibility and justice?

    At the very least, we should not traduce the moral conscience unless the alternative is a material threat to society’s fundamental interests.

    At bottom, I cannot escape the surmise that Mr. Obama has decided that if it doesn’t bother his own conscience, assertions of conscientious objection are illegitimate.

  34. gst on April 15, 2009 at 2:03 pm

    RTS, perhaps you might have considered aborting your comment somewhere before the third tri-mest… uh, paragraph?

  35. Raymond Takashi Swenson on April 15, 2009 at 2:19 pm

    #28: Library records are used for law enforcement on behalf of public libraries all the time (I have received my share of dunning notices over late books and demands for return of books and payment of fines). If you filed a Freedom of Information Act request (or under similar state law), you may well be entitled to get the same data, even have an enforceable right to do so as a private citizen. Such information is not the kind that is generally protected by the Privacy Act or similar provisions in state law. And when law enforcement agencies have a need for the information, the privacy statutes do not apply to prohibit access to government records. And that does not even get to issues of getting a search warrant from a court.

    Has any such inquiry resulted in the book in question being removed from the libraries? Has the FBI accosted citizens and asked them to explain why they checked out a certain book, what they thought of it, to (horrors!) write a book report on it? Frankly, I have not heard of any such abuse of the library information.

    On the other hand, if the book in question had value to someone who planned to blow up a bridge or a dam, I would want the FBI to be able to correlate that information with other data and justify surveillance of a potential terrorist who plans to murder his fellow library patrons, and maybe even a few librarians to boot.

  36. aloysiusmiller on April 15, 2009 at 2:26 pm

    Raymond, You and I are likely in agreement on this one but I am wondering if our librarian friend who posted very early in this thread thinks.

    You are aware that many librarians want to withhold this information as a matter of conscience but our librarian friend seems to be against conscience exceptions.

  37. Dan on April 15, 2009 at 3:59 pm

    I am against conscience exceptions. On the issue of what information librarians should give out, I don’t have too much of an opinion. In terms of the FBI wanting to find out what books a patron was looking at, my only view is that if the FBI wishes to get that information, their query should be public too. They wish to search in secret.

  38. gst on April 15, 2009 at 4:06 pm

    Dan, should all criminal investigations be conducted in open view of the public? Wouldn’t that make it hard to, you know, catch criminals?

  39. Dan on April 15, 2009 at 4:59 pm

    Why would it be hard to catch criminals? If it is well known that the FBI is watching this or that person, wouldn’t it be harder for them to act? Then again, this is a subject I really don’t care that much about. I was asked what I, as a librarian, thought about it, so I answered. :)

  40. aloysiusmiller on April 15, 2009 at 5:51 pm

    I expected a bit more logic Dan. I apologize if I am setting my expectations unrealistically high. So if you’ll support an FBI search if it is public will you require all patrons who desire your help to list the subject of their search in a public register? I doubt it. I think you have some conscience reservations and you’ll have to admit them.

    My own feelings are that there are some ordinary day to day services that are offered and that public servants should perform them. There are other contingent services over which conscience is allowed and required.

    A certain never to be named dictator once said that his job was to take the burden of conscience of of the people and that would liberate them. I have paraphrased but the rights of conscience can never be removed. If we allow pacifists to declare themselves conscientious objectors then we have to allow doctors to withdraw from medical practices and procedures they object too.

  41. ESO on April 15, 2009 at 7:36 pm

    My first comment is in moderation. I have no problem with doctors or soldiers or anyone deciding NOT to perform specific troublesome acts, but they need to be aware that not performing that act might make them unsuitable for that job. If I was a stripper who decided I had a problem with skin, I would lose my job. Or a bartender who decided not to serve gin–I’d probably lose my job. So if pharmacists, nurses, soldiers, doctors, or insurers decided not to participate in certain things, that is cool and their perogative, but it may cause them to lose their job.

    I think the librarians’ objection is a slippery slope one: pretty clearly we don’t mind monitoring the suspected serial bomber but what about submitting a list of everyone who checks out Atlas Shrugged or reads The New Republic in the reading room?

    A word to the wise: buy all questionable books in cash.

    I really think the conscience clause stuff is not an issue as RTS painstakingly outlined in cities, where there is a high concentration of willing providers. It is a very real issue for rural America and the poor. And the women. I wish people would keep that more in mind, rather than assuming everyone lives a sit-com.

  42. Ken on April 15, 2009 at 9:26 pm

    ESO: “A word to the wise: buy all questionable books in cash.”

    But if an evidence tech takes ninhydrin and fingerprints the bill(s) used … ;-D

  43. Dan on April 15, 2009 at 9:41 pm

    aloysius,

    Like I said, it isn’t a subject I really care that much about, even as a librarian. And as I said in my first comment, I think Christians are self-hyper-victimized when they are in the majority, and when, by far, most morality in this country is Judeo-Christian. I think they’ve gotta stop getting their feelings hurt every time a non-Christian attempts to flex his or her political muscles. It is petty, and it shows that that Christian doesn’t have that much faith in his or her faith.

  44. MAC on April 16, 2009 at 4:16 am

    The fact that our military has a conscientious objector status is pretty demonstrative, there is a codified acknowledgment that there may be conflicting beliefs and viewpoints. This action does the opposite

    Obama’s revoking of the conscience clause is a ham-fisted attempt to make any objection to abortion in the medical community outside the norm. I can’t imagine that it makes any improvement in the quality of medical care available and certainly has the potential to reduce the availability of said care.

    It is a dogmatic, careless and stupidly political thing to do.

  45. Mark Brown on April 16, 2009 at 8:25 am

    MAC, does the military actually have a conscientious objector status? I don’t believe that is true. I think it is more accurate to say that our laws allow a person to conscientiously object from military service, but you cannot be a soldier and also a conscientious objector, at least simultaneously.

    If I am correct, then your argument carries you in the opposite direction from where you appear to be headed…

  46. aloysiusmiller on April 16, 2009 at 8:44 am

    42. Not really. If we analogize abortion provider as soldier then a conscientious objector is someone who refuses to be an abortion provider (read soldier) but is free to do other things that are “patriotic” like treat colds and sore throats, deliver babies etc.

  47. MAC on April 16, 2009 at 11:06 am

    Mark, #42

    You are correct in that the UCMJ does not specifically allow for a conscience objector, the selective service does.

    To try and extend the analogy to suggest that one can’t simultaneously be an effective physician without providing/facilitating abortion is ingenuous.

    The direction I am headed is this; revoking the “conscience clause” is a negative act. It does little or nothing to support or facilitate those who would provide abortion, it is a way to penalize and threaten those medical professionals who, for their personal moral/ethical stance, do not wish to participate in abortions.

    And it remains a dogmatic, careless and stupidly political thing to do.

  48. Aaron on April 16, 2009 at 1:38 pm

    If my daughter had a prescription for birth control pills to control her periods and some idiot refused to honor it because they knew she was unmarried, that would not be a case of “conscience,” it would be unconscionable.

  49. Eric Russell on April 16, 2009 at 4:09 pm

    does the military actually have a conscientious objector status?

    No need! Just threaten pregnancy or suicide. It works just as well.

  50. Adam Greenwood on April 22, 2009 at 10:48 am

    It all comes down to pitching:
    http://theamericanscene.com/2009/04/22/conscience