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Legislating Conscience: Distinguishing Abortion from Contraception And All That Jazz February 19, 2011

Posted by legalethicsemporium in Abortion, Health care, Law, Ethics & Society, Religion, U.S. Constitution.
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So, if you work for a medical provider and you oppose abortion, regardless of  legality, you cannot be compelled to participate in providing a woman her legal right to have an abortion.  Alternatively, if you assist a woman in obtaining this medical procedure, you are within your legal rights to do.  The right to be guided by your personal moral compass as it pertains to another individual’s decision to implement her medical rights was initially codified in 1973 in the Church Amendment. Since then other federal and state  laws have been passed and are generally referred to as “conscience protection statutes.”

‘Sort of a paradox of the democratic process that seeks to protect and provide everyone with a voice and a right to acknowledge, but not necessarily support individual prerogative when abortion and sterilization procedures are involved.  This paradox is back in the news as the Obama administration has revisited, revised and repealed aspects of the regulations pertaining to the conscience protection statutes that the Bush administration put into effect in the waning days of its administration.  Interestingly, the statutes functioned without regulations for over 30 years.

The Bush regulations immediately drew criticism for being redundant, overly broad, vague and perhaps, most significantly, for arguably collapsing the definition of contraception into abortion and thereby making it more difficult for individuals to obtain legal health care. Additionally, interpretation of the Bush regulations permitted the possibility that individuals could be denied services based upon evidence of a lifestyle that offends the health care provider’s conscience.

The new ruling makes clear that neither the intent  nor the language of the federal statutes is to define contraception as abortion. “The provision of contraceptive services has never been defined as abortion in federal statute… There is no indication that the federal health care provider conscience statutes intended that the term “abortion” included contraception.”

The Department of Health and Human Services further explains that,

“The Department agrees with concerns that the 2008 Final Rule may have caused confusion as to whether the federal statutory conscience protections allow providers to refuse to treat entire groups of people based on religious or moral beliefs. The federal provider conscience statutes were intended to protect health care providers from being forced to participate in medical procedures that violated their moral and religious beliefs. They were never intended to allow providers to refuse to provide medical care to an individual because the individual engaged in behavior the health care provider found objectionable.”

Nancy Keenan, president of NARAL Pro-Choice America, applauded the revision of the rule which,” had it been finalized in its original form, would have allowed insurance companies to deny claims for birth-control pills, hospitals to refuse emergency contraception to rape survivors, and employees at HMOs to refuse their patients referrals for abortion care.”

“The Obama Administration was correct in rescinding the highly inaccurate and dangerous provisions in a regulation imposed by the Bush Administration in late 2008,” said National Women’s Law Center Co-President Marcia D. Greenberger.

“It put the health and safety of American women at risk by expanding far beyond legal limits the ability of health care providers to refuse necessary treatment and information to patients—particularly when seeking reproductive health care, but going far beyond. The highly controversial regulation, which has been challenged in the courts, in effect encouraged providers to deny access not only to abortion services and information but also to contraception, treatment for infertility, depression, substance abuse, and HIV/AIDS in ways that the law does not allow. Indeed, virtually any medical service could have been swept within its expansive purview.”

Query:  When one individual’s personal values clash with another individual’s legal rights, to what degree should we protect one person’s moral values and thereby deny another person access to legitimate healthcare?


Mindfulness & The Battle to Claim Yoga: The Irony of the “Warrior Poses” November 28, 2010

Posted by legalethicsemporium in Law, Ethics & Society, Mindfulness, Religion, Yoga.
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Yoga’s exploding popularity as form of physical exercise and a meditative method for achieving greater life balance has ironically caused some of its participants to wage a verbal war over yoga’s origins.  The Hindu American Foundation initiated a “Take Back Yoga” campaign to increase awareness of yoga’s Hindu roots.  “In a way,” said Dr. Aseem Shukla, the foundation’s co-founder, “our issue is that yoga has thrived, but Hinduism has lost control of the brand.”

The campaign has gone viral and caused reaction (or perhaps in mindfulness terms, reactivity) throughout the yoga community at all levels.  In fact the New York Times reports that: “Dr. Deepak Chopra, the New Age writer, has dismissed the campaign as a jumble of faulty history and Hindu nationalism. R. Albert Mohler Jr., president of the Southern Baptist Theological Seminary, has said he agrees that yoga is Hindu — and cited that as evidence that the practice imperiled the souls of Christians who engage in it.”

And… In June, the Indian government began digitizing ancient drawings that depict more than 4000 yoga poses, purportedly to discourage further yoga copyrights like Bikram Choudhury’s 2007 copyright for the 26 poses now known as Bikram yoga.

Wow, what happened to the concept of a collective consciousness and a mutual striving to eliminate suffering?  Perhaps America, as the land of entrepreneurial opportunity, happened to yoga.  Or perhaps the ongoing struggle within our melting pot to achieve a balance of the yearning for cultural respect and individuality alongside the inevitable assimilation and blending of various aspects of diverse cultures is at the root of the ‘Take Back Yoga” campaign.  Maybe the campaign would never have caused such a stir without the internet to serve as an available battleground.

Whatever the sociological and psychological underpinnings may be, hopefully the participants will soon pause, return to focus on the breath and transition from the warrior pose to engage in a restorative yoga experience.  Yoga is a gift, whatever its ancient origins may be, and living in the present moment may assist in alleviating suffering for all involved.

Lean to the Left, Lean to the Right…Stand Up, Sit Down, Is It Really a First Amendment Fight? — NPR v Juan Williams October 24, 2010

Posted by legalethicsemporium in Law, Ethics & Society, Mindfulness, Racial Discrimination, Religion, U.S. Constitution.
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The U.S. Constitution provides freedom of speech and press….that is found in the First Amendment.  Our freedoms to feel and think, regardless of whether we speak, are innate and have been described by philosophers as aspects of our natural rights as human beings. Juan Williams, a self described Black journalist and civil rights advocate, shared his feelings of a “moment of  anxiety” when boarding an airplane, post 9/11, along side Muslim individuals who are dressed in traditional Muslim clothing.  Williams expressed these views on the Bill O’Reilly show on Fox News where Williams is a paid contributor.  Williams has also warned about the potential of this type of fear to create unwarranted bigotry against Muslims.  National Public Radio, (NPR), who employed Williams as a news analyst, promptly fired Williams stating that there is no place in analyzing the news for  a reporter’s opinion as it undermines credibility.

Williams was immediately offered a large contract by Fox News as the backlash against NPR for the firing continues….Interesting to ponder whether if the situation had been reversed–if Williams had made the comment on NPR as a guest contributor while an employee of Fox–whether this would even be much of  a news item. Williams was not reporting a news event.  He was expressing a personal anxiety that  has become especially inflammatory in light of recent controversies in the news concerning the building of a mosque near ground zero and the threatened burning of the Koran on 9/11.

Whether his statement, which he has since explained was made to highlight the need to pause and become aware of ones feelings to achieve a rational tolerance for others and avoid bigotry, is inappropriate journalism, an overreaction by a hypersensitive left-wing news organization or just a reflection of the reality of post 9/11 tension in society is the subject of the current debate.  It begs the question of what is the responsibility  and appropriate role of those participating in the 24 hour cable news cycle phenomena?

Clearly, the First Amendment allows Williams to share his anxiety and permits everyone else to criticize his decision to make his feelings public.  NPR’s termination of Williams and Fox’s offer of a new contract are likewise permissible expressions of disapproval and support.

The question remains what is the most appropriate manner and forum in which to discuss the realities of undeniable post 9/11 tensions that linger in our country?  Do we talk “around” the underlying reality of these tensions in debating the ground zero mosque?  Do we remove irrational prejudice and bigotry in our society by  claiming that it is illegal, socially unacceptable and ignoring an analysis of its roots?  The answers to these questions vary based upon to whom the questions are posed.  Juan Williams believes that in revealing his own visceral fear and identifying it as a cause for concern, he was contributing to a discussion in which he hoped acknowledgement and exposure of human nature might alert us to the potential for unwarranted discrimination arising from this type of fear. Others believe that as a high-profile figure, his statement reinforced and condoned anti-Muslim sentiment in our country.  The answers depend upon a person’s particular orientation and perspective.  However, more important than the answers, is the debate concerning the questions and the freedom of speech that permits the conversation to continue.

Really, Can’t We All Just Get Along? Or Does Relocation of a Mosque “Trump” National Burn a Koran Day? September 9, 2010

Posted by legalethicsemporium in Law, Ethics & Society, Mindfulness, Religion, U.S. Constitution.
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So, this week while Rodney King plans to wed one of the jurors in his case, Donald attempts to “Trump” a small town pastor by  placing a losing bet on the purchase of the  building near ground zero in which the controversial Islamic center is planned.  Meanwhile,  the President of Indonesia is imploring President Obama to keep the pastor from burning Korans on Saturday, September 11th, and the Secretary of Defense is on the phone attempting to persuade the pastor not to burn the Korans.  Wait–it gets better–the pastor calls off the burning based upon a message from God which indicates that the Islamic center is moving its location.  Problem is that God apparently forgot to mention the deal to the folks planning to build the center because they are not moving it despite the pastor’s message from God and Donald Trump’s offer to pay the main investor 6 million dollars (a 25% immediate return on investment). Now the pastor is reconsidering and may  still burn the Korans.

I imagine if I submitted this storyline to any movie producer or director, I would be laughed out of their offices for proposing such an unfathomable plot.  Before leaving I would attempt to persuade them that this is a story about America–Freedom of speech, religion, the right to assemble, etc, etc, etc.  Donald Trump is making his offer as a resident of New York and a citizen of the United States, a patriot in a capitalist country (or is that a capitalist in a patriotic country?),  in an attempt to end the strife over the Ground Zero Mosque Issue.  The whole world is watching as our President, Secretary of State, Secretary of Defense and yes, even Sara Palin, have come together  in agreement that it is a bad idea to burn Korans even if it is  constitutionally justifiable ( and even though they don’t all agree on whether the ground zero mosque should be built).

Having still failed in my attempt to “sell” the story to Hollywood, I might finally concede that truth is stranger than fiction….And sometimes life becomes so crazy that it appears that the only solution is to ask everyone to pause, breathe and remember that beneath our religious beliefs, political preferences, ethnic and cultural differences we are all, first and foremost, members of one race–the human race.  In that regard a little respect, humility and sensitivity would go a long way.

Burning the Koran: The Frightening Reach of the Internet and The First Amendment September 8, 2010

Posted by legalethicsemporium in Law, Ethics & Society, Religion, U.S. Constitution.
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Pastor Terry Jones, the pastor of a church with 50 members, is planning a national burning of the Koran day to commemorate September 11th.  He lives in Gainesville, Florida and in another era Jones’ hostile rhetoric might have been only a local community problem.  However, introduce Facebook and the reach of the internet and Jones has created an international controversy with people not only cheering and abhorring the event, but also fearing for their lives in foreign countries.

Jones, who holsters a gun on his hip, is aware of pleas from Christians who live as far away as Indonesia and Afghanistan and are afraid of the repercussions of the burning the Koran.  However, Jones appears to be stubborn in his determination to spread his word of the evil infiltration of Islam into our country.  All of this fervor despite the fact that Jones acknowledges that he has never read the Koran and only knows what the Bible says.

One insightful observer has commented that Terry Jones has “hijacked Christianity” much as Al Qaeda “hijacked Islam.” So why are Gainesville officials allowing Mr Jones to proceed?  Terry Jones’ actions are blanketed in First Amendment protection–The U.S. Supreme Court has held that both the burning of the American flag and the Ku Klux Klan’s cross burning is a form of  protected speech unless it is done with intent to specifically intimidate another individual.

Our democracy allows Jones to initiate National Burn a Koran Day and also supports the right of the people planning to assemble to protest Jones’ event.  Again, one has to wonder whether the Founding Fathers  might have been a bit more specific in their thinking if they could have envisioned the Internet and the international ripples that Facebook enables.  And we should note once again that just because someone is afforded Constitutional rights does not necessarily speak to the wisdom of exercising those rights, insensitively, at the expense of others.

As a person whose ancestors were murdered at Auschwitz, I cannot help but connect the burning of books to Nazi Germany. “Book burnings by German college students preceded Kristallnacht and proved 19th century German-Jewish poet Heinrich Heine’s prediction. “Where they burns books they will eventually burn people.””

While I am always cautious  when invoking a Nazi analogy and clearly distinguish Nazi inhumanity as government action rather than the ranting of an individual citizen empowered with freedom of expression,  I am sure that I am not alone in having that guttural reaction.  Obviously, the burning of any books, and especially a sacred book, is a powerful statement and that is why Jones is planning his bonfire.

And while our country tolerates a wide range of freedom of expression, what we do not legally tolerate and should not socially tolerate is abject discrimination.  The fact that we have honest dialogue and exchange of varying viewpoints is undeniably an admirable, precious feature of our government.  The fact that we currently are having a debate about the “Muslim issue” in our country is alarming beyond expression and should be  frightening to anyone who  respects not only the right of  freedom of religion, but also the basic right to be free. Period. Pure and simple.

Dream or Nightmare? Glenn Beck Standing in Martin Luther King’s “Spot” at the Lincoln Memorial August 29, 2010

Posted by legalethicsemporium in Law, Ethics & Society, Religion.
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Martin Luther King uttered his famous “I had a dream” speech 47 years ago at the Lincoln Memorial.  ‘Wonder what he would have thought of Glenn Beck’s religious revival as an anniversary celebration….? Glenn Beck says the timing is just a coincidence or divine providence.  He started planning a political rally about a year ago, but at some point realized that there was a need for a religious taking back of America.

Wow, the First Amendment’s promise of free speech is in full force–-that’s a good thing–-But what about the part of the same Amendment that assures not only freedom of religion, but separation of church and state?  It’s a little frightening to see a call to reclaim America as a religious state.  Especially when the folks funding the Tea Party are extraordinarily wealthy big business types who have their own agendas.  (See Frank Rich’s column on the Billionaires Bankrolling the Tea Party here)

So, is Glenn Beck’s rally, America at its finest or democracy at its scariest?  Democracy is still the best system that we have devised to allow for individual freedom and liberty, but sometimes one person’s dream is another person’s nightmare.

Runaway Bride? Gay Marriage On Hold (Again) in California August 16, 2010

Posted by legalethicsemporium in Gay Marriage, Law, Ethics & Society, Religion.
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Just a quick update to the “Wedding Bells” post of August 12th  ….

Judge  Vaughn Walker lifted the stay on gay marriage, but allowed six days for the Proposition 8 team to appeal his ruling to the Ninth Circuit’s Federal Court of Appeals.  A three judge panel at that Court again imposed a stay which prevents gay marriage in California pending a review of the merits of Judge Walker’s decision.  The decision to impose the stay does not necessarily reflect what the Court  will decide about Judge Walker’s determination that Proposition 8 is unconstitutional.   The stay maintains the status quo–-no gay marriage–-until there is a final decision on the case.

One other interesting note is that the main defendants, Governor Schwarzenegger and Attorney General Jerry Brown, are not interested in pursuing an appeal.  In fact, they have voiced opposition to Proposition 8. So, the Court also needs to decide whether the parties that intervened in the case, primarily ballot sponsors such as the group Protectmarriage.com, may proceed with the appeal even though they do not enforce the laws of the state.

A bit unusual….In other words, the majority of Californians (52%) voted to ban gay marriage.  Some of its citizens, the minority in this case, objected claiming that the majority had violated the minority’s Constitutional rights. The Court agreed with the minority and the Executive Branch does not care to appeal the case because it doesn’t like the law.  A group of citizens who support Proposition 8, the majority, were allowed status in the case to argue for the majority and that group is the only one “left standing.”  Regardless of your position on gay marriage, we all should embrace the vision of democracy in motion as it “walks down the aisle.”

Wedding Bells in California on August 18th ? Judge Walker Lifts the Stay on Gay Marriage August 12, 2010

Posted by legalethicsemporium in Gay Marriage, Law, Ethics & Society, Religion.
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Tears of joy and of outrage may flood the streets of San Francisco today as Judge Vaughn Walker, who invalidated California’s Proposition 8  last week, has now removed the last impediment to gay marriage.  He had delayed the implementation of his order with a legal stay to allow time for argument over whether the stay should remain in effect pending appeal of his decision. Judge Walker has concluded that it is not in the public interest to maintain the stay.  Therefore, people are free to get married, beginning on August 18th, in accordance with his ruling even though his decision is being appealed to a higher court. However, the August 18th date does allow time for a ruling on the stay by the United States Court of Appeals for the Ninth Circuit, the Court to which the case has been appealed.

Judge Walker’s decision that invalidated Proposition 8  was based upon the evidence presented at trial which included eighteen witnesses presented by the plaintiffs to demonstrate the viability of gay marriage.  The defense presented only two witnesses and relied upon Supreme Court precedent and the idea that gay marriage is a social experiment with unknown consequences.

Judge Walker opined that marriage is a matter of civil law, not a religious determination and found that “Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus toward gays and lesbians or simply a belief that a relationship between a man and woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate. The Constitution cannot control private biases, but neither can it tolerate them. …”

He further found that,

”The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. …

”Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. …”

One of the most interesting aspects of this case is that people were not originally expecting  Judge Walker to conduct the  lengthy trial that he did. The trial afforded him the ability to write an opinion that applied the appropriate constitutional standard to the lengthy factual record amassed.   Appellate courts do not revisit the facts other than to determine whether the trial judge appropriately applied the law.  Judge Walker wrote a 136 page opinion and carefully and explicitly applied the law to the facts….

The plaintiffs are confident that the decision will ultimately be upheld while the defendants have no doubt that the decision will be reversed.  Thus, this case  not only  reflects  one  of the major civil rights issue of the day, but also is a prime example of the role of the judicial system to apply the rule of law and “calmly” decide the passionate issues of our times.

A Mosque on High? Constitutional Rights vs Moral Indignition August 5, 2010

Posted by legalethicsemporium in Law, Ethics & Society, Religion.
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This week a New York City Commission voted 9-0 to deny a 19th century building historic status thereby paving the way for construction of an Islamic community center and mosque a “stone’s throw” away from the 9/11’s ground zero location.  It is interesting to note that the Commission did not explicitly evaluate the proposed Islamic Center—-but many others have passionately reacted to it.

Mayor Bloomberg is pleading for  religious tolerance and  has said that, “The attack was an act of war — and our first responders defended not only our city but also our country and our Constitution…We do not honor their lives by denying the very constitutional rights they died protecting. We honor their lives by defending those rights — and the freedoms the terrorists attacked.”

Other political figures such as Newt Gingrich,  Sarah Palin, and gubernatorial candidate Rick Lazio have openly opposed the project.  They are joined by some of the families of those who died in the attack on the World Trade Center who feel that the Mosque would exist as an ongoing proverbial slap in the face.  In fact,  The American  Center for Law and Justice, a conservative advocacy group founded by the Reverend Pat Robertson, has filed suit attempting to prevent the project from moving forward.

The issue is somewhat reminiscent of the 1970’s dispute in which the town of Skokie, Illinois, home to a large number of holocaust survivors, sought to prevent a Neo-Nazi group from parading in front of the Skokie town hall.  Skokie lost that battle in the Supreme Court as the Nazi’s were represented by  the American Civil Liberties Union with an able Jewish lawyer arguing the case. (The ACLU lost a significant number of members over its defense of the First Amendment in that context.)  Ultimately, the Nazi group never marched in Skokie claiming that its preferred alternate site had become available, while others asserted that the Nazi’s feared for their lives as the tenor of the dispute had reached a fevered pitch both locally and nationally.

Which brings us to the ultimate question:  Is there ever a situation in which our moral sensitivity should trump our Constitutional rights?  The Anti-Defamation League, who actively seeks the prevention of hate crimes, has opposed the location of the mosque and stated, “Proponents of the Islamic Center may have every right to build at this site, and may even have chosen the site to send a positive message about Islam.  The bigotry some have expressed in attacking them is unfair, and wrong.  But ultimately this is not a question of rights, but a question of what is right.  In our judgment, building an Islamic Center in the shadow of the World Trade Center will cause some victims more pain – unnecessarily – and that is not right.”

This is just the beginning of the debate, as lawsuits will proceed and questions will be asked about the details of the funding for the project, the design, the purpose, etc.  The Constitution upheld the rights of the Nazi’s to assemble in a terrified community of holocaust survivors and is now at the cornerstone of the debate over the religious freedom of those who want to build a mosque and Islamic Center in the shadow of ground zero.  The Constitution embodies the basic freedoms upon which our democracy has prospered.  It provides everyone with fundamental rights, but also allows individuals the discretion to limit their own rights in deference to the sensitivities of others.

The debate about the location of the mosque exemplifies the value of free speech in our society.  The issues are being openly aired and passionately discussed. However, the parties to the debate are currently at a stand-off.  So, the question remains who will “stand down” and why?

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