Justice Roberts Foresaw The Ensnarement of Health Professionals By Alito’s Radicalism.

Posted on | June 28, 2023 | 5 Comments

Mike Magee

We all need affirmation and encouragement. That is why I was so grateful to receive a range of positive feedback on Hcom’s recent focus on the role of health professional oaths in supporting the foundations of democracy.

One global health care leader wrote, “Thank you for your message and all the lovely pieces you publish. You give deep insights into political, historical and cultural contexts of medicine and health that we often overlook or miss to understand.”

A U.S. thought leader in Medicine commented, “Great review of the oaths and ethical principles of medicine and nursing which are sadly being chipped away by perverse incentives, especially of corporate medicine and greed.”

And finally this, from a highly respected health policy expert, “I very much appreciated this most recent posting and agree with your three major points. While I very much share your concern with the never ending (it seems) attempts by conservative legislators to interfere in various ways and intrude on the patient-physician relationship, I would also agree that the corporate intrusion into health care and the daily practice/delivery of medicine by physicians and nurses is a far more dangerous intrusion from my perspective.”

As I have aged into my current role, as observer/commentator/recipient of care, I have begun to appreciate that health professionals are not “separate from”, but “makers of” democracy. Government, after all is “the institutional authority that rules a community of people.” To what end? “To maintain order and stability, so that people can live safely, productively, and happily.” The ultimate goal? “To protect the individual rights of liberty within conditions of order and stability.” And therein lies the tension.

Negotiating that divide, especially when two rather than just one life is at stake (as in pregnancy), is a remarkably personal, individualistic, private and complex undertaking. That is why, for many decades, it was entrusted to individuals and families supported by health professionals. A careful reading of Roe v. Wade, with its boundaries defined by three separate trimesters, was a compromise – not perfect, but workable in a real world with real people.

Authentic democracies are based on a constitution and are limited in the interest of maintaining as much individual freedom as is orderly possible. That is why, democratic constitutions around the world (including our own) purposefully “restrain and harness the powers of government…to secure the freedom and common good of the people.”

Written constitutions are not an ultimate failsafe. After all Nazi Germany, Fascist Italy, and the Soviet Union all had them. Rather it is actions, not words, that matter. Do you live up to your constitution?

Freedom to make choices – in what you do and what you say – is what liberty is all about. Civil liberties are liberties defined to be within our laws, created by our elected representatives, which govern a civil society under our constitution.

Liberties are not a green light to do anything you want. As experts attest, “Neither freedom of thought nor freedom of action is secure in a lawless or disorderly society.” And yet, controlling government over-reach and intrusion on individual’s liberties was, and remains, a primary risk to the function of our constitutional democracy.

James Madison acknowledged as much in a letter to Jefferson in 1788: “It is a melancholy reflection that liberty should be equally exposed to danger whether the Government has too much or too little power; and that the line which divides the extremes should be so inaccurately defined by experience.”

Justice Alito was well-aware of the potential political fallout when he first leaked the draft of the majority opinion in the Dobbs case. Since then he has made it clear that his respect for Stare decisis (Latin for entrenched legal precedent) was by no means etched in stone, and added insult to injury by offering a “what about” comparison to the reversal of the historic Plessy v. Ferguson “separate but equal” decision that had codified the legality of segregation.

What Alito and his majority did was go all in on an open door policy for radicalized Trump-supporting state legislatures to assault the core liberty of women over decisions related to their bodily autonomy. At the same time, they facilitated the ensnarement of health care providers into criminal territory, and endangered the very patients doctors and nurses had sworn an oath to protect.

One year after the Justice Alito led Dobbs’ decision, Red states have aggressively followed his lead. Abortion is now banned (with some exceptions) in Alabama, Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, West Virginia, and Wisconsin. Additionally, abortion in banned after 6 to 15 weeks of gestation in Georgia and Nebraska. Florida and North Carolina have bans that have not yet been implemented. Indiana, Montana, Ohio, South Carolina, Utah, and Wyoming have bans that are are tied up in court.

Chief Justice John Roberts attempted to steer Alito and his followers down a third path on Dobbs but failed. He stated that the “dramatic and consequential ruling is unnecessary to decide the case before us,” believing that a partial move toward a 15-week ban might be justified by the science, and that opening up the state floodgates by eliminating Roe v. Wade would destabilize our democracy.

Ironically, our constitution was designed, in the interest of individual liberty, to restrain “tyranny by the majority.” And yet the threat that has brought us to our constitutional knees in modern times is “tyranny by the minority.” Guided by religiously motivated adherents to white supremacy and patriarchal rule, a small cabal of conservative legal scholars, over a two-decade span, have redirected one of the three branches of government, toward a singular target – the overturn of Roe v. Wade.

With their success, this small band of emboldened outsiders and insiders are poised to undermine other personal liberties by exploring book banning, gender based restrictions of freedom of speech, and public funding of private and religious ventures.

Doctors and nurses, and the patients we care for, find ourselves caught in the middle of this battle, not by choice, but by necessity. We are, in fact, practitioners of democracy, perched perilously between liberty and order. Rather than shy away from conflict now, it is the time to speak up and stand tall.

Comments

5 Responses to “Justice Roberts Foresaw The Ensnarement of Health Professionals By Alito’s Radicalism.”

David Meyers
June 29th, 2023 @ 7:43 am

Mike, your recent series of commentaries on health care, ethics and democracy offers a passionate and well-reasoned analysis and call to action. Although “tyranny by the minority” has seen setbacks in a couple recently released SCOTUS rulings, the danger is far from over, especially with some major case opinions yet to be released. While the creators of our constitution were prescient in many respects, even they did not anticipate the full measure of damage that a demagogue intent on twisting government to his own ends could inflict on a primed populace. There is much to be done. Keep pushing!
Mike Magee
June 29th, 2023 @ 9:10 am

Thanks very much, David, for your wise comments and encouragement. It is interesting to look back and realize that one obvious weakness in the design of this new form of democracy went unaddressed at the time – that is the potential to steer judicial appointments toward a specific ideologic goal. Even so, that same judicial tree withstood Guiliani’s 60 assaults on behalf of Trump, and (as in last week’s decision on gerrymandering in NC) surprises from time to time. We are after all an imperfect species trying to manage itself. So we must expect that democracy, especially our brand that allows for both federal and state centers of power, will be a constant struggle demanding vigilance and participation. Health professionals’ awareness of their role as “practitioners of democracy” provides a much needed extra safeguard to us all. Mike.
Larry McGovern
June 29th, 2023 @ 9:36 am

Add my thanks and plaudits, Mike, to David Myers, and so many others. One point on the Myers comment. I believe we miss the broader picture of the “tyranny of the minority” if we concentrate too much on that one “demagogue”. That tyranny has been working overtime for decades, certainly long before Trump came on the political scene. And we must also consider the role of the Democratic Party, which, in losing the allegiance of its base at least since the ’90’s, has made the victories of the minority possible.
Separate point: could I suggest that cite these wonderful, recent articles on healthcare profession and democracy in one place for easy access.
Mike Magee
June 29th, 2023 @ 10:27 am

Thanks, Larry, as always for your insights. I heartily agree that the challenges our democracy faces today have been long in the adversarial planning, with plenty of blame to go around. Yet here we are, in a participatory democracy, which – not surprisingly – demands our participation to work. Thanks also for the suggestion to gather resources under one banner. You will find it this afternoon. Link to header RESOURCES, and click “The Health of Our Democracy.” Best, Mike
Physiotherapy Services
July 7th, 2023 @ 8:19 am

its amazing documentary about health
thanks for sharing us .