Civic ignorance is the enemy of liberty. In the midst of American debates over religion, speech, and conscience, we’re constantly treated to arguments that fundamentally misunderstand the relationship between the Constitution, statutes, and individual decisions. Censors elevate lesser values, denigrate the Bill of Rights, and ignore the role of individual choice in achieving the outcomes they desire.
Let me make this concrete. This week the New York Times fed this civic ignorance when it editorialized against the Trump administration’s proposed rule laying out a new approach to enforcing federal statutes that protect health-care workers’ rights of conscience. These statutes — which every president is obligated to enforce — protect health-care workers from being forced to assist or participate in abortions, sterilization, or assisted suicide. They are grounded in the First Amendment provisions that guarantee religious liberty and freedom of speech.
The Trump administration is pledging to aggressively enforce these conscience laws. The New York Times objects, declaring that the Trump administration “puts the Bible above the Hippocratic Oath.”
Specifically, the Times says that the regulations “don’t recommend that doctors balance a patient’s needs with religious objections; religious objections are given top priority.” The Times continues:
Freedom of religion is essential — and so is access to health care. Current law tries to accommodate both, but the far right has stirred unfounded fears that religion (and Christianity in particular) is under assault, and that people of faith are in danger of being forced to do things they find morally objectionable. “Patient-centered care” is an important goal in clinical training today, but the administration is instead proposing provider-centered care.
This paragraph is a perfect example of the principle that when it comes to discussions of civil liberties, never read anything before the “but.” Civil libertarians are wearily familiar with hearing would-be censors and authoritarians declare, “I believe in religious liberty, but . . . ” or “I believe in free speech, but . . . ” — and what comes after the but is invariably the exception that swallows the rule.
Such is the case here. First, it’s amusing that the Times says Christians have “unfounded fears” when the Supreme Court this term is considering two cases involving demands by state authorities that Christians violate their conscience. In Masterpiece Cakeshop, Colorado seeks to force a Christian baker to use his artistic talents to custom-design a cake for a gay wedding. In NIFLA, the state of California is attempting to force pro-life crisis-pregnancy centers to advertise free or low-cost abortions. Both cases call into question longstanding Supreme Court precedents protecting all Americans from compelled speech, the worst form of First Amendment violation.
Second, note how the Times frames the issue — as a matter of “balancing” needs. It objects to the administration granting “top priority” to religious objections. But the administration isn’t assigning the priorities, the Constitution is.
I often hear statists describe religious-liberty or free-speech claims as a form of “special pleading” — with people of faith seeking special protections unavailable to the rest of America. This is exactly backwards. Liberty is the supreme law of the land, and it is governments that must secure special permission before encroaching on individual rights. Governments are engaged in special pleading. Governments are seeking the special privileges. In other words, the “balancing” isn’t a neutral process but rather a process in which the Constitution itself puts the thumb on the scales for freedom.
This should not be a fair fight. It’s not a contest between competing, equivalent interests.
The battle isn’t as the Times phrases it — as the Bible versus the Hippocratic Oath — but rather constitutionally guaranteed liberties (endowed by our Creator) versus preferred progressive public policies. This should not be a fair fight. It’s not a contest between competing, equivalent interests. Rare is the public policy that can meet the traditional test for overriding a First Amendment liberty interest.
This is especially true when the First Amendment protects the Times and its allies in their efforts to persuade doctors and nurses to make different choices. It’s especially true in a world where virtually every literate adult and child has access, in the palms of their hands, to all the information they ever need to find the doctors they want. But for too many Americans, persuasion and information are not enough. They demand coercion, and complain when Christians appeal to the supreme law of the land to preserve their liberties.
In the battle over freedom of conscience, honest framing is essential. The Trump administration is doing what it must do — enforcing laws that are not just passed by Congress but also (in many instances) required by the Constitution. The oath of office says nothing about balancing competing interests against the backdrop of a blank legal slate. It demands that a president and his officers “preserve, protect, and defend” the Constitution of the United States. Simply put, protecting conscience isn’t choosing the Bible over anything. It’s the president fulfilling his oath.