Judicial Activism Takes Manhattan

November 7, 2019

She scrubbed in like she usually did. Their patient, she was told, had just lost her baby. It was supposed to be a routine procedure -- the kind they usually perform after a miscarriage. Turns out, nothing about the procedure was routine. When she met the doctor, he had an apologetic look in his eye. "Please don't hate me," he said. The woman's baby, the nurse discovered, hadn't died. They were there to destroy it. Shocked, the nurse turned and asked to be relieved. No, they answered. Faced with losing her job, she did something that's traumatized her ever since: she helped abort an innocent child.

This nurse's nightmare is exactly what the Trump administration was trying to avoid when it finalized HHS's conscience rule this May. Like any sane person, the president thinks men and women in the medical community have a right to walk away from the table in situations like that one. Just imagine if you were asked to hold the scalpel that would mutilate a perfectly healthy teenager in gender transition. Or write a hormone prescription for a confused girl that would sterilize her for life. It's moral terrorism -- the kind a Manhattan judge just upheld.

Apparently, the First Amendment doesn't apply to doctors and nurses, U.S. District Court Judge Paul Engelmayer has decided. In an obscenely long diatribe, he blasts HHS for refusing to bully nurses like this one into doing something they vehemently oppose -- like taking a human life. With a disproportionate amount of outrage, he slams the administration for acting "arbitrarily and capriciously." He goes on to complain that HHS didn't have the authority to make the rule (ironic, since the agencies under Presidents Bush and Obama did) and accused the agency of making up a spike in complaints like this nurse's.

As for "arbitrary" and "capricious," FRC's Katherine Beck Johnson can only shake her head. "There were a number of documented conscience complaints at HHS that officials sought to alleviate with this rule," she pointed out. But then, Engelmayer was probably too blinded by his personal political motivations to realize it. Case in point? Instead of limiting his ruling to the states who sued (26), this lower court (emphasis added) judge decided to vacate the entire policy. "In my opinion," Katherine says, "it was clear the result the judge wanted to reach."

Let's not forget, conscience rights are already settled law under statutes like the Weldon amendment. Not to mention, Katherine explained, that President Bush issued a similar regulation at the end of his presidency in 2008 -- and Barack Obama canceled it out with one of his own. "So not only is there legislative authority [under Weldon] to enforce these broader conscience protections, but precedent by past administrations."

But of course, that hasn't stopped the liberal headline writers at CNN from referring to it as the "so-called" conscience rule -- as if this is somehow an idea conservatives just dreamed up. As Senator Ben Sasse (R-Nebr.) insists, "The whole point of the First Amendment, especially the free exercise of religion, is to protect the conscience rights of Americans. In this country, government doesn't get to tell you that your faith is fine on Sunday at church but not Monday at work. The Trump administration ought to defend basic conscience rights all the way to the Supreme Court."

No one -- not doctors, not teachers, or business owners -- should be bullied out of their careers because they think differently than the extreme Left. Besides, David Harsanyi points out, if it's okay for liberal activists to be driven by their "consciences," why not everyone? Good question. For the sake of health care providers, and those they serve, let's hope DOJ appeals the case in time to ask it.