Here’s another absurdity that emanated from our lovely judicial oligarchy last week: A business owner has an inalienable right to ask customers if they own a firearm but that same business owner has no inalienable right not to involuntarily service an act that violates his conscience. Inalienable rights turned upside down? That’s par for the course among our lawyerly elite.
This perverse juxtaposition stems from a tale of two disparate state laws, two hypocritical rules of standing in the courts, and the appalling hypocrisy of fundamental rights and state powers.
There is no such thing as a judicial veto on legislation duly passed by a state legislature and signed into law by a governor. Even according to the left-wing conception of the federal judiciary, there is no power within the courts to literally rip a statute out of the books or veto a bill the way a governor can. What a court can do, however, is block implementation of a law for an individual with legitimate standing in federal court who has proven that a fundamental right (almost invariably a negative action) has been attacked by the law, that there is a tangible injury-in-fact, and that the court’s judgement would redress that grievance.
With this background in mind, we can now understand the absurdity of what went down in Florida last week with regard to gun owners and doctors, as juxtaposed to the Washington religious liberty case.
In 2011, the Florida legislature passed a law barring healthcare providers from asking patients whether they own a firearm unless the health care provider determines “in good faith” that such information is “relevant” to the care and safety of the patient or those around him. When viewed in a vacuum — divorced from the broader nanny-state regulatory regime — I personally don’t believe in putting such restrictions on doctors. But given that states regulate the bejesus out of the health care profession on aspects of their job that cut to the core of medical care, this is as benign as it gets. This is not a mandate that forces doctors to take a positive action against their beliefs, as is often the case. Instead, it merely places a negative on them inquiring about or documenting a patient’s gun ownership information, while offering them a good faith discretion to disregard the law.
This law does not prevent a doctor from mouthing off about his hatred for guns or lecturing the patient about gun safety. It is extremely narrow, especially when understanding the context of how states have regulated the core medical profession into the stone age to the point that there is so little innovation in the delivery of health care relative to other professions [and none of that gets struck down by the courts].
Nonetheless, in 2011 a group of doctors buttressed by the officious American Medical Association (AMA) sued the state in court and got a district court to issue an injunction against the law. The AMA, which in itself has been empowered by government to essentially serve as the gate-keepers for the medical profession [something I hope to address in a later piece on free market health care], are behind this agenda to harass patients who own guns. There is no burning groundswell from ordinary doctors to ask patients about their gun hobbies. After the law was later upheld by a three-judge panel of the 11th Circuit in 2014, last week the full en banc panel ruled 10-1 that this law violates the First Amendment.
This, folks, is why the courts will always be a one-way street and a dead-end for conservative policies. At the same time the Washington Supreme Court upheld a law forcing individuals with their private property to engage in involuntary servitude (positive governmental action taken against a negative inalienable right) for something that violates the conscience of every practitioner of a major religion, the 11th Circuit struck down a law that merely places a negative on one positive action of a business owner. The action has nothing to do with conscience nor does it have anything to do with their job (and if the physician felt it somehow related to the care of the patient, the law explicitly permits them to ask about it).
Moreover, how can someone obtain standing to sue against a law when there is no tangible injury-in-fact? This is exactly how the courts have become a de facto judicial veto on legislation, a power they manifestly don’t have. What if a state passed a law and told doctors they can do anything they want in their clinic (unlike the current nanny-state regime) except that they can’t ask patients if they believe in the tooth fairy? Is that a redressable grievance for the courts (“No, I can’t do my job if I can’t ask my patients that question!”)? Or would it simply be the courts acting like an executive’s political veto?
The answer is that such a law, as is the case with the gun privacy law, would fall into the category of what the great James Wilson, one of the crafters of Article III and one of the original Supreme Court justices, once said, “"[l]aws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the judges in refusing to give them effect.”
This law, which places no mandate on the physician, no categorical restriction, and no interference with any aspect of their medical care, is a political issue. The Left has used the boot of government, including their empowerment of the AMA, to promote an anti-gun agenda. Republicans have responded in kind by using the force of state law to protect gun owners. If we want to get government out of the way of placing both mandates and restrictions on doctors in ALL areas of policy, count me in. But how can a court say a doctor has an inalienable right to a positive action of asking a patient about an irrelevant topic, yet a business owner doesn’t have a negative inalienable right of conscience not to service an abortion or a gay wedding? Blue states are passing laws left and right forcing health care providers to actively educate patients about abortion services, yet the courts have no problem with those laws. Now they are telling us a state can’t place a negative on an irrelevant positive action?
Worse, in the case of Barronelle Stutzman, private consumers were able to get standing to sue against her florist business. Thus, the courts give standing to individuals to violate the inalienable rights of others. They have this exactly backwards. I have an inalienable right to run my business an accordance with my conscience, but I have no right to employment or patronage of your business. Then again, these are the same courts who say states can get standing to overturn federal immigration law on account of an affirmative right for foreign nationals to immigrate, but states cannot get standing to sue a president when he violates federal and state sovereignty by overturning immigration laws.
The bottom line is we are confronted with a federal judiciary that is outcomes-based in its “jurisprudence.” I could respect some conservatives on the 11th Circuit who felt that EVEN the Florida case was enough of a redressable violation of a fundamental right to warrant judicial review. Most certainly, they would then rule that a state has no right to ask medical professionals or other business owners to actively take actions that violate their conscience rights. But for the liberal judges to have it both ways in order to achieve any given liberal political outcome demonstrates why the entire concept of judicial review, which has morphed into judicial exclusivity, is a one-way street for conservatives.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.
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