Pittman: Would you pass a health care bill that had a conscientious objector [sic] toward certain procedures including abortion.She's a lawyer, and she ought to know that Roe v. Wade — along with other abortion cases — does not require services. There is a world of difference between having a right to do something and having the power to make other people do things for you as you try to exercise that right. If you don't know the difference between those two things, you don't understand how rights work. Other people have rights too. Refusing to perform an abortion is not a violation of the constitutional right to privacy.
Coakley: I don't believe that would be included in the health care bill. I don't understand exactly what the question is. I would not pass a bill, as Scott Brown filed an amendment, to say that if people believe that they don't want to provide services that are required under the law and under Roe v. Wade that they can individually decide to not follow the law. The answer to that question is no.
Now, Coakley said "under the law and under Roe v. Wade." By "the law" she could have meant the law that might be passed. The new statute might require health care workers to provide abortions. But the question is whether she would vote for that law. It doesn't make sense to say I'd vote for it because after it passes it will be the law and then individuals couldn't decide they don't want to follow it. The question is whether she would vote for that law, so slipping "the law" in there with Roe v. Wade was — if not a mistake — a trick to make you think a requirement was already in place.
Yet even if a law were already in place requiring health care workers to participate in abortions, there would be an argument that the right to the free exercise of religion trumps or should trump that requirement. There would be a legitimate conflict in the law that politicians would have opinions about, and it would be wrong to portray the workers as people who merely want to say they are above the law. Just as the right of privacy trumps laws that ban or impose harsh barriers on the access to abortion, religious freedom rights might trump some laws that require abortion services. It isn't lawless to prefer religious freedom. It is a position about what the law is or should be. It is the very question under discussion as the people of Massachusetts decide who, in the future, will have the power to vote on what the law is.
Coakley: And let's be clear, because Scott Brown filed an amendment to a bill in Massachusetts that would say that hospital and emergency room personnel could deny emergency contraception to a woman who came in and had been raped.Coakley is choosing to press forward on the importance of abortion and contraception rights. It can be effective political argument to focus on rape victims. (Remember "Rape Gurney Joe"?) I imagine Coakley believed at this point that she was making a powerful argument that would win political support and make Scott Brown look like an unsympathetic lout and/or a right-wing extremist. But that was to be blind to the appeal of religious freedom.
Pittman: Right, if you are a Catholic, and believe what the Pope teaches that any form of birth control is a sin. You don't want to do that.In American constitutional law, we have a proscription of federal laws "respecting an establishment of religion, or prohibiting the free exercise thereof." It is difficult to coordinate the Establishment Clause and the Free Exercise Clause, and anyone who serves in the United States Senate will need to have some idea of the meaning of both clauses. Coakley invokes the "separation of church and state" as if it has obvious meaning and a simple reminder should end the debate. But the meaning of religious freedom in America has been the subject of endless debate, a Senator will be an important participant in that debate, and the issue right now is whether Coakley should be a Senator.
Coakley: No, but we have a separation of church and state here, Ken, let's be clear.
Pittman: In the emergency room you still have your religious freedom.
Coakley: Uh, well, uck, u, uk, the, the law says that people are allowed to have that. And so then you.. you can have religious freedom. You probably shouldn't work in an emergency room.
Pittman: Wow.Why the horrible stammering? The followup is utterly obvious. The answer should have been carefully prepared and couched in real sympathy for the workers who would be caught in the terrible dilemma between giving up their jobs and following their religion.
It is, in fact, permissible under the current interpretation of the Free Exercise Clause to make a general rule like this and impose it on people who will have to violate their religion or quit their jobs. There are also federal statutes — like the Religious Freedom Restoration Act — that give people a higher level of protection for their religious freedom, so that they do get special exemptions from generally applicable laws. So it's up to a Senator to have a position on what that law should be. A Senator will also have a vote on the confirmation of Supreme Court Justices, and that will have an impact on what the constitutional religion clauses mean in the future. Coakley has revealed how she balances free exercise and establishment clause values, and voters should take note.
It is especially important to think about these values in the context of an expanding government role in areas that were traditionally left to the private sphere — medical care, for example. It's the separation of church and state, so the dimension of the state is very important. A legislator who wants the state to run more of the economy and wants a strong separation of church is threatening to have a much greater effect on religious freedom than a legislator who believes in the strong separation of church and state but also believes in small government. Now, I want to give Coakley credit for bluntly stating the import of her position: You can have your religious freedom, but you'll have to give up your job. That elicits a "wow." That is, the truth is a slap in the face.
Tomorrow, the (purportedly) honey-tongued Barack Obama comes to Massachusetts to promote Coakley. I hope he submits to questioning and is asked what Pittman asked Coakley. Presumably, his position is the same, and presumably, he can say it in a less "wow"-eliciting way. But the truth is out, and his words — however elegant — can be distilled into the straight, stinging You can have religious freedom. You probably shouldn't work in an emergency room.