Why the barber is not like the florist, the baker and the photograph taker

What Would Quark Do?Christians have been very bothered by the advancement of efforts to normalize homosexual marriage in the last few years. I must admit that I am also bothered by the aggressive pace. Bakers, florists and wedding photographers have all been hauled into courts to justify their refusal to serve homosexuals who ask them to provide services for their, now legal, weddings. Christian businesspeople in all these circumstances cite their deeply held religious beliefs concerning the immorality of homosexual behavior and, particularly, the legalization of homosexual marriage. The Christians are all free to hold to these convictions, but courts have ruled that Christian businesses may not act on these convictions in a way that leads them to refuse service to homosexuals.

Such figures as Drs. Albert Mohler and Russell Moore have weighed in, taking up the cause of the businesspeople and raising alarms about the erosion of religious liberty. I want to be clear: in some ways I agree with Drs. Mohler and Moore. I think there are signs that religious liberty is becoming a difficult to maintain freedom in the West, and a big part of that is the advancement of laws designed to curtail speech and open dissent surrounding the issue of homosexuality. But, I don’t believe that the examples cited in the United States of florists, bakers and photographers being told they can not refuse service is quite the crisis some imagine.

I’ve gotten into far too many discussions with folks and had the same line used repeatedly in defense of the liberty of business people to “refuse to serve whoever they want for whatever reason they want.” This line sounds great to advocates of an unrestrained free market, libertarians and the like. But, it would require the unmaking of laws put in place to protect minorities and women against discrimination and return us to the possibility of an era where society could be segregated along racial and gender lines, at least in the context of some businesses. Do I think such segregation would come? Only in a very limited way in communities where bigotry and hatred still have powerful holds. But, the adoption of such an attitude, consistently, would open the door to discrimination without restraint in the business world: should business owners be permitted to discriminate in hiring, or in any other area of operations when they are granted the right to discriminate in their refusal of service to certain kinds customers?

Personally, this quasi-libertarian argument opens way too many doors to way too many problems to be considered reasonable. I believe that businesses that operate publicly ought to serve the public, without unreasonable restrictions that can not be justified from a business or purely religious basis. I include the idea of “a purely religious basis” intentionally, and I want to argue that the florists, bakers and photographers can not use it as their justification. The reason I want to make that argument is because of what sounds like the start to a bad joke: A lesbian seeking a haircut from a Muslim.

In Canada, a lesbian is suing a Muslim barber for refusing to cut her hair. The reason the barber gave is that according to his religious beliefs he can not touch women who are not his wife. On the surface this sounds like the very same issue that the florists, bakers and photographers in America are facing: a desire to refuse service based on religious beliefs. There is a big difference though and I think many Christian miss it. Until this story came along I wasn’t even sure how to articulate my belief that Christians were wrong for denying services to homosexuals who wanted them to provide for their weddings.

The barber is on solid legal ground, or would be in the United States, because of the tendency of courts to steer clear of examining articles of religious faith. In order for a U.S. court to overrule the barbers decision to not cut the lesbian’s hair they would have to directly examine the barbers specific religious commitments and rule them invalid. This is an action that U.S. courts refuse to do because it isn’t their job to determine which religious beliefs are valid or not. So, how does this differ from the florists, bakers and photographers?

In the U.S. cases the Christian business owners have tended to defend their refusals to serve homosexuals on the basis that participation in their weddings would constitute an endorsement of such weddings and thus violate their Christian consciences. Here is where the problem lies: a court can examine whether participation is equivalent to endorsement without having to consider the religious beliefs of the businesspeople involved. The objection for the sake of conscience isn’t solely grounded in religious conviction, but is also based on an understanding of what participation denotes. Dr. Albert Mohler explicitly makes this connection when he writes “active participation can only be read as a forced endorsement of what they believe to be fundamentally wrong and sinful.” But, is participation, necessarily, endorsement?

Lets use some analogies to help clarify things: journalists actively participate in events of all sorts in much the same way as photographers do at weddings, yet their participation can not be construed as an implicit endorsement of the events they report on. Further, citizens in the U.S. elect leaders, yet the active participation of the citizens in the electoral process does not imply their endorsement of everything the government does. The issue is one of proximity and association, and so I’m led to believe that the argument that Dr. Mohler and others make in justifying Christians denying services to be used for homosexual weddings is an expression of the association fallacy. Florists, bakers and photographers are not required to give their consent to those being married, and so their participation is ancillary, and thus should not be understood as an endorsement.

For this reason I’m inclined to agree with the courts who have ruled that Christian businesses that provide service for weddings don’t have a firm basis for refusing services to homosexuals. They are still free to hold to their convictions concerning the immorality of such weddings, just as I do. But, unless they can remove the degree of separation established by being a business, or somehow prove that their involvement would, necessarily, require endorsement; I don’t see the cause for their rejection of business on purely religious grounds in these cases. The barber is not like the florist, the baker or the photograph taker in reality.

Opposed Texas’ SB5 Bill? Congratulations!

There’s been a lot of excitement from those who joined with Wendy Davis to oppose SB 5 in Texas. Champions of abortion rights have hailed her filibuster as courageous and as protecting the rights of women in Texas. And congratulations are in order. Wendy Davis successfully gave voice to thousands of people who opposed this bill and they triumphed. The problem is that their victory is hollow and their cause was idiotic. The champions of abortion rights defeated a bill that would have done almost nothing to limit women’s access to abortion.

That’s right, the bill they defeated would have imposed no substantial limitations on women’s access to abortion in Texas. So, what in the world were they so upset about? Well, unlike Wendy Davis and her ilk, let’s actually examine the bill. The bill was originally prefaced with an introduction that referenced the ability to feel pain of fetuses at a certain gestational age and the state’s interest in preventing harm to these unborn children. While I understand that abortion rights advocates don’t want to acknowledge any potential abilities on the part of the fetus that might make it seem to be what it is: a human being; this section of the bill was not actually part of the legal text that would enter the Texas Code. The section that specifically referenced the twenty week gestational threshold was part of some introductory text that is merely meant to explain the drafter’s rationale for introducing the bill. But, surely there’s something in the text of the bill that would actually give teeth to this summary text? Well, yes and no. I’m reading from the Engrossed version of the bill, meaning the one that would actually become law with extraneous text removed, such as the introduction.

The first substantial portion of the bill amends the Health and Safety Code, subchapter A, chapter 171, section 31 with three basic provisions for physicians providing abortions:

  1. They must perform the abortion within 30 minutes of a hospital that provides OB/GYN services at which they have admitting privileges.
  2. They must provided a phone number that the patient can call 24-hours a day to get consultation on any complications.
  3. They must provide the name and phone number of the nearest hospital to where the patient lives, in case of emergency.

Now, none of those provisions seem onerous at all. Opposing those provisions seems ludicrous. Those provisions make all women who seek abortions safer in a marginal way by giving them more confidence in their provider in the event of a problem and more access to medical information should the need arise. But, that’s not the end of the bill. The bill also amends chapter 245, section 10, subsection c of the Health and Safety Code to require abortion facilities to be equivalent in capability to “ambulatory surgical centers” as defined elsewhere in the code. Again, this seems like a provision that is meant to protect women by making abortion clinics meet a measurable standard of safety and capability. So, we still haven’t found anything in this bill that should cause major concerns about safe and legal access to abortion. It must be in the middle section of the bill, concerning abortion inducing drugs.

The middle section of the bill adds subsection C to Texas’ Health and Safety Code, chapter 171. The bulk of it is a series of definitions, none of which are terribly interesting. The only really interesting one is the “Final Printed Label” or “FPL” definition which basically provides a shorthand in this section to the FDA approved usages for an abortion inducing drug. The next section, following the definitions, defines specific occasions for abortions:

  • Those meant to save the life or preserve health of the child
  • Removal of an unborn child that is already dead from a spontaneous abortion
  • Removal of an ectopic pregnancy
  • Treatment of the mother for a disease for which the abortion inducing drug is also labelled for treatment of

Next, the bill limits the use of abortion inducing drugs in the following ways:

  • A physician must provide the drugs
  • The drugs must be administered at a legal abortion clinic
  • The drugs must be administered in accordance with their Final Printed Label (HERE’S THE RUB!)

That third provision is the one that caused the uproar. It is the only substantial limitations imposed by this legislation. Abortion inducing drugs may not be used except as they have been approved for use by the FDA, excepting the additional dosing guidelines provided by the American Congress of Obstetricians and Gynecologists Practice Bulletin, as published January 1, 2013 (this comes from the bill as well). So, abortion inducing drugs may only be used as recommended by what the Texas lawmakers assumed were competent regulatory and advisory bodies. The rest of the bill basically imposes rules for safe administration and follow-up by the abortion provider that are no more onerous than the provisions for other kinds of abortions covered earlier in the bill.

But, why is the restriction of abortion inducing drugs to their labelled usage such a problem? I assume it is because off-label use of drugs is pretty standard for much of the medical industry. That is despite the lack of testing or clear understanding of why off-label use may or may not be effective. But I want to offer an argument against the normalization of off-label use in this specific case.

Abortion inducing drugs such as RU-486 have been formulated for “safe” usage within specific parameters. The National Abortion Federation describes the effectiveness of RU-486, in part, this way: “mifepristone and misoprostol can be used for early abortion up to 63 days after the start of the last menstrual period.” That’s a 9 week maximum gestational age for those who can’t do math quickly. But the National Abortion Federation also, honestly, describes the complications that can result from the use of RU-486 under even its standard, labelled, usage. Excessive bleeding requiring transfusion occurs in roughly 1 out of every 500 cases. Death of the mother can result in roughly 1 in 100,000 cases (about the same as for death from general miscarriage). All that put together I would tend to say that risks would be expected to increase for off-label use which may include increased dosing of the relevant drugs. Given the potential risk for blood loss requiring transfusion going up and possibly even the incidences of maternal death I think the bills safety measures are well warranted and imposing restrictions that defer to the FDA and other relevant advisory bodies is far from a bad idea.

So, what the abortion advocates and Wendy Davis really defeated was a bill designed to protect women and their unborn children. And they succeeded. But their victory is one of idiocy as sensible rules meant to preserve women’s health were defeated in favor of unfettered and unsafe access to abortion services. Congratulations to all the opponents of Texas’ SB-5 legislation. You’ve kept women unsafe via abortion for yet another day.