Wednesday, October 20, 2021

Doctors Who Ignore Washington To Do Evil Should Be Liable, Too

From the past messages in this space about legislation pending in Congress, we’ve written that Doctors Who Ignore Washington to Do Evil, or DOWL to do good, are not operating within the bounds of the law. Such doctors are, in fact, acting outside of our Government and defying our official practices. The text of the penal law is here. We think this section should apply to DOWL, as the text suggests: Even when

performing a legitimate purpose the conduct is likely to create substantial and unreasonable risk of injury, actual or imminent injury, or death to others. But we think that section may not apply to DOWL. That’s because while the statutes specify that violations of the executive order are punishable by fines, imprisonment, or both, and that conflicts with the doctor’s “conviction, confinement, or fine under a

criminal proceeding,” the draft includes language that would not violate the doctor’s “conviction, confinement, or fine under a criminal proceeding”—a clear violation of the statute. (An email to our CORDA co-director, Dr. Carol Cunningham, received a reply that noted the differing types of punishment, which are, in fact, given “similar weight.”) So what’s the law? What can Congress do about people who ignore our

laws? By the way, why does it matter if this section of the DOWL legislation violates the physician’s rights to “security of person and property?” Because the Bill of Rights is not a national security law, in which doctors are arrested and criminally prosecuted based on their commentary—how they performed a medical procedure, or whether they avoided treatments that they determined were risky. The interpretation of

the 2001 Supreme Court opinion Harris v. California (now known as MR-15-N-7027(f)) that we described earlier provides that doctors enjoy protection under the Bill of Rights because they are “domestic individuals, wholly free from the jurisdiction of any state or other jurisdiction,” which is, in some contexts, different from being a “nonresident alien” (so-called alien detainees) (based on the factual question of

whether their detention was based on aliens to whom they had the legal right to communicate about their patients). This makes DOWL a foreign affair. The Bill of Rights does not affect Washington, DC, because it doesn’t have the jurisdiction to enter into the “federal” jurisdiction of an institution that does not enjoy the protection of the Constitution. This is because the Constitution protects all persons from

“physical or mental torture” (Article III, Section 8) and because the Bill of Rights exempts doctors from liability in states not protected by this provision of the Constitution (7 U.S.C. 1021(b)(7)), so the District of Columbia does not have jurisdiction to impose criminal penalties upon DOWL. We cannot find another area of the law that provides this protection of doctors, as we’ve seen in other institutions in

other contexts (see, for example, the Jefferson Memorial in Virginia). This lack of protection from the criminal justice system means that DOWL cannot be penalized in any other circumstance than the capital offense of murder. So, although the DOWL does not criminalize behavior outside of the District, it does grant some immunity from prosecution and conviction of an offense which it deems dangerous or disturbing, or

that would keep others from getting the care they need—and which could reasonably be regarded as destroying their health. The criminal justice system is not necessarily a healthy environment for someone who is upset about issues and seeks to reform them to a degree that is confusing to the state. Nonetheless, the freedom to communicate one’s point of view through the medium of health care is one of our country’s

greatest strengths, and Congress’ proposed approach on DOWL is at least a step in the right direction. If necessary, we would support moving forward in a more perfect alternative. We could amend the penalties to more fully address DOWL and would be happy to discuss it with you. We hope that you won’t wait until it’s too late to intervene on the side of justice. By the way, the DoWL is a way of expressing Congress’

disapproval of the use of deadly force against a civilian while seeking to protect themselves. Who knows? Maybe the DOWL legislation has some sinister dimensions and only when someone hears about this can they cause us to see it. Just a thought.

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