A License is Not a Free Pass
By Christopher Dodson
Executive Director
North Dakota Catholic Conference
February 2020

The state legislature to the south of us is considering a bill that would prohibit medical providers from prescribing puberty-blocking drugs and cross-sex hormones, or conducting mutilating surgeries on a child who has emotional distress surrounding his or her sex. The South Dakota Catholic Conference strongly supports the bill. It has stated: “As theories of sex and gender inconsistent with nature and the natural moral law are increasingly prevalent in popular culture, it is just that the law protect children while they develop and mature physiologically, emotionally, and spiritually.”

It is an important issue which the North Dakota Catholic Conference and other state Catholics are closely following. By the time this column appears, the South Dakota legislature will have decided whether to pass the legislation.

In the meantime, we can examine one of the arguments presented in opposition to the bill. Medical groups, including the American Medical Association, the South Dakota Medical Association, and Sanford Health strongly oppose the legislation on the grounds that it “criminalizes medicine.” Even when legislators offered amendments to clearly remove anything done by physicians in South Dakota or the Sanford system, they continued to oppose the bill on the “principle” that legislators should not regulate medicine.

On some level this argument it sounds appealing. Legislators and the general public have respect for doctors. They save lives. I am currently being treated by Sanford physicians and am thankful for that. We already do not like insurance companies inserting themselves into health care decisions by deciding what procedures are covered The image of politicians doing the same could sink most any legislation.

There is also precedent for taking a hands off approach to the medical practice. Physicians, like lawyers, accountants, professors, nurses, and other professions traditionally have a certain amount of autonomy. They have their own code of ethics, licensing, and enforcement.

Nevertheless, the principle of self-regulation can go too far. Just because physicians call something “medical” does not make it so and does not mean that it should be legal, even if the profession says it should be. Otherwise, anyone with a medical license could justify something contrary to the moral law.

Several legislative sessions ago lawmakers sought to restrict when physicians can destroy human embryos created through in vitro fertilization. During negotiation discussions a fertility physician told me and some legislators that any compromise was unacceptable because the legislature “had no business” involving itself in a “medical” issue. I responded by saying that the legislators sitting next to me not only had the right, but the also duty to involve itself in determining what is and what is not “medicine.” A license to practice medicine does not give an absolute right to do something just because the physician calls it “medicine.” In our system of government lawmakers, not practitioners, define the parameters of what is acceptable within a profession.

Consider the consequences if we become seduced by the argument we should not legislate medicine. North Dakota would not have laws prohibiting physician-assisted suicide, euthanasia, research that destroys human embryos, and human cloning. In the area of abortion we would not have informed consent requirements, regulations on the use of abortion drugs, parental notification laws, a ban partial-birth abortion, a ban on post-viability abortions, waiting periods, ultrasound options, and bans on abortion for sex selection or genetic abnormality. All of these could be justified by calling the acts “medical.”

At this moment the American Medical Association is suing the state of North Dakota to stop requirements that women be given information about of human biology and the possibility of stopping the effects of the abortion drug regimen. One of its arguments is that the state should not define what should be included in obtaining informed consent because that is a “medical” issue.

The state also restricts what drugs doctors can prescribe, the provision of controlled substances, and the requirements for telemedicine. The legislature, rather than the Board of Medicine, also sets forth a long list of grounds for discipline. Clearly, the concept of legislating the parameters of what is and what is not proper medicine is well established.

Ironically, some of the same medical associations and entities opposed to legislation restricting abortion or sex-reassignment on minors have no problem with bans on “conversion therapy,” which demonstrates that they are selective when it comes to employing the “hands off” argument. They, as much as any legislative body, respond to the political and cultural winds of the time. The difference is that they might be professionals with skill and expertise, but they may not possess the societal wisdom and reflection that comes from the legislative process.

Our task as citizens is to respect the balance between, on the one hand, allowing professional bodies to mostly self-regulate and, on the other hand, the need to set the parameters for the sake of human life, human dignity, and the common good.