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Thursday, August 02, 2012

Compelling patients to listen

On the heels of wave of state laws requiring doctors to provide and narrate ultrasounds and spout state-mandated speeches about medically dubious consequences of abortion comes the new policy regarding use and distribution of baby formula in New York City hospitals, part of the City's "Latch On" campaign to promote breast feeding. The new regs require hospitals to keep formula locked away and to sign it out to patients who take it, prohibit hospitals from giving away free samples to departing parents, and, most problematically, give parents who want formula a mandatory talk about why breastfeeding is best (even if not to come right out and say, as the doctor did here, that "forumula is evil").

The last prong is problematic, for the same reasons that the abortion speeches are problematic. It forces a one-sided message down the throat of a female (as always) patient, in a vulnerable position, presumed not to know any better or to be able to make decisions. Of course, we are not hearing any First Amendment complaints because the compelled speakers--the medical professionals--are on board with giving these speeches about nursing, in contrast to their views about ultrasounds and the abortion-suicide link.

The answer lies in a First Amendment liberty of the patient not to be compelled to listen to government-ordered messages, at least within certain conditions, such as the face-to-face intimacy of the doctor-patient relationship. I have not thought through the details, limits, or implications of this liberty (so any help is appreciated). But it seems to me that it partakes of some aspects of the captive audience and some aspects of Paul's institutional focus on how the medical profession should function and should be allowed to function. There also is a problem of one-sidedness; while breastfeeding may be the better option, the alternative is not affirmatively harmful to a child and should not be presented to patients as such. This liberty recognizes that there is a second party to doctor-patient conversations whose First Amendment interests should not be disregarded, particularly in a way that assumes lack of agency. Again, I welcome suggestions on how this liberty might take shape.

Recognizing this liberty still leaves it to be balanced against the government's interests in promoting public health positions. But it seems that there will be ways for government to gets its message (whether about abortion or the benefits of breast milk) across without compelling participation in a one-sided conversation.

On a personal note, I come to this question having made a deliberate decision with my wife, with the full support of our pediatrician, to give our daughter formula, for a variety of reasons. I am happy to say she shows no deficit in any of the areas that breast milk is supposed to enhance. I also can say that hearing a speech suggesting that we were hurting her by our decision would have been incredibly harmful at the time. Of course, for every story such as ours there is a story going in the other direction. But maybe that means a one-size-fits-all speech is not the appropriate public-health solution.

 

Posted by Howard Wasserman on August 2, 2012 at 11:03 AM in Current Affairs, First Amendment, Howard Wasserman, Law and Politics | Permalink

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Comments

I generally agree with you, and of course some mothers cannot breastfeed (for a variety of reasons). At the hospital where my wife works they have "lactation consultants" that visit each mother and provide information on the documented comparative benefits of breastfeeding (which does not mean that the use of formulas 'harm' infants). Some of those benefits are not purely physiological but psychological and emotional and it seems these can occur with the proper use of formula as well. One reason why for these "education" campaigns is that it was thought necessary to counter the well-organized and funded advertising of formula manufacturers, although I think this is less of a problem than it used to be.

Posted by: Patrick S. O'Donnell | Aug 2, 2012 12:48:17 PM

erratum: One reason for these....

Posted by: Patrick S. O'Donnell | Aug 2, 2012 12:49:48 PM

I think you nailed it: "The answer lies in a First Amendment liberty of the patient not to be compelled to listen to government-ordered messages, at least within certain conditions, such as the face-to-face intimacy of the doctor-patient relationship " plus the captive audience aspects you mention.

"But it seems that there will be ways for government to gets its message (whether about abortion or the benefits of breast milk) across without compelling participation in a one-sided conversation." Yes. Some 90% of NYC mothers already breastfeed in the hospital, so where's the vaunted urgent need for this initiative? Certainly if Mayor Bloomberg wants to increase breastfeeding rates, he could give city workers who are nursing mothers paid maternity leave, access to pumping rooms, and protected break times.

"Latch on NY" has certainly created some strange bedfellows - it's not often I, a left-liberal feminist, find myself in agreement with the Tea Party, but here I sit.

Posted by: hush | Aug 2, 2012 9:06:09 PM

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