Preserve the Freedom of Choice

Feb. 1, 1996
All of us are influenced by the environment in which we live. A good deal of what happens around us is background noise, but on occasion, a book, an essay, an event or a conversation, has a major impact on whatever we are thinking about at the time.

John L. Kennedy, DDS

All of us are influenced by the environment in which we live. A good deal of what happens around us is background noise, but on occasion, a book, an essay, an event or a conversation, has a major impact on whatever we are thinking about at the time.

Recently I saw the movie, "The American President." Much about the movie was good. I rate it right up there with "Dead Poets Society"- great writing, great acting and a terrific love story. More importantly, this movie clearly demonstrates the difficulty of being the president of the United States, as well as the necessity of this individual operating from positions of integrity.

Michael Douglas does a masterful job of portraying "the president," a person most of us desire in a leader-someone who avoids "political correctness," listens to his advisors, but resists the constant pressure of those who attempt to keep their fingers on the pulse of the country. In essence, he portrayed a bright person who looks at all the information and then votes and speaks his own mind, even if he pays a political price for doing so.

Is this a fantasy, a circumstance not of the real world? I think not, although many in the country, especially in the recent childlike political bickering over the budget, wonder if most in the political arena have lost their way. The majority of Americans are begging for honesty, integrity and credibility from their leaders, no matter what position they take on an issue. This includes all leaders, whether they lead the government, the Teamsters Union or the American Dental Association (ADA).

If the number of letters and phone calls is any indication, the readership of Dental Economics has great interest in infectious-disease policy, specifically in how the Americans With Disabilities Act (The Act) has impacted on two individual dentists, as well as how it might impact upon their own practices. Those who read the Letters in the January issue of Dental Economics, specifically the letter from the president of the ADA, Dr. William TenPas, as well as the letter from the attorney for Dr. Drew Morvant, Mr. Stephen Pizzo, recognize that these two men do not necessarily agree on some of the facts related to the prosecution and subsequent fines and penalties Dr. Morvant received when he inadvertently challenged The Act.

Dr. TenPas stated that the ADA has taken a neutral position in the prosecution of individual dentists relative to The Act. He explained why he feels this position is appropriate, and reiterates his confidence, as well as the ADA`s confidence, in the safety of the dental office when universal precautions are used properly. Attorney Pizzo inferred that the ADA knew more about the prosecution`s case against Dr. Morvant, prior to Pizzo receiving the same information, than they would have known if the ADA had only played a neutral role in this event.

I believe that what Pizzo is saying is that the ADA, perhaps, did more to assist the prosecution than just stand idly by watching this disturbing event happen to one of their individual members. It is clear that both men cannot have all the facts straight. Does this mean someone is lying? Not necessarily, but the contrast in the letters certainly indicates a difference in perspective on this issue that cannot be attributed totally to a mere difference in opinion.

People disagree all the time-no big deal. Why do I find this issue to be so important? I believe that a substantial number of people in this country, including those making policy at the ADA, have missed the true importance of failing to resist the prosecution of individual dentists through the Americans With Disabilities Act. Ultimately, this is not a gay vs. straight, liberal vs. conservative, dentist vs. patient, HIV+ vs. HIV- issue. The Act, though it may have some positive features, when law dictates policy to the private dental office, is a direct threat to individual liberty, to the freedom of choice and association in this country.

If there is any truth in the history of mankind, it is that nothing is static, that everything cycles. There will be a time when ultra conservatives will be in control. If we create laws suppressing one group in their right to freedom of association on an issue of this sort, then what logical argument supports the fact that those in power cannot suppress the right of free association to any group of individuals? Once we allow laws like The Act to exist, without protest, whom is ultimately suppressed is determined only by those who are in power at the time. If one does not believe this to be so, just ask yourself where the infectious-disease issue might be, at this moment, legally, if Jessie Helms was the President. Using the same mentality that brought about The Act under a moderate administration and a liberal Congress, what group of individuals, rather than doctors, might find their freedom of choice of association suppressed under an ultra-conservative government?

Whenever we participate in any variation of "free speech for me, but not for thee," we are treading in dangerous waters. This is exactly what we have done with segments of the Americans With Disability Act of 1990. All people who appreciate liberty, be they ultra-conservative, ultra-liberal or somewhere in between, as most of us are, have a vested interest in resisting this sort of legislation.

One must only read the summary judgments of Dr. Drew Morvant of Louisiana and Dr. Randy Bragdon of Maine to recognize that something very threatening occurred-a set of circumstances which most of us think will never happen to us. I believe it was governmental overkill of the worst kind. How can the government justify that it was necessary to depose Dr. Morvant, with four or more attorneys present, for five days, not giving up on their "interrogation" until Mr. Pizzo obtained a court order to stop what he saw as an abuse of authority? Besides the large fine, part of the judgment dictated placing signs in his office, in essence declaring what a "bad boy" he had been. Part of it required that Dr. Morvant attend "rethinking classes."

In my opinion, this is straight out of George Orwell`s "1984" and doesn`t belong in the United States. Big Brother was in there with a vengeance, and all who desire and respect freedom and liberty must resist this sort of government overkill. Dr. Morvant was devastated by this experience.

How is this scenario removed from Russian suppression of liberty during Stalin`s Gulag period? Is it only different by a matter of degrees? Is it only different because Dr. Morvant is not in prison or a concentration camp? Can one imagine the protest which rightfully would come from members of the gay community if some court dictated that a gay individual must attend "rethinking" courses in order to influence his/her gender choice of sexual partner? I continue to be amazed that Gay Activist organizations participated in lobbying, as they did, for this legislation, when freedom of choice is such a major issue with anyone in the gay community.

The question is begged-why has the ADA taken a neutral position on this life-destroying prosecution of an individual dentist, yet rightfully supported an effort to slow down OSHA`s escalating interference in the dental office? Why has the ADA actively resisted excessive governmental interference in the practice of dentistry where OSHA is concerned, but abandoned and turned a cold shoulder to solitary members of the ADA who inadvertently challenged the excess interference of The Act?

I believe it is because the ADA is concerned that supporting individual dentists who challenge this segment of the law would indicate that the ADA felt that the dental office was not safe, while resisting OSHA is a vote for the present safety of dental environments. All of us who practice dentistry know that the dental office is safe. Most dental offices put many hospitals to shame relative to sterilization and infectious-disease control. But this is not the issue! The issue is one of personal rights and the liberty of the individual citizen. The protection of these rights, the protection of the individual from excesses of the government, was the major goal of those who wrote our constitution, and anything our society does that violates the liberty of the citizen must be challenged by those who care.

Unless one has been intimately involved with the circumstances of the prosecution of Dr. Morvant and Dr. Bragdon, it is impossible to understand clearly what this has cost these two men in stomach lining and heart muscle, as well as professional, personal and economic loss. The enthusiasm demonstrated by the Justice Department for these prosecutions, the extent of taxpayer money spent to attempt to bring these two individuals down, is truly amazing.

Until the membership and the leadership of the ADA recognize the serious threat this law, and specifically the prosecutions of these two dentists, brings to the freedom of choice to all citizens, we will continue to see dentists throughout the country risking prosecution on a daily basis. No one truly knows what the extent of this law may be. The Act is clearly not restricted only to HIV. This law not only impacts the professional relationship between dentist and patient, but also on the relationship of the dentist and staff. The dictates of this act, as they relate to dental and medical offices, are not based on logic, science or rational thinking. This is a law which is politically motivated. It is impossible to rationally avoid violating an irrational law. This is especially true when no one understands the limits of The Act. The conclusions reached by the judge in the summary judgment for Dr. Bragdon are so confusing and conflicting, that all who read it must clearly recognize that this particular judge-and perhaps no one in this country-has a clear understanding of The Americans With Disabilities Act. Could it be that this confusion is less the problem of the judge than the impossibility of this particular law?

What can be rational about legally forcing any doctor to invade another person`s body? Who, in their right mind, wants anyone to invade their body that is afraid of them, or dislikes them, or for whatever reason feels the patient will receive better care in some other arena? How can one treat a patient who is both HIV+ and TB+ properly, without risking prosecution or criticism, when the guidelines for each disease is different? What clear-thinking individual can find it rational that a dentist is censured and fined, as a dentist in Canada was, for wearing a disposable gown when treating an HIV+ patient? This whole business is out of control. It appears it will get worse before it gets better.

The ADA is my association. I will continue to be a member until I no longer practice dentistry. Dropping out of my professional association is not an issue, and I encourage dentists to lobby for change from within, not by turning one`s back on the major force and voice of organized dentistry. There never will be a consensus opinion of what is proper policy on an issue as emotional and important as infectionous disease, but it takes little gray matter to recognize that there is small courage demonstrated by the ADA taking a "neutral" position when two members are getting hammered by an all-powerful segment of the government. Free people should resist governmental overkill of this kind.

There has been far too much political posturing, too many attempts at political correctness on this issue by the leadership of the ADA. Some in leadership positions in the ADA have expressed to me a private opinion that is different than their public opinion. This is not credible. Ultimately, it will come to no good end. Mark Twain was right when he said, "Tell the truth, you don`t have to remember what you said."

The longer this goes on, where the ADA has one official position, but a substantial number of members and leadership have another, the greater the chance that we will see other letters, which rightfully challenge the credibility of our association and our leadership-challenges which ultimately question the credibility of the entire profession.

Dr. Bill TenPas is a good person. He is young, he is bright and he is capable of "whistling his own tune through his own beak." He is not necessarily part of the ADA "old guard" which, in my opinion, has consistently been influenced too greatly by the permanent staff, specifically the legal staff. I believe Dr. TenPas will act from a position of integrity and credibility on this issue if the membership gives him clear guidance. This guidance comes indirectly from the membership as a whole, but directly from the House of Delegates. Those who care should begin now by informing the Delegates, as well as Dr. TenPas and the Trustees, of their desires. Any change in position on this issue by the ADA will come from the House of Delegates, but Dr. TenPas and the Trustees can have a significant influence on the position our society takes on any issue.

No one has yet shown that the majority of dentists and physicians will not willingly take care of those who are HIV+. No one has shown that the care for those who test positive is any better or worse since this act was passed. There is no need for this sort of repressive legislation, and it is the obligation of all of us who enjoy the freedom this wonderful country provides, to speak out in opposition.

Dr. Morvant was unbelievably beaten down by the events which took place during the governmental investigation and prosecution. All of Dr. Bragdon`s waking moments have been tied up by his case, and this may go on for years. Both dentists have received irreparable damage. Both dentists continue to think that what they did was appropriate under the circumstances as they saw them at the time.

Why is resistance by the ADA of the overkill of the Americans With Disabilities Act any less important than resisting the overkill of OSHA? If organized dentistry doesn`t resist the repressive prosecution of individual dentists, who will? What message does a "neutral" position by the ADA give to the Justice Depart-ment? If our leadership doesn`t resist, how many dentists will be next? Confucius said it well and simply: "To see what is right and not to do it is cowardice."

The author is a contributing editor to Dental Economics. He is in private practice in Albuquerque, NM.

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