Americans with Disabilities Act: The Latest Assault on Rights & Update

“The Americans with Disabilities Act: The Latest Assault on Rights”

Copyright Salvatore J. Durante, DDS, FAGD, 1992. Published in GP: The Journal of the New York State Academy of General Dentistry, March 1992.

SUMMARY: Much has already been written on the legal requirements of the Americans with Disabilities Act. Dentists know, by now, that they must remove structural barriers to the handicapped, even to the extent of installing an elevator if regulators decide this is “readily achievable” in any particular case. We all know that, as employers, we must hire a handicapped job applicant if he is “otherwise qualified” for the position, even if this means providing mechanical or personal aids. This article will not explain how “handicapped” was defined to include one in six Americans, nor will it provide you with a step-by-step plan for complying with the new legislation. Instead, it will answer an important and fundamental question: What made this intrusive piece of legislation possible and what should be done about it now? One particularly relevant aspect of the law will be explored: its effect on organized dentistry’s efforts to establish that a dental office is not a “place of public accommodation.”

 

Introduction

Across the country, dentists who once believed they were in private practice and free from the government oversight and harassment that is possible only at public facilities are learning that the private/public distinction is rapidly eroding. Numerous government agencies armed with coercive legislation exercise steadily expanding influence over so-called private facilities, almost as if private practitioners were government employees working on public property. We have all acquired some not-so-silent partners over the years: HHS, FDA, FTC, OSHA, EPA, and the IRS are only a few of the government agencies that come to mind. Depending on the city or state in which you practice, there may be many more.

To be sure, the legislation that initially established many of these agencies was accepted by the American people because the agencies were presented as beneficent. They were never presented as agencies that would grow into dictatorial bureaucracies with the power to reach into every corner of American society, to turn privately owned property into publicly controlled property, and, as a consequence, to turn private lives into government-controlled lives. The most recent example of this “well intentioned” coercion in the dental practice comes from the Occupational Safety and Health Administration (OSHA), which was established ostensibly to safeguard employees in their work surroundings. OSHA’s recent capricious gestapo tactics are fresh in dentists’ minds and nothing need be added by this author to the extensive news coverage.

As another example, the Food and Drug Administration (FDA) was formed to ensure the safety of food and drugs made available to Americans. It was not presented as an agency of power-wielding bureaucrats who would delay the availability of, or even outlaw the use of, new medication and devices for the treatment of such heart-breaking illnesses as cancer, Alzheimer’s disease, and AIDS–to name only three.[References 1,2,3,4,5,6] Nor was this agency presented to the American people as the future regulator of innovation in health care.[7]

Similarly, the Department of Health and Human Services (HHS) was formed (under a different name and among other reasons) to help senior citizens meet medical expenses. It was not presented as an arm of government that would regulate doctor and hospital fees, oversee all aspects of hospital care, forbid senior citizens’ purchase of readily available services even if they wanted to pay for these services themselves, or fine doctors thousands of dollars for using an incorrect code on a claim form. It was certainly not presented as a program that would drive up costs until citizens begged for the nationalization of health insurance companies.[8]

How do well intentioned laws, programs, and agencies come to this?

Every act of government, no matter how well delimited or inconsequential it may seem at the time, is based on certain fundamental ideas, or principles. These principles in turn, unless identified and rejected, lead to further acts by government that are consistent with the principles.[9] To illustrate in the case of HHS and Medicare: free health care for the elderly implied that some people have a right to this care. In turn: if some have this political right, eventually all will see that they can claim it too. Further: if health care is a right, then those that provide it are logically obligated to do so, and eventually the government must enforce the provision of health care even if that means imposing strict price controls, rationing services, and outlawing the purchase of certain treatments to “control costs.”[10] The underlying principle of Medicare, established in 1965, had to lead to the eventual government takeover of health care.[11]

As for the FDA, there is no way to limit the idea, once established, that the government can tell people for their own good what products they can and cannot use–even if an individual disagrees after learning all the facts and wishes to accept the responsibility for his actions. Likewise, the formation of OSHA established the principle that government should oversee materials, procedures, and general conditions in the work place. The size and type of work place are mere details, and it was only a matter of time before OSHA focused its attention on the dental office.

The latest threat to dentistry-and private enterprise, in general-from misguided ideas accepted long ago comes in the form of the Americans with Disabilities Act. Among other measures, this federal law forbids discrimination against the “disabled,”[12] and certain of its provisions apply specifically to “public accommodations,” including doctors’ offices. Soon inspectors will be looking into our employment and treatment practices, further dictating whom we may and must deal with, and bureaucrats will use their new-found power to harass by forcing us to alter our office designs–even to the point of installing elevators in many cases. How is such an intrusion possible? The quick answer is that the ideas behind this latest intrusion were accepted long ago, as with the agencies cited above, and it was only a matter of time before sufficiently coercive politicians and bureaucrats put two and two together in the form of new regulations or laws. A more complete answer must include an examination of the meaning, if any, of “public accommodation,” and a brief look at “discrimination.”

 

A “Place of Public Accommodation”

The term “public accommodation” has been appearing with increasing frequency in dental publications. During the last five or so years, many doctors have been accused by various state and city agencies of wrongful discrimination (primarily against HIV-infected patients)–“wrongful” because discrimination is prohibited in so-called public accommodations.

As one example, ten Philadelphia dentists were charged with discriminating against the handicapped under state regulation for refusing to treat HIV-infected individuals. (HIV-infection commonly is included under the legal definition of “handicap.”) The complaint was made under a “Human Relations Act” that prohibits discrimination in “public accommodations.” The American Civil Liberties Union was active in this case–not as defender of the dentists in their right to associate with others as they chose, but, rather, as the dentists’ accuser, arguing that the dentists should be forced by the state to treat patients infected with HIV. Attorneys for the dentists argued, unsuccessfully, that a dental office was not a “public accommodation,” and, therefore, was not subject to anti-discrimination legislation.

In another example, a general dentist in private practice in New York refused to treat an AIDS patient and instead referred him elsewhere for treatment. That city’s Commission on Human Rights charged the dentist with discrimination, and the Dental Society of the State of New York (DSSNY) came to his defense. As was argued in the Pennsylvania case, DSSNY argued that a dentist’s office is a private facility not subject to New York’s anti-discrimination laws. The doctor was fined $7500 and appeals by DSSNY to dismiss the case or overturn the decision have been denied.[13]

DSSNY was originally hopeful because, in a similar case against a New York dentist, a lower court had ruled that a dentist’s office is not necessarily a “public accommodation.” The doctor in question did not accept patients off the street, but accepted new patients only on a referral basis.[14] This line of defense has become academic however: the New York City “human rights” ordinance has since been amended to specifically include all private dental offices as so-called places of public accommodation.[15]

“Public accommodation”: To what, precisely, does the term refer? Different states and cities have various definitions that essentially come down to the same thing. The state of Pennsylvania regards as a public accommodation any place that is open to, accepts or solicits the patronage of the “general public.”[16] New York City defines it as “retail stores and establishments dealing with goods and services of any kind” (emphasis added).[13] A partial list would include schools, lecture halls, theaters, museums, bars, restaurants, hotels, bakeries, and health spas. In fact, it would be difficult to think of any business that is safe from government interference under such a broad definition.

Doctors’ offices commonly are “open to the general public,” and, even where they are not, they universally “deal with a service.” Indeed, as evidenced by recent changes and developments in the law, one of the intents of so-called human rights laws is to place entities like doctors’ offices under government control, but this intent was just never tested until some doctors chose not to treat the HIV-infected. Maintaining that medical and dental offices did not satisfy the requirements of places of public accommodation, as organized dentistry has, was always futile.

What should have been challenged all along and what must be challenged now is the very notion of public accommodation. Why does one lose the constitutionally protected right of free association and contract when one owns such a place? By what heinous action or deficiency does someone lose the right to control his own life and property?

 

Property: Ownership vs. Usage

A person accumulates possessions–property–by using the hours of his own life to produce and trade with others. In this sense, his property is his life, transformed into material goods. The right to control what one owns follows logically from the right to one’s own life, as surely as the right to liberty and the pursuit of happiness follow from the right to one’s own life. Owners of a business have the right to make all the decisions that relate to conducting their business, as an extension of their right to their own lives. Simply put, the owners have the right to do with their enterprises whatever they deem appropriate.[17] In the case of a dentist, this means the absolute right to control his own practice, whether he chooses never to perform class II restorations on maxillary left bicuspids on male patients with blonde hair, or if he chooses never to treat an HIV-infected patient. The decision is his, because the practice is his. It is his private property. This is contrasted with public property, such as court houses, which are owned by the government and controlled by the bureaucrats who speak for all the relevant taxpayers.

In addition to distinguishing between two fundamentally different types of ownership, the private/public distinction can also describe the use to which a property is put.[18] Obvious instances of privately owned property with private usage, in most cases, are clothes, cars, and homes. The owner of a car or home carefully screens those who would enter or use his property. In contrast, a dentist provides services to members of “the public,” and, therefore, is said to put his privately owned property to “public usage.”

To confuse the ownership/usage distinction when discussing “private” and “public” property is to jeopardize the very right to property, including the right to one’s medical or dental practice. That is, simply because the owner of private property uses it to trade goods or services with strangers, “the public,” does not mean that the ownership somehow becomes somewhat public and a little less private. The owner retains his right to choose not to deal with any individual or segment of “the public” just as each member of “the public” retains his right to choose not to enter into a deal with the owner. Leaving one’s front door unlocked and displaying an “open” sign is not the surrender of ownership and the control inherent in ownership. How one uses one’s property does not alter the fact that one owns it. Unfortunately, this is not the case today. Laws concerning public accommodations have systematically blurred the legal distinction between ownership and usage, rendering private property subject to more and more public control–that is, control by politicians and bureaucrats.

The recent passage of the Americans with Disabilities Act essentially ends discussion of the question: Is a doctor’s office a public accommodation subject to anti-discrimination laws? The new federal legislation explicitly says it is. (Even if this were not so, local governments would be free to add doctors’ offices to their control list with impunity, as we saw with the New York City “human rights” ordinance.) So dentists have lost the battle for the right to control their property. Politically, as goes the right to property, so goes the right to one’s own life, and vice versa. What was at stake was a dentist’s legal right to conduct his life as he sees fit, to associate with those he chooses, and to dissociate from others for whatever reason he deems proper. What was at stake was the right that individuals take completely for granted (today, anyway) in their social activities: the freedom of association, the right to pick and choose one’s friends and associates, the right to select according to some personally chosen criteria.

 

Discrimination: Private vs. Governmental

The threat to sovereignty in business relationships in the United States did not begin with the Americans with Disabilities Act or OSHA–or even with the establishment of the Internal Revenue Service. All are part of the same trend of growing government in the U.S., and an in-depth study is outside the scope of this paper.[19] For our purposes, to learn how the government can interfere in a dentist’s office with impunity today via the Americans with Disabilities Act, it is only necessary to understand what is wrong with the concept “public accommodation,” as such, and to look at one other closely associated idea that has been greatly confused in the minds of most Americans–discrimination.

Discrimination, in the broadest sense, is the “act of distinguishing, of observing differences.”[20] It is an action required by human life, and we routinely do it: we discriminate between likes and dislikes, friends and enemies, food and poison, truth and fallacy, life and death. The right to select among options according to one’s own personal criteria is something that individuals take for granted in their private lives, today. However, there is an ever-expanding list of types of discrimination that are illegal in an also ever-expanding legal world of “places of public accommodation.” And just as the attack on owners of so-called public accommodations is facilitated by sloppy use of terms, so is the attack on those who discriminate. For our purposes, the beginning is marked by the passage of the Civil Rights Act of 1964.

Prior to the Civil Rights Act of 1964, one was relatively free to make one’s own choices about whom to deal with, and, of course, one had to live with the results of those choices. In the course of one’s business, one could discriminate rationally, on the basis of relevant criteria such as the skill level of a potential employee or the ability of a potential customer to pay for goods or services received–or one could discriminate on irrational and irrelevant grounds, such as skin color, race, or national origin. Such features are irrelevant in most business relationships, since none necessarily impacts on intelligence, ability, productivity or ability to pay the asking price for a good or service. Prior to 1964 private citizens were free to discriminate according to their freely chosen criteria, be they relevant or irrelevant. We have seen that this freedom is proper, given an accurate understanding of private property and its basis in the right to one’s own life. The problem was that the government, the custodian of truly publicly owned property, was also free to discriminate according to irrelevant and irrational criteria.

 

Proper and improper governmental discrimination

A government’s proper function is to protect the individual rights of its citizens. A proper government does not initiate force, but rather uses its monopoly on the legal use of force against those who do initiate it, that is, against those who violate an individual’s natural right to live without physical interference from others.[17, 21] The government must discriminate between rights-violators and those who conduct their lives peaceably–but beyond that, the government should treat all citizens equally, granting special favor or consideration to none. However, prior to 1964, governments did discriminate on the basis of race, color, religion, and national origin, and they did this in publicly owned facilities. Segregation laws that treated people not on the basis of whether they were rights-violators but on the basis of race, color, etc. clearly violated the spirit of the Constitution, and violated the rights of certain people who were as equally taxpaying as others. By 1964 the country was ready for change.

With the Civil Rights Act of 1964, the federal government declared that state and local governments could no longer discriminate in publicly owned facilities on the basis of race, color, religion, or national origin. (“Sex” was added in 1972.) Unfortunately, the distinction between public ownership and public usage was blurred and the law was applied to privately owned enterprises that traded with “the public” even though they were not owned by the public.

The principle that the government can and should force people to associate with those they would rather not was firmly established, and it undermined the idea that one actually owned and controlled one’s own property and one’s own life. The very concept of property and the right to one’s life were assaulted. In what sense can one claim to own a business if one is not free to make the most basic decisions about whom one will deal with? In 1964, everyone gained a new, not-so-silent, and very powerful partner in the form of politicians and bureaucrats armed with the Civil Rights Act. Its protection of rights in the governmental, or public, sector was necessary and long overdue, but that protection was more than negated by the violation of rights it mandated in the private sector. With this legislation, all “private” enterprises became less private and more public trusts–entities that are closely controlled by the government, yet private in name. The distinction between private/public and ownership/usage was seriously blurred, leaving private enterprises susceptible to further government attack. The Americans with Disabilities Act, which prohibits certain types of choices in privately owned public accommodations, is just the latest manifestation of principles that were firmly established in 1964.

 

Why Now?

Why are dentists’ offices only now coming to be regarded definitively as public accommodations, and therefore subject to more direct government control?

Doctors’ offices do not have a record of “wrongful” discrimination on the basis of race, color, religion, sex or national origin and were excluded from the federal definition of public accommodation in 1964. Dental professionals are being attacked now because of the outbreak of HIV infection, which ushered in the latest demands by some group to be provided with the services or the property of others. Discrimination against the latest favored political group, that is, choosing according to certain personally defined criteria that, at the moment, are not “politically correct,” happens to occur in the dental office in some cases. As a matter of course, doctors’ offices are being included on the list of public accommodations for the purposes of the Americans with Disabilities Act. The principle that the government should force people into unchosen associations is just taking another concrete, specific form. Dentists should not be surprised–nor should the next victim of this political principle.[22]

Indeed, much of government activity today focuses on the otherwise consensual relationships between individuals engaged in trade. Does anyone know the number of regulations and laws that apply to private enterprises or the use of private property in the United States? The number would be staggering and is growing steadily. As for health care specifically, the number of agencies that physicians and hospitals must answer to has grown during the last 25 years to numbers in the hundreds, and these agencies control almost every aspect of care, from fees charged to treatment rendered.

Seemingly plausible reasons are always given for each expansion of government into the private citizen’s life. In health care, licenses were deemed necessary to protect the ignorant from the untrained; Medicare was seen as necessary to provide minimal health care for the elderly; medical fees and services had to be regulated because Medicare threatened to bankrupt Social Security–itself a “well intentioned” but absolutely misguided attempt by government to force people to do what those in power think is best. The underlying economic, political, and moral fallacies take many forms and target diverse groups and individuals. One thing they have in common is the effect of concentrating more and more power over formerly free individuals in the hands of the government. From the first major intrusions–the formation of the Interstate Commerce Commission and adoption of antitrust laws–to the most recent piece of legislation–namely the passage of the Americans with Disabilities Act–the government has acted on widely held but mistaken notions to literally seize power over individuals’ lives.

 

How to Fight It

With HIV, wrongful discrimination, the Americans with Disabilities Act, and doctors’ offices as public accommodations, the steady encroachment of government has reached the dental office. The Dental Society of the State of New York argued that dental offices are not “public accommodations” when considering the HIV-infected. In a more hopeful case, the defense attorneys for the Philadelphia dentists are now arguing that dentists are sovereign individuals and should not be subject to anti-discrimination laws of the state. In contrast, the American Dental Association has dropped the pretense that it defends a dentist’s right to choose whom he will treat, and has stated that dentists are obligated to treat the HIV-infected. It did not argue against the Americans with Disabilities Act, but instead focused on achieving tax breaks to offset the immediate cost of compliance.

Some in the profession who, as dentists and as Americans, see the threat to our freedom growing every day say that the problem is bigger than the profession and really involves society in general. Therefore, they conclude, we should just go along with the trend toward increasing statism in the U.S. This overlooks the fact that professions are part of society, and are comprised ultimately of individuals. An ever-expanding government is our problem, as the last few years have made crystal clear. The question is only whether our profession will be part of the solution.

The solution requires waging a principled fight against those who would dominate us. In the process, we should eagerly form alliances with others who recognize the threat, such as the National Federation of Independent Business–one organization that did publicly oppose the Americans with Disabilities Act. The solution requires that we understand that the right to property is absolute, as is the right to one’s own life. And it requires that we wage our battle on a fundamental level, at the constitutional level, arguing that the very notion of anti-discrimination legislation applied to private individuals or privately owned “public accommodations” violates the fundamental right to property and life. Former east-bloc countries are desperately struggling to climb out of their self-made statist holes. As we delay principled action, the hole we are digging for ourselves continues to deepen.

 

References

1. Chase M. “Miscues Prevent Drug for Blindness Tied to AIDS from Being Cleared.” Wall Street Journal 1989; February 10:B1.

2. “Punishing Alzheimer’s Patients.” Wall Street Journal 1989; February 14:A14.

3. “Dr. Summer’s Victory.” Wall Street Journal 1989; May 25:A18.

4. Novack J. “Drug Abuse.” Forbes 1989; June 26:42-43.

5. Schwartz H. “A ‘Miracle’ Drug that Languished Among the Worms.” Wall Street Journal 1989; July 18:A23.

6. Isaac RJ. “FDA’s Shocking Treatment of a Valuable Device.” Wall Street Journal 1990; December 5:A16.

7. “Should the FDA Regulate Surgery?” Dental Management 1988; September:80.

8. Durante SJ. “Americare: More Poison Offered as Cure.” GP-The Journal of the New York State Academy of General Dentistry 1991; September:22.

9. Peikoff L. “Why Should One Act on Principle?” New York, NY: The Intellectual Activist, Inc., 1989.

10. Durante SJ. “The Fallacy and Danger of ‘Public Service’.” The Journal of Dental Practice Administration 1989; October-December:144-151.

11. Rand A, Peikoff L. The Forgotten Man of Socialized Medicine: the Doctor. Oceanside, CA: Second Renaissance Book Service, 1963.

12.”Disabled” is very broadly defined to include fully one in six Americans, according to supporters of the legislation (Rasky SF. “Senate Adopts Sweeping Measure to Protect Rights of the Disabled.” New York Times 1989; September 8:A1). The definition is so broad that a late amendment to the bill was introduced to exempt transvestites, pedophiles, kleptomaniacs, compulsive gamblers and voyeurs. In fact, one need not be truly impaired in any way; the mere perception that one might be impaired grants protection according to the wording of the Americans with Disabilities Act.

13. Jacob J. “NYC Dentist Discriminated, Rules Judge.” ADA News 1991; August 19.

14. “Court Rejects AIDS Discrimination Ruling.” ADA News 1990; April 23:1.

15. Jacob J. “DSSNY Files for Dentist in HIV Case.” ADA News 1991; Sept 16:13.

16. McCann D. “Ten Dentists Face Charges of HIV Bias.” ADA News 1990; October 1:55.

17. This does not mean that one has the right to use one’s property to violate the rights of others. One man’s rights end where another’s begin. See Rand A. “Man’s Rights.” The Virtue of Selfishness. New York, NY: The New American Library, 1964:92-100.

18. The author acknowledges contexts in which the private/public distinction may serve other purposes, such as whether or not a firm’s stock is traded in open markets.

19. Peikoff L. The Ominous Parallels, The End of Freedom in America. New York, NY: The New American Library, 1982.

20. Webster’s Deluxe Unabridged Dictionary, 2ed. New York, NY: New World Dictionaries/Simon and Schuster, 1979: 522.

21. Rand A. “The Nature of Government.” The Virtue of Selfishness. New York, NY: The New American Library, 1964:107-15.

22. In this discussion, the fact that dentists are licensed by a governmental agency is immaterial. Note that all so-called public accommodations–not just those owned by licensed professionals–are subject to anti-discrimination laws pertaining to the HIV-infected and the legally disabled. Furthermore, the erroneous claim that licensure should impose special obligations has been covered elsewhere: See “The Fallacy and Danger of ‘Public Service’ ” (http://doctordurante.com/wordpress/dentists-as-public-servants-the-fallacy-and-danger-of-public-service/) , footnote ten above; and “The Case Against Medical Licensing,” by Locke EA, et al. in Medicolegal News, a publication of the American Society of Law and Medicine, Inc. 1980; October:13-15,28; and “The Physician’s License: An Achilles’ Heel?” by Holzer, HM in The Journal of Legal Medicine, Hemisphere Publishing Corporation 1991; 12:201-220.

Government Watch: Confusion and Contradiction, Update on the Americans with Disabilities Act and Mandatory Continuing Education”

Copyright Salvatore J. Durante, DDS, FAGD, 1992. Published in GP: The Journal of the New York State Academy of General Dentistry, September 1992.

The Americans With Disabilities Act became the law of the land this summer. It affects your office, as a “public accommodation,” in dealings with patients, and as an employer. If it can be determined that the width of your doorways has prevented someone from purchasing your services, you are guilty. If you refuse to hire an interpreter, or make some similar arrangement, for that deaf would-be receptionist whom you interviewed, you’re guilty. Fines start at $50,000. Your abilities to offer a service and employment are now, more than ever, vices to be turned against you by government bureaucrats who produce absolutely nothing.

Prior to this federal edict, New York courts and legislatures were hammering out boundaries of state interference in professional offices, as were other states’ officials. To my knowledge, no one actually argued against “public accommodation” as such, which is a concept that confuses private and public ownership of property with private and public usage of property. In short, privately owned property, if used by the public in some way, is in effect legally transformed into a type of publicly owned property and is then subject to control by public officials. (For details see “The Americans With Disabilities Act: The Latest Assault on Rights” above.)

While it did not challenge “public accommodation” as such, the Dental Society of the State of New York (DSSNY) was fighting doctors’ inclusion under the term. In 1988, a State Supreme Court Judge ruled that anti-discrimination laws do affect “places of public accommodation,” but ruled that private doctors’ offices are “distinctly private.” In 1990, the Westchester County Supreme Court again ruled that dental offices are not public accommodations–a victory for DSSNY and the doctors involved. NYC’s “Human Rights Commission,” as it is inaccurately called, was appealing the court’s decision when the federal act was passed, thus handing them perhaps the final victory and DSSNY the final defeat.

There is still a way for DSSNY and the ADA to overturn this federal violation of our rights: challenge the constitutionality of the new law, all the way to the Supreme Court, if necessary. In fact, the Second District Dental Society (SDDS), representing Brooklyn and Staten Island, did present a resolution to DSSNY asking them to petition the ADA to challenge the act.

In June, after much discussion on the issue, the 30+ members of DSSNY’s Board of Governors voted to adopt the resolution. That meant that the ADA would have to discuss the merits of launching a constitutional challenge to the Americans With Disabilities Act at its national meeting in October.

Unfortunately, the air became too thin for some during the lunch break. “What have we done?” some of them must have asked. “Does this mean we’ll have to argue a principle before the entire ADA House of Delegates and actually try to do something important?” After lunch, the Board voted to reconsider, this time defeating the SDDS resolution. DSSNY will not ask the ADA at its October meeting to consider a constitutional challenge to the Americans With Disabilities Act.

The reversal of a decision merely to ask the ADA to consider challenging legislation as horrendous as the Americans With Disabilities Act illustrates the confusion of those who claim to represent our interests. One cannot regard a few isolated proper actions, such as DSSNY’s earlier challenge of the dental office as “public accommodation” and the ADA’s ongoing challenge of OSHA’s intrusions, as meaningful efforts to protect one’s interests. Organized dentistry lacks principled policy guidelines, and so every new assault from bureaucrats and politicians is seen as a separate event, unrelated to any previous action and inconsequential for future actions. Their efforts are necessarily inconsistent and contradictory.

Whether they will act correctly in any given instance–that is whether they will act to protect our freedom against advancing governmental bureaucracies–is totally unpredictable. On one day, those who at least glimpse what is at stake scream loudly enough and we get DSSNY fighting the NYC Human Rights Commission. On another day, those who worry about what “the public” will think scream louder and we get DSSNY’s decision to avoid attracting attention over the Americans With Disabilities Act. What is at work here is a futile, suicidal attempt to balance the defense of our rights with the sacrifice of our rights in order to appease those in power and to appear acceptably servile. As time goes on, our rights are gradually but steadily eroded.

The latest example of the harm that must result from not having principled positions that one is willing to act on consistently is the push in New York State to require health-care workers to take infection-control training as a requirement of licensure. As stated in the New York State Dental Journal, August 1992, “DSSNY was quick to announce its opposition to any attempt at mandating the continuing education initiative.” But how seriously could politicians view that “opposition”? After all, this is the same organization that embraced mandatory child-abuse recognition training on the grounds that they shouldn’t antagonize the governor’s wife.

Regardless of its stated “opposition” to mandatory CE in general and to this latest initiative in particular, DSSNY supports mandatory CE in principle–by its own actions regarding the child-abuse requirement. Furthermore, DSSNY is actually formulating guidelines for MCE that the state could follow if it chooses to ignore the society’s “opposition.”

As inconsistent as organized dentistry’s decisions may be, at least one thing is completely certain. With every compromise and with every decision to avoid a confrontation, your freedom to think for yourself will shrink as the scope of government force expands. What is needed is 100% principled opposition to government interference in our lives and our offices. All government interference in the dental office must be fought, no matter how futile the fight may sometimes seem. Along the way, we would win more and more battles, and as we gain the respect that can come only from consistently principled policy positions we could become a force whose opposition–and support–truly meant something.


Politics of Health Care