Medical Whistleblower’s

Canary Notes

Medical Whistleblower

December 2007

There is a United States Constitution but there is also a Constitution for each state. Often the

protections are even greater under the State Constitution than under the Federal Constitution. So

it is wise to consult both before deciding which would be best to cite in your legal case. There

also is often a State Bill of Rights as well as the United States Bill of Rights at the Federal level. A

Federal Constitutional Right is a right guaranteed by the United States Constitution to the citizens

of the United States and so guaranteed as to prevent legislative interference with that right. Con-

stitutional Rights are not immune to governmental regulation but a Constitutional Right can not be

imposed on or destroyed under the artificial guise of being regulated. Therefore the United States

Constitution only permits reasonable regulation of an individual’s actions and a person’s beliefs are

not subject to regulation by the state. Constitutional rights are guaranteed to rich and poor, public

officers and private persons, children and adults, the guilty and the innocent, doctors and patients,

prison inmates and alleged mentally incompetent persons. One must be careful not to confuse a

political or social interest with a guaranteed constitutional rights. If a law imposes upon fundamen-

tal constitutional rights, by penalizing those who choose to exercise those rights, then the law is

itself patently unconstitutional. Deprivation of one person’s rights has a chilling effect on others

trying to assert their constitutional rights. A deprivation of a constitutionally protected liberty is

not “a little bit unconstitutional”, it is unconstitutional period. Therefore one does not have to

have a complete deprivation of a constitutional right for there to be a constitutional violation of a

person’s rights. The abridgement of a constitutional right can be intentional or incidental, but the

real question of law is whether the effect of a person’s constitutional rights has an effect that is

unnecessary and therefore excessive. Any action by the state that results in preventing the citizen

to freely exercise a valid constitutionally guaranteed right can be a violation of constitutional magni-

tude even without the complete deprivation of that constitutional right. The state statute can not

be so unnecessarily broad that it stifles fundamental personal liberties. Therefore a state in regu-

lating a person’s right to have a medical license and to be able to pursue their chosen profession to

earn a livelihood, must demonstrate that the state statute serves a compelling state interest and

that the state’s objectives can not be achieved by any less restrictive means.

What is a Constitutionally Protected Right? The Bill of Rights 2

The Right to Pursue a Business or Occupation

2

The Fourteenth Amendment

3

The First Amendment 3

State or Federal Court 4

Inside this issue:

Volume 2 Issue 12

“ We become human only in the

company of other human beings.

And this involves both opening our

hearts and giving voice to our

deepest convictions.”

Paul Rogat Loeb

When considering whether a particular case is perhaps a Constitutional Question, one may wish to

consider the State’s Bill of Rights. Most State Constitutions also contain a Bill of Rights which are

intended to protect citizens in their most fundamental rights from governmental transgressions of

abuse of official power. Many States recognize so-called “Natural” rights (as does the Fourteenth

Amendment). These “fundamental rights” are the freedom of religion, the freedom of assembly and

of association, and the safe guarding of a person in his or her life, liberty or the pursuit of happiness.

In many states the right to contract and the right to own property have been designated inherent

rights. The State’s Bill of Rights is not designed to protect the state’s citizens from the invasion of

their constitutional rights by individuals. The State’s Bill of Rights seeks to protect the citizen’s right

to enjoyment of life, liberty and property without arbitrary governmental interference. The State

Bill of Rights establishes certain legal principles and places them above political controversy and al-

lows the State court to protect the people of the State from excesses of the exercise of power by

State governmental officials. The court will find any governmental action which is in violation of

rights declared in a Bill of Rights as void, so that the provisions of a Bill of Rights are self-executing.

The United States Constitution provides a legal standard in the area of the protection of individual

rights and civil liberties and the State Courts are obligated to provide as much protection to their

citizens as the United Supreme Court has provided by it’s interpretation of the Federal Bill of

Rights. Some State Bills of Rights actually afford more protection than the Federal standard.

The Constitution protects the right to earn a livelihood by following the ordinary occupations of

life. This is a protected right guaranteed by the Fourteenth Amendment and is considered to be a

fundamental natural, inherent, and inalienable right. The Supreme Court has recognized that the

right to follow a chosen profession free from unreasonable governmental interference comes within

the "liberty" (and "property") concept of the Fifth Amendment. It is one of our most valuable rights.

A person’s business, occupation or calling is sometimes referred to legally as a “property” right.

This property right extends to those common businesses and ordinary callings of life and are in-

cluded in the right to liberty and the pursuit of happiness. However, one’s livelihood can also be a

Liberty right as well. The United States Supreme Court has held that a person's interest in his or

her reputation is not by itself alone a “Liberty” interest. However, when one’s reputation is closely

linked with a wrongful discharge from employment then it is sufficient enough to invoke the proce-

dural protection of the due process clauses of the Fifth and Fourteenth Amendments. So the Su-

preme Court considers whether the “Liberty” interest in one’s reputation is a factor along with

other Constitutional Rights and thereby Due Process has been violated under the Fourteenth and

Fifth Amendments. So the wrongful discharge of an experienced Surgeon who combines a defama-

tion claim with a wrongful termination claim thus comes under scrutiny by the court for violation of

Civil Rights. Defamation of a Doctor can include derogatory statements against his/her good name,

reputation, honor, or integrity. Charges such as immorality, dishonesty, alcoholism, disloyalty, com-

munism, or subversive acts, or a state imposed a stigma or other disability may foreclose opportuni-

ties for the individual and thus be a deprivation of that individual’s “Liberty” interest in his/her repu-

tation.

Bills of Rights

Page 2 Medica l Whist leb lower ’ s Canary Notes Volume 2 Issue 12

The Right to Pursue a Business or Occupation

“Acquire knowledge. It

enables its possessor to

distinguish right from wrong;

it lights the way to heaven; it

is our friend in the dessert,

our society in solitude, our

companion when friendless;

it guides us to happiness; it

sustains us in misery; it is an

ornament among friends,

and an armor against

enemies.”

Muhammad (570-632)

One of the most important Amendments to the United States Constitution is the Fourteenth Amendment.

The Fourteenth Amendment puts limitations on the State’s exercising of power and prohibited the states from

abridging the privileges or immunities of citizens of the United States, or depriving persons of life, liberty, or

property without due process of law, and from denying to any the equal protection of the laws. The Supreme

Court was quick to point out to the States through it’s decisions that the Fourteenth Amendment safe-

guarded civil rights from infringement by state action, because a denial of them would be a denial of due proc-

ess of law.

Section 1 of the Fourteenth Amendment states: "All persons born or naturalized in the United States, and sub-

ject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state

shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws." Section 5, which is the final provision, states:

"The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

To determine if a right is actually a right under the Due Process Clause of the Four-

teenth Amendment one needs to find it to be a fundamental principle of liberty and

justice and the interference of that principle actually curtails the inalienable rights of a

citizen and prevents the essential due process of a free government. The Due Proc-

ess Clause of the Fourteenth Amendment requires that state action, through one

agency or another, shall be consistent with the fundamental principles of liberty and

justice which lie at the base of all our civil and political institutions.

The First Amendment is our guarantee to the free exercise of one’s religion, free speech and freedom of as-

sembly. The First Amendment to the United States Constitution states: "Congress shall make no law respect-

ing an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or

of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of

grievances." The intent of the amendment was to curtail the power of Congress to interfere with an individual's

freedom to believe, to worship, and to express himself or herself in accordance with the dictates of his or her

own conscience. Another effect of the First Amendment was to protect unpopular persons and their ideas

from suppression and retaliation from those who are intolerant and hateful. The First Amendment guarantees

that each person should have the protected right to decide for himself or herself the ideas and beliefs deserving

of expression and allows for the adherence to one’s own belief system. Any governmental body that requires

the citizen to believe in a certain way that is contradiction of their own faith stifles the right of freedom of re-

ligion and thereby violates the First Amendment. Although the fundamental constitutional rights and guaran-

tees, including those in the First Amendment, are not absolutely unrestricted, it still shows the founder’s com-

mitment to protect free speech and to curtail governmental regulation and control. Thus judicial scrutiny of

the actions of the government acts as a means to enforce the Constitutional constraints. The guarantee of a

constitutional right ensures the citizen the privilege of having such a right judicially declared and protected.

Page 3 Medica l Whist leb lower ’ s Canary Notes Volume 2 Issue 12

The Fourteenth Amendment

The First Amendment

“Show me the

stone that the

builders

rejected:

That is the

cornerstone.”

Jesus

(c.6 B.C.E. –30)

Religious traditions stress the

importance of listening to the

spirit within, to guide our

personal choices. … The ancient

Jews spoke of ruah, the spark of

life or breath of God which gave

insight, understanding and

physical sustenance.”

Paul Rogat Loeb

Soul of a Citizen, Living with

Conviction in a Cynical Time

Dr. Janet Parker

P.O. Box C

Lawrence, KS 66044

We are on the Web!

MedicalWhistleblower.googlepages.com

The Federal Court can decline to hear a case, by stating that there are unsettled ques-

tions that need to be deferred to the State Court. These are the circumstances under

which the Federal Court may abstain and send the case back to the State Court.

(1) “Pullman Abstention” This is when a federal court is presented with a federal con-

stitutional question concerning the validity of state law, and perhaps the state court will

eliminate or alter the law so that the constitutional question does not need to be decided

in Federal Court.

(2) “Burford Abstention” This is when there are policy problems of public importance

which are more important than the case to be decided and a Federal Court review of the

legal question will be disruptive of the state’s efforts to establish a coherent policy in re-

gards to a matter of significant public concern.

(3) “Younger Abstention” This is where there is a pending state law enforcement pro-

ceeding, and the federal court does not intervene by injunctive or declaratory relief.

(4) “Colorado River Abstention” This is where a federal court exercises discretion to

delay proceedings on its docket pending the outcome of a similar suit instituted earlier

in state court.

Will the Case be Decided in State or Federal Court ?

Phone: 360-809-3058

Fax: None

E-mail: MedicalWhistleblower@gmail.com

Supporting the Emotional Health of All Whistleblowers

and their Friends, Supporters and Families.

Medical Whistleblower

The information contained through the Medical Whistle-

blower Canary Notes Newsletter is provided for general

information only. The information provided by the Medial

Whistleblower Canary Notes does not constitute legal or

professional advice nor is it conveyed or intended to be con-

veyed in the course of any adviser-client discourse, but is

intended to be general information with respect to common

issues. It is not offered as and does not constitute legal or

medical advice or opinion. It should not serve as a substitute

for advice from an attorney, qualified medical professional,

social worker, therapist or counselor familiar with the facts

of your specific situation. We encourage you in due diligence

to seek additional information and resources before making

any decision. We make no warranty, express or implied,

concerning the accuracy or reliability of the content of this

newsletter due to the constantly changing nature of the legal

and medical aspects of these issues .