June 1 will mark one year into Michigan’s mandated Implicit Bias Training (IBT) for all licensed healthcare workers. Back then, I called the IBT mandate immoral, unconstitutional, and tyrannical.
Now that they’ve experienced the “training,” professionals who pride themselves on unbiased care for all patients describe it as a “slap in the face.”
Unfortunately, the mandate has no sunset. For it to end, something has to change. As written, the rule requires IBT for every license renewal, forever.
Rejecting IBT: What about a lawsuit?
Some ask whether a lawsuit is possible. However, license rules face enormous hurdles to reach the US Supreme Court over constitutionality, because they are squarely within states’ legal domain. Within state courts, procedural objections might gain traction. However, in implementing IBT, the state appears to have followed procedural rules closely.
Among the licensed professions, responses range from enthusiasm to outrage, with an apathetic middle. Lack of a unified reaction may disqualify the issue for class action.
I’m not a lawyer, but filing a lawsuit from nowhere seems likely to get nowhere. Some groundwork is required first, and that brings up several possibilities.
Three paths to rejecting Michigan’s unconstitutional IBT mandate.
Rejecting IBT won’t be easy. Success is most likely with people choosing what suits them best, with a variety overall.
1. Offer original rights-based continuing education (CE)
Besides offering a full constitutional perspective on IBT, this CE could serve as a rallying point for freedom-minded clinicians. While an alternative CE is unsatisfactory for the long term, it would be a way to comply without being subjected to the woke agenda. Of course, the state has not made creating such CE easy: rules for IBT continuing education are lengthy and complex, requiring a live component.
If you know of an unbiased CE option, or would like to help create one, please contact me.
2. Active and passive resistance
Passive resistance to bad policy has a long and honorable history ranging from Gandhi to prisoner fasts to consumer boycotts. In the case of IBT, passive noncompliance could be silent by simply avoiding the training, or open with peaceful protests.
Some advocate more active resistance, such as questioning employer policies and distributing information about the biased agenda of IBT.
Both active and passive resistance are likely to come to employer and state notice, and may incur disciplinary measures. Following appeal processes would eventually open the path to regular courts outside the state licensing bureaucracy. A win could nullify the mandate, or diminish enforcement, or even cause it to be withdrawn.
On the other hand, state license boards really don’t want to revoke licenses, guaranteed to make clinician shortages even worse. If faced with large numbers of conscientious objectors, might they move to revoke the rule or provide waivers? They do have the ability to recommend the governor order conscience waivers or revoke the rule.
It is two years since the Executive Branch created Michigan’s IBT rule, and almost three years since Governor Whitmer issued the original Executive Directive.
Yet to the best of my knowledge, there has been zero response from the legislature. Whether this is because they haven’t heard from constituents, or were distracted by other issues, this should change.
Constitutionally, the legislature is designed to counter overreach from the executive. Legislators have the power to refuse funds to enforce the IBT mandate, or to prohibit the rule outright.
Objectors may say that legislation to rein in IBT is politically impossible to pass. However, support for this issue should cross party lines.
It is in no one’s interest for healthcare licenses to be weaponized for a political agenda. This policy alienates Michigan clinicians who stand for equal care and conscience rights.