When life begins and the Establishment Clause
Malla Pollack
mpollack at ajsl.us
Thu Apr 19 10:21:11 PDT 2007
Animals are not people under current law. I am not now challanging that --
though I do think the humans in general are too species-centric.
Lets jump from abortion in general to the more interesting theoretical point
which is this case which for symbolic reasons only insisted that the state
had the right to insist that adult women take a risk they did not wish to
take.
Why does the state have any right to do this? If (as I think) the objection
is religious, why isn't this forcing the woman to take an action for
religious reasons with which she disagrees?
Malla Pollack
Professor, American Justice School of Law
mpollack at ajsl.us
270-744-3300 x 28
articles http://works.bepress.com/malla_pollack/
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, April 19, 2007 12:11 PM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: When life begins and the Establishment Clause
The law must say that life begins somewhere -- it must privilege
one position over others.
Conception is a logically plausible, but not logically provable,
place to draw the line. It is endorsed by many religious people and by
many nonreligious people. (Polls reveal that many nonreligious people
oppose abortion, though it is true that a smaller percentage of
nonreligious people than of religious people opposes abortion.)
Viability is a logically plausible, but not logically provable,
place to draw the line. It is endorsed by many religious people and by
many nonreligious people.
Birth is a logically plausible, but not logically provable,
place to draw the line. It is endorsed by many religious people and by
many nonreligious people.
What about laws that restrict some forms of abortion, but allow
others, so that they don't save any fetal lives? That strikes me as
much the same as laws that restrict some forms of animal killings, but
allow others. You can't kill roosters at cockfights, but you can kill
them in other ways; in many places, I suspect, some of the allowed other
ways aren't even much less painful for roosters. The underlying
judgment may be quasi-esthetic, or might be morally perfectionist, but
it's perfectly legitimate, whether your opposition to cockfights stems
from religious views, spiritual views related to the dignity of animals,
or utilitarian views about what is likely to coarsen human attitudes and
thus lead to other harms to other animals (and people). This is routine
stuff, with no Establishment Clause problems to it. The same, it seems
to me, has to do with various kinds of late-term abortions, which many
people oppose even for nonreligious reasons.
Eugene
> -----Original Message-----
> From: Malla Pollack [mailto:mpollack at ajsl.us]
> Sent: Thursday, April 19, 2007 9:57 AM
> To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> Subject: RE: When life begins and the Establishment Clause
>
> The complex issues is whether any legitimate non religious
> government interest underlies priviliging one of numerous
> possible positions ie whether the government can refuse to
> allow individuals to act on the basis of their own choice.
> For example, not have a specific day on which all stores must
> close is not a violation of the Establishment Clause because
> each person makes their own choice whether to close on Friday
> (Islam), Saturday (Seventh Day Adventist, Jew) or Sunday
> (most Christians). However, insisting that everyone close on
> Friday is insisting that every person act on the Islamic view.
>
> In this case, the majority claims that the statute does not
> prevent any women from getting an abortion -- so any state
> interest in "potential life"
> drops out. Nevertheless, the state is allowed by the Court
> to ban something. Using Joel Fineberg's terms, this is an
> "offense to others"
> statute. But any classic liberal (using that term in the
> John Stuart Mill
> sense) should have problems finding a legitimate government
> interest in statutes which do not involve actual harm to
> others (or perhaps to the actor herself).
>
> My position (which I do not claim to be current supreme Court
> doctrine) is that if the "offense to others" is an offense
> based on religious belief, state blocking of the offensive
> conduct is an Establishment of Relgion.
>
>
>
> Malla Pollack
> Professor, American Justice School of Law mpollack at ajsl.us
> 270-744-3300 x 28 articles http://works.bepress.com/malla_pollack/
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Thursday, April 19, 2007 11:29 AM
> To: CONLAWPROF at lists.ucla.edu
> Subject: Re: When life begins and the Establishment Clause
>
> I still don't quite grasp the Establishment Clause
> here. There are lots of topics on which different religions
> and different ideologies differ -- abortion generally,
> post-viability abortion, pacifism, race discrimination,
> religious discrimination, and in former days infanticide,
> slavery, alcohol prohibition, and more. Different people
> have different views that strike me as either religious or
> quasi-religious about animal rights, about endangered
> species, and the like. Surely it can't be an Establishment
> Clause violation simply to implement one or the other of
> these positions, despite the fact that "insist[s] on forcing
> everyone to act as if they shared [a particular] view."
>
> One might say that the questions of when life begins
> and ends are quintessentially religious, and therefore a law
> that implements a particular view on this violates the
> Establishment Clause. But why then isn't banning abortion
> starting with viability -- the position Roe and Casey
> endorsed -- an Establishment Clause violation? That too
> takes a view on when life (or at least a constitutionally
> protectable life
> interest) begins. Why isn't saying that life begins at birth
> an Establishment Clause violation? (Would it become an
> Establishment Clause violation if some neo-pagans decided
> that the Roman view endorsing the exposure of infants, or at
> least some infants, were
> proper?) Why isn't saying that life ends at brain death, or
> heart failure, or anything else an Establishment Clause violation?
>
> I'm trying to see what the claimed underlying
> Establishment Clause principle here might be.
>
> Eugene
>
>
> Malla Pollack writes:
>
> The view doesn't violate anything. But government insistance
> on forcing everyone to act as if they shared that view is the
> problem. Many, many people (and relgious groups) simply do
> not see a "fetus" as a person.
> Many also believe religously that one first duty is to save
> oneself and only then to take care of others. This is
> especially clear in the partial birth abortion case -- as the
> dissent pointed out -- the bill is claimed not to stop even
> one abortion -- but yet the majortiy sees a strong government
> interest in signalling to the public that the government sees
> human life from conception. The only groups I have heard
> make that claim do so on religious grounds.
>
> The women who would be safer (according to her doctor) if she
> used the banned proceedure is being told that her safety is
> less important than the unborn non-human because someone
> else's religious belief is being acted on by the government.
>
>
>
> Malla Pollack
> Professor, American Justice School of Law mpollack at ajsl.us
> 270-744-3300 x 28 articles http://works.bepress.com/malla_pollack/
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Wednesday, April 18, 2007 8:26 PM
> To: CONLAWPROF at lists.ucla.edu
> Subject: When life begins and the Establishment Clause
>
> A recent post suggested that taking the view that
> abortion is killing violates the Establishment Clause. Could
> someone who shares that view flesh out a little bit about why
> this would be so? In particular, would taking the view that
> post-viability abortion is killing or at least is morally
> wrong -- a view that Roe expressly allows
> -- violate the Establishment Clause, too? Would taking the
> view that infanticide is killing violate the Establishment Clause?
>
> Eugene
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