abortion referral regs

Wed Dec 3 12:48:54 PST 2008

David -- Moving away from the regs, which I also have not seen, to the doctrine: In what other arena does a person's subjective belief?get to determine the existence of life and/or death?? Aren't those normally, and appropriately, determined by state law?? For example, the recent case of the ultra-Orthodox family, with the child who was brain dead, who did not want the hospital to disconnect the child from the ventilator.? The sect said that they believed death occurred
at heart death, not brain death, and since there was no heart death?(with the machine on),?the hospital was required to keep the machine on.
They said he was alive; the state said he was dead.?The hospital?sought the?right to disconnect the child to free up the ICU.? ?The hospital won, rightly in my?view, because the family's religious?beliefs could not trump the state's definition of death.??

In addition, the proper accommodation here must take into account the serious problem that the morning-after pill loses its effectiveness in a relatively short period of time.? Pushing a rape victim to another hospital may well reduce the likelihood of having it work.? That means that the doctor's permissible accommodation trumps the woman's constitutional right to choose to terminate a pregnancy upon the advice of her physician.? But set aside the rape example -- let's say we have a woman who is suffering a potentially?life-threatening ectopic pregnancy.??Why should any hospital be?permitted to put her back into the ambulance, dramatically increasing the risks to her life and health?? ?

Marci?? 

Marci A. Hamilton

Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003

-----Original Message-----
From: David Wagner <daviwag at regent.edu>
To: Rosenthal, Lawrence <rosentha at chapman.edu>; Bezanson, Randall P <randy-bezanson at uiowa.edu>; conlawprof at lists.ucla.edu <conlawprof at lists.ucla.edu>
Sent: Wed, 3 Dec 2008 3:04 pm
Subject: RE: abortion referral regs

A problem here seems to be that complicity in homicide keeps getting flattened 
down to "burden on religious belief."  Burden on religious belief is not all 
that's going on.  We're all flying blind here, not have seen the regs, but Prof. 
Bezanson's post had them protecting "religious or conscientious objection" to 
abortion.  Let's consider two classes of beneficiaries of this reg:

1. Pro-life doctors whose views on abortion are entirely based on religion: OK, 
but what does their religion tell them? In most cases: not just that abortion is 
like working on the Sabbath, or like eating meat on Friday pre-Vatican II, but 
that it's the taking of a human life by another human being; homicide, the crim 
law hornbooks call it. In a system with a Free Exercise Clause (Smith or no 
Smith), it seems odd to treat a conviction about the homicidal nature of a 
concededly (by most people, surely?) life-taking act LESS respectfully because 
of its religious basis. (I acknowledge that the Court has been all over the 
place on whether relief from an otherwise-applicable burden on religion is 
itself a secular purpose under Lemon, just as it has been wobbly on the 
continuing meaning of Lemon.)

2. Pro-life doctors whose views on abortion are not based on religion: some of 
these may be religious anyway; others may be atheists. (I've met a number of 
pro-life atheists, actually.) Are their consciences completely conscriptable 
because, in their case, there is by definition no "burden on religion" at all?

The regs appear to include "conscientious objection" -- which would plug us into 
the whole corpus on that issue as applied to military exemptions, e.g. Seeger.  
The results of course are mixed: traditional personal theism is not required, 
but mere "philosophy" doesn't cut it. But when you pull back from the cases and 
look at military policy while the draft was in effect, they did a pretty good 
job of balancing the competing interests: ways were found for objectors to be of 
use, while keeping them away from jobs that w
ould force them to commit (what 
they thought of as) objective and absolute evils. It's hard to imagine that such 
accommodations are impossible to find for pro-life medical personnel.

The "prevailing standard of care," as described by Prof. Rosenthal, requires 
medical personnel in either of the above two groups to be complicit (according 
to familiar principles of accomplice liability, which, if reasonable in the 
legal sphere, can scarcely be deemed irrational in the moral one) in homicide. 
That is not a light burden.

All right then, what about the burden on the rape victim? This may be heavy too, 
but it can be lightened by, e.g., establishing protocols directing emergency 
response personnel to non-religiously-affiliated hospitals, or giving them in 
advance (those that have no conscientious objections, presumably) the very 
information sought to be demanded from objecting, pro-life doctors. I don't 
claim to be ecstatic about these solutions, but I think they bear some analogy 
to the military conscientious objection solutions, so they come with some 
honorable bag and baggage. At least, solutions are possible that do not involve 
forcing pro-life doctors to participate in abortion (at one, morally irrelevant 
remove). I suspect some people find it creepy that the pro-choice principle 
stops dead when the choice is that of a doctor not to participate in an 
abortion.

David Wagner

> -----Original Message-----
> From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
> Sent: Wednesday, December 03, 2008 2:16 PM
> To: David Wagner; Bezanson, Randall P; conlawprof at lists.ucla.edu
> Subject: RE: abortion referral regs
>
> I take Professor Wagner's point.  Still, I think there is a tenable
> Establishment Clause problem here.
>
> Cutter v. Wilkinson explains that the government is generally free to
> remove governmentally-created burdens on religious belief by granting
> exemptions from generally applicable laws, as long as no undue burden
> is
> created in the process.  Here, however, the burden that the r
egulations
> might impose on others could be extraordinary.  As I understand the
> proposed regulations (from press accounts; I have not read them), they
> could result in a rape victim, taken by emergency response personnel to
> the emergency room of a religiously affiliated hospital that objects to
> abortion counseling on religious grounds, not being advised of the
> availability of the "morning after" pill until it is too late to
> utilize
> that procedure.  At the same time, the burden on religious belief that
> is imposed by a requirement that the patient receive all counseling
> ordinarily required by the prevailing standard of care is rather modest
> -- after all, persons who choose to become medical providers
> necessarily
> subject themselves to fiduciary obligations to their patients that
> trump
> their personal beliefs.  Thus, this may be the kind of case envisioned
> by Cutter in which the governmentally imposed burden on religious
> belief
> is relatively modest, while the burden imposed on third parties by a
> religious exemption may be so great that the regulations would not be
> considered a reasonable accommodation of religious belief, but instead
> would be thought to lack a proper secular purpose and effect.
>
> Larry Rosenthal
> Chapman University School of Law
>
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of David Wagner
> Sent: Wednesday, December 03, 2008 10:33 AM
> To: Bezanson, Randall P; conlawprof at lists.ucla.edu
> Subject: RE: abortion referral regs
>
> How can there be a 1st Am problem with a reg that permits, but prevents
> the requiring of, speech of a certain viewpoint, without requiring or
> subsidizing either viewpoint?  Would the opposite outcome -- requiring
> speech referring for abortions -- pose 1st Am problems of its own? --
> Wooley v. Maynard, with the difference that New Hampshire did not
> actually require anyone to die rather than live free, whereas, in this
> hypo, pro-life doctors w
ould be required to be complicit in homicide?
>
> David M. Wagner
> Regent University School of Law
>
>
> > -----Original Message-----
> > From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> > bounces at lists.ucla.edu] On Behalf Of Bezanson, Randall P
> > Sent: Wednesday, December 03, 2008 12:10 PM
> > To: conlawprof at lists.ucla.edu
> > Subject: abortion referral regs
> >
> > I have read about the midnight regulation(s) of the Bush
> administration
> > that, in part, exempt health care providers who refuse to participate
> > in abortion for reasons of religion or conscientious objection (this
> is
> > not new) to also refuse to advise patients of alternative health care
> > providers, facilities, etc. at which an abortion can be obtained.  If
> I
> > am right in describing the proposed regulation in the abortion
> setting,
> > this seems to present first amendment problems.  Unlike Rust v.
> > Sullivan, where the providers were scripted by government (thus
> > government speech), here they are free to express their own
> preferences
> > about medical advice by way of what is in effect an exemption from
> > otherwise applicable legal duties.  It seems therefore to be a legal
> > exemption for speech expressing a favored point of view.
> >
> > Two caveats:  first, I have not seen the proposed regulation(s), and
> > would appreciate being better informed -- or corrected -- by anyone
> > familiar with them; second, I realize that the scope of the proposed
> > regulation(s) is broader, both in those so exempted (i.e. pharmacist,
> > too, I believe) and the subjects affected/exempted.  But it still
> > strikes me that such a selective point of view-based exemption is
> > problematic, and that the issue is not solved simply by saying that
> its
> > effect is to allow the health care providers to express their own
> > convictions (to the detriment of the patients).
> >
> > I would be interested in further thoughts on this.
> >
> > Randy Bezanson
> > Univ. of Iowa
> > ______________________________________________
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> _______________________________________________
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