abortion referral regs

[Bezanson, Randall P]

I don't want to cut off the religion guarantees aspect of the discussion (which I find interesting too), but it does seem to me that the free speech issue is also relevant.  The regulations appear to exempt from otherwise applicable professional and legal obligations for certain speech -- conscious silence on abortion or no alternatives to keeping the fetus -- from other speech -- there are hospitals/health care providers who will perform abortions and here's where you should go to see them.  The government is favoring one message over another, but not by inisisting on its preferred message but instead allowing health care providers to make their own personal choice of message as long as their choice favors the government's view.

What if the government required that counseling on all aspects of an abortion or childbirth decision to patients, but exempted from the requirement any health care provider (or hospital) that refused to say anything favorable about abortion if doing so violated their personal or moral or religious beliefs?

Randy Bezanson

________________________________________
From: David Wagner [daviwag at regent.edu]
Sent: Wednesday, December 03, 2008 4:10 PM
To: Rosenthal, Lawrence; Bezanson, Randall P; conlawprof at lists.ucla.edu
Subject: RE: abortion referral regs

Current positive con law labels abortion a right; a long way from homicide. It stops well short, however, of labeling the abortion-is-homicide view a religion, accommodation of which would raise Lemon issues. On the contrary, abortion decisions since Casey have gone out of their way to acknowledge that "arguments of great weight" (pardon the quote from memory -- it's something like that) counsel against abortion, and that some BUT NOT ALL of these arguments are religious.

Whatever those (admittedly rather patronizing) concessions mean, they at least suggest that were the issue to come before it, the Court would not consider the burden on a doctor forced to connive at an abortion to be no greater than the burden on, say, a Catholic waiter in the '50s forces to serve meat on Friday.

But if we agree that a mandate to participate in homicide for the sake of enabling the constitutional right of another would be inadmissible, we've achieved something.

David Wagner

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> bounces at lists.ucla.edu] On Behalf Of Rosenthal, Lawrence
> Sent: Wednesday, December 03, 2008 4:37 PM
> To: Bezanson, Randall P; conlawprof at lists.ucla.edu
> Subject: RE: abortion referral regs
>
> If one agrees with Professor Wagner's equation between homicide and
> abortion, his conclusion follows.  As I recall, however, the
> Constitution is presently understood to take a different view of the
> matter.  That is why an effort to accommodate those who share Professor
> Wagner's view may lack the requisite secular purpose and effect.
>
> Larry Rosenthal
> Chapman University School of Law
>
> -----Original Message-----
> From: David Wagner [mailto:daviwag at regent.edu]
> Sent: Wednesday, December 03, 2008 12:04 PM
> To: Rosenthal, Lawrence; Bezanson, Randall P; conlawprof at lists.ucla.edu
> 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 would 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
> regulations
> > 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 would 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
> > > _______________________________________________
> > > To post, send message to Conlawprof at lists.ucla.edu
> > > To subscribe, unsubscribe, change options, or get password, see
> > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> > >
> > > Please note that messages sent to this large list cannot be viewed
> as
> > > private.  Anyone can subscribe to the list and read messages that
> are
> > > posted; people can read the Web archives; and list members can
> > (rightly
> > > or wrongly) forward the messages to others.
> >
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu
> > To subscribe, unsubscribe, change options, or get password, see
> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >
> > Please note that messages sent to this large list cannot be viewed as
> > private.  Anyone can subscribe to the list and read messages that are
> > posted; people can read the Web archives; and list members can
> (rightly
> > or wrongly) forward the messages to others.
>
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly
> or wrongly) forward the messages to others.