abortion referral regs

Wed Dec 3 17:51:20 PST 2008

I quite agree that Professor Scarberry's analogy to a private publishing house is a perilous one.

It is my understanding that by accepting federal funding, hospitals agree to open their emergency rooms to the public at large.  It is usually the case as well that when a hospital joins a trauma network, it agrees to take all patients brought to it by emergency response personnel under whatever protocol is used by the network.  Accordingly, a hospital that accepts federal funding (the trigger for the applicability of the proposed regulations), or one that agrees to become part of a trauma network, agrees to accept common-carrier type obligations with respect to emergency patients.

Even aside from this, those who enter the medical profession agree to accept a variety of fiduciary obligations that require them to subordinate their personal views to the interests and wishes of the patients (as do lawyers).  

Larry Rosenthal
Chapman University School of Law

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Mark Graber
Sent: Wed 12/3/2008 5:15 PM
To: conlawprof at lists.ucla.edu
Subject: RE: abortion referral regs

Professor Scarberry may well be right about the general point, but the analogy may not be 100% apt.  A publishing house is in the business of accepting and rejecting manuscripts.  A hospital, for a great many reasons, may be more analogous to a utility that, under certain conditions, has an obligation to accept all comers (such a notion actually underlies the Harlan dissent in the Civil Rights Cases).  This analogy needs a good deal more flushing out and, no doubt, masks considerable complications.  nevertheless, analogizing hospitals to publishing houses seems wrong.  To the best of my knowledge, editors do not take an oath to publish all, regardless of race, creed, gender and the like.

MAG

>>> "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu> 12/03/08 7:44 PM >>>
We need to be a little careful here. The actions of a doctor who works
for a private hospital would not implicate (or at least not directly
implicate) a woman's constitutional right to an abortion. That right is
a right against the government. We would not say that an editor at a
private publishing house who rejects my manuscript puts my right to free
expression in jeopardy. But of course there is some state involvement if
a government regulation would effectively prevent a private hospital
from providing an abortion referral (or abortion-related information),
where the hospital management wishes it to be provided, and where the
hospital employee/doctor is protected by the reg in his or her refusal
to provide such a referral.

Mark S. Scarberry
Pepperdine University School of Law

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
hamilton02 at aol.com
Sent: Wednesday, December 03, 2008 4:26 PM
To: David Wagner; conlawprof-bounces at lists.ucla.edu; Janet Alexander;
Rosenthal, Lawrence; Bezanson, Randall P; conlawprof at lists.ucla.edu
Subject: Re: abortion referral regs

The question is not whether physicians who don't believe in abortion
shouldn't be doctors. The question is whether they should be protected
in choosing specialties that put womens lives and constitutional right
to choose in jeopardy.

Marci
Sent from my Verizon Wireless BlackBerry

-----Original Message-----
From: David Wagner <daviwag at regent.edu>

Date: Wed, 3 Dec 2008 19:08:34
To: Janet Alexander<jca at stanford.edu>; Rosenthal,
Lawrence<rosentha at chapman.edu>; Bezanson, Randall
P<randy-bezanson at uiowa.edu>;
conlawprof at lists.ucla.edu<conlawprof at lists.ucla.edu>
Subject: RE: abortion referral regs

Hardline pacifists, as Prof. Alexander rightly points out, shouldn't
expect to have a military career.  Should people with
pro-life/anti-abortion convictions avoid a medical career? Be encouraged
to avoid it? Be obliged to avoid it?  The fervor of the assault on
conscience protection suggests that these issues may one day be before
us.

As our cases and practices on military conscientious objection show,
from the Quakers to Vietnam, conscience protection is
apple-pie-American, even when not required by the Free Exercise clause
(and, as a Smith fan, I don't go there anyway).  The hostility that
conscience protection generates in the particular context we are
discussing here is an historical outlier. And it does no good to point
to the urgency of the interest on the other side: the interest on the
other side of military conscientious objection is national security
itself. There's always an important interest on the other side --
otherwise the requested conscience protection wouldn't even be
controversial.

David Wagner

> -----Original Message-----
> From: Janet Alexander [mailto:jca at stanford.edu]
> Sent: Wednesday, December 03, 2008 6:45 PM
> To: David Wagner; Rosenthal, Lawrence; Bezanson, Randall P;
> conlawprof at lists.ucla.edu
> Subject: RE: abortion referral regs
>
> Using the term "homicide," a technical legal (not religious) term,
> assumes the answer.  The legal definition of homicide does not
> include legal abortions.
>
> Some people hold religious beliefs that include a religious
> prohibition on engaging in violence, no matter what the
> justification.    We provide such individuals an exemption from
> bearing arms in mandatory military service.  But people holding such
> beliefs shouldn't expect to have a military career.  Similarly,
> people who for religious reasons would refuse even to advise a
> patient of the availability of something that is her constitutional
> right, or to have someone else provide the information and the
> procedure in a timely way, should just not expect to be the only
> emergency room doctor, gynecologist, or pharmacist in the community.
>
>
>    At 02:10 PM 12/3/2008, David Wagner wrote:
> >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
> > > > > _______________________________________________
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