abortion referral regs
Volokh, Eugene
VOLOKH at law.ucla.edu
Wed Dec 3 18:31:11 PST 2008
This argument might explain why refusing to give conscientious
objector exemptions would be constitutional. But I thought some were
arguing that the government's *agreeing* to give conscientious objector
exemptions would be unconstitutional. How does the "with federal money
come springs" argument work if the federal government deliberately
decides *not* to require hospitals to provide abortion services or
referrals, or to require hospitals to exempt their employees from
providing abortion services or referrals?
Eugene
Larry Rosenthal writes:
> 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
> > > > > > _______________________________________________
> > > > > > 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.
> > >
> > >_______________________________________________
> > >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.
> _______________________________________________
> 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.
>
More information about the Conlawprof
mailing list