abortion referral regs

[Volokh, Eugene]

	If the approach outlined is indeed correct, then it's a pretty
sad commentary on modern Establishment Clause jurisprudence.  If the
fact that those who are lobbying for a religion-neutral accommodation
are mostly or even almost entirely religious makes the accommodation
unconstitutional, then that strikes me as a shocking disabling of
people's political participation based on their religiosity.  If secular
people lobby for policy X, that's fine; if religious people lobby for
it, then the policy is unconstitutional, again even if it covers secular
conscientious objectors as well as religious ones.  

	I should stress again that there are many nonreligious opponents
of abortion, though I agree that opposition to abortion is more
prevalent among religious people than among secular ones.  Perhaps the
nonreligious opponents of abortion aren't as well-organized as the
religious opponents, or as nonreligious supporters of abortion rights;
if so, then they are free-riding (though quite acceptably so) on the
activism of the religious opponents for the exemptions.  But all this
should hardly make generally available exemptions impermissible.

	Eugene

Larry Rosenthal writes:
 
> Justice Harlan thought that the CO draft exemption could be 
> saved if it were broadened to include nonbelievers.  He 
> admitted, however, that this expansion of the exemption 
> distorted congressional intent.  In light of the role that 
> legislative intent has come to play in Establishment Clause 
> jurisprudence, it may be that the CO exemption cannot be 
> saved on Justice Harlan's theory -- if one believes that the 
> exemption imposes an undue burden on others.  My intuition is 
> that the exemption would be not thought to "impose 
> unjustified burdens" within the meaning of Cutter v. 
> Wilkinson, as long as the exemption only slightly increases 
> the likelihood of being drafted.  The denial of timely rape 
> counseling to a rape victim, however, might be thought to 
> create a much greater burden.
>  
> As for whether the proposed regulations have a secular 
> purpose and effect, this inquiry would depend largely on what 
> the record in litigation discloses.  I knew much more about 
> the politics of this issue several years ago than I do today, 
> but it is my impression that virtually all nonreligious 
> health care providers oppose the type of exemption that the 
> Administration seems to have proposed.  Their position, I 
> believe, is that all heath care providers have an obligation 
> to consider only the interests of the patient.  Support for 
> this exemption comes pretty much exclusively from religiously 
> affiliated providers and other religious organizations.  On a 
> record that established this kind of split of opinion between 
> the religious and secular health-care community, I believe 
> that there could be an Establishment Clause problem.
>  
> Larry Rosenthal
> Chapman University School of Law
> 
> ________________________________
> 
> From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> Sent: Wed 12/3/2008 9:21 PM
> To: conlawprof at lists.ucla.edu
> Subject: RE: abortion referral regs
> 
> 
> 
> 
>         This strikes me as a pretty striking result, and one 
> that I can't imagine the Court adopting.  Justice Harlan 
> fretted about the constitutionality of the conscientious 
> objector exemption so long as it was limited to religious 
> objectors; once it was extended to secular conscientious 
> objectors, he concluded there was no constitutional problem.  
> Can it really be that when the government tries to exempt 
> people from having to engage in behavior that they believe to 
> be grossly immoral, it violates the Establishment Clause when 
> enough of the objectors reach that moral result for religious 
> reasons (at least so long as the exemption burdens others)?  
> I see no justification at all for that.
> 
>         Wallace and Edwards of course differed in that they 
> weren't trying to exempt people from having to engage in 
> behavior that they believe to be grossly immoral; there, the 
> Court could credibly argue that the chief motivation was 
> promoting certain religious beliefs.  But there's an obvious 
> alternative motivation for exemptions -- not putting people, 
> whether religious or not, in a position where the law (or 
> even their private employer) forces them to do something they 
> find morally repugnant (perhaps even tantamount to being 
> accomplices to murder).  I see no basis for refusing to 
> credit the claim that this was the government's 
> justification, and that it's an acceptable justification.
> 
>         Eugene
> 
> Larry Rosenthal writes:
> 
> > A truly religious-neutral accommodation, I quite agree, 
> would involve 
> > no Establishment Clause violation (although it might impose 
> an undue 
> > burden under the Court's abortion jurisprudence).  The question is 
> > whether a court should credit the claim that the government had a 
> > secular justification in mind when it enacted these regulations.
> > Wallace v. Jaffree, Edwards v. Aguillard, and similar cases suggest 
> > that a court will not necessarily credit what could be a pretextual 
> > secular justification.  After all, there are some nonbelievers who 
> > advocate a moment of silence or oppose evolution, yet the 
> statutes at 
> > issue in those cases did not survive Establishment Clause 
> attack.  As 
> > for the constitutionality of CO status, I continue to 
> believe that a 
> > slight increase in the likelihood of being drafted would not be 
> > considered the imposition of an undue burden on the rest of the 
> > public.  But if I am wrong, then Cutter v. Wilkinson 
> suggests that the 
> > recognition of CO status violates the Establishment Clause. 
>  Justice 
> > Harlan fretted about the constitutionality of the CO 
> exemption, with 
> > some reason.
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