abortion referral regs

[Ira (Chip) Lupu]

Cutter only alludes to the possibility that a burden on third parties may lead to invalidation of an accommodation of religion. Caldor actually strikes down such a violation, but the accommodation there (of Sabbath observance) burdened both private employers and other, non-observing employees.

The abortion regs may indeed burden private employers and patients, though it is true that the regs are religion-neutral, and that may indeed require a re-framing of the whole question away from the Establishment Clause.  But I haven't heard a good response to Larry Rosenthal's point about fiduciary duties, and undue burdens on women in need of emergency treatment in a situation in which unwanted pregnancy may result. Patients have reasonable expectations that health care facilities will inform them of available options, even if not available at that location.  So whether or not the regs violate the Establishment Clause (a hard argument to sustain, in light of their religious neutrality), there is surely a case to be made that freeing health care professionals of a pre-existing duty to inform and refer has detrimental effects on patients.  Maybe that's just a strong policy argument, or maybe it can be ratcheted up into a due process/privacy/abortion rights argument -- that i!
 s,!
 the state is putting in place a measure that may for some women create a substantial obstacle to the effectuation of their rights to control reproduction.  

Chip Lupu

---- Original message ----
>Date: Thu, 4 Dec 2008 11:03:13 -0800
>From: "Rosenthal, Lawrence" <rosentha at chapman.edu>  
>Subject: RE: abortion referral regs  
>To: "Volokh, Eugene" <VOLOKH at law.ucla.edu>,<conlawprof at lists.ucla.edu>
>
>To be sure, the fact that persons with religious motivation support or lobby for a law does not make it invalid, and accommodating religious objectors can be a permissible government objective.  That does not mean that such accommodations are always permissible.  Cutter and Caldor make clear that an accommodation that imposes an undue burden on others is not permissible. The magnitude of the burden on trauma patients who do not receive timely abortion counseling, coupled with the evidence that secular providers see no justification for an exemption from the general fiduciary duty to patients, could bring the proposed regulations within the limitation on permissibile accommodations recognized in Cutter and Caldor.
> 
>Larry Rosenthal
>Chapman University School of Law
>
>________________________________
>
>From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
>Sent: Thu 12/4/2008 10:46 AM
>To: conlawprof at lists.ucla.edu
>Subject: RE: abortion referral regs
>
>
>
>
>        I should add that the Court has expressly rejected the argument
>that a religious motivation for a moral principle makes it impermissible
>to enact that moral principle into law.  See Harris v. McRae, 448 U.S.
>297, 319-20 (1980).
>
>        Eugene
>
>> -----Original Message-----
>> From: conlawprof-bounces at lists.ucla.edu
>> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
>> Sent: Thursday, December 04, 2008 10:42 AM
>> To: conlawprof at lists.ucla.edu
>> Subject: RE: abortion referral regs
>>
>>
>>       Nothing in Cutter or Thornton undermines Amos's
>> statement that exempting religious objectors is a permissible
>> secular purpose.  And that's so even though Cutter and
>> Thornton involved religion-preferring exemptions.  A
>> fortiori, it would be so as to religion-neutral exemptions.
>>
>>       Thornton struck down the law on the grounds that the
>> excessive burden on others had an unconstitutional *primary
>> effect*, not that the law had a secular purpose, or that it
>> was promoted by religious people for religious reasons.  But
>> of course Thornton involved a religion-specific law, not a
>> religion-neutral law.
>>
>>       If one wants to find a way to disenfranchise religious
>> voters by denying them the same right that secular voters
>> have -- the right to enact religion-neutral laws that exempt
>> all objectors, religious and otherwise, from various burdens
>> -- one has to look to something other than these cases, I think.
>>
>>       Eugene
>>
>> > -----Original Message-----
>> > From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
>> > Sent: Thursday, December 04, 2008 10:30 AM
>> > To: Volokh, Eugene; conlawprof at lists.ucla.edu
>> > Subject: RE: abortion referral regs
>> >
>> > Cutter v. Wilkinson is pretty clear that the objective of exempting
>> > objectors from generally applicable laws will not always sustain a
>> > challenged law -- not when it imposes an undue burden on others. 
>> > Estate of Thornton v. Caldor stands for that proposition as well.
>> > 
>> > The fact that only religious groups seek a challenged
>> exemption surely
>> > is not the sine qua non of unconstitutionality, but it is likely a
>> > good indication that the proposed accommodation imposes an undue
>> > burden on those who do not share the objectors' religious view.
>> > 
>> > Larry Rosenthal
>> > Chapman University School of Law
>> >
>> > ________________________________
>> >
>> > From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
>> > Sent: Thu 12/4/2008 10:14 AM
>> > To: conlawprof at lists.ucla.edu
>> > Subject: RE: abortion referral regs
>> >
>> >
>> >
>> >
>> >         I'm not at all wild about Wallace and Edwards, but at least
>> > they purported to look at whether there was no credible secular
>> > justification for the law.  When exemptions from generally
>> applicable
>> > laws, there is an eminently credible secular justification
>> -- both to
>> > accommodate all objectors, and (even if the exemption were
>> > religion-only, which this one
>> > isn't) to advance people's ability to practice their religion, cf.
>> > Corporation of Presiding Bishop v. Amos (holding that the
>> purpose of
>> > exempting objectors is an acceptble secular purpose). 
>> That's why even
>> > Estate of Thornton v. Caldor, which struck down a religion-specific
>> > accommodation, rested on the supposedly religion-benefiting effect,
>> > not the supposedly religious purpose.
>> >
>> >         Of course, if one asks not just whether there is a credible
>> > secular justification, but whether the backers of the law were
>> > overwhelmingly religious, then one would reach a different result. 
>> > But that is precisely the sort of inquiry that strikes me as
>> > outrageously discriminatory against religious citizens, because it
>> > denies them the ability to enact precisely the same laws
>> that secular
>> > citizens would be free to enact.
>> >
>> >         Eugene
>> >
>> > > -----Original Message-----
>> > > From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
>> > > Sent: Thursday, December 04, 2008 10:02 AM
>> > > To: Volokh, Eugene; conlawprof at lists.ucla.edu
>> > > Subject: RE: abortion referral regs
>> > >
>> > > In Wallace v. Jafree and Edwards v. Aguillard, the Court
>> > invalidated
>> > > laws that did not on their face grant preferences to
>> > religious groups
>> > > or viewpoints, that could have been supported by
>> nonbelievers, and
>> > > that were vigorously defended as having secular
>> > justifications.  The
>> > > Court concluded that the secular justifications advanced in
>> > defense of
>> > > these laws were not credible, and that the true motive
>> for the laws
>> > > was to please a religious constitutency seeking to
>> influence public
>> > > policy for religious reasons.  One can object to making
>> legislative
>> > > motivation the test for constitutionality, but it is
>> > plainly the route
>> > > the Court has taken.  The pretty clear implication is that
>> > sometimes
>> > > lobbying by religious groups pursuing public policy
>> objectives for
>> > > religious reasons will produce an Establishment Clause
>> violation --
>> > > especially where there is no credible evidence of secular
>> > support for
>> > > the same policy.
>> > >
>> > > Larry Rosenthal
>> > > Chapman University School of Law
>> > >
>> > > ________________________________
>> > >
>> > > From: conlawprof-bounces at lists.ucla.edu on behalf of
>> Volokh, Eugene
>> > > Sent: Thu 12/4/2008 9:25 AM
>> > > To: conlawprof at lists.ucla.edu
>> > > Subject: RE: abortion referral regs
>> > >
>> > >
>> > >
>> > >
>> > >         The argument that was being made earlier isn't just that
>> > > religious institutions can't get special benefits for
>> them -- it's
>> > > that laws that don't discriminate based on religion are made
>> > > unconstitutional by the fact that religious people are
>> > their dominant
>> > > backers.  That sort of theory of second-class citizenship for
>> > > religious voters strikes me as entirely wrong, neither
>> supported by
>> > > history (since of course American history is chock full of
>> > movements
>> > > in which religious organizations tried to implement their
>> religious
>> > > views, on slavery, temperance, civil rights, wars, and
>> > more, into law)
>> > > nor by morality.
>> > >
>> > >         Eugene
>> > >      
>> > > Larry Rosenthal writes:
>> > >
>> > > > On at least some accounts, the original understanding of the
>> > > > Establishment Clause was that it would prevent religious
>> > > factions from
>> > > > using their political power to shape public policy to
>> > > religious ends.
>> > > > On this account -- which I readily acknowledge is far from
>> > > uncontested
>> > > > -- it would follow that if the impetus to permit some
>> health care
>> > > > providers to deviate form professional norms has a
>> > > religious and not a
>> > > > secular basis, reflected in part by evidence that there is
>> > > little if
>> > > > any assent to a deviation from professional norms among
>> > > secular health
>> > > > care providers, then a genuine Establishment Clause problem
>> > > could be
>> > > > present.
>> > > >
>> > > > At least in some particulars, I thought it was
>> > uncontroversial that
>> > > > the Establishment Clause disables religious factions from
>> > > exercising
>> > > > influence in the political arena.  Isn't that the basis for
>> > > the rule
>> > > > forbidding direct government financial aid to religion,
>> > even though
>> > > > secular institutions (e.g. GM) are quite free to seek such
>> > > financial
>> > > > aid through the political process?
>> > > >
>> > > > Larry Rosenthal
>> > > > Chapman University School of Law
>> > > _______________________________________________
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Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW 
Washington, DC 20052
(202)994-7053