abortion referral regs

[Robert Sheridan]

Admittedly, some of us may be showing our age here in bringing up C.O.  
status during Vietnam, of course, but few of us have direct memory of  
I. Mather's, 1692, "A Case of Conscience," either, yet when speaking  
of conscience it seems within a broad definition of relevance.  This  
nation was founded, it seems, on conscientious objection, not  
necessarily in the military service context.  The question is where we  
draw the lines, that's all.  I think.  :)

rs
sfls

On Dec 4, 2008, at 9:44 PM, Janet Alexander wrote:

> I think we're comparing apples and oranges here as to the
> draft.  Conscientious objector status is granted as a part of
> registration, not after the objector is drafted.  So it is not that
> some particular person is drafted "in his stead" and burdened with
> 100% of the dangers of military service.  Assume that 100,000 people
> are drafted each year; there are approximately 16 million males ages
> 18-25 (the ages currently required to register).  Thus granting an
> exemption means that the non-objector's odds of being drafted go from
> 100,000/16,000,000 to 100,000/15,999,999.  If women are subject to
> the draft, double the denominator.
>
> I need hardly add that the woman who has a constitutional right to
> terminate a pregnancy is 100% burdened if the only doctor she has
> access to during the crucial period has a religious exemption from
> providing the information.
>
> (Approximately 1.8 million men were drafted during the Vietnam war
> period, 1964-73; 9 million persons were on active duty during this
> period; 10 million were drafted during WWII and 16 million
> served.  We are showing our age here to talk about conscientious
> objector status as it does not appear relevant in the all-volunteer  
> era.)
>
>
> At 08:03 PM 12/4/2008, Volokh, Eugene wrote:
>>        We're going around in circles here, I think.  Cutter and  
>> Caldor
>> do say that some religious accommodations are impermissible if they
>> impose too much of a burden on others -- but they make clear that the
>> problem isn't purpose, but the supposedly improper effect.  I see no
>> basis for applying these cases, though, to accommodations for a  
>> practice
>> or for a moral objection, independent of whether the practice or
>> objection is religiously or secularly motivated.  The Establishment
>> Clause simply strikes me as just not in play there; and I continue to
>> think the draft objector situation is an excellent example, since
>> granting a conscientious objection imposes a huge burden on the  
>> person
>> who must serve in the objector's stead (even if ex ante the odds of  
>> the
>> burden falling on any random draftee are low).
>>
>>        Whatever might be the problems in relieving people who  
>> object to
>> talking about abortions -- or performing abortions -- from coercion  
>> to
>> do that, whether the coercion stems from the government or from a
>> private employer, the problems aren't Establishment Clause problems.
>> They might be Free Speech Clause problems, they might be  
>> substantive due
>> process abortion rights problems (though I doubt it), and they  
>> certainly
>> might be policy problems.  But the fact that many of the  
>> beneficiaries
>> of this relief will be religious, and that many of the backers are
>> religious, doesn't bring the Establishment Clause into the picture.
>>
>>        Eugene
>>
>>> -----Original Message-----
>>> From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
>>> Sent: Thursday, December 04, 2008 11:03 AM
>>> To: Volokh, Eugene; conlawprof at lists.ucla.edu
>>> Subject: RE: abortion referral regs
>>>
>>> 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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>>>>>>
>>>>>>
>>>>> _______________________________________________
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>>>>>
>>>>>
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>> _______________________________________________
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>
> _______________________________________________
> 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
>
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