abortion referral regs
Robert Sheridan
rs at robertsheridan.com
Thu Dec 4 23:27:33 PST 2008
Didn't the ancient (and modern) laws of common carriers and innkeepers
manage to deal with this problem by requiring the service or
accommodation to be provided to all comers regardless of their
personal circumstances, so long as they were behaving themselves? We
regard some socially useful, read indispensable, activities as not
being subject to the personal whim or prejudice of the provider,
regardless whether morally or religiously based. I don't think hotels
and motels can bar unmarried couples as guests because they can't
produce a marriage license, heaven forfend; think of the revenue
loss. And landlords cannot, in California, refuse to rent to
unmarried couples.
One of the aspects of practice in the criminal courts that I enjoy
noticing is that judges, clerks, bailiffs, attorneys on both sides,
probation officers, etc., even the bootblack in the lobby, treat all
comers with at least studied civility and respect, including (alleged)
murderers, rapists, intimate-other beaters, and so forth. Democracy
in action, so to speak.
The price of carrying on an activity that deals with the public is
that all members of the public are treated fairly by their standards,
not those of the provider, otherwise the provider shouldn't undertake
the activity, including, I suggest, working in the emergency or
operating room of a hospital.
rs
sfls
On Dec 4, 2008, at 10:46 PM, Rosenthal, Lawrence wrote:
> What, I wonder, is the moral principle at stake here? We excuse the
> conscientious objector from military service, but we surely don't
> permit him to serve on the understanding that he is not going to
> shoot at anyone. A Christian Scientist doesn't have to become a
> doctor, but we surely don't permit him to get a medical license on
> the understanding that he will never prescribe any treatment other
> than prayer. People who have moral objections to abortion need not
> participate in abortions or abortion counseling, but is there really
> an intelligible "moral principle," in the sense discussed by Harris
> v. McRae, that fiduciaries who agree to treat whoever walks into the
> emergency room can neverthless breach their fidiciary obligations
> when they have a strong ideological reason for doing so? Isn't a
> fiduciary who insists on acting on the basis of his own beliefs
> rather than the best interests of the patient, almost by definition,
> imposing an unjustifiable burden on the patient? W!
> hat would we think of a lawyer who undertook to represent a client
> while refusing to advance any arguments on behalf of the client
> which the lawyer found morally objectionable?
>
> 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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