abortion referral regs
Volokh, Eugene
VOLOKH at law.ucla.edu
Fri Dec 5 06:26:17 PST 2008
That strikes me as an odd sort of comparison. For every
conscientious objector who is not at the front, there is one person who
now has to be at the front, and whose presence at the front is caused by
the objector's absence. That the odds of any particular one of us being
that one person are low doesn't change the analysis, it seems to me.
Conversely, the odds that any particular woman would have no
access whatever to any information about abortion services during the
weeks or months during which an abortion might be available strike me as
pretty low. Recall that this information need not come from her
physician, though I agree that it would be better for her if she can get
it as part of the advice she gets from the physician. To be sure, one
might be able to identify a few particular cases in which the lack of
information from the physician, coupled with the woman's not knowing or
not thinking about the possibility of abortion on her own, would cause
the woman not to abort in time. And perhaps there would be a few cases
in which this would cause serious health problems for the woman (though
that would be an even smaller number, since thankfully only a small
fraction of pregnancies are dangerous enough to make an abortion
medically therapeutic). But looking at the per-woman risk up front
stemming from any particular doctor who declines to provide
abortion-related advice, the way the message below looks at the
per-draftee risk, that risk is very small. And looking retrospectively
at the burden on those women who are burdened would require us to
compare it to the retrospective burden on those draftees who are
burdened.
Eugene
> -----Original Message-----
> From: Janet Alexander [mailto:jca at stanford.edu]
> Sent: Thursday, December 04, 2008 9:44 PM
> To: Volokh, Eugene; Rosenthal, Lawrence; conlawprof at lists.ucla.edu
> Subject: RE: abortion referral regs
>
> 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
> > > > > > _______________________________________________
> > > > > > To post, send message to Conlawprof at lists.ucla.edu To
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> > > > > >
> > > > > _______________________________________________
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> >_______________________________________________
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