There's an interesting discussion of abortion and the law over at dotCommonweal--a discussion that includes, in the comments, a link to a provocative article in America. MOJ-readers will be interested. Here.
Thursday, November 15, 2007
Criminalize Abortion?
Pharmacists and Conscience in Washington State
Federal district judge Ronald Leighton is getting criticized in the blawgosphere today for upholding the conscience rights of pharmacists in Washington state. State regulations made it sanctionable for a pharmacy to permit a pharmacist to refuse to fill a prescription because of moral or religious objections unless another pharmacist was on duty who could fill the prescription. Judge Leighton enjoined the regulations' enforcement under the Free Exercise Clause. Crucially, he applied strict scrutiny, avoiding Employment Div. v. Smith by observing that the evidence "strongly suggests that the overriding objective of the subject regulations was . . . to eliminate moral and religious objections from the business of dispensing medication." Under strict scrutiny, the state's interests did not measure up; the court reasoned that "the interests promoted by the regulations have more to do with convenience and heartfelt feelings than with actual access to certain medications."
Howard Wasserman argues that the court erred in applying strict scrutiny because "the regulations do not allow any refusal to fill a proper prescription that can be properly filled, regardless of whether the basis for the refusal is religious or secular." Marci Hamilton makes the same argument, but adds that "the court's condescending treatment of the woman's plight as a matter of mere 'convenience' is especially problematic" because we are dealing with a "right to obtain contraceptives free of state interference."
For what it's worth, I tend to share their skepticism as to whether the court could so easily circumvent Smith based on evidence of the impetus behind the regulations, and I am not a huge fan of dressing up claims of conscience in the workplace as constitutional rights. So while I have a hard time defending the court's ruling, I do object to the underlying regulations.
"The Consistent Lesson of History"?
Bill Stuntz, in his thoughts responding to John Breen's recent papers, writes:
If a large number of young women want to end their pregnancies even if that means killing the soon-to-be children in their wombs, I do not believe any modern legal system can or will stop them from doing so without causing even greater loss of life in the process. That is the consistent lesson of American history, including the history of abortion and abortion law itself.
With respect, I disagree. This is not, in my view, the lesson of "the history of abortion and abortion law itself." I do not believe that the facts support the claim that closer regulation (even prohibition) on elective abortions resulted, or would result, in "even greater loss of life" than a permissive, abortion-on-demand regime. Joseph Dellapenna's book, "Dispelling the Myths of Abortion History", refuted quite thoroughly the purported premises of this claim.
That said, certainly, I agree with Prof. Stuntz (and St. Thomas!) that we need not -- and, in fact, should not -- criminalize every vice, or even every immorality. But the current abortion-license involves, among other things, the singling out of a group of human persons for exclusion from the law's protection against private lethal violence. The fact that the inclusion of these persons in the community of those protected by law against such violence would have some costs does not (as opposed to, say, the case of marijuana-legalization), in my view, warrant declining to include them.
Still more on vouchers and equality
Thanks to Tom for this reply. He asks -- responding to my call for voucher-ization of education funding -- "Why not seek more progressivity in the benefit structure as well as pluralism in options, as a matter of principle (even though this approach is probably even less politically viable than the others we've been discussing)?"
If "more progressivity in the benefit structure" helps to get us to the goal, I'm all for it. (I suspect, though, that the political realities would cut strongly against such progressivity; we'd want to worry about middle-class buy-in). That said, I guess (and I have to admit I didn't think about this when I wrote my earlier post) I would want to know about the revenue-generating mechanism at issue. Are we talking local property taxes, state sales taxes, federal income taxes, or something else? If the mechanism already had progressivity built in (i.e., if the wealthier were already paying in more), then the case for progressivity in benefits seems somewhat weaker.
Stuntz-Breen dialogue/debate
Thanks to Rick for his postings on the Stuntz-Breen discussion. I wonder if the approach taken HERE toward the end of this previous posting would be one reasonable path to establish a pro-life majority? RJA sj
Equal Voucherization?
Rick, I'd be happy to move to "universal ... voucher-ization of education funding, with government schools being one co-equal option among many other (reasonably regulated) options." But why should that voucher-ization be "equal" among different income levels, and not just (as I agree it should be) equal among different educational options? Why not still recognize that the wealthy have a greater capacity to contribute to their children's education, and that low- and modest-income families will have a limited choice of schools beyond the voucher amount (unless you require all schools to accept the voucher as full payment), and therefore that we could still achieve greater choice in real-world terms by making the size of the voucher greater for lower income levels? I grant that in a fully voucherized system with no free public-school baseline, you'd need more in voucher aid for high-income levels, since the voucher is replacing the free public school. But still the graduated voucher seems to me more attuned both to the economic realities of choice and to the emphasis on empowering the poor. I guess another way of saying this is that the current system of simply giving everyone a free education in public schools, regardless of family income, is non-progressive in its structure, as well as non-pluralistic in its favoritism of government schools. Why not seek more progressivity in the benefit structure as well as pluralism in options, as a matter of principle (even though this approach is probably even less politically viable than the others we've been discussing)?
Tom
Reply to Tom on vouchers, etc.
Tom asks if I agree "that even the interests in 'religious freedom and value-pluralism' can support graduating the voucher amount by income (perhaps cutting it off above a certain level)?" Oh, sure -- given the political realities (i.e., a public-school baseline is here to stay) and the realities of financial scarcity, I definitely agree. But, I also believe that the approach that would best serve the common good, properly understood, would be universal (and equal) voucher-ization of education funding, with government schools being one co-equal option among many other (reasonably regulated) options.
Stuntz replies
Bill Stuntz sent me the following, commenting on my recent posting of John Breen's new papers engaging Stuntz & David Skeel's work:
For the written version of a lecture on (sort of) the same topic, see http://www.law.harvard.edu/news/2007/10/Stuntz_lawandgrace.pdf. There's some stuff in there about different types of culture wars (Martin Luther King's kind, and the different kind many Christians have fought over the last generation), and about the ways law and government might be more grace-like.
Re the alleged different-ness of abortion (one of Breen's criticisms of David's and my paper), I believe, and I'm certain David believes though he can of course speak for himself -- that there are plenty of circumstances in which the morally and politically right move is to criminalize that sad practice. But the question whether legal prohibition is wise, I'd argue, depends on more than the moral character of the conduct. If a large number of young women want to end their pregnancies even if that means killing the soon-to-be children in their wombs, I do not believe any modern legal system can or will stop them from doing so without causing even greater loss of life in the process.
That is the consistent lesson of American history, including the history of abortion and abortion law itself. Cultural change must either accompany or precede legal change for the latter to be effective. And, as to some subjects, if we get the order wrong, we actually retard cultural change rather than advancing it.
The puzzle, to my mind anyway, is not abortion but civil rights. Plainly, the civil rights movement shows that law CAN move the culture -- as it did: those of us who grew up South of the Mason-Dixon line in the 1960s and 1970s saw it happen. I'm sure I don't understand all the reasons why legal change sometimes promotes cultural change and sometimes doesn't, but I do have a strong suspicion: my guess is, the most culturally productive kinds of law are the kinds that create human relationship and community rather than sundering those things. The civil rights movement created at least the makings of an integrated economy and an integrated political community; it was relationship-reinforcing. Criminal prohibitions, by contrast, are relationship-destroying. Maybe, if and when there is ever a genuinely pro-life political majority in the United States (as there clearly is not now), that majority should try to use government policies to promote enterprises like crisis pregnancy centers: means of encouraging and helping young women in distress, not hammering those who make bad choices. At least, we should probably do that until many fewer of them want to make those choices.
Objecting to Dean
Tom is correct that Dean's theological "howler" was the focus of my post, though I would also object to the implicit assertion he's making about a GOP political theology, as though the Republican Party supports the view that American Jews should not be comfortable, that we are a one-religion nation, etc. Those are more properly characterized as accusations of theocracy than claims of theology. (Mainly, I confess, I wanted the chance to revisit "the scream.")
The Theologian Dean
Rob, I take all of Howard Dean's claims about religion that you posted, except for one, to be civil claims about how the government or the society should behave concerning religion or toward people of different religions. The obvious theological claim -- obviously taking a position on religious truth claims -- is that "there are no bars to heaven for anybody." Yes, that's a First Amendment howler: it reflects, as Mike McConnell once nicely put it, not the disestablishment of religion, but the establishment of Unitarian-Universalism. But were you thinking that some of Dean's other claims were inappropriately theological too? I can see reading the claim "everybody in this room ought to be comfortable being an American Jew, not just an American" as a theological claim that Judaism should be in harmony with Americanism, but in context it seems to me best read as simply a claim that no one should be disfavored in civil status or civil settings because s/he is a Jew. Certainly some of the other claims, even if they are about civil status or governmental settings, could well be wrong (for example, individually initiated prayers at a football game may in many contexts be protected even if they make someone "cringe"); but can any of them be fairly characterized as (inappropriately) theological rather than (appropriately even if erroneously) civil?
Tom
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