End of Life Decision-Making & Religious Liberty

In short, there is no reasonable ground for believing that Nancy Beth Cruzan has any personal interest in the perpetuation of what the State has decided is her life. As I have already suggested, it would be possible to hypothesize such an interest on the basis of theological or philosophical conjecture. But even to posit such a basis for the State's action is to condemn it. It is not within the province of secular government to circumscribe the liberties of the people by regulations designed wholly for he purpose of establishing a sectarian definition of life.

I have noted over the years that I (some might say this is from coming at it in a largely hypothetical way, not being a woman or potential parent) think abortion is in a key way a religious issue.  Ronald Dworkin was a notable advocate of this position though it arose in various contexts, including with women advocates involved.  And, in the current basis of constitutional abortion law, Planned Parenthood v. Casey, "conscience" is directly cited.  The connection between "conscience" and "religion" is not always clear, but a shall we say embryonic form of the religious liberty component of the First Amendment (and Fourteenth in Madison's failed attempt to include the states) included references to "equal rights of conscience" or the like.  At the time, "conscience" was basically seen as some form of the Christian religion.

Justice Stevens was the one justice who directly highlighted how abortion rights, including restraints that selectively burdened abortion per certain conscientious views, raised First Amendment concerns in this fashion (one other case did directly raise the issue, involving abstinence only education funding).  Rightly so in my view, both as a matter of sectarian laws and burdening free exercise.  One can find splits of some sort of religious nature in any given legal subject, but life and death questions of this nature have a special religious component, one that splits believers. It is telling to me that on both ends there are sacraments in the Catholic Church.  Marriage too has a religious component, which underlines the importance of individual liberty there.*

He also raised the issue in euthanasia situations though when that was directly at issue, he went along with the others in saying that at least to some extent laws limiting it were constitutional.  Counting noses suggested that an absolute bar might be more problematic though I am not aware of any later federal cases (it did arise in a few state cases) that directly addressed the matter.  Washington v. Glucksberg is the better known case, including because the plurality used it to put forth a restrictive view of substantive due process (the strongest view of the opinion was never really applied, particularly given Justice Kennedy's views on same sex rights) but a companion case (see link) did come out of New York. Which provides a segue.

The New York Medical Aid in Dying Act, dealing with a controversial subject that divides some usual allies, did not pass along with the first slew of "we are fully controlled by the Democrats" bills.  I do see a co-sponsor of the Senate version is my active young frosh senator, Sen. Biaggi.**  The tricky issues in these laws include when it can be applied, assistance by physicians if one is unable to do it yourself, safeguards of consent and so forth.  But, the matter clearly also has a religious competent, which is eloquently expressed in the signing statement of a recently passed New Jersey law.  The direct impetus of this entry is a temporary restraining order, after the law went into effect on August 1st.

The lawsuit says that the law, which does not require a physician to be involved if they are conscientiously opposed (see abortion), in part conflicts with the physician's religious liberty.  This is of a kind where contraceptive choice, I use that term advisedly, is argued to be problematic.  The debate on religious liberties here tends to be one-sided and this goes back to my opening, which has been a repeat player on this blog for years.  Religious liberty here is not merely a right wing thing.  The patient who wishes to carry out their own view of conscientious choice, matters here split since ancient times, ultimately has the strongest claim.

From the summary, some mere duty to send records or the like to the physician of the person's choice is not an infringement of liberty.  Doctors here have some minimal requirements to carry out patient wishes too.  Sounds weak.

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* As with other matters, and this will arise here, this does not mean it is free from regulation.  Freedom, before and after same sex marriage was protected, regarding private actors presiding over marriages does not mean -- before and after same sex marriage again -- discrimination in public accommodations in general was acceptable.

Some weighing of lines also will always occur here to some extent but that doesn't mean everything is up to regulation.  Overall, I think the viability line in this respect a fair one, if with tricky situations, especially to the degree it has a life/health of the pregnant woman proviso. "Viable" here might also factor in severely disabled fetuses.

** Sen. Biaggi has a special concern for sexual abuse, particularly from her own experiences, so the Child Victims Act is an emotional moment for her.  I am wary about an ability to bring claims from decades back (imagine child sexual abuse that occurred when one is ten and a case is brought when one is in their 40s), including given problems of memory and so forth. The legislation is a compromise though it has an open one year window.

I linked to a television interview with a friend/fellow legislator but a quick search does not bring up the specifics of her case.  It would be informative to get a snapshot of the problem though any number of others can tell their stories.  Such is the case with sexual abuse in the Catholic Church and elsewhere.  But, specific incidents are important since they put a public face on the problem.  See also, sexual harassment:

Imagine showing up to work only to have a co-worker tell you to get breast implants, touch your butt while telling you to “tighten up” and tell you not to adjust your exposed underwear because he was “enjoying himself.” Or to be subjected to name-calling like “dumb blonde,” repeated remarks about your appearance and being swatted on the butt with papers by a supervisor. Or even to have a supervisor pull your hair, rub lubricant on your arms and tell you to buy sexual paraphernalia.

A concern on margins can not stop us from dealing with such things.  Even if electing Trump in the minds of some is acceptable.  We have far to go.