restricted access Chapter 8: Abortion and Others
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CHAPTER 8 Abortion and Others THIS CHAPTER APPLIES the Establishment Clause approach and the Neutrality Principle to regulations about public funding, information transfer, spousal consent, parental consent and parental notification . The Establishment Clause approach avoids the inconsistencies of the Court's approach but yields decisions that provide for (almost) the same availability of abortion services. I first show that, like the Court's approach, the Establishment Clause approach allows the government to refuse funding for abortions, even when it pays for the costs incident to continued pregnancy and childbirth. But the Court reaches this conclusion only by assuming that the government may encourage the choice of childbirth over abortion. The next section shows that the Court abandons this assumption when information requirements are at issue. The resulting (apparent) inconsistency between the funding and information decisions bedevils a case concerning the information to be provided at publicly funded family planning clinics. The funding decisions suggest that this information may be designed to discourage abortions, whereas the information decisions suggest that it may not. The Establishment Clause approach provides more consistent guidance. The next two sections discuss requirements that married women receive the consent of their husbands and that minors receive the consent of parents, or notify their parents, before abortions are performed. The Establishment Clause approach agrees with the Court's conclusion that married women and mature minors cannot be required to notify, or obtain the consent of, others. And the two approaches yield similar results regarding the availability of abortion to immature minors. But 213 214 Chapter 8 while reasoning about consent, the Court rejects a notification requirement that it accepts while reasoning about notification. The Establishment Clause approach contains no such inconsistency. Public Funding of Abortion The Establishment Clause approach endorsed here may seem to be at odds with all the Court's major decisions regarding the public funding of abortion. The Court has maintained that municipalities, states, and the federal government are permitted to make an exception of abortion where public funding and support are concerned. The Court consistently upholds the government's right to discriminate against abortion when it provides public funds for medical services. Initially, this may seem to conflict with the government neutrality that the Establishment Clause approach requires. In the first part of the present section I explain why this is not the case. The Establishment Clause approach agrees with the Court's major conclusions in these cases. I then show that the Court's own rationale commits it to the view that states may discourage abortion in the interest of "protecting the potentiality of human life." But the section that follows shows that Court decisions about information requirements rest on the view that states may not discourage abortion. I conclude that the Establishment Clause approach, being more consistent, better justifies the Court's decisions about public funding and information requirements. Again, the Court reached reasonable conclusions but lacked adequate rationales. THE ESTABLISHMENT CLAUSE ApPROACH TO PUBLIC FUNDING The general idea is this: The Establishment Clause approach treats the decision to have an abortion (at least before the twenty-first week of pregnancy) as a decision inextricably involving religious belief. Abortion differs in this regard from most other medical procedures. Their value can be assessed on entirely secular grounds. Public funding is typically confined to matters of secular concern. The Establishment Clause is usually interpreted to disallow the public funding of projects, such as parochial school education, that are justified on religious grounds. Where funding is disallowed, it certainly cannot be required. So if a religious belief is integral to the decision to have an abortion, the government cannot be required to pay for abortions. Abortion and Others 215 Some may object that abortion is no different in this regard than most other medical procedures, including medical interventions that foster healthy childbirth. Many in our society believe on religious grounds that human beings should reject all medical interventions. According to the objector, this religious belief ties all medical interventions , those fostering healthy childbirth no less than abortion, to religious belief. Accepting medical care of any kind impl~es the rejection of the religious belief that God alone is responsible for healing the sick. The objector concludes that because religious beliefs are involved equally in the acceptance of abortion as in the acceptance of other medical responses to pregnancy, the government cannot justifiably refuse to pay for abortions while paying for all medical costs of the same women when they choose childbirth. The objector is...


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