RE: Equivocal evidence, and the right to choose
I am also curious about roughly the same point Howard raises. I always value the doctrine- and act-specific discussions I get on this list--I learn a great deal from them, and the theory I can more or less do on my own. But these discussions often seem to me to be just one step away from fairly major and consequential statements or assumptions about the underlying theory. So what is driving Eugene's paragaph (2), or some of the other statements (not just from Eugene) that have taken place in the course of this valuable discussion? Is it a moral intuition? A belief, as the paragraph below indicates, both that we have a secular legal system and about what that entails? A belief about the Constitution itself and what it requires? A belief in a wholly individualist and voluntarist conception of the self as a legal subject? A kind of implication that the Constitution enacts Mill's On Liberty or Joel Feinberg's work and not, say, Charles Taylor's work? A thin or thick conception of what harm means? A belief about the relevance or irrelevance of history, tradition, community, the sources of or proper occasions for thick commitments? I appreciate that these are large questions. And in many particular fact-based cases what I loosely call my common-sense intuitions *might* comport with Eugene's views. But it seems to me, as I wrote earlier, that there are some fairly large theoretical commitments guiding those intuitions here and that they are reasonably subject to questioning. Paul HorwitzUniversity of Alabama School of Law Subject: RE: Equivocal evidence, and the right to choose Date: Sun, 8 Jul 2012 13:08:57 -0400 From: howard.fried...@utoledo.edu To: religionlaw@lists.ucla.edu RE: Equivocal evidence, and the right to choose It seems to me that your paragraph (2) focuses the issue. Should the Free Exercise clause understand religion only as a belief system? Traditional Judaism does not define it that way. Instead (for those who are born of a Jewish mother) it is an identity that precedes a belief system. Can the 1st Amendment be seen as protecting a concept of religion that is different from the Christian notion that belief (acceptance of Jesus) defines religion? It was the insistence on seeing religion as only a belief system that led to the controversial decision by the Supreme Court of the United Kingdom in 2009 that ruled Jewish schools using the Orthodox Jewish definition of who is a Jew were engaged in ethnic origin discrimination (which British law equates with racial discrimination). Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene Sent: Sun 7/8/2012 12:29 AM To: Law Religion issues for Law Academics Subject: RE: Equivocal evidence, and the right to choose (1) I'm not sure why A's interest in B's religion should give A the right to alter B's body - even if A is B's parent. (2) As to the sons' own interest in conforming to their religion, I don't think it's their religion at age 8 days, at least under what should be the secular legal system's understanding of religion (the subject's own belief system). Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Equivocal evidence, and the right to choose
It seems to me that your paragraph (2) focuses the issue. Should the Free Exercise clause understand religion only as a belief system? Traditional Judaism does not define it that way. Instead (for those who are born of a Jewish mother) it is an identity that precedes a belief system. Can the 1st Amendment be seen as protecting a concept of religion that is different from the Christian notion that belief (acceptance of Jesus) defines religion? It was the insistence on seeing religion as only a belief system that led to the controversial decision by the Supreme Court of the United Kingdom in 2009 that ruled Jewish schools using the Orthodox Jewish definition of who is a Jew were engaged in ethnic origin discrimination (which British law equates with racial discrimination). Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene Sent: Sun 7/8/2012 12:29 AM To: Law Religion issues for Law Academics Subject: RE: Equivocal evidence, and the right to choose (1) I'm not sure why A's interest in B's religion should give A the right to alter B's body - even if A is B's parent. (2) As to the sons' own interest in conforming to their religion, I don't think it's their religion at age 8 days, at least under what should be the secular legal system's understanding of religion (the subject's own belief system). Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brian Landsberg Sent: Saturday, July 07, 2012 9:22 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Equivocal evidence, and the right to choose Why consider only medical costs and benefits and ignore the parents' interest in the religious upbringing of their sons and the sons' own interest in conforming to their religion? As to harms, shouldn't the burden be on the proponent of banning the procedure? Sent from my iPhone On Jul 7, 2012, at 3:40 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Part of the reason, I think, is that irreversible decisions should, when possible, be left to the adult that the child will become; and while lack of circumcision is painful to reverse in adulthood, it's possible, while circumcision is at the very least much harder to reverse effectively. Consider a few analogies. It's not unreasonable for adults to tattoo themselves; it's not my choice, but a substantial minority of people do it. Yet I think California law is right to bar all tattooing of minors, regardless of parental authorization - and it was even more correct when tattoos were very hard to reverse. It's true that this is a decision by the state, but it's a decision that increases the decisionmaking authority of the adult that the child will become. At the other extreme, it's not unreasonable for adults to get vasectomies or have their fallopian tubes tied - it's much rarer, especially in people who have no children at all, but it does happen. Indeed, it may have some benefits, because it decreases the risk of pregnancy; and it can even provide some benefit to a teenage minor. Plus if a child has especially serious genetic conditions, deciding on such a surgery may be especially plausible. But I take it that parents would generally not be allowed to order such a surgery on their children (setting aside exceptional circumstances, such as when a child is mentally retarded, sexually active, and likely to get pregnant without such surgery), again because that is a decision that should be made by the adult that the child will become. The same argument, I think, could be made about circumcision, depending on the evidence about medical costs and benefits (the case for allowing parents to decide becomes stronger when there are serious medical benefits) and on the evidence about whether circumcision indeed causes sufficient loss of sexual sensation. Eugene Brian Landsberg writes: In the case of a newborn the possible decision makers are the parents and the state. Why should we trust the state's judgment more than the parents' on an issue as to which reasonable minds can differ? ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe
RE: Equivocal evidence, and the right to choose
I should think that the law's treating people interests differently based on the ethnicity of their mothers would raise insuperable Equal Protection Clause problems, as an unconstitutional discrimination based on ethnicity. It may well be that private religious organizations should be free to engage in such discrimination; but I don't think that the government can. So to the extent that the legal considers people's interest in conforming to their religion, it has to base that on the people's actual religious beliefs, and not to religious identity imputed to them by others as a result of the people's ethnic background. An interesting analogy here, I think, is the special treatment of children of American Indian tribe members in adoption cases, and the recognition of tribal interests with regard to those children even when the children are too young to themselves have any felt tribal identity. But to the extent that is permissible, I think that this is only because of the special treatment of Indian-related classifications as being political - given the tribes' political identities - rather than racial or ethnic. See Morton v. Mancari. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Sunday, July 08, 2012 10:09 AM To: Law Religion issues for Law Academics Subject: RE: Equivocal evidence, and the right to choose It seems to me that your paragraph (2) focuses the issue. Should the Free Exercise clause understand religion only as a belief system? Traditional Judaism does not define it that way. Instead (for those who are born of a Jewish mother) it is an identity that precedes a belief system. Can the 1st Amendment be seen as protecting a concept of religion that is different from the Christian notion that belief (acceptance of Jesus) defines religion? It was the insistence on seeing religion as only a belief system that led to the controversial decision by the Supreme Court of the United Kingdom in 2009 that ruled Jewish schools using the Orthodox Jewish definition of who is a Jew were engaged in ethnic origin discrimination (which British law equates with racial discrimination). Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene Sent: Sun 7/8/2012 12:29 AM To: Law Religion issues for Law Academics Subject: RE: Equivocal evidence, and the right to choose (1) I'm not sure why A's interest in B's religion should give A the right to alter B's body - even if A is B's parent. (2) As to the sons' own interest in conforming to their religion, I don't think it's their religion at age 8 days, at least under what should be the secular legal system's understanding of religion (the subject's own belief system). Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Equivocal evidence, and the right to choose
In the case of a newborn the possible decision makers are the parents and the state. Why should we trust the state's judgment more than the parents' on an issue as to which reasonable minds can differ? Sent from my iPhone On Jul 6, 2012, at 3:40 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I appreciated Marty’s arguments in favor of considering how most circumcised adults view their parents’ decision to circumcise them as babies, and perhaps there is something to them. I have two reservations, though, about this (albeit ones that I might be persuaded out of). First, while adult circumcision is much more painful than child circumcision (or at least the pain is more likely to be remembered), my sense is that it’s still much easier to circumcise than to undo a circumcision (if undoing a circumcision, in the sense of replacing the tissue with comparably sensitive tissue, is possible). If that’s so, then the sizes of the groups – those who wish they hadn’t been circumcised, those who are happy they were circumcised, those who wish they had been circumcised, and those who are happy they weren’t circumcised – would need to be adjusted accordingly (though I don’t know exactly how). Second, and more fundamentally, I think there is a general moral principle that people usually have a right not to have their bodies altered without their permission, at least in a way that involves some substantial risk of substantial loss of function (thus setting aside the ear piercing example). I think that principle can be trumped by parents’ reasonable medical judgments, on the theory that someone has to make these medical choices, and the parents are the best people to make them. But I don’t think that principle can be trumped by parents’ personal religious preferences, which might not match the religious preferences of the adult into whom the child grows. (On that, I think Marty and I may agree.) And, tentatively, I don’t think that principle can be trumped by a desire to make life easier for other adults into whom other children will grow. If John Doe asks, “Why did the law let my parents cut off part of my body?,” I don’t think the answer that “We thought most people whose parents ordered this would be happier with it removed, for religious reasons” suffices, because that’s not a sufficient reason to justify such surgery in the absence of the patient’s own mature consent. Does that make sense? Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, July 06, 2012 3:26 PM To: Law Religion issues for Law Academics Subject: Re: Equivocal evidence, and the right to choose Eugene: Without regard to what adult subjects generally think of the procedure having been done (or not done) to them? Shouldn't we defer to parents at least until such time as there are many adults who are outraged that the state didn't step in? On Fri, Jul 6, 2012 at 6:19 PM, Volokh, Eugene mailto:vol...@law.ucla.eduvol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: From what I understand, think the health arguments for circumcision are substantial, and, as I've noted before, to the extent that parents are making a medical choice in favor of circumcision, I think it makes sense to defer to their judgment, just as it does for other medical choices. Likewise, I'm inclined to say that if there was reason to think (though also reason to doubt) that circumcision would enhance sexual function, parents could also reasonable choose that as a medical matter. The interesting question, I think, is how we should resolve the matter if (1) the medical consensus comes to be that there was no medical benefit of circumcision and no sexual function benefits, but (2) there comes to be no consensus on whether there is a sexual function cost. My inclination would be to say that the uncertainty should not be resolved in favor of parental choice, but rather resolved in favor of patient choice: the principle that – absent medical need – practically irreversible and potentially harmful surgery should not be undertaken without the actual consent of the adult subject of the surgery. Eugene Eric Rassbach writes: I am not sure that you can even rely on a claim that the sexual function was necessarily reduced; I know that some proponents of circumcision claim that circumcision actually enhances sexual function. Would you agree that if the evidence on that point is ambiguous or equivocal, then circumcision falls within the realm of things that parents can decide? That is reinforced by the fact that there are health reasons offered for circumcision; if those rationales are true (or perhaps just plausible?) then it is less like having an ear cut off and more like having an unsightly
RE: Equivocal evidence, and the right to choose
Part of the reason, I think, is that irreversible decisions should, when possible, be left to the adult that the child will become; and while lack of circumcision is painful to reverse in adulthood, it's possible, while circumcision is at the very least much harder to reverse effectively. Consider a few analogies. It's not unreasonable for adults to tattoo themselves; it's not my choice, but a substantial minority of people do it. Yet I think California law is right to bar all tattooing of minors, regardless of parental authorization - and it was even more correct when tattoos were very hard to reverse. It's true that this is a decision by the state, but it's a decision that increases the decisionmaking authority of the adult that the child will become. At the other extreme, it's not unreasonable for adults to get vasectomies or have their fallopian tubes tied - it's much rarer, especially in people who have no children at all, but it does happen. Indeed, it may have some benefits, because it decreases the risk of pregnancy; and it can even provide some benefit to a teenage minor. Plus if a child has especially serious genetic conditions, deciding on such a surgery may be especially plausible. But I take it that parents would generally not be allowed to order such a surgery on their children (setting aside exceptional circumstances, such as when a child is mentally retarded, sexually active, and likely to get pregnant without such surgery), again because that is a decision that should be made by the adult that the child will become. The same argument, I think, could be made about circumcision, depending on the evidence about medical costs and benefits (the case for allowing parents to decide becomes stronger when there are serious medical benefits) and on the evidence about whether circumcision indeed causes sufficient loss of sexual sensation. Eugene Brian Landsberg writes: In the case of a newborn the possible decision makers are the parents and the state. Why should we trust the state's judgment more than the parents' on an issue as to which reasonable minds can differ? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Equivocal evidence, and the right to choose
Why consider only medical costs and benefits and ignore the parents' interest in the religious upbringing of their sons and the sons' own interest in conforming to their religion? As to harms, shouldn't the burden be on the proponent of banning the procedure? Sent from my iPhone On Jul 7, 2012, at 3:40 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Part of the reason, I think, is that irreversible decisions should, when possible, be left to the adult that the child will become; and while lack of circumcision is painful to reverse in adulthood, it’s possible, while circumcision is at the very least much harder to reverse effectively. Consider a few analogies. It’s not unreasonable for adults to tattoo themselves; it’s not my choice, but a substantial minority of people do it. Yet I think California law is right to bar all tattooing of minors, regardless of parental authorization – and it was even more correct when tattoos were very hard to reverse. It’s true that this is a decision by the state, but it’s a decision that increases the decisionmaking authority of the adult that the child will become. At the other extreme, it’s not unreasonable for adults to get vasectomies or have their fallopian tubes tied – it’s much rarer, especially in people who have no children at all, but it does happen. Indeed, it may have some benefits, because it decreases the risk of pregnancy; and it can even provide some benefit to a teenage minor. Plus if a child has especially serious genetic conditions, deciding on such a surgery may be especially plausible. But I take it that parents would generally not be allowed to order such a surgery on their children (setting aside exceptional circumstances, such as when a child is mentally retarded, sexually active, and likely to get pregnant without such surgery), again because that is a decision that should be made by the adult that the child will become. The same argument, I think, could be made about circumcision, depending on the evidence about medical costs and benefits (the case for allowing parents to decide becomes stronger when there are serious medical benefits) and on the evidence about whether circumcision indeed causes sufficient loss of sexual sensation. Eugene Brian Landsberg writes: In the case of a newborn the possible decision makers are the parents and the state. Why should we trust the state's judgment more than the parents' on an issue as to which reasonable minds can differ? ___ To post, send message to mailto:Religionlaw@lists.ucla.edu Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Equivocal evidence, and the right to choose
(1) I'm not sure why A's interest in B's religion should give A the right to alter B's body - even if A is B's parent. (2) As to the sons' own interest in conforming to their religion, I don't think it's their religion at age 8 days, at least under what should be the secular legal system's understanding of religion (the subject's own belief system). Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brian Landsberg Sent: Saturday, July 07, 2012 9:22 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Equivocal evidence, and the right to choose Why consider only medical costs and benefits and ignore the parents' interest in the religious upbringing of their sons and the sons' own interest in conforming to their religion? As to harms, shouldn't the burden be on the proponent of banning the procedure? Sent from my iPhone On Jul 7, 2012, at 3:40 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Part of the reason, I think, is that irreversible decisions should, when possible, be left to the adult that the child will become; and while lack of circumcision is painful to reverse in adulthood, it's possible, while circumcision is at the very least much harder to reverse effectively. Consider a few analogies. It's not unreasonable for adults to tattoo themselves; it's not my choice, but a substantial minority of people do it. Yet I think California law is right to bar all tattooing of minors, regardless of parental authorization - and it was even more correct when tattoos were very hard to reverse. It's true that this is a decision by the state, but it's a decision that increases the decisionmaking authority of the adult that the child will become. At the other extreme, it's not unreasonable for adults to get vasectomies or have their fallopian tubes tied - it's much rarer, especially in people who have no children at all, but it does happen. Indeed, it may have some benefits, because it decreases the risk of pregnancy; and it can even provide some benefit to a teenage minor. Plus if a child has especially serious genetic conditions, deciding on such a surgery may be especially plausible. But I take it that parents would generally not be allowed to order such a surgery on their children (setting aside exceptional circumstances, such as when a child is mentally retarded, sexually active, and likely to get pregnant without such surgery), again because that is a decision that should be made by the adult that the child will become. The same argument, I think, could be made about circumcision, depending on the evidence about medical costs and benefits (the case for allowing parents to decide becomes stronger when there are serious medical benefits) and on the evidence about whether circumcision indeed causes sufficient loss of sexual sensation. Eugene Brian Landsberg writes: In the case of a newborn the possible decision makers are the parents and the state. Why should we trust the state's judgment more than the parents' on an issue as to which reasonable minds can differ? ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Equivocal evidence, and the right to choose
From what I understand, think the health arguments for circumcision are substantial, and, as I've noted before, to the extent that parents are making a medical choice in favor of circumcision, I think it makes sense to defer to their judgment, just as it does for other medical choices. Likewise, I'm inclined to say that if there was reason to think (though also reason to doubt) that circumcision would enhance sexual function, parents could also reasonable choose that as a medical matter. The interesting question, I think, is how we should resolve the matter if (1) the medical consensus comes to be that there was no medical benefit of circumcision and no sexual function benefits, but (2) there comes to be no consensus on whether there is a sexual function cost. My inclination would be to say that the uncertainty should not be resolved in favor of parental choice, but rather resolved in favor of patient choice: the principle that - absent medical need - practically irreversible and potentially harmful surgery should not be undertaken without the actual consent of the adult subject of the surgery. Eugene Eric Rassbach writes: I am not sure that you can even rely on a claim that the sexual function was necessarily reduced; I know that some proponents of circumcision claim that circumcision actually enhances sexual function. Would you agree that if the evidence on that point is ambiguous or equivocal, then circumcision falls within the realm of things that parents can decide? That is reinforced by the fact that there are health reasons offered for circumcision; if those rationales are true (or perhaps just plausible?) then it is less like having an ear cut off and more like having an unsightly mole excised or an extra toe removed, both of which are easier at a younger age. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Equivocal evidence, and the right to choose
Eugene: Without regard to what adult subjects generally think of the procedure having been done (or not done) to them? Shouldn't we defer to parents at least until such time as there are many adults who are outraged that the state didn't step in? On Fri, Jul 6, 2012 at 6:19 PM, Volokh, Eugene vol...@law.ucla.edu wrote: From what I understand, think the health arguments for circumcision are substantial, and, as I've noted before, to the extent that parents are making a medical choice in favor of circumcision, I think it makes sense to defer to their judgment, just as it does for other medical choices. Likewise, I'm inclined to say that if there was reason to think (though also reason to doubt) that circumcision would enhance sexual function, parents could also reasonable choose that as a medical matter.** ** ** ** The interesting question, I think, is how we should resolve the matter if (1) the medical consensus comes to be that there was no medical benefit of circumcision and no sexual function benefits, but (2) there comes to be no consensus on whether there is a sexual function cost. My inclination would be to say that the uncertainty should *not* be resolved in favor of parental choice, but rather resolved in favor of patient choice: the principle that – absent medical need – practically irreversible and potentially harmful surgery should not be undertaken without the actual consent of the adult subject of the surgery. ** ** Eugene ** ** Eric Rassbach writes: ** ** I am not sure that you can even rely on a claim that the sexual function was necessarily reduced; I know that some proponents of circumcision claim that circumcision actually enhances sexual function. Would you agree that if the evidence on that point is ambiguous or equivocal, then circumcision falls within the realm of things that parents can decide? That is reinforced by the fact that there are health reasons offered for circumcision; if those rationales are true (or perhaps just plausible?) then it is less like having an ear cut off and more like having an unsightly mole excised or an extra toe removed, both of which are easier at a younger age. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Equivocal evidence, and the right to choose
I appreciated Marty's arguments in favor of considering how most circumcised adults view their parents' decision to circumcise them as babies, and perhaps there is something to them. I have two reservations, though, about this (albeit ones that I might be persuaded out of). First, while adult circumcision is much more painful than child circumcision (or at least the pain is more likely to be remembered), my sense is that it's still much easier to circumcise than to undo a circumcision (if undoing a circumcision, in the sense of replacing the tissue with comparably sensitive tissue, is possible). If that's so, then the sizes of the groups - those who wish they hadn't been circumcised, those who are happy they were circumcised, those who wish they had been circumcised, and those who are happy they weren't circumcised - would need to be adjusted accordingly (though I don't know exactly how). Second, and more fundamentally, I think there is a general moral principle that people usually have a right not to have their bodies altered without their permission, at least in a way that involves some substantial risk of substantial loss of function (thus setting aside the ear piercing example). I think that principle can be trumped by parents' reasonable medical judgments, on the theory that someone has to make these medical choices, and the parents are the best people to make them. But I don't think that principle can be trumped by parents' personal religious preferences, which might not match the religious preferences of the adult into whom the child grows. (On that, I think Marty and I may agree.) And, tentatively, I don't think that principle can be trumped by a desire to make life easier for other adults into whom other children will grow. If John Doe asks, Why did the law let my parents cut off part of my body?, I don't think the answer that We thought most people whose parents ordered this would be happier with it removed, for religious reasons suffices, because that's not a sufficient reason to justify such surgery in the absence of the patient's own mature consent. Does that make sense? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, July 06, 2012 3:26 PM To: Law Religion issues for Law Academics Subject: Re: Equivocal evidence, and the right to choose Eugene: Without regard to what adult subjects generally think of the procedure having been done (or not done) to them? Shouldn't we defer to parents at least until such time as there are many adults who are outraged that the state didn't step in? On Fri, Jul 6, 2012 at 6:19 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: From what I understand, think the health arguments for circumcision are substantial, and, as I've noted before, to the extent that parents are making a medical choice in favor of circumcision, I think it makes sense to defer to their judgment, just as it does for other medical choices. Likewise, I'm inclined to say that if there was reason to think (though also reason to doubt) that circumcision would enhance sexual function, parents could also reasonable choose that as a medical matter. The interesting question, I think, is how we should resolve the matter if (1) the medical consensus comes to be that there was no medical benefit of circumcision and no sexual function benefits, but (2) there comes to be no consensus on whether there is a sexual function cost. My inclination would be to say that the uncertainty should not be resolved in favor of parental choice, but rather resolved in favor of patient choice: the principle that - absent medical need - practically irreversible and potentially harmful surgery should not be undertaken without the actual consent of the adult subject of the surgery. Eugene Eric Rassbach writes: I am not sure that you can even rely on a claim that the sexual function was necessarily reduced; I know that some proponents of circumcision claim that circumcision actually enhances sexual function. Would you agree that if the evidence on that point is ambiguous or equivocal, then circumcision falls within the realm of things that parents can decide? That is reinforced by the fact that there are health reasons offered for circumcision; if those rationales are true (or perhaps just plausible?) then it is less like having an ear cut off and more like having an unsightly mole excised or an extra toe removed, both of which are easier at a younger age. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list
