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: Parental rights and physical conduct
Chris, I think your answer goes beyond Marty's point. There is a difference between experiencing regret and being a member of a minority faith. If Jews and Muslims who circumcise their infant sons make up 2% of the population in a country, the rest of the population may think this practice is odd, but they won't experience regret about it because they are not circumcised. So the operative question would be whether the members of these minority faiths experience regret. And the answer to that question may be problematic in some ways. Would it count as regret if the concern is that people who are prejudiced against Jews can now identify the circumcised adult as a Jew? Don't we have to be careful here so that prejudice does not become the basis for justifying restrictions on religious liberty? AlanFrom: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Christopher Lund [l...@wayne.edu] Sent: Friday, July 06, 2012 10:59 AM To: 'Law Religion issues for Law Academics' Subject: RE: Parental rights and physical conduct Yes (to Marty.) I’m someone inclined toward Marty’s view, and I think the empirical question of regret is very important. Regret either way is important. If most circumcised men regret their infant circumcisions, then infant circumcision becomes harder to justify. Similarly, if most uncircumcised men regret not being circumcised as an infant, that too enters into it. It’s easy to say that an uncircumcised man can always get circumcised (and he can). But it requires surgery and anesthetic in a very sensitive place. And there are a lot of emotional sunk costs too. I’m generally a strong believer in regulatory exemptions for Free Exercise, even when the rest of the world is doing something totally different. But what the rest of the world is doing is very important here, because it goes to the burden on the child. If 30% of boys are circumcised, allowing me to circumcise my son seems an easy call. My son won’t be different from the other kids in his class; his future sexual partners won’t think of him as weird. But if only 2% are circumcised, it’s a different story. If it’s only 2% and those 2% are treated like freaks, then it’s a very different story. My understanding is that the circumcision rate in the US is still above 50%, though it’s below 50% in some of the western states. Changes in that are highly relevant. But given the demographics now, I’m inclined to think this is an easy call in favor of parental autonomy and free exercise. Marty/Eugene’s tattoo point is marvelous, I think. The numbers of 18-25 year olds with tattoos is staggering, something like 40%. If that rises to say 80%, then the tattooing of a child will seem more justifiable, because tattoo regret will probably drop. On the other hand, kids may regret the kind of tattoo that Mom and Dad wanted (and of course they will!), so I guess it’s still different than circumcision. Best, Chris ___ 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.
