Tag Archives: Topic: Law Review

Ed Whelan writes at National Review: “And in a lengthy article available here—titled “The Constitutional Right to Refuse: Roe, Casey, and the Fourteenth Amendment Rights of Healthcare Providers”—law professor Mark Rienzi argues that the Court’s 14th Amendment jurisprudence supports recognition of a constitutional right of health-care providers not to participate in abortion.”

Thaddeus Mason Pope, Conscientious Objection by Health Care Providers (January 6, 2011). Lahey Clinic Medical Ethics Journal, 2011. Available at SSRN: http://ssrn.com/abstract=1736183

“Conscience clauses are state and federal statutes and regulations that protect the rights of health care providers to decline to provide or participate in health services that violate their religious or moral beliefs. But for such legal protection a provider’s refusal of treatment could result in civil, criminal and/or disciplinary sanctions. Conscience clauses vary in strength and scope. But there is increasing consensus that the right of the provider to conscientiously object to the performance of health services must be balanced against the need to ensure patient access to those services. This brief article observes that two key components of this equilibrium are the duty to transfer and the duty to treat in emergency situations.”

Lael Daniel Weinberger, Enforcing the Bill of Rights in the United States (January 6, 2011). JURISPRUDENCE OF LIBERTY, pp. 93-113, Suri Ratnapala, Gabriël A. Moens, eds., LexisNexis, 2011 . Available at SSRN: http://ssrn.com/abstract=1736343

“Before the American Civil War, very few U.S. Supreme Court cases dealt with the Bill of Rights. It was not until the 20th century that the courts began to deal extensively with the Bill of Rights, and because of the court enforcement of the rights embodied in that document, the Bill of Rights has come to be the best-known part of the United States Constitution. There have been thousands of cases interpreting and applying the Bill of Rights in the 20th century, and there will undoubtedly be thousands more as our era continues to be permeated with ‘rights talk.’

This raises two important questions. First, why did Bill of Rights litigation wait a century to really begin to play an important part in American culture? Second, does the upsurge in judicial enforcement of the Bill of Rights indicate a corresponding increase in liberty? This essay examines both of these questions by examining the interplay between personal rights and structural constraints on the federal government throughout American constitutional history.”