Monday, January 03, 2005


Two hours of work, one sentence (albeit with a nice footnote).

Unfortunately, the thought that follows from the sentence is a fundamental principle of law that has nevertheless proved nearly impossible for me to find in a case. It is, briefly, this:

1. If a person has a Constitutional Right, the government may not infringe it with an absolute ban.
2. At some point, state restrictions on the exercise of the right become a ban when their practical effect is a total restriction or when they pose an undue burden on the right without a correspondingly strong, permissible state interest.

Point #2 basically is that you can't get around your inability to ban something by restricting away access to the thing incrementally. I can't find a case on point for this, of course. Any case, since I'm pretty good at using the table of authorities.

Any of my legal readers have a case on point?

At any rate, I am going to write the sentence and come back to the footnote later. There's no sense letting a little writer's block stop me cold.


Blogger Matthew said...

Just curious... what are you writing about?

11:35 AM  
Blogger Matthew said...

I'm writing about the recent proliferation of laws that allow pharmacists to refuse to dispense contraception if they find that morally or religiously objectionable.

The recent development (passed in SD, pending in other states) is to allow pharmacists not only to refuse to dispense the birth control, but to refuse to transfer the prescription to another pharmacy.

There was a case in Wisconsin involving a pharmacist named Neil Noesen recently. He refused to fill the prescription for birth control pills, refused to transfer the prescription to another pharmacy when the patient requested that, and refused to return the script to her. At his department of regulation and licensing disciplinary hearing, he answered a question about his age by giving his "conception age" and insisted on questioning the judge as to why he was being persecuted.

It's mind blowing.

11:45 AM  
Blogger Matthew said...

Mind blowing, indeed.

Birth control and morning after pills don't have much to do with abortion, which is what I'm sure most of this boils down to.

Even if this is just a religious issue concerning birth control/no sex before marriage, etc., since when does our government start allowing religion to dictate law? Are we living in a theocracy now?

12:11 PM  
Blogger Matthew said...

More likely, the separation of church and state has always been more of an illusory ideal than a reality. In other words, if this be theocracy, it was ever thus.

We should still strive for freedom and civil society unshackled by dogmatic religious ideology.

12:21 PM  
Blogger Me said...

Sorry I can't help you. At first glance, it seems like a "water is wet" proposition, but then you realize that it's actually more complext that it would first appear. It seems like it would be out there in another context. It SEEMS like SOME court had to have said this, or something along those lines, in its jurisprudence. Something that says, "if A is legal, you can't deny access to A in any other way." I'd think that it would come up in abortion context, but it seems that's where you've been looking. I'll think about it some.

However, my real reason for commenting, I find your article (law review?) fascinating. Just FYI. MUCH more interesting than mine was! ;-) And topical - mine when it was selected for publication may have been relevant, but by the time it was published 18 months later, it was outdated. I see yours as more of a policy claim, and wouldn't get outdated then. (Lord knows the abortion debate has gone on long enough.)

9:55 PM  
Blogger Matthew said...

Hey, thanks for the comment Stephanie.

Actually, in the abortion context, there is some languauge in Planned Parenthood v. Casey, where the plurality talks about restrictive measures that impose an undue burden. The problems with PPvC in this context are twofold. First, it's unclear that anything came out of that case except the result, since the plurality and those who concurred in the judgment had different rationales. Second, and more practically, there are tons of ways in which those who wish to restrict abortion do exactly that, like parental notification, mandatory waiting periods and ultrasounds, and counseling, to name a few.

6:08 AM  

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