As I see it, the question for figuring out the right legal rule for
circumcision is not simply why some people have the right to control other
people's bodies. When assessing the relationship of parent and child from the
point of view of the political community, the right question is not why the
political community ought to delegate authority to parents to make decisions
about their children's bodies. We should, instead, inquire into the
circumstances in which the political community is warranted in supplanting
parental decisionmaking. This approach is rooted in subsidiarity, and, yes, in
"some preexisting inherent moral right." How decide which way of approaching
the issues and framing the right question is correct? For the virtual community
of this list, I will go with history and tradition.
Kevin
________________________________
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Friday, August 24, 2012 10:01 PM
To: Law & Religion issues for Law Academics
Subject: RE: New circumcision policy statement from the AAP
The question is why, in the first place, people should have
rights to control not only their own bodies, but also other people’s (their
children’s) bodies. I think there are good prudential answers to this question
– as someone put it, no government official will love my children like I will,
and no government official will know them like I will, and that’s true for the
great bulk of parents. But it is prudential factors such as this, and not some
preexisting inherent moral right, that is doing the work here, it seems to me.
And such questions must indeed be considered by us as a political community, in
deciding to what extent we should protect some of our fellow citizens
(children) against other fellow citizens (their parents).
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Walsh, Kevin
Sent: Friday, August 24, 2012 5:35 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: New circumcision policy statement from the AAP
With appreciation to Eric and especially to Eugene for pushing us to think
carefully about the right legal rule regarding circumcision, I wonder if
focusing on even more fundamental considerations can clarify even more.
As I see it, "we" do not "delegate" the authority to parents to make decisions
of this sort. Rather, "we" recognize as a political community that there is no
general warrant for interfering with the decisions that parents make for their
children regarding circumcision.
Even if the outcomes will be the same whether one views the issue through the
first framing or the second, the two seem worth distinguishing.
On Aug 24, 2012, at 7:56 PM, "Volokh, Eugene"
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
I don’t think it changes my analysis, since I’ve all along
acknowledged that there are plausible medical arguments in favor of
circumcision. I’m hesitant to treat the AAP statement as materially changing
that, since I take it that there’s some disagreement among pediatric groups –
especially internationally -- even now. (The statement does make it even more
unlikely that any U.S. jurisdiction would ban infant circumcision – and likely
makes it morally and practically unjustifiable for the jurisdiction to make
that decision – but any such ban was unlikely even before this statement.)
Given this situation, what is the right result? As I mentioned in my July 4
message, http://lists.ucla.edu/pipermail/religionlaw/2012-July/026058.html, my
view is generally this:
(1) People should generally have the power to make medical decisions for
themselves.
(2) Infants and children can't make such decisions.
(3) Yet some such medical decisions must be made quickly, before the child
becomes mature enough to decide.
(4) We therefore delegate this power to make medical decisions to the parents.
(Indeed, Parham v. J.R. states, whether or not correctly, that this is a
constitutional mandate.)
Circumcision was a reasonable medical decision before the AAP
statement – precisely because the matter was uncertain – and it is a reasonable
medical decision now; I think parents who make such a medical decision should
indeed be free to do that. The interesting question is what happens if the
medical evidence eventually ends up being contrary, or if the parents make a
decision for nonmedical reasons.
I will say that focusing on the views of pediatricians here is
good, because it focuses on what I think is the right question: what is in the
best interest of the child whose body is being pretty much irreversibly
altered, and not what the parents prefer or on what is in the interest of
religious communities.
Eugene
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