Abortion and Religious Liberty—New Amicus Brief and Article

Recently, the Jewish Coalition for Religious Liberty submitted an amicus brief in the Indiana Court of Appeals. This case presents a RFRA-based challenge to the state's abortion laws. I co-authored the brief with my colleague, Howard Slugh. We are grateful to Zechariah Yoder who served as our local counsel.

I have also posted to SSRN a draft article, titled Abortion and Religious Liberty. It will be forthcoming in the Texas Review of Law & Politics. I co-authored the article with Howard Slugh and Tal Fortgang.

Comments

[apedad]

Using religion to fight religion.

Ugh. . . go back to 16th century Europe.

[Brett Bellmore]

You realize that a lot of secular people find abortion offensive, too, right? Especially late term abortion. So it’s hardly an exclusively religious fight.

It’s like claiming that laws against murder are religious, just because the Decalogue prohibits murder.

[apedad]

Maybe but so what?

This particular case that Prof. Blackman is making IS about which religious beliefs are more. . . I dunno. . . right? authoritative?

[Brett Bellmore]

No, I don’t think so.

He argued the court was wrong about Jewish law on this topic, but also that this was irrelevant, because RFRA analysis didn’t require that the plaintiff’s views be shared by co-religionists.

Rather, the problem he asserts is that the court bungled their RFRA analysis.

[Sarcastr0]

He argued the court was wrong about Jewish law on this topic, but also that this was irrelevant.

Seems a weird mix of arguments here.

[Brett Bellmore]

Seems reasonable to me. If you’re going to argue the court bungled the analysis, you’re going to list where they got it wrong.

First, as a general matter, RFRA doesn’t require that the plaintiffs’ views be representative of some larger group. This means that if RFRA applies, it applies to eccentric views, not just mainstream views.

This implies that if somebody decides to revive Baal worship or Thugee, or create some new religion of a comparable nature, it gets the exact same analysis that mainstream Christianity, Judaism, or Islam get.

So, as he points out, if you analyze RFRA claims in a way that’s generally fatal to state claims of compelling interest whenever they conflict with ANY person’s views, no matter how far out there, RFRA’s are just going to end up repealed, because ANY law potentially stands in that relationship to SOMEBODY, even if not with regards to a mainstream religion.

So it really does feed back into his analysis.

[Sarcastr0]

It blunts the irrelevance argument to go into the weeds on the supposedly irrelevant analysis. It further makes it clear how he’s not an honest broker in his subsequent legal analysis. Seems a rookie litigation mistake to me.

RFRA analysis has never been so limited as Blackman suddenly calls for, and has not had a floodgates problem. And it won’t unless Alito gets his way.
Solve hypothetical limiting issues when they come up in the real world, don’t bring them up for this special pleadings nonsense.

[Brett Bellmore]

RFRA wasn’t being gamed to go after laws people object to out of normal political motives, either. That’s the source of the floodgate problem.

This isn’t really much different from some right-wingers claiming that Christianity imposes a religious obligation to own and carry around NFA regulated firearms.

[Dilan Esper]

RFRA wasn’t being gamed to go after laws people object to out of normal political motives, either. That’s the source of the floodgate problem.

It is indeed. A lot of “religious freedom” plaintiffs seeking exemptions are faking it, and this goes back a long time and involves a number of different contexts.

[Sarcastr0]

RFRA is hard to game, since it’s federal only as applied.

This isn’t really much different from some right-wingers claiming that Christianity imposes a religious obligation to own and carry around NFA regulated firearms.

I mean, if you turn off all critical thinking, sure. The right wants courts to do that. Seems a bad idea to me.

[Brett Bellmore]

You DO know that a lot of states have RFRA laws, right?

Like, to pick a state at random, Indiana?

Religious Freedom Restoration Act (Indiana)

[Sarcastr0]

If you mean RIFRAs that aren’t RFRA, say so.

But for you to say this is a liberal issue, is blind in the extreme of who started this rodeo.

Your appeal to right-wing pretextual nonsense is the norm. And courts have managed to stay away from sincerity arguments so far.

Until of course the shoe is on the other foot. No one spins on a dime and starts crying for legal activism like the right since Trump’s appointments.

[Brett Bellmore]

“If you mean RIFRAs that aren’t RFRA, say so”

You are unbelievable, you know that? You can’t make Indiana’s law not a RFRA by inserting an extraneous “I”! 23 states have RFRA’s, and the OP’s reasoning is as applicable to any of them as to the federal law.

The case discussed in the OP was about Indiana’s state RFRA. Did you not pick up on that?

[Sarcastr0]

RFRA wasn’t being gamed to go after laws people object to out of normal political motives, either.

This seemed to be discussing the Federal RFRA. Was that incorrect?

[Rev. Arthur L. Kirkland]

No, I don’t think so.

That’s just Mr. Bellmore’s disaffectedness, delusion, autism, bigotry, and general anti-social wingnuttery talking.

[SRG]

Most people, secular or otherwise, may well oppose late term abortions. but of those secular types who find abortion offensive, what percentage of them want it also to be illegal?

[Brett Bellmore]

Late term abortions? A pretty large percentage, actually. Unless you mean “illegal without exceptions”, which is about as much a minority view as “legal under all circumstances”.

[SRG]

So you comment on a point we agree upon but ignore the other point. “of those secular types who find abortion offensive, what percentage of them want it also to be illegal?”

[Brett Bellmore]

Did you somehow miss my point that it depends on what you mean by “illegal”?

Most people, religious or secular, want abortion to be illegal under at least SOME circumstances. Very few people, secular or religious, want to to be illegal under ALL circumstances.

It’s become routine for pro-aborts to exaggerate the degree of public support they have for late term elective abortion, by pretending that people who just don’t want abortion to be outlawed under all circumstances whatsoever agree with them.

[EscherEnigma]

In my experience, you find lots of people that “oppose late term abortions” in theory.

When faced with the real-life scenarios of women seeking late term abortions, they suddenly invent all sorts of reasons why anti-abortion laws shouldn’t have been a problem. That they were a problem is almost entirely ignored, and they refuse all attempts to clarify the law such that they wont’ be in the future.

This is pretty common in defense of anti-abortion legislation over-all. They’ll say they support some restriction. You bring up a real-life case where that restriction led to horrible results. They find excuses for why that shouldn’t have happened, but still oppose all attempts to make sure it doesn’t happen again.

Which is to say… most people who object to third trimester abortions are very much of a “leopards eating faces party” mindset. They assume that “good” folks (that is, people that need abortions for “real” reasons) will always get the exception they need (even without it being in the law), and that the law will only be used to prevent “bad” folks (that is, elective abortions) from getting abortions. So when the law is used to prevent “good folk” from getting the care they need, they are shocked, simply shocked.

And then refuse to fix the law for the “good folk” anyway, because surely that was a one-off, a fluke, and won’t happen again, right?

[grb]

Brett Bellmore: “… a lot of secular people find abortion offensive, too, right? Especially late term abortion …”

Two points :

(1) A lot of secular people do find abortion wrong, and for the same reason as most of the religious: They are offended by women escaping the weighty consequences of their sex life. A couple of days ago I was reading the comments to the National Review’s latest abortion post and – as usual – got just a few comments in before the first “…killing babies in service to sexual irresponsibility…” screed. Similar sentiments regularly followed.

Think there’s equal balance in that equation between faux-piety over proto-babies and loathing over the effrontery of sluts? I don’t. Rather, the former is the thinnest veneer over the latter. That’s why you rarely find an anti-abortion type who objects to IVF clinics. They serve matrons seeking to fulfill their womanly duty, not some harlot trying to evade the wages of sin. The common appendage “on demand” seem an extraneous addition to “abortion”, but it’s really the point. Women “demand” control of their bodies. A certain type of person finds that offensive.

2. The NR comments also regularly brought up “late term abortion” as well. Reminder: 91% of all abortions are in the first trimester; 98.7% within the first 20wks. By the last trimester, the numbers are so tiny that they register as 0.00 percent, and those are driven by tragic circumstances. Right-wingers love to claim the Pro-Choice side demands abortion right up to delivery. It’s a crude offensive lie.

https://www.motherjones.com/kevin-drum/2019/04/raw-data-abortions-by-week-of-pregnancy/

[Brett Bellmore]

“A lot of secular people do find abortion wrong, and for the same reason as most of the religious: They are offended by women escaping the weighty consequences of their sex life.” They think it’s murder, and that having your sex life inconvenienced isn’t a justification for murder.

“By the last trimester, the numbers are so tiny that they register as 0.00 percent, and those are driven by tragic circumstances.”

Even Guttmacher doesn’t claim THAT. They’re quite open about a lot of late term abortions being elective. A while back I linked to a clinic in DC that’s willing to do an abortion well past viability, and come right out and say it doesn’t matter to them why you want one, they don’t care.

“If you are 26 weeks or later into your pregnancy, we can still see you, regardless of your medical history, background, or fetal indications. We do not require any particular “reason” to be seen here – if you would like to terminate your pregnancy, we support you in that decision.”

You think they just threw out that statement for yucks, that nobody shows up wanting an abortion for less than existential reasons?

Now, granted, women who just want to kill their baby days from being born because being a mother is a drag even if you CAN adopt the brat out, are few and far between. But, hey: Diversity. They actually exist. In numbers enough for a clinic to want to assure them they’ll be catered to.

You’ll generally find that a lot of criminal law deal with people who are outliers in terms of motivations and actions. Most men aren’t rapists, and don’t beat their romantic partners. (Some women are, and do…) Few people are robbers, fewer still murderers, but we still bother having laws against robbery or murder.

[Dilan Esper]

I don’t doubt they think it’s homicide , but it’s very clear when you dig deeper that the misogynist desire to stop women from having “irresponsible sex” is very much a part of the worldview of a LOT of pro-lifers. This shows up in all sorts of research, including most famously Kristen Luker’s work from 40 years ago.

The most obvious way this plays out is there are a lot of ways to reduce the abortion rate that still involve women getting to have a lot of sex that the religious right doesn’t like but doesn’t involve legal prohibitions– and it is EXTREMELY hard to get a lot of pro-lifers to agree to them. Indeed, they often oppose the efforts outright.

[Brett Bellmore]

All you’re doing is attributing vile motives to people who disagree with you. Nothing more.

[Dilan Esper]

Nope, I am reading their behavior.

Let me give you an example. Until late in Benedict’s tenure, the Vatican’s official position was that HIV positive African Catholics could not wear condoms. They never said outright “we think AIDS is bad but we think sexual immorality is worse”, but they didn’t have to. That was their revealed preference.

I am saying the revealed preference of a LOT of pro-lifers is that reducing the abortion rate without curtailing what they see as immoral sex isn’t worth doing. That’s not the same thing as saying “they don’t think it is homicide”, as some pro-choicers argue. But it does show that they think stopping homicide is less important than the real scourge of women being promiscuous. And that’s disgusting and many pro-lifers are profoundly evil actors, just like the Catholic Bishops who wanted Africans to die over sexual morality issues.

[David Nieporent]

The world’s irony meters all exploded simultaneously.

[Seamus]

I don’t doubt they think it’s homicide , but it’s very clear when you dig deeper that the misogynist desire to stop women from having “irresponsible sex” is very much a part of the worldview of a LOT of pro-lifers.

You know why they want women to stop having “irresponsible sex”? Because they believe such sex increases the risk of conceiving children whose mothers will want to kill them. In other words, the primary motivation is the desire to protect of innocent life.

I bet you think that pro-lifers are opposed to euthanasia because it’s part of an elaborate smokescreen to allow them to interfere with sexual freedom.

I also suspect that there’s a lot of projection going on here. While I think its manifest bullshit to claim that pro-lifers are motivated primarily by the desire to restrict sexual freedom, it’s a fact that a (if not *the*) primary motivation for pro-choicers is their wish to *protect* sexual freedom. (That’s why they are adamant in defining fetuses as non-persons. If they recognized fetuses as human persons, they might feel obligated to protect them from being killed. But that would mean that sexual freedom might have undesired consequences that couldn’t be easily avoided. And since sexual freedom is, for them, the supreme desideratum, they need to constrict their understanding of what is a human person.)

[Nige]

‘You know why they want women to stop having “irresponsible sex”?’

Misogyny.

‘primary motivation for pro-choicers is their wish to *protect* sexual freedom.’

It’s certainly right up there.

[Dilan Esper]

You know why they want women to stop having “irresponsible sex”? Because they believe such sex increases the risk of conceiving children whose mothers will want to kill them

That doesn’t get you where you want to go. Because there are ways to make sex less likely to do that, or to incentivize sex that is less likely to do that. And many pro-lifers don’t support those things because it doesn’t get them what they want, which is to keep pregnancy out there as a Sword of Damocles they can use to cow women into submitting to their competely stupid and ignorant views about sex.

I bet you think that pro-lifers are opposed to euthanasia because it’s part of an elaborate smokescreen to allow them to interfere with sexual freedom.

No, I think they think it’s homicide. I conceded pro-lifers think abortion is homicide too. I don’t deny that. I am just saying that they preference order curtailing female sexual freedom ABOVE stopping homicide, and we see that from the way they act. Which makes the ones that do this (not all pro-lifers, but plenty of them) evil as well as ignorant.

(And by the way, of course pro-choicers want to protect sexual freedom. Sexual freedom is really important!)

[grb]

Seamus : “That’s why they are adamant in defining fetuses as non-persons”

That would be tremendously persuasive – except for the fact it’s obvious bullshit. In the real world I inhabit, 99.9999999% of all pro-choice people accept a fetus becomes a person at some point during pregnancy.

Seamus’ comment embodies the very point I made above. His long paragraph on “sexual freedom”, “consequences”, the “supreme desideratum” and “what is a human person” just dresses-up a screed against sluts & harlots in fake philosophical robes.

So he crudely lies about the pro-choice position and treats us to a pretentious lecture on sexual purity, which should have been blunder enough. But there’s one more telling mistake: He’s apparently classless on real-world effect of abortion restrictions.

Which is inevitable I guess. If women seeking abortions are all sluts seeking their supreme desideratum of harlotry, then there’s no room for the family who can’t afford another child, women who suffered a failure of birth control or wants to postpone a family. But here’s the real world: Every time you tighten abortion restrictions further you wreck the lives of thousands upon thousands of women each year. Did you ever consider that as a motive for the pro-choice position?

[EscherEnigma]

You know why they want women to stop having “irresponsible sex”? Because they believe such sex increases the risk of conceiving children whose mothers will want to kill them. In other words, the primary motivation is the desire to protect of innocent life.

Which logically leads to their opposition of comprehensive sex-ed and easier access to contraception (both condoms and pharmeceutical), which have been proven time-and-again to reduce unwanted pregnancies (and thus first/second-trimester abortions) more then abstinence-only education and abortion restrictions.

Wait, no, that their chosen methods are ineffective at achieving the stated goal has never swayed the tactics of the anti-choice folk.

For that matter, anti-choice folk have a lot of overlap with people that vocally disapprove of other non-procreative sex. They don’t exactly give post-menopausal women, women who have had hysterectomies, or lesbians, a break on the slut-shaming. That slut-shaming is applied far-and-wide regardless of whether conception is possible.

I bet you think that pro-lifers are opposed to euthanasia because it’s part of an elaborate smokescreen to allow them to interfere with sexual freedom.

Having watched the fights over physician-assisted suicide, I think that having realized they just aren’t winning the argument on “terminal cancer patients are morally obligated to have slow lingering painful deaths that stretch out for months past any hope of healing”, so since they aren’t persuassive, they’ll just make sure *no one* can do it. AKA, they’r evil controlling fucks who want *other people* to suffer for *their* faith.

Similalry, Catholic opposition to liquid cremation can only be explained by them deciding that since they are failing at persuading people, they just have to take away legal options. AKA, evil controlling folks who want to impose *their* faith on *other people*.

While I think its manifest bullshit to claim that pro-lifers are motivated primarily by the desire to restrict sexual freedom, it’s a fact that a (if not *the*) primary motivation for pro-choicers is their wish to *protect* sexual freedom.

That’d be more persuasive if anti-choice folks didn’t have a well-documented history of opposing proposals that would *actually* reduce abortion and unwanted pregnancies if those plans involve contraception or sex-ed.

[iowatwo]

but it’s very clear when you dig deeper that the misogynist desire to stop women from having “irresponsible sex” is very much a part of the worldview of a LOT of pro-lifers.

Those are some dope mind reading chops you got there.
You should go into show business. Audiences love your kind of schtick

[Nige]

‘Even Guttmacher doesn’t claim THAT.’

They don’t have to. Those are the numbers.

[The Margrave of Azilia]

I’ve certainly heard arguments against killing “excess embryos” in the IVF clinics.

I’ve also heard arguments against killing children for the crimes of their fathers.

After all, we can’t kill rapists – that would be cruel and unusual. We can’t even kill child rapists – again, cruel and unusual. But we can kill the unborn children of rapists. Why is the life of the criminal precious, while the life of the innocent may be snuffed out?

[Krychek_2]

Because the purpose of abortion isn’t to punish the fetus.

[Brett Bellmore]

Does it matter if somebody want to kill you because you’re an inconvenience, rather than because they think you deserve to be punished? You end up dead either way.

[SRG]

There is no “you” here.

[Krychek_2]

Yes, for the same reason that lifetime registration as a sex offender isn’t punishment, even though it sure feels like it to the people required to register. You’re not aborting the fetus to punish it; you’re aborting it because the woman doesn’t want to carry it to term.

Likewise, the purpose (at least officially) of a sex offender registry isn’t to punish people; it’s to protect society by allowing them to know who and where the sex offender are and preventing them from going where children congregate. So even though a registered sex offender faces all kinds of restrictions, since they’re not officially punishment, they’re not constitutionally objectionable. (At least not on punishment grounds). Even though the result would be the same if they were.

[Brett Bellmore]

“Yes, for the same reason that lifetime registration as a sex offender isn’t punishment, even though it sure feels like it to the people required to register. ”

Bad example, since that’s one of the cases that puts the lie in “legal fictions are really legal lies”.

[Krychek_2]

But the legal name for something is often dispositive. And the main point here is that the purpose of abortion isn’t to punish the fetus.

[The Margrave of Azilia]

Of course it’s not to punish the fetus – it didn’t do anything wrong!

The rape/incest exemptions often started as entering wedges for “abortion reformers” to water down the abortion laws – along with abortions for disabled fetuses.

With rape/incest exceptions in place, abortion shifted from being a violation of the fetus’ right to life into being a reward for deserving women. Then the “reformers” shifted gears to exploit the concession they’d won – “if rape victims deserve abortions, then surely poor women deserve them, etc.” and finally it was “women themselves should decide! Who came up with this slut-shaming rape exception?”

[Krychek_2]

No, Margrave, that’s an example of in politics you take what you can get and you make the arguments that work. I don’t think there has ever been a time in which proponents of abortion thought anything other than that it should be available on demand to any woman who wants one. But that has not always been a winning argument, and allowing *some* women to make the choice is at least an improvement over allowing *no* women to make the choice.

[The Margrave of Azilia]

“proponents of abortion”

That’s funny, I’ve been told that “nobody is *for* abortion” and “we oppose abortion as much as you so-called prolifers,” etc.

But as you say, they’ve always been proponents of abortion, and their rape exceptions were entering wedges to prepare the ground for increasingly “liberalized” abortion laws.

[iowatwo]

But the legal name for something is often dispositive. And the main point here is that the purpose of abortion isn’t to punish the fetus.
The purpose of abortion is to kill a baby.
The debate, Can the People write laws to protect the weakest among us.

[grb]

Brett Bellmore : “…kill you because you’re an inconvenience…”

Here we have Exhibit A of what I describe above. Listen to any group of anti-abortion types and you soon see a relentless focus on the woman’s “convenience”. As I noted, “baby-murder” isn’t murder at all for most anti-choicers when it comes to IVF clinics. But as soon as they convince themselves abortion is for some slut’s “convenience”, then their faux-outrage blazes and they swell with righteous indignation. (A sensation they find pleasing, I’m sure)

Of course they’ve memorized all the practiced lines on the sanctity of each fertilized egg; they know all the right things to say. But the true heat and passion of the movement has always been about the woman – specifically what some hussy thinks she can get away with just for her irresponsible and slatternly “convenience”.

[grb]

(Major off-topic, but I want to give credit where credit is due. Above I gave my best partisan sneer at the National Review readership, but read the comments on a NR Oxfordian Shakespeare Authorship post since. Even though the article was laid-out in the very best tinfoil-hat-manner, the NR commenters scorned it in numbers approaching 98%, bless their hearts.

If they were equally adept at spotting fraud within their ranks, we might get a Republican Party worthy of respect. It would destroy DeSantis’ shot at the presidency at the very least)

[iowatwo]

you soon see a relentless focus on the woman’s “convenience”

Only because that is what every single woman is claiming.
Of course excluding medical necessity.

There only exists, convenience.

[Brett Bellmore]

I have literally linked to a clinic outright stating that they don’t freaking care WHY you want a late term abortion, no medical indications necessary, that you want one is all that matters! And you people STILL insist that women don’t get abortions for convenience.

At the same time as insisting that purely elective abortions must be available to the point of delivery. For absolutely zero women to make use of…

[EscherEnigma]

Basically.

If the court addresses the amicus brief at all, it should be a simple “we recognize that the Jewish beliefs described in the original judgement do not describe all Jewish beliefs. That’s okay, they only need to describe the Jewish beliefs of plaintiffs. If you read that as a pronouncement on all Jewish beliefs, that’s on you for forgetting the context of First Amendment religious cases for the past century.”

There is no need, and hopefully no desire, for the courts to get involved in who is “correct” about Jewish beliefs.

[not guilty]

I seem to recall Rush Limbaugh, many years ago, blathering that feminists (not the epithet he used) regard abortion as a sacrament. What with creative use of the federal RFRA and its corresponding state legislation, that commentary may not still be satire.

[Krychek_2]

I disagree with using religion to get out of laws of general applicability, but since that’s the regime the conservatives have given us, what’s good for one side is good for the other. And in the case of abortion, the analysis is fairly straightforward:

1. My religion requires me to help people in need.

2. A woman who wants an abortion is a person in need.

3. Therefore I must be permitted to practice my religion and help her get an abortion. Especially if I happen to be a doctor with special skills and training to actually give her an abortion.

[Brett Bellmore]

That analysis is fairly straightforward, but it isn’t an RFRA analysis, which would be a large part of the OP’s point: A religion based demand that you do something isn’t a trumps all get out of jail card, under RFRA. It’s just the starting point.

The state can still prevail if they have a good reason for the law you want to get out of, and aren’t handing out waivers left and right.

[Sarcastr0]

A religion based demand that you do something isn’t a trumps all get out of jail card, under RFRA. It’s just the starting point.

That’ll be news to Alito.

[Krychek_2]

I agree with Sarcastr0 that that’s not how Alito (or Thomas, or Kavanaugh, or Barrett) would read it. And, I would also add that that’s precisely why it’s bad policy to let RFRA serve as an all purpose get out of jail card; basically all laws are subject to individual religious objections.

The state can prevail if it shows a compelling state interest, but the idea that abortion is murder is itself a religious idea. So the state would essentially be saying that it wants to impose its religion on people of a different religion. The notion that abortion is murder is far from settled.

And, if you want to make it about religion, here’s a nice Biblical text that is directly on point: “But let none of you suffer . . . as a busybody in other men’s matters.” I Peter 4:5. And: “Whoso meddleth in strife not his shall be like him who takes a mad dog by the ears.” Proverbs 26:17. You are entitled to your (religious) opinion that it’s a child, but someone else’s reproductive choices do not concern you.

[Brett Bellmore]

It’s going to be news to your average theologian that you’ve identified a Biblical commandment to do nothing about murders.

[Krychek_2]

You’re assuming the average theologian considers it murder.

[Sarcastr0]

Dante shoulda had a circle for question beggers.

[iowatwo]

3. Therefore I must be permitted to practice my religion and help her get an abortion. Especially if I happen to be a doctor with special skills and training to actually give her an abortion.

If your needs require killing another human, there’s a recalibration required.

[EscherEnigma]

If your needs require killing another human, there’s a recalibration required.

You’re assuming that “personhood laws” have already won the day.

They haven’t.

[ReaderY]

I think this very case or one like it is why Barrett and Kavanaugh have balked at either abandoning Smith or signing up to the Alito interpretation of it.

I think that under a fair application of the Alito interpretation of Smith, the plaintiffs win in this case.

And under pre-Smith law, I think the only way plaintiffs would lose is if the Court accepts something like the O’Conner concurrence to Smith, which more or less reflects Professor Volokh’s view that a “compelling state interest” for Religion Clause purposes involves a threshold that just isn’t as high as a “compelling state interest” for other constitutional rights. In her concurrence in Smith, Justice O’Conner would have preserved the pre-Smith compelling interest framework, but regarded eradicating drugs as a compelling interest for Religion Clause purposes.

[Brett Bellmore]

Here’s the thing: People not being killed is about the highest “compelling state interest”, and abortion rather directly involves killing somebody. Often it has no point except killing, if it occurs after the point of viability.

[Rev. Arthur L. Kirkland]

“Religious liberty for me, but not for thee”

Clingers gonna cling.

Partisans gonna hack.

The Jewish Coalition For Religious Liberty sounds like another right-wing separatist organization formed primarily to appear on amicus briefs. It apparently does not have an office or a website. It seems to operate out of a UPS Store mailing address box.

This brief — regardless of on whose behalf, if anyone’s, it was filed — vividly reveals the degree to which principle underlies right-wingers’ reliance on superstition to arrange snowflake-level special privilege.

[ReaderY]

The fundamental problem with Professor Blackman’s brief is that it asks a judge to determine what the Jewish law of abortion is. This an American civil (as distinct from religious) court simply cannot do. It doesn’t matter whether Professor Blackman’s brief (or the Plaintiffs’) gets Jewish law right or wrong. The only way a state or federal court can even consider it is in evaluating whether the plaintiff’s position is sincere.

And on that score, Professor Blackman’s brief is simply wrong. The plaintiffs articulate a meanstream position which has been in existence for some time before this litigation. It is, for example, the position of the Tzzitz Eliezar, a well-known 20th Century Hareidi Israeli rabbi who had some surpisingly liberal opinions on medical ethics, and whose position on this issue was adopted by the Israeli Rabbinate.

This position starts from the premise that, while abortion is prohited, one should do an abortion to avoid even a modest danger to life. It then proceeds to use various lenient Talmudic rulings, generally intended to permit breaking the Sabbath if one is in pain or similar, applies them to the abortion context, and concludes one should have an abortion under a fairly wide range of circumstances. The net result is a de facto position pretty close to abortion on demand, retaining the formality of having to ask a rabbi for permission, but ensuring the permission will be granted in nearly all cases.

Whether this position is right or wrong as a matter of Jewish law is no business of a secular court.

I am surprised Professor Blackman would represent otherwise.

[The Margrave of Azilia]

“a well-known 20th Century Hareidi Israeli rabbi”

So…an ancient tradition?

[ReaderY]

I don’t think an American court is entitled to say otherwise.

https://en.m.wikipedia.org/wiki/Eliezer_Waldenberg

[The Margrave of Azilia]

Assuming the plaintiff was making sweeping assertions about a supposedly deep-seated pro-abortion Jewish tradition, then that opens the door to a rebuttal. A rebuttal defending the honor of the Jewish people and repelling the blood libel of a longstanding Jewish pro-abortion tradition.

Also, in practice it’s easier to prove sincerity if you’re embedded in a community which shares the beliefs you profess to hold. A Quaker told me about being easily able to get conscientious objector status because his whole family had been pacifists for years and years. Whereas an equally sincere person whose religious views were developed through his own reflection would face a more skeptical audience.

So to clear the first hurdle of sincerity in these abortion cases, it would *in practice* be helpful to show that “oh, well, the Jews have always been pro-abortion.” And other Jews get to reply, “no we haven’t!”

But no matter how sincere one’s religious beliefs, I would think the balancing of interests would weigh against such practices as human sacrifice, suicide bombings, and abortion.

[ReaderY]

But it’s not your religion, is it?

[The Margrave of Azilia]

No, but Americans of all religious should keep a lookout for anti-Jewish rhetoric and denounce it when discovered.

From the standpoint of people who aren’t really into abortion, linking the whole Jewish religion with abortion is anti-Jewish rhetoric.

If a group of Jews projects their proabortion views onto their entire religion, that should be rebutted. It’s *their* interpretation of Judaism, nothing more. And to those who aren’t already into abortion, it’s anti-Jewish rhetoric.

Are these folks inauthentic Jews?

https://www.firstthings.com/web-exclusives/2020/08/the-jewish-case-against-abortion

[ReaderY]

This is just silly. As I said in an earlier comment, this is a fairly standard position. It is for example more or less the position taken by the Israeli Orthodox rabbinate. There’s lots of literature on it. It’s a real thing.

What you’re proposing to do here would be like organizing a write-in campaign by Christians to try to convince a judge that anyone who supports abortion isn’t a “real” Christian, so people who claim to do so can’t possibly be sincere Christians. That’s exactly the sort of claim a judge cannot entertain. And it’s a similar issue. The fact of the matter is, millions of Christians think abortion is OK. You may not like it, but it is. Same with Jews.

[The Margrave of Azilia]

“That’s exactly the sort of claim a judge cannot entertain.”

Yeah, but the court did, didn’t it?

And while I’m sure there are plenty of interpretations and applications of Judaism, the judge made a single interpretation normative, as if all Jews are into abortion. Which as you say a judge isn’t supposed to do. But since the judge did it, then like I said it opens the door to a rebuttal that not all Jews are like that.

[bernard11]

From the brief:

We will assume for present purposes that Anonymous Plaintiff 1 sincerely holds the belief that Jewish law compels her to obtain an abortion in those circumstances. We only assume because the word “sincerely” appeared nowhere in her declaration. The trial court simply stated, without any citation, let alone any live testimony, that
this Plaintiff’s “religious beliefs are sincerely held.

Is this bit of stupid snark really necessary for the argument?

[ReaderY]

In addition to aattempting to convince an American judge that the plaintiffs got Jewish law wrong, the brief has many other flaws. Not the least is an argument headed “sincerity of belief is a deeply personal notion, which cannot be imputed to organizations or classes.”

This is nonsesnse! The casebooks are replete with religion cases involving organizations. Most of the key religion cases of the past few years – Hosannah Tabor, Little Sisters of the Poor, Hobby Lobby, among others – involved the Court accepting a religious organization’s (a private corporation in the Hobby Lobby case) asserting sincerely held beliefs. An entire branch of Religion Clause law – the “internal affairs” exception – exists to preserve the ORGANIZATIONAL autonomy of religous ORGANIZATIONS, as ORGANIZATIONS. The idea that the Religion Clauses only protect individuals acting alone, and they lose protection when they come together, organize, and act as a church, turns the clauses on their head. Indeed, I seem to recall Professor Blackman vigorously arguing before Hobby Lobby was decided that religious organizational rights extend to business corporations. Has he forgotten this now that this position is inconvenient for his preferred outcome?

I think the brief’s only coherent arguments are that probibiting abortion is a compelling state interest, and that the Alito interpretation is wrong. I agree the Alito interpretation is wrong, But I think a compelling state interest has to be defined narrowly, limited to things fundamental to the survival of the state or the subject of explicit constitutional amendments (like slavery). It can’t mean whatever a majority of Justices happen to feel particularly strong about.

I didn’t think prohibiting drugs was a compelling state interest in Smith. I’ve recently agreed with Professor Bernstein that discrimination laws are not compelling state interests. I think laws against abortion are more like laws against drugs and discrimination laws, strongly held morals laws but essentially morals laws all the same, rather than like the sorts of things that have been found to be compelling interests. Perhaps in 1950, when abortion was regarded as a kind of homocide in eevety state, abortion might have been found to be a compelling interest. But there simply isn’t the social consensus that killing a fetus is homicide that exists for, for example, foreigners. That applecart has been upset and opponents of abortion can’t simply pretend the last 50 years have never happened.

it’s been my position on this blog for many years that judges shouldn’t impose a pretend social consensus just because they feel strongly about something. I think that position has to control here. There simply is no consensus in this country that abortion is wrong, let alone that forbidding it is essential to the functioning of the state or society. And in order to have a compelling state interest, there at the very least has to be a stronger concensus than there is.

Perhaps Professor Volokh is right that the real pre-Smith threshold is closer to “important” than “compelling.” Perhaps Barrett and Kavanaugh are right that abandoning Smith would be too much of a free for all.

My instincts tell me that the plaintiffs should lose, that giving religion but nobody else an out on something like abortion is going too far and risks damaging the integrity of religion. But my logic tells me that, based on both a reasonable interpretation of Smith and on pre-Smith First Amendment law as I’ve argued it should be for years, they should win.

[The Margrave of Azilia]

If the brief is correct, the trial court heard from “three rabbis” and based on this testimony, drew the following conclusions:

•“Under Jewish law, a fetus attains the status of a living person only at birth, when the greater part emerges from the mother.”
• “An abortion is mandated [by Jewish law] to stop a pregnancy that may cause serious consequences to the woman’s physical or mental health.”
• “Judaism allows for and requires that an abortion be provided if the pregnancy threatens the woman’s mental health, for instance if the pregnancy would aggravate psychological problems or cause such problems.”

After such supposed “factfinding” from the trial court, it’s fully relevant to discuss the teachings of Judaism with regard to abortion.

[ReaderY]

It doesn’t matter the slightest what “Jewish law” says. What matters is what these plaintiffs sincerely believe Jewish law says. That’s all the court is ruling on

It is not the practice in judicial opinions in religion cases to begin every sentence about the plaintiffs’ beliefs with “the plaintiffs sincerely believe that.” The reason is that these opinions, and judicial opinions in general, aren’t written to be bullet-proof to dishonest people selectively quoting individual sentences out of context for fake-outrage inflammation purposes.

[The Margrave of Azilia]

I said “[i]f the brief is correct,” and here’s what the brief says:

“The trial court erred by stating, as a matter of fact, what Jewish law obligates. The proper inquiry in this case was into what the particular plaintiffs before the court believed, and not into what Jews around the world believe. The court was required to determine whether the plaintiffs before it had a sincere religious belief, yet the court vastly exceeded that authority by determining what Judaism requires as a matter of law. These statements may have inadvertently amounted to an establishment of what the Jewish faith requires.”

I’ll defer to your expertise on what “dishonest people” do.

[EscherEnigma]

Your complaint is that the court didn’t include enough weasel words?

That sounds like grounds for the court clarifying that yeah, it wasn’t intending to make a claim about all Jewish beliefs, just the Jewish beliefs of these particular Jews, not to throw out the whole thing.

[The Margrave of Azilia]

So the brief got it wrong, then:

“The trial court erred by stating, as a matter of fact, what Jewish law obligates. The proper inquiry in this case was into what the particular plaintiffs before the court believed, and not into what Jews around the world believe.”

[EscherEnigma]

I am not disputing that the original judgement lacked the number of weasel words that you and Blackman want.

I am disputing that the absence of those weasel words is material.

Simply put, if you read the trial judgement and think they’re making a claim about what all Jews believe, rather then what those Jews (claim to) believe, then that’s on you. Could the judge have been more clear? Sure. Are you being bad faith readers? Also sure.

[Reallynotbob]

I agree with many of the critiques above. In addition, I would note that the Court’s strengthening “least restrictive enforcement” heuristic would require religious accommodation for Jewish women who want an exception to the law that non-Jewish women get: i.e. those who have been raped. That’s because…

Christian home devotionals : Covid exceptions
AS
Jewish medical practices : abortion exceptions.

If there is a secular exception then there must be a religious accommodation. Isn’t that the Alito theory?

[EscherEnigma]

Ultimately, if class-wide relief is notavailable, any ruling in his case would quickly become unadministrable

Bold claim.

Let’s apply it to all those anti-gay cases that Blackman loves.

Huh. I don’t see requests for class-wide relief in those. Individual relief? Yes. Clarifying principles that would make it easier for future claimants to seek individual relief? Also yes. But class-wide relief? Nope.

So either anti-gay lawyers have been getting this wrong for years, or Blackman got it wrong now.