West Virginia Legislature Enacts RFRA, With Abortion Carveout

WV is looking to get ahead of RFRA-challenges to post-Dobbs litigation.

The West Virginia legislature has enacted a version of the Religious Freedom Restoration Act (RFRA). (H/T Religion Clause) But there are several exceptions to the rule:

(2) Nothing in this article may be construed to create a cause of action by an employee against a nongovernmental employer; nor may anything in this article be construed to constitute a defense to any claim based upon a refusal to provide emergency medical services as required by the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd; nor may anything in this article be construed to protect actions or decisions to end the life of any human being, born or unborn, including, but limited to, any claim or defense arising out of a violation of §16-2F-1 et seq., §16-2I-1 et seq., §16-2M-1 et seq., §16-2O-1, §16-2P-1, §16-2Q-1, §16-2R-1 et seq., §16-5-22, §30-1-26, §33-42-8, or §61-2-8 of this code.

Here, West Virginia is trying to get ahead of the post-Dobbs litigation in other contexts. For example, in Indiana and other states, abortion rights groups have invoked RFRAs to challenge abortion laws. This option would not be viable in West Virginia.

I discuss the religious liberty and abortion in a new article, co-authored with Howie Slugh and Tal Fortgang.

Comments

[bevis the lumberjack]

“activists have invoked RFRAs to challenge abortion laws”.

I don’t get it. Are there religions out there that require abortions? Child sacrifice?

[John F. Carr]

A religious obligation to abort has been claimed in some cases. If the court finds the claim sincere it is obliged to decide the legal consquences.

[Ed Grinberg]

Apparently someone filed a case claiming that her religious rights as a Jew are violated by abortion restrictions. Sounds fishy to me...

[Krayt]

Sounds even more dubious than some desert nomad had a case of the smegma ickies thousands of years ago, and therefore my religion lets me slice off parts of my baby's penis.

[Life of Brian]

Actually sounds a lot like the era of doctors mass-yanking tonsils and appendixes in the name of science because a few occasionally blew up and they couldn't imagine any particularly good reason for them anyway. Oh, and the current one of routinely cutting a woman's abdomen open to extract a baby because the doctor doesn't want to be bothered with the potential for complications.

[Brett Bellmore]

My son was born by C-section when, after over 12 hours of labor, my 80 lb wife hadn't dilated enough to deliver an 8 lb baby. I don't think waiting longer was going to change anything for the better.

[Life of Brian]

Similar situation with my wife (though quite a bit less dramatic of a weight ratio -- wow). No doubt it's a necessary tool sometimes.

My quarrel is with the dramatically increasing percentage of OBGYNs that slam women into C-sections as a default, with no specific issues or even risk factors at play. Some hospitals' C-section rates are as high as 70% -- some OBGYNs won't even entertain normal births. There are a number of perverse incentives at play, including the standard-of-care liability shield (in a lot of ways the medical field's corollary to "nobody gets fired for buying IBM") and the significantly higher compensation for a C-section.

[shawn_dude]

Well Good News, Everybody! The push, largely led by men, to restrict health options for women is driving OBGYNs out of Red states. If there isn’t an OBGYN to force women into a specific kind of birth, you can at least feel satisfied that you’ve forced her to give birth in the first place. And hey, it’s not like men are the ones bearing the cost of higher-than-average maternal mortality rates. Amirite?!

[Krychek_2]

The argument is a little better than that. It goes like this: My religion requires me to help people in need. This woman's life will be ruined if she is forced to give birth. Therefore, I must help her get an abortion. Secular humanism is included as a religion.

[EscherEnigma]

There have been numerous articles about exactly that for almost a year now, including here on Reason.

If you failed to read them, that's on you.

[Dilan Esper]

I wonder if this is actually unconstitutional.

Suppose you enact the following RFRA:

"Nothing in this RFRA shall be construed to protect actions to circumcise any human genitalia." Does that not discriminate against religions that consider circumcision to be required?

Now to be clear, courts COULD rule that there are compelling interests to deny protection (as they can with RFRA and religions claiming abortions are protected). But to actually say "this particular religious belief is second class"-- that strikes me as violating the Free Exercise Clause.

[John F. Carr]

Your hypothetical needs some comparable religious beliefs with comparable secular consequences that, unlike circumcision, are allowed.

[Dilan Esper]

Sure. Religions that do animal sacrifice are still protected under this statute. (Indeed, I would assume they would have to be given Church of the Lukumi Babalu Aye v. City of Hialeah.) So are religions that teach that it is an obligation to engage in military service, as well as religions that teach it is an obligation to abstain from it. So are religions that teach that there is an obligation to refuse medical treatment, even for your child.

So all sorts of religions that arguably cause death are protected, but if your religion believes specifically that abortion is required, then and only then your religion receives no protection. That's discrimination based on the content of faith, a Free Exercise violation.

[Krayt]

Courts and governments had no problems, zero, zilch outlawing peyote for acknowledged religious reasons. We’re bigger’n religion, and tougher, First Amendment be damned. Congress shall create a law abridging religion if it willy willy wantsta.

See smoke and mirrors in nearby posts for technical definitions of willy willy wantsta.

[ReaderY]

Under pre-Smith “compelling interest” law,

1. The state really can treat a religion that violates a compelling interest as second-class.

2. But (I would argue) prohibiting circumcision isn’t a compelling interest. There is no basis for such an interest in history or tradition. The US has allowed circumcision since its inception. It has never thought itself as having a strong interest, let alone a compelling one, in prohibiting it. Why should this change now?

3. The same argument could potentially be made regarding female genitalia. There is a difference that might potentially matter. The US has had a strong tradition of specifically permitting male circumcision which I think makes a strong argument against a compelling interest claim. But there hasn’t been much historical basis for an opinion on the female version because the practice didn’t come onto the proverbial radar screen until more recently.

[ReaderY]

Smith defeats the argument more generally. If a state has a secular purpose and enacts a law of general applicability, the fact that it goes against the precepts of some religions but not others is simply irrelevant.

[Dilan Esper]

This isn't a law of general applicability. This specifically targets RELIGIONS, and only RELIGIONS, that teach that abortion is required. People who believe abortion is required for secular reasons are not affected by this law at all.

Smith absolutely prohibits discrimination against particular religions based on belief.

[ReaderY]

I think in a pre-Smith framework the question turns on whether restricting abortion constitutes a compelling interest under pre-Smith law. I think West Virginia has made its best case by making a general “human life” exception that happens to include abortion.

I recognize that ones opinion on this is ideologically loaded. If one thinks Dobbs was wrong and abortion really ought to be a fundamental right, then it’s understandable that it would be difficult to swallow the idea that things have swung all the way to where restricting it becomes a compelling interest with nothing in between.

Professor Volokh has argued that pre-Smith “compelling interest” under the Free Exercise Clause was actually a weaker standard than “compelling interest” as used for other constitutional purposes. I think there is some evidence for that position. A key example is the Goldman v. Weinberger “yarmulke case,” where the Court took the position that because “national defense” is a compelling interest, anything even arguably related to national defense overrides religious objections, including standardized uniform requirements with headgear bans. Interpreted this way, the narrow tailoring requirement that is ordinarily part of the compelling interest standard is dropped or at least relaxed, and laws merely need to be furthering a compelling interest, they don’t have to be narrowly tailored to it. However, one could also interpret Weinberger as merely creating a special military exception not generalizable to civilian contexts.

If Professor Volokh is right on this point, then I think West Virginia wins. Everything depends on picking the right general category to fit abortion into, and West Virginia’s choice seems sound, easily consistent with Weinberger. “Human life” in general is as compelling an interest as “national defense” is. And a ban on abortion is at least as connected to the general interest in “human life” as a ban on military officers wearing yarmulkes was to the general interest in “national defense.”

But if narrow tailoring is required, and I think the Alito wing of the Court leans that way, then I think plaintiffs would have a good chance of winning. While abortion has long been considered a crime, it has never (at least traditionally) been considered murder. And it has been riddled with exceptions, particularly medical exceptions.

I also think plaintiffs would win under the Alito interpretation of Smith. As Alito has been arguing at least since Police v. Newark when he was a 3rd Circuit judge, under his interpretation of Smith once the state allows medical exceptions it has to also allow religious exceptions. Under that framework, the outcome would seem rather open and shut.

[Dilan Esper]

I totally agree that a compelling interest analysis can be used and quite possibly allows rejection of the claims about abortion mandated by religion. That's a neutral generally applicable principle.

But a statute can't single out that belief for different treatment in terms of the legal standard from other religious beliefs.

[Josh R]

Certainly, the state can’t single out a specific religious belief for worse treatment than a comparable secular belief. But, can the state single out a specific religious belief for better treatment, leaving other religious beliefs being treated on par with comparable secular beliefs (and thus resulting in different treatment for different religious beliefs)?

I think there are many laws that provide religious exceptions that apply only to that specific law covering only that specific religious belief. If you are correct, all of those exceptions in those laws are unconstitutional (or at least trigger strict scrutiny). And yet to my knowledge, those laws have never been successfully challenged.

[Dilan Esper]

I think there are many laws that provide religious exceptions that apply only to that specific law covering only that specific religious belief.

That's different though. You have an existing statute and you carve out the exemption.

And BTW, even there, there's not a total insulation from free exercise scrutiny. For instance, if religion X provides for the ritual sacrifice of dogs, and religion Y provides for the sacrifice of rats, and the government wants to privilege religion Y over religion X so they include an exemption only in the dog abuse statute and not the rat abuse statute, that might very well be unconstitutional.

But in any rate, that's not this case. Here you have a general statute that applies to all statutes across the board and then says this one religious belief doesn't get any protection. That's a free exercise violation.

[Josh R]

I don't find the distinction between affirmatively creating a specific religious exemption versus a RFRA carveout denying a specific religious exemption to be meaningful. Both favor some religious beliefs over others.

Moreover, courts can hold that a specific religious belief is not protected by RFRA because denying that protection advances a compelling government interest. Why can the courts conclude that protecting fetal life is a compelling government interest but the legislature cannot?

[ReaderY]

Suppose West Virginia had carved out an exception for homicide more traditionally defined, not including abortion.

Your argument would still apply. Such an exception would also discriminate among religions, making religions that believe in e.g. human sacrifice or jihad as tenets of their faith second-class citizens with respect to this aspect of their doctrine compared to religions that don’t.

But I have little doubt that such an exception would pass muster under either pre-Smith or Smith.

It seems to me that if an underlying prohibition passes religion-clause scrutiny, whatever the scrutiny framework one uses, than an exception to a statutory religious accommodation carved out specificly for that prohibition must also pass religion-clause scrutiny.

[Dilan Esper]

What are you talking about? The statute would still be unconstitutional diiscrimination against religion; however, under a Sherbert analysis human sacrifice would still not be protected under the RFRA statute so it wouldn't matter.

[Josh R]

People who believe abortion is required for secular reasons are already prohibited from having (or assisting others in having) an abortion. Thus, this RFRA results in secular and religious objectors being treated alike as applied to abortion (with religious objectors being treated more favorably by default). At first blush, that does not strike me as targeting religious practice.

If I am wrong, then wouldn't every carveout to RFRA protections trigger strict scrutiny? That doesn't strike me as correct (but I agree, it is far from settled).

[Dilan Esper]

I think any carve-out to RFRA protections based on religion is unconstitutional (I don't even think it gets strict scrutiny; it's unconstitutional).

The way to handle beliefs thought to be harmful is through the application of the compelling interest test, not by discriminating against some religious beliefs.

[ReaderY]

I’ll repeat my answer to your argument here.

Suppose West Virginia had carved out an exception for homicide more traditionally defined, not including abortion.

Your argument would still apply. Such an exception would also discriminate among religions, making religions that believe in e.g. human sacrifice or jihad as tenets of their faith second-class citizens with respect to this aspect of their doctrine compared to religions that don’t.

But I have little doubt that such an exception would pass muster under either pre-Smith or Smith.

It seems to me that if an underlying prohibition passes religion-clause scrutiny, whatever the scrutiny framework one uses, then an exception to a statutory religious accommodation carved out specificly for that prohibition must also pass religion-clause scrutiny.

[Josh R]

West Virginia applied the compelling interest test (protection of fetal life is a compelling government interest in the view of West Virginia's legislature). To be sure, it has a disparate impact on some religious beliefs. But, it does not intentionally discriminate against them.

[Rev. Arthur L. Kirkland]

Suppose you enact the following RFRA:

“Nothing in this RFRA shall be construed to protect actions to circumcise any human genitalia.”

That is a great proposal.

(That some people worry about adrenochrome harvesting and "grooming" rather than circumcision and school shootings seems inexplicable.)

[MonitorsMost]

This was my thought as well, creating a Fulton problem. I’m not sure the argument would work, but it would be interesting.

[Dr. Ed 2]

I notice the definition would also apply to MAID.

[ReaderY]

Does it really say “including, but limited to”? If so that would be quite the typo, and might make the statute defeatable by an end-run around its limitations.

[SMP0328]

Here’s the full version:

ARTICLE 1A. EQUAL PROTECTION FOR RELIGION ACT. §35-1A-1. Government limitations related to the exercise of religion. (a) Notwithstanding any other provision of law, no state action may:

<i(1) Substantially burden a person’s exercise of religion unless applying the burden to that person’s exercise of religion in a particular situation is essential to further a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest; nor

(2) Treat religious conduct more restrictively than any conduct of reasonably comparable risk; nor

(3) Treat religious conduct more restrictively than comparable conduct because of alleged economic need or benefit.

(b) (1) A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, in violation of this article may assert such violation or impending violation, including against the state or its political subdivisions, as a claim or as a defense in any judicial or administrative proceeding: Provided, That relief is limited to injunctive or declaratory relief and reimbursement of costs and reasonable attorney fees.

(2) Nothing in this article may be construed to create a cause of action by an employee against a nongovernmental employer; nor may anything in this article be construed to constitute a defense to any claim based upon a refusal to provide emergency medical services as required by the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd; nor may anything in this article be construed to protect actions or decisions to end the life of any human being, born or unborn, including, but limited to, any claim or defense arising out of a violation of §16-2F-1 et seq., §16-2I-1 et seq., §16-2M-1 et seq., §16-2O-1, §16-2P-1, §16-2Q-1, §16-2R-1 et seq., §16-5-22, §30-1-26, §33-42-8, or §61-2-8 of this code.

The wording "but limited to" clearly was meant to be "but not limited to." As written, it means the ending human life is the only exception. I wonder if a judge would be willing to read "not" into the law and then rule there is an implied exception.

[Rev. Arthur L. Kirkland]

I wonder if a judge would be willing to read “not” into the law

This is West Virginia. The question would be whether the judge would be "able," not "willing," to read.

Carry on, clingers.

[ReaderY]

[Rev. Arthur L. Kirkland]

That's as solid a case for (or defense of) West Virginia as I have seen in decades. Thank you for that.

[ReaderY]

The statute as written is not obviously incoherent. The exception to the general grant of religious rights is limited to claims and defenses arising out of violations of specific statutes only and not others.

A rational legislature could have decided to so limit it. Part of the legislative process is compromise whereby the application of principles and assertion of interests is balanced against and limited by other principles and interests. This particular wording could be a rational outcome of such a compromise.

I don’t see anything in this statute that would lead a fair-minded court applying traditional principles of statutory construction to interpolate a “not” and assert a meaning that is the exact opposite of what the legislature plainly said.

If the legislature made a mistake here, it is up to the legislature to correct it.

[ReaderY]

Would point out Alito’s basic approach is to object to any concept or possibility of compromise where religion is concerned. His basic position is that if an interest is susceptible to compromise of any kind, it simply isn’t compelling.

I don’t think that’s sound. Even compelling interests are susceptible to compromise. If they weren’t, then speed limits would be 5 miles an hour or so, low enough to completely prevent fatal accidents, not the much higher limits we have today. Under Alito’s view, that basically means the state isn’t really serious about preventing traffic fatalities, so its interest must also give way to religious objectors.

The speed limit example illustrates that compelling interests are in fact compromised all the time, yet (in my view) remain compelling. And this fact, in my view, indicates there’s something fundamentally unsound about Alito’s whole approach.

Alito may have a point that trivial exceptions may indicate an interest is non-compelling or signal that compelling interest status has been effectively waived. But medical exceptions, Alito’s signature example since Police v. Newark, are far from trivial. In my view, they no more waive compelling interest status than the sorts of countervailing interests that lead states to set speed limits far above the level needed to guarantee traffic collisions will be non-fatal.

[Rev. Arthur L. Kirkland]

STATES RANKED BY EDUCATIONAL ATTAINMENT
(includes territories; 52 entities ranked)

HIGH SCHOOL DIPLOMA
West Virginia 40

UNDERGRADUATE DEGREE
West Virginia 52

ADVANCED DEGREE
West Virginia 44

METH LAB OPERATOR CERTIFICATION
West Virginia 3

REPUBLICAN REGISTRATION
West Virginia 2

[Rev. Arthur L. Kirkland]

If West Virginia's approach works, perhaps more educated, advanced, modern states could enact similar provisions excepting bigotry from special privilege rooted in religion.

[Moderation4ever]

The heart of any laws outlawing abortion is based on the religious beliefs and where your belief says the point in pregnancy when an embryo/fetus become a person that should be protected. Catholics believe that is the point of conception and therefore believe artificial birth control is wrong. Other religions put that later in the pregnancy. So, if you make a law based on religious beliefs (where personhood starts in a pregnancy) and a law on exemption for religious beliefs, how on can you not hold to that law applies when a person's belief says personhood starts later than written in the law? It seems like a law that says my religious beliefs top yours.

[ReaderY]

The problem with this argument is that advocates of slavery made this exact argument. John Calhoun in particular said that the only basis for opposing slavery is religious belief, the Constitution protects non-believers from having religious beliefs imposed on them, and moreover civil government should follow science and reason, which obviously favor slavery, and not divisive and sectarian religious doctrine.

There are three approaches to addressing this.

One is to note that it’s not always so clear in general, as it is clear to zealous advocates of a practice, that science and reason are really so obviously on the practice’s side. Science and reason might turn out to provide some support tor a different view. So they might turn out to provide some support for arguments for limiting abortion, just as they eventually came to be regarded as providing some support for limiting slavery.

The second approach is to accept that maybe John Calhoun was right, and you are too, just like him. If so, then the 13th Amendment in fact endorsed religous belief and thereby carved out an exception to the First. After all, Dred Scott had parsed the Declaration of Independence and specifically held that the phrase “all men are created equal, and are endowed bt their Creator…” did not really apply to “the whole human family,” and specifically not to the African race. The 13th Amendment could be interpreted as endorsing the proposition that Declaration of Amendment can (if a polity wishes) be given its full import.

If the Framers of the Declaration had wanted to limit themselves to white people, they could have said so. If they had wanted to limit themselves to those “born” instead of those “created,” they could have said so.

But in using the word “created” in conjunction with the capitalized word “Creator,” the Framers of the Declaration of Independence were using and invoking explicitly theological concepts. Yet the 13th Amendment permitted these concepts to influence not just legislation, but the Constitution. The First Amendment Establishment Clause is accordingly no obstacle to a polity extending the Declaration’s sweeping but explicit language on this point further than the Constitution, which is a more limited and less sweeping document, requires.

The third and I think sounder approach is to note that for Establishment Clause purposes, religious doctrines are limited to doctrines about a Supreme Being or Beings, and simply don’t apply to moral ideas, beliefs that (for example) certain conduct is wrong. It simply doesn’t matter that a belief about what constitutes good or bad human conduct happens to coincide with the beliefs of some or all religions. It doesn’t matter that, for example, the Rev. Dr. Martin Luther King Jr. opposed segregation, as people in the 19th century had opposed slavery, primarily on religious grounds and using religious arguments. Abortion is no different. Because opposition to slavery, segregation, and abortion all involve ideas about what constitutes good or bad human conduct and not beliefs or doctrines about a Supreme Being or Beings, they are simply not within the scope of the Establishment Clause. All three. None of them are.

[ReaderY]

With respect to the first approach, it’s worth noting that prominent scientists, founded, led, and promoted the Eugenics movement in the United States, and similarly argued that its views represented science and reason and its opponents were mired in superstition, just as proponents of slavery had found Darwin a godsend for their arguments that the more evolved had a natural right to dominate the less evolved, and to claim otherwise is anti-science superstition.

Frankly, scientists have been on the wrong side of these arguments that various subparts of the whole human family should be treated as mere objects so often in modern history that it’s kind of embarassing, so often that it well justifies taking yet more of these science vs. superstition claims with a very large grain of salt.

[Rev. Arthur L. Kirkland]

How, in your judgment, could any mistake by scientists salvage superstition?

[Moderation4ever]

You have said quit a bit here but I don't think you have addressed my point that making a law that allows people a religious exemption and then saying that law does not recognize some religious beliefs seem a bit hypocritical.

As to slavery there is certainly more religious support for slavery than for abolition. Certainly religious ideas supported slavery and Jim Crow after slavery was abolished. You are correct that science has been used to support bad ideas, but that was often bad science. It was science that started with a hypothesis and they sought to support that hypothesis rather than defend the hypothesis which is different.

[Rev. Arthur L. Kirkland]

Catholics believe that is the point of conception and therefore believe artificial birth control is wrong.

I sense that "just because" is considered a persuasive argument in the context of Catholic doctrine, but is there a reason the "point of conception" approach would reject condoms?

[EscherEnigma]

It all goes back to the Biblical story of Onan who used the pullout method when he decided he didn't want to impregnate his brother's widow and was struck down by God for it.

That story is the Biblical basis for theology that posits that masturbation and birth control is a sin. I can't remember how/why they also argue that female masturbation is a sin, but for the "why can't dude's jerk it/why can't dude's wear condoms", it goes back to Onan.

[Brett Bellmore]

As I recall, it wasn't on account of masturbation, but rather because he was violating his obligation to impregnate her, which was the only reason he was supposed to be having sex with her in the first place.

[shawn_dude]

To recognize female masturbation you'd need to first recognize women, women's needs, that women feel pleasure, etc. It's not like the Bible is particularly kind to women in general. Lot's daughter comes to mind.

[Lee Moore]

I think the masturbation thing – male or female – comes back to the Christian idea that your reproductive parts, like the rest of you, belong to God, not to you, and you are allowed – nay encouraged – to use them for reproductive purposes only. (Noting of course that if God wants you to reproduce He’s not going to get a little thing like the menopause get in the way. Thus apparently non-reproductive sex involving a post menopause wife is OK. See John the Baptist.)

Although Onan has got swept up by Christian traditions into the reproductive-sex-only idea, I think as Brett says, the earliest Talmudic analyses were that his crime was essentially “contempt” not “seed spilling” – ie he had a religious duty and he went through the motions rather than do it properly. You mock the Judge at your peril.

[Krayt]

So for health, ok. But that's already grandfathered in. So...?

[Krychek_2]

That would be a far better argument if the fetus/baby disappeared into thin air following birth, but that's not what happens. Having to spend the next 18 years raising a child is a life changing event, as any parent here knows. It's massively expensive; it frequently forces mothers to set aside their hopes, dreams and ambitions; it often causes poverty; and it greatly reduces the woman's options for a permanent marriage partner if things don't work out between her and the baby's father. You're not just asking her to give up 9 months of her life (which in my view would still be bad enough); you're asking her to permanently upend her own life.

[Lee Moore]

“Pregnancy is a temporary condition that naturally ends after 9 months”

You forgot to mention that it is also a condition that is almost always achieved voluntarily.

Voluntarily by Mom that is. It’s the abortee who is railroaded into the arrangement.

[Dr. Ed 2]

Medical Assistance in Dying -- it's big in Canada.
See; https://www.canada.ca/en/health-canada/services/medical-assistance-dying.html

[bevis the lumberjack]

Adoption is the solution for that of course. I’m not arguing pro or con on abortion. I’m saying I don’t see an RFRA argument. The health/life of the mother shouldn’t result in that since the laws incorporate that.

And requiring something be done for convenience isn’t a tenant of any religion.

[Lee Moore]

I’m not sure you get to use the “burden of bringing up a child post birth” argument, unless you are willing to grant the father the same argument.
No child support if he proposed an abortion and mom said no ? Good luck with that.

[Brett Bellmore]

"That would be a far better argument if the fetus/baby disappeared into thin air following birth, but that’s not what happens. Having to spend the next 18 years raising a child is a life changing event,"

I'm really, REALLY getting tired of the pro-abort pretense that abortion is the only way for a woman to avoid spending 18 years raising a child. Really, really, REALLY tired of it.

Give this lie a rest, will you?

[Krychek_2]

To my knowledge I've never met you, so I will take your word for it that Queen mischaracterizes you. Assuming she's wrong in your case, there are plenty of men out there for whom her comments are bulls-eye accurate. For some men, it's not about the fetus; it's about anger and resentment toward women, and they must be punished for having sex. I know this because (1) there were plenty of them among the religious nuts who raised me and (2) you don't have to look very far on the internet to find them saying so.

[Krychek_2]

And I think "convenience" is not the right word for avoiding the fairly nasty consequences I already listed.

[Krychek_2]

We're back to disagreeing on whether it's ending a life. That said, adoption mitigates it somewhat, but ask any woman who's given up a child for adoption and she'll tell you she has emotional scars from it. Giving up even an unwanted baby is hard. Abortion is far easier. And of course, after you've started a family with someone else, there is no guarantee that 18 years later there won't be a knock on your door from the child you thought you'd never hear from again.

[shawn_dude]

Significant risk of death or other complications is nothing but a mere "inconvenience."

What we need is some sort of shot that makes it impossible for a man to get an erection. Every time he fertilizes a woman, he has to get the shot and remain neutered for 9 months. +1 if it creates hormonal issues, mood swings, vomiting, water retention, and swollen feet with a slight chance of death.

[Lee Moore]

There’s no question but that it ends a life. The question is whether the life that is ended is morally important.
As for knocks on the door in the future that’s just part of life. You might bump into the girlfriend you dumped unceremoniously in college thirty years ago. You might now wish you’d behaved in a more gentlemanly fashion. But it’s only if you’re running Oceania that you get to erase history.

[Lee Moore]

No the line is drawn at fertilisation. Medical technology doesn’t affect that.

It’s a moral question not a biological question.

[Krychek_2]

I actually think that whether it ends a life isn't the issue and I was quoting Kalak rather than agreeing with his terminology.

The question is whether the fetus is a human person. Human life encompasses cancerous tumors, gangrenous limbs being amputated, and the cells you kill every time you scratch your nose or have a bowel movement. All of those activities kill things that are both human and alive, and therefore human life. So the answer to the assertion that a fetus is human life is "so what"?

The issue is whether it is legally and biologically a person, which is a whole 'nuther question. For reasons I've already articulated here multiple times when the subject has come up before, I don't believe that it is.

[Krychek_2]

If the pregnancy were taking place inside his body you'd have a better argument.

[Lee Moore]

“Person” is an unnecessary interposition in the moral argument ( though not in legal arguments construing the word “ person.”

If you conclude that at stage X a human is a person, you still need to determine what moral significance the status of “person” confers.

You can - and should - skip the person labelling and get straight to the point. Which is - at what point does a human life become morally valuable and why, and do all human lives with some moral value have the same moral value and why ?

[Lee Moore]

As for cancerous tumors I think you can probably do better than that. “A human life” is not the same as “human life”.
“Human life” may refer to any living human tissue, but “a human life” connotes human life that has been assembled into a living human organism.
It is fertilisation or conception that creates “a human life” because a fertilised egg is an organism.
Tumors not so much.

[Life of Brian]

There are massive medical malpractice cases routinely because of a brain damaged baby in rare cases

I well understand the ability and will of the plaintiff's bar to cash in on poignant rarities. But performing unnecessary procedures on the broader population (which, as with the other two examples I gave, we're ever-so-slowly beginning to understand are not harm-free to either participant) just to try to ward off such rarities sounds like a perfect example to me of "not wanting to be bothered with the potential for complications."

[Bob from Ohio]

"Make of it what you will. "

Not much. No mention of this for 50 years by any Jewish group.

[Lee Moore]

And if the post birth life of the child was taking place inside the woman’s body, so might you.

[grb]

Krychek_2 : “you don’t have to look very far on the internet to find them saying so”

Yep. Any forum filled with anti-choice types always gets around to the effrontery of women. There’s particular focus on their selfishness, repeated sneers about their carelessness, and endless variations on the “you made your bed” meme. Some say “they don’t think abortion should be a form of birth control”, having a clear image of the hussy or slut they look to target. Basically, zygote / fetus personhood goes hand-in-hand with moral disapproval of woman as lax, selfish, careless and loose. That’s why the stories are legion about anti-choicers who suddenly forget their cold logic when it’s their daughter, their wife, their sister. Not surprisingly, those women aren't the carefree slatterns of their imagination and thus merit decency and understanding.

[Krychek_2]

Everyone gets away with the temporal consequences of sin more often than not, and it's a good thing, too. Imagine a world in which every time someone made a bad choice he had to bear the full brunt of all possible consequences. And next time you are tempted to feel satisfaction over some unfortunate reaping what he sows, perhaps you could think about all the times in your life when you didn't reap what you sowed.

[Krychek_2]

But muddying the distinction between "human life" and "a human life" is how forced birthers intentionally frame the issue, so you shouldn't criticize me for adopting their methods. I don't know anyone who disagrees that a fetus is "human life" -- it's human, and it's alive, but then so is a cancerous tumor.

[Lee Moore]

No, entirely wrong.

There’s no controversy biologically as to whether “a human life” aka “a living human organism” is generated at fertilisation.

Nor is there any controversy that a cancerous tumour or a bone cell is not “a human life” ie not a living human organism.

Anti abortion people never claim any moral rights for “human life” unless it is human life in the form of “a human life.”

It is your side of the argument that brings up things like cancerous tumors, to try to argue that tumors and fetuses are equivalent. They’re not. The latter is a human organism, the former is not.

[Krychek_2]

Then why do many if not most biologists flatly disagree with you?

[Lee Moore]

Cite please

[Lee Moore]

Here’s a bit of Biology 101.

https://en.wikipedia.org/wiki/Zygote#References

In multicellular organisms, the zygote is the earliest developmental stage. In humans and most other anisogamous organisms, a zygote is formed when an egg cell and sperm cell come together to create a new unique organism.

[Krychek_2]

No, personhood is exactly the issue, because that is precisely the line that determines whether specific human life is entitled to legal protection. The answer to your question is it becomes morally valuable when it's a person, which a zygote is not.

[Lee Moore]

1. You seem to be confused between moral and legal questions. 2. Your argument is that a fetus is not a griltch, and only griltches have a right to life. Without attempting to define what a griltch is, or why it has a right to life. The introduction of griltches is irrelevant. You can explain (or at least try to) why a fetus doesn’t have a right to life whereas a 6 year old does, without inserting persons or griltches into the argument. The only role “person” is playing in your argument is that of a placeholder, trying to conceal from the naive reader the fact that you have dodged the question of what a person is and why persons are morally valuable. You could have used griltch instead, but even the very slow would then have spotted that you haven’t actually said anything.

[Krychek_2]

Sorry, I never brought up griltches. I did bring up the difference between human life and human personhood.

[Lee Moore]

" I did bring up the difference between human life and human personhood."

You did. Without indicating what personhood was, or why it was relevant. Hence griltches, which carry precisely equivalent semantic value as persons in your argument, they're both being used as undefined placeholder words.

[M L]

Kyrcheck

“No, personhood is exactly the issue, because that is precisely the line that determines whether specific human life is entitled to legal protection. The answer to your question is it becomes morally valuable when it’s a person, which a zygote is not.”

Person just means an entity that has legal rights.

So your argument is circular, i.e.: unborn humans don’t have legal rights because they don’t have legal rights.

Then you state that humans are only morally valuable when they are persons (i.e., when they have legal rights). So the only humans that should have legal rights are those who already do have legal rights, in your view. Of course, people who oppose things like slavery and genocide disagree with that view.

If you are trying to use the word “person” in a different sense, then go ahead and define it.

[Rev. Arthur L. Kirkland]

No the line is drawn at fertilisation.

Says who?

Jesus? The Holy Ghost? Bugs Bunny? The Easter Bunny? Senator John Blutarsky? John Wick? The average West Virginia hayseed (who is far below average)?

[bevis the lumberjack]

Raising a child = "nasty consequences"

No exaggeration in that argument at all.

Regardless, there's no religious argument here, your argument is completely secular. Which is fine, whatever, but the point remains there's no RFRA impact.

[Krychek_2]

There is if my religion requires me to help people in need. You're focusing on the specific (abortion) rather than the general principle (help those in need).

[bevis the lumberjack]

I’m not going to get dragged into an argument over abortion with a fanatic, either way.

What does any of this have to do with RFRA? There’s a massive amount of helping people out in Jesus’s philosophy. But there’s no religion that you could twist to interpret the concept “if I don’t get an abortion I’m in violation of my faith”.

[Krychek_2]

The argument isn't over abortion; it's over religious freedom. Please try to keep up. The violation comes, not from the abortion, but from the requirement to help someone in need. And the issue isn't whether *you* think that's a valid religious position; the issue is whether the belief is sincerely held by the person exercising it.

[bevis the lumberjack]

You’re wobbling the argument all over the place. What religious belief?

It’s simple. I’m pregnant. The law says I can’t. In what way does that law either force me to violate my religion or keep me from practicing it? That’s where RFRA comes in.

You’re arguing a different thing.

[Krychek_2]

The argument is being raised by abortion providers, not pregnant women. Their religion requites them to help people in need.

[bevis the lumberjack]

Pregnant does not necessarily mean equal in need. There are ways to mitigate that unrelated to abortion. This isn’t an RFRA issue.

Depending on which religion they practice there’s decent odds their religion prohibits abortion.

You’re not making a RFRA argument.

[Rev. Arthur L. Kirkland]

Watching clingers flail as they try to avoid having the special privileges for religion they created be used with results right-wingers dislike (because of their preferred flavor of superstition) is fascinating.

[Lee Moore]

I forget where it comes from but there's an exchange that runs roughly thus :

"I only want what I deserve."
"Hmm. I'm hoping to do a LOT better than that."

But anyway - that most burglars get away with it has so far not persuaded many (outside the Soros DA districts) that we shouldn't have laws against burglary.

And as I have mentioned elsewhere in this threadery, nobody has the slightest objection to men paying for their sin / foolishness / carelessness / whatev, even unto 20 years of child support.

The view that parents should look after their children is not derived from a wish to see them punished for having sex, but from a wish that their children be looked after. We even have courts deciding whether parents are doing enough, or enough of the right thing, in the looking after children department.

[Krychek_2]

I was responding to Kalak's comment about people reaping what they sow. I do not think that "you're reaping what you sow" is good public policy in either abortion or child support decisions.

[Lee Moore]

I do not think that “you’re reaping what you sow” is good public policy in either abortion or child support decisions.

I agree, except to the extent that I disagree. There's no point in inflicting a reaping on a careless sower, just for the sake of it*. But if there's a good reason to impose a cost on somebody, the reaping and sowing thing is a reasonable answer to the complaint "Why me ? It's so unfair."

* again, except where there is. Long long ago, when parents were monsters and used to smack their children, they might smack their child for running out onto the road without looking, or trying to jam a wire into an electric socket, even when no harm resulted. By way of a lesson. But I don't think we need to go that far with abortion.

[Alpheus W Drinkwater]

The same 50 years when women had constitutionally protected access to abortion. What a coincidence!

[Rev. Arthur L. Kirkland]

How much did Christians mention virus-flouting belligerence being part of their religious requirements before right-wingers embraced anti-vaccination kooks a couple of years ago?

[M L]

Is it common for religious groups to never mention their fundamental religious values?

[Alpheus W Drinkwater]

Is anyone claiming that abortion itself is a "fundamental" value to Judaism? Or is the argument that access to abortion for the mother derives from other fundamental values, which Judaism does mention quite often?

Personally, I think it's exactly as frivolous as the claim that one should have a religious exemption from a vaccination requirement.

[M L]

"Is anyone claiming that abortion itself is a “fundamental” value to Judaism?"

Well, idk, but you've just switched from explaining away and defending that claim, to questioning whether anyone is making it.

From the link:

Interpretations vary across Judaism, but some religious Jews believe that a fetus is part of the parent's body and that a baby is only considered a person once it takes its first breath.

According to the Women's Rabbinic Network, some of the religion's most sacred texts view a fetus as a soul only once it's born.

"Therefore, forcing someone to carry a pregnancy that they do not want or that endangers their life is a violation of Jewish law because it prioritizes a fetus over the living adult who is pregnant," the group said in a statement.

This is the same as saying: My religion teaches that a certain class of people (for example, a certain race, or everyone outside of my own race, or some other category) are inferior. Essentially they are like cattle. Therefore I should be able to do whatever I want to them, enslave them, kill them, etc. And to deny me of that is to violate my religious freedom.

"Or is the argument that access to abortion for the mother derives from other fundamental values, which Judaism does mention quite often?"

What are these other oft-mentioned fundamental values exactly?

[shawn_dude]

Well, for white women without substance abuse problems, you may have a point. White infants are hot items; the adoption industry cannot get enough of them to meet demand.

[shawn_dude]

This is disingenuous. Sex is normally voluntary while pregnancy is not. The anti-choice crowd is just as eager to prevent rape victims from getting abortions as anyone else. Volunteerism is just a red herring.

[Lee Moore]

Not disingenuous, just inconvenient for the "fell pregnant" team.

Assuming normal reproductive age and health, the odds of getting pregnant if you have unprotected sex near your ovulation date (which most - though not all - women can calculate reasonably precisely) ia about 25%. If you have no idea when your ovulation date is, but you do know when you had your last period, the odds are more like 5%. So taking the latter case - ie the no clue case - if you have sex twelve times in the year at random times in the month, you have a roughly 50% chance of getting pregnant. These are not giant-asteroid-hits-Earth probabilities.

Likewise if you go out with your friends for a boozy evening, you stand a good chance of getting a hangover. It shouldn't come as a surprise.

So the question is - do you "fall hungover" - is it a bolt from the blue that you couldn't possibly have predicted ? Or is it an entirely predictable consequence of your voluntary choice to go out and have a few drinks ?

The anti-choice crowd is just as eager to prevent rape victims from getting abortions as anyone else

The Guttmacher Institute - hardly Stepford Wives Central - estimated that about 1% of abortions are for women who became pregnant as a result of rape or incest. I feel it would be, what's the word ? Oh yes, "disingenuous", to argue that 100%-1% = 99% falls outside the meaning of "almost always achieved voluntarily."