No, Laws That Restrict Abortions Don’t Violate the First Amendment

In a recent article in Newsweek, a writer suggested that there may be people whose religion requires them to perform abortions, and therefore laws restricting the practice violate the Bill of Rights’ guarantee of the free exercise of religion. In a similar vein, the New York Times’s Linda Greenhouse contended that the First Amendment prohibition on the establishment of a federal religion preempts religiously inspired restrictions on abortion. Mitchell Rocklin and Howard Slugh dismantle this newly popular line of argumentation:

[It] makes no sense . . . to posit, as pro-choice advocates have recently done, that [restrictive] abortion laws tread on the free exercise of religion because they do not allow abortions to be performed by people who have no religious objections to them. No serious interpretation of religious liberty allows people to do whatever they want simply because their religion allows or promotes it. And even if a court decided that a state lacks a compelling interest in regulating abortion [the current legal standard in such cases], and that individual religious views ought to receive protection from the law, laws restricting abortion would not be invalidated. . . . Religious-liberty statutes [would only create accommodations or exemptions] for those people who have sincere religious objections to complying with the law.

[Moreover], the mere fact that a religion does not prohibit an act cannot be the basis of an accommodation. A request for an accommodation must be premised on [a claim] that a law prohibits something that a religion requires, or at least encourages. With regard to abortion, it is unclear if such a situation ever arises. For instance, Judaism requires an abortion if a mother’s life is at risk. Yet every abortion regulation [introduced thus far] offers an exemption in such cases. Situations that represent an actual conflict between state laws and abortions required or encouraged by religion will be extremely rare, if any exist at all. . . .

Now let’s turn to another faulty argument: that anti-abortion laws violate the Establishment Clause by imposing Christian norms on all of society. . . . The most restrictive [constitutional] test likely to apply to an abortion ban is called the “Lemon test.” That test is named for Lemon v. Kurtzman, in which the Supreme Court decided that, in order to comply with the Establishment Clause, every statute must (1) have a secular purpose, (2) not have the primary effect of promoting religion, and (3) not excessively entangle the government in religious questions. . . .

The only prong of the test that might be applicable [to abortion laws] is the purpose test, which considers whether a statute has any secular purpose. However, so long as the legislators could have had a secular [rationale] for passing the law, that is enough. It does not matter that some legislators may have a religious impulse as well. This makes sense, since otherwise the Establishment Clause would invalidate nearly all laws aimed at benefiting the poor, simply because the Bible favors charity.

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More about: Abortion, First Amendment, Freedom of Religion

Israel Doesn’t Violate International Law When It Allows Jews to Live and Build Houses in the West Bank

Nov. 20 2019

When the State Department announced yesterday that it no longer regards Israeli settlements outside of the 1949 armistice lines as illegal, it went not only against the opinion of the Carter administration but against a view widely held by journalists, policy analysts, and governments the world over. Yet, like other widely held beliefs, this one is incorrect. Alan Baker explains why it has no basis in international law:

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More about: International Law, Settlements, West Bank