Recent Lawsuits over Abortion Bans Don’t Help the Cause of Religious Freedom

Jewish attitudes toward abortion vary quite significantly, and even within Orthodoxy there is a spectrum of halakhic opinions about the circumstance under which it is allowed. But there is a general consensus across denominations—based on the Talmud—that when pregnancy threatens a woman’s life, abortion is not only permitted but required. This fact is the basis of a lawsuit in Indiana filed by the American Civil Liberties Union on behalf of a group called Hoosier Jews for Choice. According to the plaintiffs, the state’s abortion ban threatens Jews’ religious liberty in a way that violates Indiana’s Religious Freedom Restoration Act (RFRA). Similar lawsuits have been filed in several other states.

Josh Blackman, Howard Slugh, and Tal Fortgang argue that the claims made in these suits are unconvincing on multiple levels: on the technical grounds that the plaintiffs have no claim that they are being actively harmed by the laws in question; on the grounds that every existing state abortion ban already includes a carve-out for circumstances where a woman’s life is in danger; and because of more fundamental flaws in legal reasoning. They also cite a “pragmatic” concern:

The legal errors in the Indiana case would upset the compromise at the heart of the RFRA. This compromise allows the judiciary to protect religious liberty while allowing the state to burden religious exercise when doing so is necessary to further a compelling government interest. The Indiana trial court’s legal errors would make it nearly impossible for the state to demonstrate that it has sufficient justification to burden religious exercise.

We worry that a ruling for the plaintiffs based on the lower court’s misinterpretation of the RFRA would, in the long run, weaken or even eliminate religious-liberty protections. Faced with the prospect of judicial interpretations that effectively eliminate the delicate legislative balance contained within the RFRA, state legislatures may seek to modify or even repeal their state RFRAs, thus abandoning heightened protections for religious exercise. Other states that are looking to enact RFRAs may reconsider if faced with the choice between protecting religious liberty and enforcing other compelling interests. Any victories in this case for people of faith would be short-lived, as the critical RFRA compromise would be broken.

Read more at Social Science Research Network

More about: Abortion, Judaism, Religious Freedom, Religious Freedom Restoration Act

Israel Can’t Stake Its Fate on “Ironclad” Promises from Allies

Israeli tanks reportedly reached the center of the Gazan city of Rafah yesterday, suggesting that the campaign there is progressing swiftly. And despite repeatedly warning Jerusalem not to undertake an operation in Rafah, Washington has not indicated any displeasure, nor is it following through on its threat to withhold arms. Even after an IDF airstrike led to the deaths of Gazan civilians on Sunday night, the White House refrained from outright condemnation.

What caused this apparent American change of heart is unclear. But the temporary suspension of arms shipments, the threat of a complete embargo if Israel continued the war, and comments like the president’s assertion in February that the Israeli military response has been “over the top” all call into question the reliability of Joe Biden’s earlier promises of an “ironclad” commitment to Israel’s security. Douglas Feith and Ze’ev Jabotinsky write:

There’s a lesson here: the promises of foreign officials are never entirely trustworthy. Moreover, those officials cannot always be counted on to protect even their own country’s interests, let alone those of others.

Israelis, like Americans, often have excessive faith in the trustworthiness of promises from abroad. This applies to arms-control and peacekeeping arrangements, diplomatic accords, mutual-defense agreements, and membership in multilateral organizations. There can be value in such things—and countries do have interests in their reputations for reliability—but one should be realistic. Commitments from foreign powers are never “ironclad.”

Israel should, of course, maintain and cultivate connections with the United States and other powers. But Zionism is, in essence, about the Jewish people taking responsibility for their own fate.

Read more at JNS

More about: Israeli Security, Joseph Biden, U.S.-Israel relationship