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

 

When It Comes to Iran, Israel Risks Repeating the Mistakes of 1973 and 2023

If Iran succeeds in obtaining nuclear weapons, the war in Gaza, let alone the protests on college campuses, will seem like a minor complication. Jonathan Schachter fears that this danger could be much more imminent than decisionmakers in Jerusalem and Washington believe. In his view, Israel seems to be repeating the mistake that allowed it to be taken by surprise on Simchat Torah of 2023 and Yom Kippur of 1973: putting too much faith in an intelligence concept that could be wrong.

Israel and the United States apparently believe that despite Iran’s well-documented progress in developing capabilities necessary for producing and delivering nuclear weapons, as well as its extensive and ongoing record of violating its international nuclear obligations, there is no acute crisis because building a bomb would take time, would be observable, and could be stopped by force. Taken together, these assumptions and their moderating impact on Israeli and American policy form a new Iran concept reminiscent of its 1973 namesake and of the systemic failures that preceded the October 7 massacre.

Meanwhile, most of the restrictions put in place by the 2015 nuclear deal will expire by the end of next year, rendering the question of Iran’s adherence moot. And the forces that could be taking action aren’t:

The European Union regularly issues boilerplate press releases asserting its members’ “grave concern.” American decisionmakers and spokespeople have created the unmistakable impression that their reservations about the use of force are stronger than their commitment to use force to prevent an Iranian atomic bomb. At the same time, the U.S. refuses to enforce its own sanctions comprehensively: Iranian oil exports (especially to China) and foreign-currency reserves have ballooned since January 2021, when the Biden administration took office.

Israel’s response has also been sluggish and ambiguous. Despite its oft-stated policy of never allowing a nuclear Iran, Israel’s words and deeds have sent mixed messages to allies and adversaries—perhaps inadvertently reinforcing the prevailing sense in Washington and elsewhere that Iran’s nuclear efforts do not present an exigent crisis.

Read more at Hudson Institute

More about: Gaza War 2023, Iran nuclear program, Israeli Security, Yom Kippur War