||| FROM DAVID KOBRIN |||
In overturning Roe v Wade the Supreme Court ruled that the Constitution does not include any provisions that protect the right to an abortion. This means that state governments can now pass legislation making abortion illegal, if they so choose. The question the Court considered in reaching their decision was whether there is anything in the Constitution — or our history as a nation — that supports the right to an abortion. The majority found that there is not; the Constitution is silent on the question of abortion.
However, the Constitution’s “ silence” on abortion is not the only question that needs to be examined when considering whether states can prohibit abortion. There is also the question of the protection of religious rights. The First Amendment to our Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof…”.
It’s my understanding that those who adamantly oppose abortion most often do so on religious and moral grounds. For them, it is murder of an unborn person.
One unavoidable consequence of this religious position is that the life of the unborn child must be seen as having priority over the health, well being, and even, often, the life of the woman carrying the unborn child. That this is so seems clear from the many recent state laws prohibiting abortion in almost all circumstances, including rape, and risks to the health of the woman carrying the child, even potentially unto death.
Traditional Judaism, again for religious and moral reasons, sees the question of aborting a pregnancy differently. Judaism gives preference to the woman carrying the unborn person, rather than to the child in embryo. For many centuries the rabbis — spiritual guides, learned teachers, those who lead congregations— have placed the health and well being of the woman carrying the embryo before that of the child developing in the womb. This does NOT mean that Judaism as a religion favors or advocates abortion. It does mean that, for Jews, when given the dilemma of whether to end a pregnancy, preference in reaching a decision is based on the physical and emotional needs of the pregnant woman rather than the unborn child. Again, this does not mean that Judaism doesn’t care about the unborn child (any more than one could say that those opposed to abortion don’t care about the needs of the woman carrying the child). It is a difference in whose health is seen as having the highest priority.
Doesn’t this, then, make the question of laws for or against permitting abortion an issue of freedom to exercise one’s own religion?
Why should those who hold the religious view that the well being of the unborn holds preference over the needs of the woman carrying the child have the right to force others to follow their religion? That, after all, is what the recent Supreme Court decision overturning Roe v Wade does. It prohibits Jews from the free exercise of their religion.
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Brovo!
Thanks for this, David. Your commentary highlights an ever-growing truth in American society: christianity is creating its own version of sharia law and is doing so at the expense of those who hold other or no religious beliefs. It is anti-democratic and further erodes the so-called separation of church and state. Christianity is very much seen by nearly the entire republican party and the Catholic, male-dominated Supreme Court as the only “legitimate” or “official” religion in America. Every other faith takes a back seat.
I can’t reconcile your conclusion that overturning Roe v Wade prohibits Jews from the free exercise of their religion with your declaration that “This does NOT mean that Judaism as a religion favors or advocates abortion.” How does the compassionate spiritual latitude you describe become essential to your religious practices? Are there holidays, rituals or observances associated with it?
No your premise is wrong, it’s not about religion. It’s about secular law, separation of powers, checks and balances and constraint of federal authority. Your introduction correctly admits that the court majority found that the Constitution is silent on the question of abortion. And that is the essence of the decision. The Federal Government has no enumerated authority over the matter short of recommending and amendment for ratification by the states. No end runs by congress, no legislation from the bench, no executive order, and no OSHA regulations – just follow the rules.
Read the decision, read the Constitution and rejoice that the issue has been returned to the people for democratic action!
It is far easier to pull weeds when they are small… free thinking citizens have been far too complacent for far too long about the radical theocratic ideologies that have been courted and cultivated by the Republican party since the time of Reagan. This is no longer the Republican party of previous generations, these are radicals intent on destroying our democracy and installing a white, evangelical, authoritarian theocracy. You may say this is hyperbole and I wish it was, but this is the logical outcome of the current trajectory. To be crystal clear, it’s none of my business what you BELIEVE, but as a fellow citizen, what you DO is also my concern. Illegally packing the Supreme Court with religious radicals who wish to impose their beliefs on everyone else is NOT democracy, it is the desperate flailing of a political party that will do anything to hold on to power, including corrupting the highest court in the land.
Phil Peterson – “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” — this is from the preamble to the Declaration of Independence and is the basis upon which our entire system of government is built. The right to make your own health care decisions and the right to decide whether you want to bring a human being into the world is CLEARLY an unalienable right. The constitution may not mention abortion rights specifically but it doesn’t mention LOTS of things specifically. The fact that the constitution is being interpreted by a biased court for purely political reasons is disgusting. I am a strong state’s rights supporter and I believe that the federal government should stay out of our lives as much as possible, but when some states are clearly violating the unalienable rights of more than half of it’s citizens, it is clearly the duty of the federal government to protect them. Do not forget that everything the NAZI party did was completely legal, according to the laws that they passed and interpreted… The essence of democracy is to enact the will of the majority while protecting the rights of the minority. The United States is currently failing to do so.
Mr. Woods you seem to be as confused as Mr. Kobrin. Rather than biased “interpretation” the current court has APPLIED the law “as written” and remanded this and several other matters back to the people for direct democratic action. Lincoln once said the best way to get rid of a bad law is to enforce it!
The “states” you refer to are in fact subject to the will of the people who reside therein and the laws you appear to challenge reflect the will of those people. The Federal government has no authority to interfere unless and until the Constitution is amended to give it standing. If the people in those states want change the next election is upcoming – let democracy prevail.
Don’t you trust democracy?
Mr. Peterson – I DO trust democracy – when it is one person = one vote AND there is a level playing field for all candidates AND equal access to the polls for all citizens AND districts are not gerrymandered by entrenched parties AND a free press exists AND the citizenry is educated.
The United States is failing on all those counts: the electoral college makes a mockery of democracy in presidential elections, unlimited anonymous money skews elections nationwide, deliberate efforts to limit access to the polls are being pushed by Republican controlled states nationwide, gerrymandering is considered part of their game plan by both entrenched political parties, and the major media outlets are controlled by a small number of very, very wealthy groups. Last and perhaps most critically, literacy and reading comprehension and critical thinking skills are shockingly low nationwide, for example: 54% of US adults read below the 6th grade level.
So, Mr. Peterson, while I DO trust democracy as a concept, I DO NOT trust what currently passes for democracy in the United States. And while I hope it will change for the better – I would not bet on it. At the moment it feels more like mobs being manipulated than actual democracy.
Mr. Wood, would you be shocked if I said I’m agreement with most of what you say? The “rule of law” depends on applying legislative intent and altering course with deliberative legislative consensus. With few exceptions our democracy is clearly not operating as designed. IMO our originalist court is one of the few mechanisms that can restore constitutional balance.
Without the electoral college there would be no United States, only metropolitan areas plundering the “flyover” be careful what you wish for.
Mr. Peterson, you bring up a very interesting point about the electoral college. You suggest that abolishing the electoral college would lead to metropolitan areas “plundering” the flyover states. And yet there is no electoral college system at the state level and we seem to be able to elect governors with one citizen = one vote without any trouble.
As far as plundering goes, I don’t see the east side of WA being plundered, although perhaps the people that live there do? From what I can gather, on the dry side they feel that the coast pushes what are percieved as urban social values onto rural, typically more socially conservative communities. A position I have some sympathy with.
Or perhaps you mean taxation? People in Wenatchee complain that their taxes support the state ferry system that they don’t use, but they fail to acknowledge the simple fact that far more state money is sent east over the mountains than comes west in taxes. Similarly with the Feds and the states; the low population states receive considerably more value in services and Federal assistance than they pay back into the system. California on the other hand PAYS more than they receive from the Feds. (WA is pretty evenly balanced).
The Great Compromise of 1787, which established a bicameral legislative system, has never worked particularly well and reflects to more than a minor degree the deep divide between the wealthy aristocratic landowners and the commoners that was prevalent at that time. It was touted as a way to give low population states equal footing at the national level via the Senate but what it has done in fact is to emasculate the House by making every decision subject to the narrow desires of the Senators from those small states. Witness the outsized influence of the clearly venal Joe Manchin in the present day.
I suggest that a far better system of democracy would be a single legislative body operating on a parliamentary basis. Elected representatives would then elect a Prime Minister from their number who would serve as the chief executive. Perhaps then we could leave off the ridiculous waste of presidential elections that seem to begin before the last one is even over. Term limits for legislators and members of the judiciary at every level would ensure that no one person or group is in power long enough to skew the system drastically in their own favor. A maximum one month campaign season would help to ensure that legislators would have time to actually study and craft legislation rather than be continuously campaigning and letting lobbyists write the laws.
As Winston Churchill is supposed to have said, “Democracy is the worst form of government, except for all the others.” Whether he actually coined the phrase doesn’t really matter, the point remains a good one; democracy is a clumsy contraption for governance and like an old truck, requires constant attention and maintenance. It’s about time ours got an overhaul.
According to a strict “originalist” interpretation of the Constitution, women and Blacks would have no votes, and the latter would be counted as three fifths of a human being in the decennial census. Justices Alito and Thomas are sheer hypocrites.
So Mr. Peterson says a woman is only “free” depending on what state she lives in. And that’s ok. Because that’s what that particular state decides. “Either vote to change the state laws or move”. Well I say poor women can’t change laws, or afford to move. This will only affect the poor and it’s very sad.
Dr. Riordan, as a legal document the Constitution “as amended” is all that concerns us. Provisions in the original document that have changed or been removed are merely historical footnotes. Originalism as I understand it refers to faithfully applying the intent of the legislative body that enacted a measure. All such measures including provisions in the Constitution are subject to subsequent alteration. A review of the 18th and 21st amendments may clarify that for you.
Mr. Davis, the 16th amendment fully enfranchises women, including poor women, who if memory serves me typically turn out to vote in higher percentages than men. The “state” does not decide anything, the democratically elected legislative body “decides” and women play a majority role in that process. Your problem is women are not the monolith you want them to be, they act independently.
My point is that laws should be altered by deliberative consensus of the governed, following the procedures in place for making orderly change. Our “Originalist” Supreme Court seems headed in that direction with it’s recent rulings and millions of Americans support that. Millions more who favor shortcuts and a “winner take all attitude” based on the slimmest of margins are clearly dissatisfied.
So shall we enact change through an orderly, previously agreed, process or just label those with whom we disagree “domestic terrorists” and have some cognitively impaired figurehead issue authoritarian edicts that “our side” favors?
Typo – 19th Amendment Mea Culpa
Judicial review is not written in the Constitution
I just love people who want to throw everything back to “states rights” as a way of avoiding this poorly written ruling that discriminates against established women’s rights and religious freedom. (referencing the original opinion, Jewish thought hold the mother’s well-being to be paramount-already, state laws have prohibited abortion with ZERO exceptions).
Should we have trusted states rights with basic civil rights? Outlawing Jim Crow laws? Segregated schools? Interracial marriage? Same sex marriage? Same sex adoption? Men being legally allowed to rape their wives? I could go on and on, but I think most people get the point- we live in a very imperfect society and to leave basic human rights up to the states would deny the totality of “all of us” the equal opportunity to access “certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
I literally do not want to waste my time beating this quite obvious drum, but if anyone wants to see how democracy is being subverted vis-a-vis proposed and passed voting laws, here’s a good starting point:https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-may-2022. I’ll also just note republican gerrymandering that have targeted communities of color, that have been struck down by state courts and yet, somehow, have been allowed to pass into law by republican governors.