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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, September 30, 2014

"Reverends like us should never oppose access to abortion or sex ed"

And Also: Without Precedent: The Life of Susie Marshall Sharp was an interesting, if somewhat too long, biography of the first woman judge and justice in North Carolina. It in part is to be honored for not shying away from her flaws (e.g., racism and intervening in political matters while on the bench).

People of faith, as well as those with no religious affiliation, have widely varying opinions about moral questions. That’s okay. Freedom for differing views and beliefs is a core American value. The problem is when one particular religious viewpoint gets written into law, in direct violation of our national commitment to religious liberty. Every person in the United States should be able to make decisions according to their own conscience and faith tradition, especially in deeply private matters, such as accessing health care.
An op-ed written by two ministers promotes the end of religious discrimination via a repeal of the Hyde Amendment.

The measure is more popularly seen as a matter of wealth discrimination, an invidious way to deny health care and abortion rights to the nation's poor and less well off.  Prof. John Hart Ely, a liberal critic of Roe (though supporting Casey on precedent grounds at least) saw it that way, believing if abortion was going to be legal, it could not be burdened in this fashion.   Rep. Hyde might have felt this was the best he and Congress could do (he rather abortion be generally banned), but as the dissents noted here, some discretionary spending limits are unconstitutional.

The majority in the last case cited (Harris v. McRae) rejected  the argument that the denial of abortion funding here was invidious religious discrimination, either favoring or disfavoring religion. The free exercise claim fell on standing grounds, but if pressed, there very well could be found many a woman who have an abortion because religious faith compelled them to in a particular case. As Casey later recognized, it is a matter of conscience for which there is a range of views, including religiously guided.  Case law changed here in Oregon v. Smith, but RFRA very well -- if evenly applied -- might get you the same place.

The majority also argued that the law was neutral and did not unconstitutionally favor or burden religion for Establishment Clause purposes.  As with the Free Exercise prong, there was some good evidence that such a First Amendment argument had merit.  At the very least, the "effect" of the law, to cite the then more respected "Lemon Test," was religiously discriminatory. The law favored a greatly disputed matter of religious and moral principle, making comparisons to theft or such off the mark. The op-ed reaffirms this point and it is to me a good framing.

Ronald Dworkin years ago raised a religious freedom argument in this area, noting matters of life and death are particularly likely to raise questions of religious belief.  Some might argue that questions about abortion need not be about "religion" (see, e.g., atheist Nat Hentoff), but it belies the obvious that it is for many a matter of religious debate. And, as I have here over the years, if we go further and look at matters of conscience, it definitely is the case.  As an influential lower court ruling noted:
No doubt in the opinion of many people the nature of a fetus [an embryo] as a human being is a matter of absolute moral certainty. In their view, perhaps in the view of some of the legislators who enacted this statute, abortion is considered the deliberate killing of a human being. We do not doubt the sincerity of those who hold this view, nor minimize the depth of their conviction in this regard. But under the Constitution, their judgment must remain a personal judgment, one that they may follow in their personal lives and seek to persuade others to follow, but a judgment they may not impose upon others by force of law.
Certain things are left to the political process, this is left to personal judgment for various reasons, disputed religious/conscientious belief should not be enough for the government to favor one side over the other.  Ideally.

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