Rabbi Jon's Website and Blog

The Supreme Court This Term, Religion and Abortion

This isn’t the absolute center of the issue around abortion and the Supreme Court. But the issues in this article in Slate are important, particularly as the Court has ruled also this week in the Maine school case and potentially will soon rule in the high school coach prayer case. The headline is both spot on and misleading; this isn't only about Jews.

 

A few things:

1. Just to emphasize the main point, which is that after whatever restricts are ratified by the Supreme Court, whether at 15 weeks or all the way back to six weeks or conception – there are religious people who will be forced to choose between religious dictates that in certain cases don’t just allow but require an abortion and the law of a state that forbids it in those very cases. Will the same Court that has been carving out religious exceptions to laws do so again for this, or say something like “life is different”?

 

2. The First Amendment uses the language of “free exercise of religion.” Dahlia Lithwick and Micah Schwartzman circle the issue of what “exercise” means. I haven’t done the research into the origin of the term, but it certainly means more than “obligation” or “avoidance of grave sin.” The article they rebut by Professor Josh Blackman suggests that only people who can point to a religious authority from which/from whom/from Whom they get strict commands should be able to claim that they are “exercising” their religion. Incredibly, Professor Blackman suggests that Christian sin and Orthodox Jewish commandedness are the twin paradigms, and other liberal Christianities and Judaisms don’t measure up. Those two are hardly the same. I’m amazed how Christianity, with its original critique of “the law”, could somehow have become equivalent in this way to Orthodox Judaism.

 

3. But the Constitution doesn’t say “freedom to follow one’s binding religious obligations.” It just says “free exercise.” And as the Supreme Court has repeatedly found, defining what is and isn’t a religion is really hard. The Constitution presumably was protecting people whose religions were not modeled on the dominant paradigms of the time – because they didn’t have the same notions of sin or authority, or the same structure. And of course American conservatives have been arguing that anyone with an individual, sincere belief is protecting when they are following it by the free exercise clause. To his credit, Professor Blackman suggests that is too broad. To his debit, he suggests tests, like whether there is some kind of external reference point that a person’s belief or exercise is valid.

 

4. I wish we had even one justice who was religious but not theologically conservative, who could bring an insider perspective. Much as I admire my fellows Jews Justices Breyer and Kagan, and much as I admired Justice Ginsburg z”l, they just don’t and didn’t “get” a lot of religion. Obviously they are not writing with great understanding of evangelical or Catholic Christians. But they are not writing with understanding of Jews like me either, even when they are trying to be allies. They get/got the outsider part, but not the religious part. I am not at all arguing that such a Justice would need to be Jewish. A Justice Mario Cuomo, for instance, would have been fascinating.

Thinking Out Loud -- COVID Curfews

I'd like to be using my blog more to model and invite some ethical deliberation more of the time. This is something I dashed off to post on Facebook the other night. Particular references are to my locale of Nashua, NH, but it's relevant for elsewhere.

Wondering about the curfew debate. This isn’t an argument in favor of COVID-related curfews, but a wondering about policymaking in an situation that regular law doesn’t contemplate and where emergency regulations raise cultural and philosophical red flags.

 

The rationale being offered for curfews is that existing mandates and recommendations are not being followed to a degree that is controlling the spread of COVID-19. It’s not that the curfew is itself a safety measure; the virus is just as contagious before mid-evening as after.

 

So could it be that the curfew proposal is actually an attempt to create an enforcement regime that is less invasive than what it would take to zero in on the riskiest behavior? Rather than sending inspectors into restaurants and bars, for instance, to go table by table and cite people who are not respecting masks/distance etc., it could be less intrusive simply to limit people upstream from coming into a possible place of spread. This would in a certain way be less of an imposition on individual liberty than the alternative. Is this the actual rationale?

 

One problem with the initial policymaking around masks was a lack of transparency around officials’ reasoning. We heard the endpoint of their reasoning at two points. First, they knew we needed to keep enough masks for health care workers, so they told the rest of us not to hoard masks. Even though they knew that masks would be effective in the community as well, the initial priority was in hospitals. Part of how they got supply more focused to health settings was by discouraging the rest of us from taking all the masks, downplaying their importance to us. Second, after the mask supply expanded – before manufacturing ramped up, when people were engaged in home production – then what we heard was masks are effective and actually critical. It wasn’t the whole story in either part 1 or in part 2. We weren’t trusted with the nuance or given the chance to show some solidarity or think about sacrificing for others. Maybe that mistrust of the public was warranted even, but there were consequences in terms of credibility down the road that we’re seeing now.

 

So I’d love to know if my hypothesis is correct about curfews. If the real issue is how to choose between different unpleasant schemes of control, and an acknowledgement of different degrees of invasiveness, then why not challenge us as a community to interact with that dilemma by making it explicit?

 

To me, this makes more sense than concluding that curfews etc. are a power grab by political or other officials.

 

The most recent posted minutes of my local Board of Health suggest that my hypothesis is partly correct, at least in terms of what was actually said by participants. I’m wondering if there was more, either unstated or just not reported. I understand that those in authority right now are responsible around what may be a terrible tradeoff between time and lives. Again this isn’t an argument for or against curfews, but a question of how to do public ethical engagement, or at least how to explain soon after decisions are made and announced what all the ethical considerations actually have been.

Resources Related to End-of-Life Planning

I am putting this up in connection with my RISE course about autonomy and medical ethics. Here are two resources I mentioned that are worth looking at and printing out:

• The Conversation Project starter kit -- a step-by-step guide for preparing to have a conversation with any loved one about your end-of-life desires or your questions. The guide is terrific because it even asks things like where you want to have the conversation.
• The Foundation for Healthy Communities has links here to New Hampshire-specific forms to download and complete, along with some helpful supporting materials.