What "Freedom of Religion" Does Not Mean

Free enterprise appears to have rescued free government in Arizona. Business interests, mortified at the prospect of losing nearly all interstate commerce as a result of bizarre anti-gay legislation, pressured Governor Jan Brewer to veto SB 1062, thereby providing the public cushion she needed to act without political fallout.

Governor Jan Brewer, AZ

The real story here, though, is the continuing confusion of some Americans over what the First Amendment and its attendant principles mean. 

The proposed law defined "the exercise of religion" as the practice of or observance of religion, including the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief."  In other words, "freedom of religion" is the right to do whatever one wants or to refuse to do what one does not want, so long as one attaches the word "religion" to it. 

Those endowed with such expansive rights include "any individual, association, partnership, corporation, church, religious assembly, or institution, estate, trust, foundation or other legal entity." So, Coca-Cola Corporation or Philip Morris would have, for the first time in American legal history, freedom or religion. While tax collection is explicitly exempted, the state could not enforce any requirement that did not further a "compelling state interest." So, not only would the law allow the exclusion of service to gay people, it would also exempt people from smoking bans. Muslim taxi drivers could refuse to pick up single women. Atheists could refuse to accept US currency. 

Of course, this is nonsense. The First Amendment takes religion much more seriously that this law. By defining religious practice so loosely, Arizona legislators essentially defined it out of existence. What means everything means nothing.

One group of law professors, including Mary Ann Glendon of Harvard, defended the act with the argument that  "The person invoking RFRA would still have to prove that he had a sincere religious belief and that state or local government was imposing a substantial burden on his exercise of that religious belief. And the government, or the person on the other side of the lawsuit, could still show that compliance with the law was necessary to serve a compelling government interest. As a business gets bigger and more impersonal, courts will become more skeptical about claims of substantial burden on the owner’s exercise of religion. And as a business gets bigger, the government’s claim of compelling interest will become stronger."

But this defense is only in the context of a much worse Kansas law, that the professors acknowledge as being grossly one-sided and unfair.

Professor Mary Ann Glendon

Glendon and the others would like to expand the area of operation of religion in our discourse. Fair enough. But the law is still so vast and vague that even they should not defend it. If they really do want to encourage the application of religious principle, they should take "religious" and "principle" more seriously.

Why (Most) Abortions are Not Immoral

The most compelling moral argument against abortion centers on the right of the unborn fetus  to be protected by the wider society against its mother in the case that it mother seeks to kill it.* Helpless or innocent people, especially, deserve our attention to their rights because they can not always defend themselves, so this position carries enormous weight.

This argument is at least diminished, if not negated, of course, in cases in which women were raped or molested, resulting in pregnancy.** It seems to be completely defeated in cases in which the life of the mother is at risk.

At bottom of my position is the assumption that adult women have the same right to make medical decisions about their bodies that adult men have. No one should object, that is, if a woman has her appendix removed.

So what makes a fetus different from an appendix?

It's not "humanity." The appendix has the same claim to being "human" that a fetus does -- all the DNA, all discernible objective material.

It must be that the fetus is a "person." So what makes a person?

In every decision we make in life, we must weigh priorities. Many such choices entail taking one thing more seriously than another. We cross the median line on the road in order to avoid hitting a pedestrian because we take our obligation to avoid harm to the pedestrian more seriously than our legal obligation to stay on our side of the street.

One way to "measure" personhood, though inexact, is to ask what priority we would give the life in question. Analogies are always risky, but take this one: if you were driving down the road and had to choose between colliding with a human walking across it or colliding with a chicken walking across it, you might choose the chicken. Why? Because you believe that the walking human has moral priority over the walking chicken. The human is more of a person. She has some quality or set of qualities that distinguish her from the chicken. Maybe it's because she is sentient, or has emotions, or can anticipate pain. Maybe it's just because she is more like us. All of these standards are problematic at some level, but in the end they are what we have.

Abortions require prioritization. The woman choosing an abortion must decide that the potential person in her body is less important than something else. The fetus, in almost every way, is more like the chicken than the woman herself. They both are human, but the fetus is not sentient or emotional or capable of anticipation. Furthermore, at the moment of the decision, it is attached to the woman and no less part of her body than the woman's appendix.

So the question is this: who should be allowed to set the priorities in such a case. The burden seems to be on those who want to dictate to the woman. Why should anyone be allowed to decide what medical procedures she can consider for her safety or even her comfort? Those who want to abolish abortions entirely must defend a deep and wide intrusion into the woman's life, and therefore must explain why the fetus is more of a person than the woman.

In some cases, I suppose such an argument could be made, but certainly not in all, and definitely not in a case in which the life or health of the mother is at stake. As far as I can see, therefore, allowing abortions is the moral things to do.


* I have no use whatsoever for arguments against contraception, or for the rights of the father, for example. In other contexts, those positions may have some merit, but they fall so short in the question of most abortions that they are not interesting to me in the least.
** I have even less use for the argument that a woman who was raped or molested is somehow responsible for her pregnancy. Anyone making that case loses the privilege of taking a stand on behalf of the fetus solely on the grounds of complete incoherence, if not dishonesty.

Why Abortion Ought to be Legal

Setting aside for now the very difficult question of abortion rights, to which I will return later, it should be obvious by to everyone that abortion cannot be abolished as a practical matter. Women have been ending unwanted pregnancies for as long as they have had pregnancies, and they will continue to do so. One can no more end this practice than end unprotected sex in all its forms.

As Eyal Press writes in the most recent edition of The New Yorker, the consequences of this fact are dire if the state suppresses women's access to safe abortion procedures. When skilled, respected doctors are driven from the field by violent protests or tight government restrictions, they resort to unskilled, un-respected practitioners. These people may be unscrupulous or they may just be bad at their jobs, but either way they create hazards for women -- and therefore for children and families, and therefore for all of us -- that would not exist if abortions were treated as ordinary medical treatment. More, not fewer, late-term abortions occur when governments make it difficult for women to get this help.

Stephen Brigham, the incompetent doctor profiled by Press, should not be in business. But the market exists for him because their are not enough better options.This fundamental fact ought to be the government's focus, no matter whether you approve of abortion rights or not.