(September 20, 2021 / JNS) It’s been a year since Justice Ruth Bader Ginsburg died, and many fans still mourn her loss. That’s not just because a true pioneer for women in the legal profession deserves to be honored as a role model or even because of the odd—and not entirely apt—pop-culture-icon status she achieved late in late as the “notorious RBG.”
The recent passage of draconian restrictions on abortion by Texas in a piece of questionable legislation designed to evade judicial scrutiny has sent many of her liberal admirers into a state of panic. The “pro-choice” Ginsburg was replaced on the U.S. Supreme Court by Justice Amy Coney Barrett, whose sympathies clearly lie with the “pro-life” movement. The Texas law, which creates a bizarre situation where the enforcement of an abortion ban after a fetus is six weeks old—a time when many women don’t even know they’re pregnant—is dependent on individual citizens bringing lawsuits against providers of the procedure. That seems likely to fall when it is eventually brought before the U.S. Supreme Court on its merits, rather than on a technical legal issue on which the conservative majority ruled it had no choice but to let it stand.
The abortion debate is divisive and bitter enough on its own with both sides clearly holding to strong positions rooted in their ideas about morality and rights. But as we saw during the Barrett confirmation hearings, the question of whether it was appropriate to disqualify her from consideration for the high court (or even a lesser federal appeals court) because she was a faithful Catholic is something that some on the left actively considered. Given the bad press that Sen. Dianne Feinstein (D-Calif.) received for claiming that Catholic “dogma lives loudly within you,” they backed down on that point even though Democrats opposed her confirmation on a party-line vote (with only one Republican joining them in 52-48 vote).
But with the court set to hear arguments on a challenge to a more straightforward Mississippi law that would ban abortion after 15 weeks, the question of Barrett’s faith and that of any other conservative whose principles might incline them to let that law stand is again at issue.
Veteran New York Times Supreme Court reporter and current opinion writer at the newspaper Linda Greenhouse has now broken what she calls a “taboo” by writing earlier this month that it’s time to “call out those who invoke God” as their inspiration over legislation or perhaps even deciding court cases.
Greenhouse, who is an ardent advocate of abortion rights, thinks there’s no possible reason for overturning the high court’s 1973 Roe v. Wade decision that legalized abortion just because some people think God is telling them to do so.
That’s an argument that resonates with the liberal and secular majority of American Jewry. Most are still stuck in the mindset of late 19th- and early-20th-century immigrants who believed that the greatest threat to the rights of Jews came from believing Christians either in Europe or the United States. It’s also true that even religious Jewish perspectives on the abortion issue differ significantly from that of Catholics and evangelical Protestants as the unwillingness of even most Orthodox Jewish groups to endorse the Texas law indicated.
Polls have consistently shown that most Americans are in the mushy middle on the issue, opposing complete bans but supporting strong restrictions, including requiring parental consent. That means that there is plenty of hypocrisy on this issue from both sides. Pro-lifers ignore the dilemma presented by the sort of law that is likely unenforceable, in addition to arguments that the mother’s well-being must also be taken into account. The pro-choice camp speaks as if the fetus has no rights and that life doesn’t really begin before birth. Yet they prefer to remain oblivious to the fact that when babies are wanted, their humanity is acknowledged as soon as the pregnancy is discovered and celebrated with sonograms (a crucial technological breakthrough that did exist when Roe was decided) posted on social media and gender reveal parties. The arguments over the Mississippi law will also point out that science has now advanced to the point where fetuses can, with proper medical care, survive outside the womb far earlier than in the past, though not at 15 weeks, as the state itself acknowledged.
However the courts or legislatures come down on this issue, Greenhouse’s idea that there is something illegitimate about politics being influenced by faith is not only wrongheaded, but utterly divorced from American political and social traditions. John Adams spoke for almost all of the Founding Fathers when he noted: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” The notion that the First Amendment to that Constitution was provided to ensure protection from religion rather than for it is a notion that was not invented until nearly two centuries after it was adopted.
Moreover, it was seemingly only yesterday when liberals were advocating for infusing faith into politics when causes like that of civil rights were largely championed by religious believers like Dr. Martin Luther King Jr. The same was true in the early 19th century when it was evangelicals who were fighting a lonely and uphill battle on behalf of the abolition of slavery in both Britain and the United States.
As I noted at the time of Barrett’s confirmation, what she has said about the role her faith tradition has played in her life and ought to play in that of others was very little different from some of the same things said by Ginsburg about her faith and tradition, even if she was not as overtly religious and generally came down on different sides on many issues.
But it appears that for many Americans, including Jews, our common belief in the importance of the value systems that religion provides is being swept aside because of disagreements about specific issues.
Many on the left are so angry about conservative beliefs that they now stand ready to downgrade First Amendment rights if that is the price that must be paid to advance issues on which they feel strongly, like gay marriage or abortion. The problem here is that even if you agree about shifts in the law on those points, those changes cannot be accompanied by a willingness to treat those who disagree because of their religious faith as second-class citizens whose rights can be ignored or trampled upon at will. Religious liberty is still America’s first freedom and cannot be overridden except in the most extreme circumstances.
At the heart of the issue is not merely contempt for conservative Christians as well as Orthodox Jews who may share some of their concerns. It’s a belief that religious freedom merely means the right to practice your faith in the privacy of your home rather than unashamedly in the public square. That doesn’t seem like much to ask, yet in an era when politics has replaced religion for so many Americans, it’s more than many liberals—no matter their ethnicity or nominal religious identity—seem willing to grant.
You may not think you have much in common with legislators in states who advocate abortion restrictions or Supreme Court justices who make decisions about the right to life or the rights of believers that you may disagree with. But if, as Greenhouse advocates, we’re going to say that speaking of being influenced by your faith must no longer be permitted, that’s a blow to religious liberty that all people of faith, including Jews, must always resist.
Jonathan S. Tobin is editor in chief of JNS—Jewish News Syndicate. Follow him on Twitter at: @jonathans_tobin.
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