A side effect of being an editor is that bad-faith arguments hurt my soul. It’s actually a really interesting thing to feel as it happens. Kind of feels like heartburn. And what’s odd is it starts as a feeling and then I have to figure out what is making me feel that way. I’ve studied rhetoric for all of my adult life and the one thing I know for certain is that feelings come first and arguments come after. Usually that means we are finding arguments to justify what we already want to do. That’s the main reason this abortion debate is so toxic and divisive. People are not arguing with their minds; but with their hearts.
Reason against all Reason
Let’s get into an example. A piece came out in the libertarian magazine Reason. Even before reading the piece, the headline already caused a blood vessel to stand out from my forehead: “Tentative Thoughts On The Jewish Claim To A ‘Religious Abortion.’” What’s wrong with the title? It’s that word “tentative.” As you’ll see from the article, there is nothing tentative about this person’s argument. But an editor (or the author himself) thought that it would be seen as bigoted (or just a dick move) to question people’s beliefs. Especially the beliefs of a minority religion with a history of being persecuted for their religious beliefs. It’s basically inquisition-lite.
So when that happens, what do you do? Reason dictates you scrap the article. Reason dictates that writing and publishing and circulating and selling advertisements on the same page as an article that questions the authenticity of the beliefs of all Jews, or even of all liberal Jews, is antisemitic. And also… it’s not a good look. But if they had scrapped the article, they’d have to admit that the Jewish arguments against abortion are strong ones. And they couldn’t do that for political and probably economic reasons. So instead, they inserted that word “tentative” and hoped for the best.
So that word “tentative” is saying: “please don’t drag me on social media just because I’m doing something abhorrent. Look! It’s just a thought experiment. Like when bigots are just speculating that trans people aren’t what they say they are. And that speculation, that purely scientific hypothetical intellectual exercise leads to bigoted and violent behavior against trans people. But that’s not our fault. We’re just offering our tentative thoughts.”
Anyway what are these tentative thoughts? First a bit of background.
Religious Arguments against Abortion
Here’s the scenario. A bunch of states in this country were already passing laws to limit access to abortions. Now they are moving to outlaw them completely, as the Supreme Court declares open season on Roe v. Wade. All of these challenges to the health and personhood of abortion-seekers are based on religious arguments. All of them. Usually, when you write a sentence like that, you hedge it a little. You make it a bit… I don’t know… tentative? You say, for instance, that “most” of these arguments are religious. But the question of when life begins is a fundamentally philosophical argument. There’s no proof one way or another.
The same people who say we shouldn’t kill a fetus once it has a heartbeat which they place at 5-6 weeks. But it’s more like 10 weeks before the fetus has a heart, much less a heartbeat. So it’s a matter of belief. Always. And that means it should be protected by the first amendment. But apparently it’s not; it’s protected by power.
So what to do? For fifty years, this country has been content to say that if you are pregnant, you have the right to choose who inhabits your body. But now that idea is up for grabs. So people who want want abortions to remain available and safe are trying a new tactic: making the very religious freedom arguments but in reverse. We can solve this argument with a general strike. But it makes sense to pursue gentler avenues first.
The Jewish Argument for Abortion
Really quick. The argument, as I’m familiar with it, goes like this: at various places in Jewish Law, the loss of a baby is treated like the loss of property and not like the loss of life. If a pregnant woman (their language, not mine) is the bystander in a fight and a misdirected blow causes her to miscarry, she is owed money. But the penalty for wrongful but accidental death in a similar instance would be exile. And the rabbis do not decree exile for causing a miscarriage. So logically the rabbis did not consider miscarriage to be murder.
So according to the Rabbis, a baby is not considered alive and thus abortion is not considered murder. The next step would be to apply this bit of Talmudic jurisprudence to instances in which the pregnancy is a threat to life. In such cases, the Talmudic answer would be clear cut. You are weighing a life against a piece of property. But I’m not going to do that. Because what the Rabbis seem to be saying is that any pregnancy is the property of the person who is pregnant. Full stop.
Someone reading this who is more of a rabbinical scholar than I might be able to find a consistent pattern of a Temple-era or medieval rabbis prosecuting cases against Jewish women who were found to have wrongfully terminated a pregnancy. I’m sure there’s one case. But I’m talking about enough to establish that there was a legal precedent and it was enforced. I doubt such a pattern exists in the 2-3 thousand years of rabbinic jurisprudence for which we have records. Odd omission, that.
The Case at Hand: the Reason article about a Synagogue Challenging Abortion Restrictions
Anyway that’s the background for the Jewish case against these laws restricting abortion. It’s a lot of background. But I think it’s important to note that the people who talk about religious freedom in this country are usually talking about Christian freedom. And even then usually talking about the freedom of religious people to live their lives according to their rules (and to legislate the same upon others) without any negative consequences blowing back upon them. But actual religious freedom should apply to people of any religion. Or no religion. Which brings us to the article in question.
Basically, a synagogue called Congregation L’Dor Va-Dor is suing the state of Florida, alleging that by making it prohibitively difficult to get an abortion, the State is impinging on their religious freedom. The article argues that because the synagogue in question is quite liberal, they don’t have religious beliefs to be impinged upon. As if religious people base their lives on the teachings of God and non-religious people base their lives on… the lucky numbers from fortune cookies?
“When would Anyone’s Religion Require an Abortion?”
My first instinct was to quote the article at substantial length. But all of the salient points are made by a shorter quotation. From a legal scholar. So let’s do that instead:
If one wanted to have a chance of prevailing on a “religious abortion” claim, one would have to assert that one’s religion requires one to have an abortion rather than that it merely allows one to have one. If one’s religion requires an abortion, then the state law that prohibits abortion would plainly interfere with one’s ability to practice one’s religion. But when would anyone’s religion require an abortion?
-Professor Sherry Colb
I’ll answer you in a couple of words: when pregnancy puts a life in danger, my religion requires an abortion. I’m not saying the Jewish religion holds that view. I think it does, though answering such a question is impossibly thorny and nuanced. But my relationship with God and the universe, which, yes, is founded in Jewish text and community, requires an abortion under such circumstances. And that extends to any circumstance in which the mental or physical health of the patient is in jeopardy. Which effectively means the abortion is between the patient and their doctor.
The fact that the writer asks this question in this flippant gotcha-ish fashion means that she hasn’t seriously thought about the possibility that there’s a simple answer within arm’s reach. She thinks she has an argument-ending argument. But it’s just proof that the people who are making these kinds of arguments don’t seriously consider the possibility that those arguing against them are serious people with serious arguments. And that would be fine. I could handle that disrespect. If they didn’t also have a majority in the Supreme Court that they were using to make the tail wag the dog.
The Even-More-Sinister Undertones of Colb’s Sinister Argument
But it’s more than that. Like I said: Judaism (to the extent that you can say anything general about a religion with, thankfully, no central authority) considers a pregnancy to be property more than life; or at least to be a grey area in between. In any case, ending a pregnancy is categorically not murder. So let’s ask Colb’s bad-faith question again: When would anyone’s religion require an abortion? And the answer is: when the patient and their doctor decided it was the right choice.
It feels weird to talk about the sinister undertones of these religious arguments. Because they’re already sinister on the face. There are already women who need an abortion for their mental and/or physical health who won’t be able to get one. Who will birth babies into this world likely to suffer higher rates of abuse and neglect. If that’s not sinister, we’re not having a debate; we’re just talking past each other.
Freedom of Religion Apparently Only Protects Religious People; Specifically Christians
But the undertone is even more troubling. Because, you see, Colb’s reasoning shows that religious freedom only applies in a positive sense. You have freedom to practice your religion. But apparently not freedom from practicing someone else’s religion. So just as being forced to carry a baby to term can be put through this bad-faith-argument-machine and made to seem as though it were not a substantial burden on one’s religious liberty, so too, going to church, even going to the wrong church, could not either. Or wearing another religion’s hat. Or living according to their laws. Perhaps more importantly being judged and found wanting according to those laws.
It’s an a fortiori argument. An argument from a stronger position to a weaker position. The stronger position is that this Colb person has the cheek, the gall, the chutzpah to argue that forcing a person to carry a pregnancy to term, against the urgings of their conscience, does not place a substantial burden on that person’s religious freedom. What, then, does constitute a “substantial burden”? Certainly not going to church for a couple hours on a Sunday morning. Or making a casserole the night before for the after-church picnic.
Reason and Reason and Bad-Faith Arguments
So. It’s useful to remember what a bad-faith argument is. It’s an argument that you make when you already know the answer; when you have a financial stake in one answer versus another. And your only goal is to make arguments that obscure the truth rather than revealing it. Arguments that make people who already agree with you say: “See? There’s an argument for what I’m doing!” And of course make people who don’t agree with you run out of energy to deal with your nonsense. Nobody is getting convinced by the argument that was published in Reason magazine. Because it’s not an argument based on reason. It only serves to strengthen the people who already agree and to weaken the people who already disagree.
So let’s not focus on the argument. The argument is a smokescreen for what’s really going on. Which is that power gets to dictate its own terms. Power gets to make its own assumptions.
Religious People Think they Have a Monopoly on Morality
And one of the basic assumptions that this columnist is making (and that the cited academic is also making) is that people with strict religious sensibilities are driven by conscience and the rest of us are… not. When in fact, for argument’s sake, we could tentatively say that the opposite is true. We could say that a person with little or no religious affiliation believes that the value of human life is absolute.
A religious person might pay lip-service to “Thou shalt not murder” but might make exceptions if the target of their wrath is gay or works in an abortion clinic or follows the wrong religion. Or someone might be pregnant and they might let that person die on the off-chance they would produce a healthy baby before kicking the bucket. Lots of exceptions to “Thou shalt not murder.” Meanwhile, a non-religious person would not recognize any exceptions. A non-religious person would save the life of the person we have because the value of that life is absolute and the value of the fetus is potential.
Am I accusing all religious people of being closet murderers? Of course not. This is just a tentative argument.
Author’s Note
You might read this and wonder why I don’t mention the author by name, nor spend much time substantially engaging with the article as such. And the answer is: it’s a holdover from my days grading papers. I don’t give partial credit. A tentative argument is a first draft. Come back to me when Reason publishes something its author is willing to stand for. This may be a game to you but it’s not to me. Lives are at stake, Reason. Let me know when you are ready to stop fucking around.
