Is treating early-term abortion differently than other procedures an establishment clause violation?

[Kurt_and_Hunter]

Is treating early-term abortion differently than other procedures an establishment clause violation?

Actions that claim to be public policy but are religiously driven violate the establishment clause. "Teaching both sides" on evolution fails as public policy because the courts recognize that the purpose is religious, even if the statute presents he matter as one of free-inquiry.

Is anti-choice primarily a religious movement?

Is there any compelling state interest to discriminate against abortions? Is there even a rational interest?

States said that blue laws (requiring businesses to close on the Sabbat... sorry, on Sunday) had a rational basis because everyone needs a day off and most folks are Christian so Sunday is a good day for it. That argument eventually failed and Jews were free to be open six days a week, just like Christians. (Jews held their own Sabbath, closing their stores on Friday night then had the Christan sabbath mandated on them.)

Are there anti-choice arguments that are more persuasive as neutral public policy than blue laws and teaching intelligent design?

That's a lot of questions, so to return to the actual poll question:

Is treating early-term abortion differently than other procedures an establishment clause violation?
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Sorry for the non-showing poll. A computer error when posted and seems to be unfixable on edit.

[shraby]

1. I think you have a dammm good point.

[quaker bill]

2. No

because opposition to abortion is not strictly a religious issue, and to the extent it is for some a religious matter, it arises from considerably more than one faith. So, while some may favor the policy on religious grounds, it does not "establish" a particular faith as the "official" faith. Sorry, it does not come close to passing muster on this dimension. I wish it were this easy, but it is not.

[Kurt_and_Hunter]

3. You are mistaken

The fact that one may come by a viewpoint through means other than faith does not mean the viewpoint is not religious.

The individual is not the viewpoint.

Some scientists reject evolution on scientific grounds. Not many, but some.

The existence of such exceptions does not make evolution bans scientific in character.

This has been adjudicated time and again by pretty conservative courts.

The purpose of abortion bans/limits is to save innocent lives. There is no other motive. The view that innocent lives are involved does not require religion but is so associated with a religious viewpoint that enshrining the view in law absent any compelling state interest is establishment of religion.

Blue laws are a fine example of this. Many atheists probably closed their stores on Sunday for their own reasons but the effect (and purpose) of blue laws was religious.

[quaker bill]

4. You are mistaken

The secular State compelling interest was established under the Hyde ammendment a long time ago, has been challenged and stands as settled law.

The fact that something has some religious trappings to it, does not make it establishment. The evolution cases are quite different as alternative theories hang whole cloth from religious dogma. There is no secular rationale to create a compelling interest in an alternate theory of evolution, as this would serve no discernable or essential public purpose. The protection of life, "innocent" or not, has been repeatedly ruled on as a compelling secular public interest.

While you are, of course, welcome to try and I hope you succeed, I would place good money on a bet that this proposition will lose and lose early. One could perhaps take this line of reasoning a little farther than Orly does hers, but my buck says it is rejected. If you find a very favorable venue, you might make it to the appellate level, but I would bet SCOTUS doesn't even grant cert.

Blue laws may hang from a religious background, but they still exist in a great many places and have been upheld against challenge. I would prefer that they weren't, but that is not my call.

[Kurt_and_Hunter]

5. Of course it would fail in the SCOTUS

When I cite an example from court behavior it isn't to take a narrow "whatever the courts say" view of the Constitution, but rather to note that even our courts, which do not have an expansive view of the first amendment in any of its particulars (IMO) hold a certain view.

I do not expect any court in the land to strike down abortion laws on Establishment Clause grounds.

I also expect "In God We Trust" to remain on our money forever. But I can still hold a strong view that the motto can not possibly serve a religion-neutral state interest, was added in the 1950s with the stated legislative intention of promoting theism and is facially unconstitutional.



I do not know enough about the history of adjudication of Hyde, so will with-hold comment on its value as precedent except to note that Stupak far exceeds Hyde since the effect is to limit access to private coverage.

The government doesn't have to publish my book but it surely cannot buy up most of the book-stores and then ban my book from them.

IMO.