Does Religious Freedom Protect a Right to an Abortion?

WRabbi Barry Silver furious that Florida had passed this spring a law banning abortions within 15 weeks after a pregnancy. It looked as though the Supreme Court would overturn it. Roe v. WadeHe realized that such laws would be allowed to go into effect if he did not act. Silver’s progressive synagogue, Congregation L’Dor Va-Dor in Palm Beach County, sued the state of Florida in June, arguing that the anti-abortion law infringes on religious liberty.

Judaism has viewed abortion as morally acceptable—and even required in some circumstances—for thousands of years. In contrast to some Christian beliefs that say life begins at conception, Jewish law says that life begins at birth, and that the fetus is part of the pregnant person’s body. This is widely understood to mean that the pregnant person’s rights take precedence, and that if the fetus endangers the pregnant person’s life or health, Jewish law would require them to have an abortion.

“The First Amendment, which is the first one that they enacted, upon which all other freedoms are based, was designed to prevent the exact type of thing that we see now: the merger of a radical fundamentalist type of Christianity with the state,” Silver, who is also a civil rights lawyer and a former Democratic Florida state legislator, tells TIME. “This law criminalizes the practice of Judaism.”

It’s unclear if Silver’s lawsuit will prevail, though some legal experts say it raises legitimate points. “There’s a strong argument that [courts] would also have to grant a religious exemption given the requirements of Jewish law,” says Michael Helfand, a professor of religion and ethics at Pepperdine University Caruso School of Law.

Experts think it will be the first in a wave of challenges to abortion restrictions on grounds of religious freedom in the wake of the Supreme Court’s abortion ruling in June. Rachel Laser, the CEO of the non-profit Americans United for the Separation of Church and State (AU), says she believes there are “very strong” legal arguments that abortion bans violate the First Amendment right to the free exercise of religion and the separation of church and state. Laser stated that her group was preparing to bring its case on this issue later this summer/early fall. She would not disclose where they plan to sue. TIME also hears from other groups such as the National Council for Jewish Women and Catholics for Choice that they’re exploring legal challenges to anti-abortion legislation.

As the first such lawsuit to be litigated after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, Silver’s is a test case for how to fight abortion restrictions on religious freedom grounds. The synagogue’s lawsuit challenges Florida’s law under the state’s constitution, rather than under the U.S. Constitution, as most coming challenges to abortion restrictions are expected to do. Strategic: Although the Supreme Court ruled that there was no federal right for abortion, certain state constitutions provide protections. In many cases, state officials and abortion rights advocates are divided over how anti-abortion legislation could be enforced.

Lawsuits like Silver’s will test two of the core tenets of many conservative courts and state governments: muscular religious freedom protections and anti-abortion sentiment. Some states with the highest religious freedom protections like Oklahoma or Louisiana also have some of the most restrictive abortion regulations in the country. These restrictions are also found in And lawyers Expect it’s only a matter of time until faith groups find a case that could make it back to the same U.S. Supreme Court that Both Roe When religious liberty was upheld, he has always been supportive.

“Win, lose, or draw, the lawsuits draw attention in a very dramatic fashion to the fact that these laws reflect one particular set of views that’s far from universally shared,” says Marc Stern, the chief legal officer of the civil liberties advocacy organization the American Jewish Committee. “They raise the hard question of whether this is an appropriate way in a pluralistic society to legislate.”

Rabbi Barry Silver talks during a West Palm Beach News Conference on Nov. 29, 2021.


Abortion and religion

The Florida lawsuit states that in Jewish law, abortion “is required if necessary to protect the health, mental or physical well-being of the woman,” among other reasons. “As such, the Act prohibits Jewish women from practicing their faith free of government intrusion and thus violates their privacy rights and religious freedom,” the lawsuit continues.

Florida’s ban on abortions after 15 weeks of pregnancy has narrow exemptions in cases where ending the pregnancy is necessary to save the woman’s life, avert a “serious risk” of “irreversible physical impairment,” or if the fetus has a fatal abnormality. But “how Judaism understands a medical danger and a medical emergency is far broader than what is happening in practice,” says Rabbi Danya Ruttenberg, scholar in residence at the National Council of Jewish Women. “There are absolutely cases when Jewish law would demand—would say that it is a commandment— to have an abortion, and the law of the land would say you are forbidden from doing so.”

Similar to the U.S. Constitution, Florida’s constitution says there “shall be no law respecting the establishment of religion” or “prohibiting or penalizing the free exercise thereof,” so long as it is consistent with “public morals, peace or safety.”

Silver claims that the ban on abortion violates two prongs, since it prevents Jews from following their religion and encourages a certain religious viewpoint about abortion over others. Not all Jewish legal specialists agree. Howard Slugh is the general counsel for the Jewish Coalition for Religious Liberty. He filed a brief supporting Mississippi in court Dobbs case arguing the Free Exercise Clause does not suggest a right to an abortion, says he thinks “the accusation that the only motivation for wanting to [enact an abortion restriction] is religious doesn’t remotely pass the smell test.”

There are Americans that oppose abortion for religious reasons. However, Christian groups have been leading the charge to reverse it. RoeMary Ziegler is an attorney at the University of California Davis who has been studying abortion politics, history and law. Catholics were often the leaders of the anti-abortion movements in the 1970s. With more evangelicals joining the cause, and more Christians getting involved, it became easier to describe themselves as faith-based movements, including opening meetings with prayer and mentions of God and Jesus.

In April, Florida’s Governor Ron DeSantis, a Republican, signed the 15-week abortion ban into law during an event at Nación del Fe, an evangelical Christian church, in Kissimmee, Fl, where state legislative leaders explicitly invoked God in explaining their support for the new law. “The argument that it has nothing to do with religion is just weaker, period, than it was when Roe came down,” Ziegler says.

‘We do this work because of our faith, not in spite of it’

Some faith organisations are also planning to take on restrictive abortion laws.

NCJW has been an active advocate for access to reproductive health care and is now planning to sue based on claims of religious freedom in several states. “We have been working with legal teams to explore lawsuits focused on religious freedom to stand up for our community and to make it known that Jews support access to abortion,” says CEO Sheila Katz. “It is inappropriate for states and our governments to be declaring when life begins according to one narrow interpretation of one tradition.” Both NCJW and Americans United for a Separation of Church and State have been in touch with Silver in Florida, and Katz says her organization is talking with Muslim advocates about religious freedom concerns as well.

Some future lawsuits may try a different tactic: While the Florida lawsuit was brought by Silver’s synagogue, legal experts say the challenges might have more success if they are brought by pregnant individuals who argue that their right to personally practice their religion is being violated by an abortion ban. Katz states that NCJW will support such plaintiffs. She expects to see more Jewish communities involved in lawsuits.

Catholics for Choice supports abortion rights. They plan to also sign amicus briefs against Florida and Michigan abortion laws. While the Catholic Church officially opposes abortion, Catholics for Choice sees its support of abortion rights as grounded in the church’s teachings about the importance of the individual conscience, religious freedom, and social justice, says Catholics for Choice President Jamie Manson. “We do this work because of our faith, not in spite of it,” she says.

Silver claims that he’s also been approached by other religious leaders (including Christians) about the possibility of filing lawsuits. To help atheists and religious organisations resist anti-abortion legislation, he recently created HEART. Silver made available online a copy his complaint to allow others to use it in their own problems.

“We know in any grassroots movement, you don’t just file a lawsuit and all of a sudden you win. You do it, somebody else does it, and then there’s a growing momentum,” Silver says. “So what we hope for is that people will take this and run with it. And people will realize that they don’t have to just sit back powerless and do nothing, that they can fight back.”

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