Does religious freedom protect the right to abortion?


Ohen Florida passed a law this spring that banned most abortions after 15 weeks of pregnancy, Rabbi Barry Silver was furious. And when it looked like the Supreme Court was likely to overturn Roe vs. Wade, which would allow such bans to take effect, he decided he had to act. The progressive Silver 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 freedom.

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

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

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

Experts believe it will be the first in a wave of challenges to abortion restrictions on religious freedom grounds following the Supreme Court’s abortion ruling in June. Rachel Laser, CEO of the nonprofit Americans United for the Separation of Church and State (AU), says she thinks there are “very strong” legal arguments that banning abortion violates the First Amendment right to the free exercise of religion and the separation of church and state. Laser says her group is preparing its own litigation over the issue that could arise later this summer or early fall, but would not comment on where she plans to take legal action. Other groups, including the National Council of Jewish Women (NCJW) and Catholics for Choice, told TIME they are also considering getting involved in legal challenges to anti-abortion laws.

As the first such lawsuit to be filed after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, Silver’s is a test of how to fight religious liberty restrictions on abortion. The synagogue lawsuit challenges Florida law under the state constitution, rather than under the US Constitution, as most of the upcoming challenges to abortion restrictions are expected to come. do it. The decision is strategic: While the Supreme Court has declared there is no federal right to abortion, some state constitutions offer their own abortion protections, and in many places, advocates abortion rights and state officials disagree on whether anti-abortion legislation can be enforced.

Lawsuits like Silver’s will test two of the core tenets of many conservative courts and state governments: heavy-handed religious freedom protections and anti-abortion sentiment. Many states that have strengthened religious freedom protections, for example, such as Oklahoma and Louisiana, also have the strictest abortion restrictions in the country. And lawyers expect it’s only a matter of time until religious groups find a case that could come back to the same U.S. Supreme Court as both struck deer and has been sensitive to cases advocating for religious liberty.

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

Rabbi Barry Silver speaks during a press conference in West Palm Beach, Florida on November 29, 2021.

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Religion and abortion

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 law prohibits Jewish women from practicing their faith without government interference and thereby violates their right to privacy and religious freedom,” the lawsuit continues.

Florida’s ban on abortions after 15 weeks of pregnancy has narrow exemptions in cases where termination of pregnancy is necessary to save woman’s life, avoid ‘serious risk’ of ‘irreversible physical impairment’ or if the fetus has a life-threatening abnormality. But “the way Judaism understands medical danger and medical emergency is much broader than what happens in practice,” says Rabbi Danya Ruttenberg, scholar-in-residence at the National Council of Jewish Women. “There are absolutely cases where Jewish law would require – would say it’s a commandment – ​​to have an abortion, and the law of the land would say you are prohibited from doing so.”

Similar to the United States Constitution, the Florida Constitution provides that there “shall be no law respecting an establishment of religion” or “prohibiting or penalizing the free exercise thereof”, so long as it is compatible with “public morals, peace or security”.

Silver argues that banning abortion violates both sides of the law, preventing Jews from practicing their faith and favoring a particular religious view of abortion over others. But not all Jewish legal experts agree. Howard Slugh, general counsel for the Jewish Coalition for Religious Freedom, which filed a brief supporting Mississippi in the Dobbs case arguing that the free exercise clause does not suggest a right to abortion, says he thinks “the accusation that the sole motivation for wanting [enact an abortion restriction] is religious does not remotely pass the smell test.

While there are Americans who oppose abortion for secular reasons, Christian organizations have led the push to overturn deer and adding abortion restrictions for decades, and the anti-abortion movement has become increasingly vocal about its ties to Christianity over time, says Mary Ziegler, a law professor at the University of California at Davis and an expert on abortion history, politics and law. In the 1970s, the anti-abortion movement was often led by Catholics. As evangelicals joined the cause and a wider variety of Christians got involved, they became more comfortable describing themselves as a faith-based movement, opening meetings with prayers and to mention God or Jesus.

In April, Florida Governor Ron DeSantis, a Republican, signed the 15-week abortion ban at an event at Nación del Fe, an evangelical Christian church, in Kissimmee, Florida, where leaders State legislators explicitly invoked God to explain their support for the new law. “The argument that it has nothing to do with religion is simply weaker, period, than it was when deer fell,” says Ziegler.

“We do this work because of our faith, not in spite of it”

Other faith-based organizations are already preparing their own challenges to restrictive abortion laws.

The NCJW, a long-time advocate for access to reproductive health care, is planning lawsuits based on religious liberty claims in various states in the coming months. “We’ve worked with legal teams to explore lawsuits focused on religious freedom to defend our community and raise awareness that Jews support access to abortion,” CEO Sheila Katz said. “It is inappropriate for states and our governments to declare when life begins according to a narrow interpretation of a tradition.” The NCJW and Americans United for a Separation of Church and State have been in contact with Silver in Florida, and Katz says his organization also speaks with Muslim advocates about religious freedom issues.

Some future lawsuits may try a different tactic: While the Florida lawsuit was brought by Silver’s Synagogue, legal experts say challenges could be more successful if brought by pregnant women who argue that their right to personally practicing their religion is violated by an abortion ban. The NCJW is open to supporting such plaintiffs, Katz says, and she expects to see more Jewish community groups soon become involved in lawsuits.

Catholics for Choice, a group that supports abortion rights, also plans to sign amicus briefs challenging abortion laws in Florida and Michigan in the near future. While the Catholic Church officially opposes abortion, Catholics for Choice views its support for abortion rights as grounded in Church teachings on the importance of individual conscience, religious freedom and social justice, says Jamie Manson, president of Catholics for Choice. “We do this work because of our faith, not in spite of it,” she says.

Silver says he has also heard from other religious leaders, including Christians, talking about the possibility of bringing their own lawsuits. He recently launched an initiative called HEART, or Helping Enforce Abortion Rights Today, to help other religious and atheist organizations push back against anti-abortion legislation. Silver posted a copy of her complaint online so others can use it as a template in their own challenges.

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

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Write to Madeleine Carlisle at madeleine.carlisle@time.com.


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