Mounting a Jewish argument against US abortion bans

Anti-abortion activists frequently use religious arguments, but some Jewish campaigners are arguing they have a religious right to abortion. Legal scholar ELIZABETH REINER PLATT explains.

(JTA) — The abortion debate is often portrayed as a clash between religious beliefs on the pro-life side and secular or humanist convictions on the pro-choice side. Indeed, lawmakers and activists have often invoked God in enacting state bans on abortion since the  US Supreme Court, in last year’s Dobbs decision, struck down a woman’s right to terminate her pregnancy.

Some clergy and faith groups, however, including a number of Jews, are pushing back. In efforts to overturn these restrictions, they have been pressing a legal strategy claiming that abortion bans violate their religious liberty. In Kentucky, a case brought by three Jewish women argues that the state’s near-total abortion ban violates their religious beliefs about when life begins and protecting a mother’s life. In Indiana, a suit brought by Hoosier Jews for Choice and four women who represent a variety of faiths demands exemptions from the state’s abortion ban for people whose religions support abortion rights. 

In Florida, a synagogue filed a lawsuit saying the state’s abortion restrictions violate the religious freedom rights of Jews.

“Judaism has never defined life beginning at conception,” the Kentucky suit says, adding that “millennia of commentary from Jewish scholars has reaffirmed Judaism’s commitment to reproductive rights.”

Although Orthodox organisations support restrictions that allow abortion only under rare circumstances, most American Jews and their representative organizations back wide abortion access.

To understand the legal strategy behind these state-level religious challenges to abortion bans, JTA spoke with Elizabeth Reiner Platt, the director of the Law, Rights, and Religion Project at Columbia Law School. Last year, the center published “A Religious Right to Abortion: History & Analysis,” a memo intended for lawyers, activists, faith leaders and journalists. 

Platt spoke about what Politico recently called “the sleeper legal strategy that could topple abortion bans,” two recent Supreme Court cases on religion and how the conservative court is approaching religion in general. 

Last August you released a report analysing how religion law might apply in legal challenges to abortion bans. Can you summarize the strategy?

I always like to start by saying that the idea that religious liberty includes a right to make decisions about one’s reproductive health care is not just a legal strategy that folks came up with in response to Dobbs. It is how religious groups themselves have been talking about their understanding of reproductive rights for a very long time. I have a handy list of denominational statements from a range of different traditions, including some Jewish groups, as well as Lutheran, Presbyterian and Unitarian Universalist back from the ’80s and ’90s saying reproductive rights are a religious liberty issue for them and for their congregations.

One of the most valuable things in that report is the case index that shows cases going back from the ’70s, the pre-Roe era, that make this legal claim where people of faith have said, “Our religious beliefs motivate us to help people access reproductive health care.” The report essentially lays out the different kinds of legal arguments to be made for a religious liberty right to provide access or facilitate abortion care. And we’re now seeing that happen and a handful of lawsuits across the country including Kentucky, Florida, Missouri, Indiana and Idaho. Several of those cases include Jewish plaintiffs [including Missouri, where five rabbis from multiple Jewish denominations are among more than a dozen Missouri faith leaders challenging the state’s ban on abortion]. There’s a very interesting lawsuit in Kentucky right now involving three Jewish women who actually focus on their religious obligation to have children using in vitro fertilization. And so, their complaint overlays on both the state constitution as well as the state Religious Freedom Restoration Act, and says that they have a religious right to seek IVF care, but also because of their age and other factors they have a higher risk of pregnancy complications, and so they’re including as part of that complaint right to access abortion care in accordance with their religious beliefs.

In the current political climate, do you think courts are inclined to accept the right to abortion as a question of religious liberty? 

I think there’s definitely an appetite for these arguments. There was a really interesting lower court decision in Kentucky a while back, when a judge ruled that the state’s abortion ban violated religious liberty — without that argument even having been made by either party, which is extremely unusual. I think [that] really shows that there is an appetite for these claims. It’s important to say that almost all of these claims are being brought in state court. Most litigators are bringing cases that would not end up in the U.S. Supreme Court. I’m not Pollyannaish about the fact that we have very conservative state judiciaries and a lot of these states are very opposed to abortion, but I think the legal claims themselves based on doctrine should be very strong.

An argument I’ve heard in the Jewish community is that because some of the Jewish plaintiffs pressing religious freedom arguments aren’t Orthodox or traditionally observant Jews — in other words, because they do not act according to traditional Jewish law in other aspects of their life — they shouldn’t be making religious claims in this one area of reproductive rights. Do the courts take into consideration the extent of perceived sincerity or consistency of a party’s beliefs and actions when they review these cases?

Courts can absolutely look at religious sincerity, but I also think it’s outrageous to say that “only Orthodox Jews are sincere.” You know the old saw: two Jews, three opinions. What matters is not getting an Orthodox rabbi in the stand to give expert advice on the Talmud. What matters is the plaintiffs’ own understanding of their Judaism and what it looks like in practice. People can be very sincere about how they practice their Judaism without necessarily being glatt kosher or what have you. Courts tend to use a pretty light touch when it comes to sincerity.

Can you explain to me how an entire ethos that seems to be very much based in religious conceptions of when life begins can make it into secular law without running afoul of the Constitution? Some of these abortion bans seem to me to be examples of one denomination’s religious views becoming everyone’s law. How does that pass muster?

The key case on this is Harris v. McRae from the ’80s, which was a case that challenged the federal Hyde Amendment that bans almost all federal funding for abortion. The challengers made that exact claim: that this is based on a particular conception of when life begins and is essentially a religious restriction. And that case lost before the Supreme Court. The court said that just because a law happens to overlap with particular religious beliefs, it doesn’t make it an inherently religious law. And honestly, since then, the Court’s conception of the [Freedom of Religion] Establishment Clause has gotten narrower and narrower.

That does not mean, however, that that’s the end of the story. Again, I’ll say that most of these claims are being brought under state rather than federal provisions. And we’re now seeing state legislators being much more frank and forthright about their religious motivations when passing some of these laws, in a way that can be relevant to new Establishment Clause challenges. So, for example, the Missouri case which is being brought by Americans United for Separation of Church and State and National Women’s Law Center [filed on behalf of 13 clergy members from six faith traditions, saying that the state’s abortion ban establishes one religious view about abortion as the law of the land in violation of the Missouri constitution]. It’s a challenge under the state’s Establishment Clause. And they point to the fact among other things that the law has the words “Almighty God” right in the text of the statute. That is pretty shocking and unusual. 

Rutgers professor Michal Raucher argues that Jewish movements like hers — she is a Conservative Jew — should be arguing the case for abortion from the perspective of women’s bodily autonomy, and not the more narrow case that Jewish law allows abortions in some limited circumstances. Are religious challenges to abortion bans just sort of the flip side of religious opposition to abortion — they downplay the autonomy of women as individuals by making their decision-making a matter of church or synagogue doctrine? 

This is sort of an age-old strategy question. If you look at the pro-life movement, there was a lot of argument between a “chip away over time” strategy or a more absolutist constitutional amendment saying that personhood starts at the moment of conception. We can have shorter term and longer term strategies, and I don’t know that it’s necessary to pick one. Even to the extent some of these lawsuits don’t end up succeeding, there is value in showing the diversity of religious beliefs on reproductive healthcare, because I think conservative Christians have had such a dominant presence over the issue of religion and abortion. There’s been a lot of history lost. I think of things like the Clergy Consultation Service on Abortion, which was a national network of clergy members who helped people access abortion, vetted illegal abortion providers and also helped people access care abroad. And that history has been all but lost. So yes, I think there can be multiple narratives happening at the same time.

Photo: Members of Jews For Racial and Economic Justice and IfNotNow hold signs that say “Baruch Hashem [Bless God] For Abortion” at a rally at New York City Foley Square, May 2, 2023. (Jacob Henry)