The six conservative members of the Supreme Court have recently broadened the definition of religious freedom by removing or blending key boundaries between church and state.
The Roe v. Wade decision was overturned by the same six justices on Friday, ruling that there is no constitutional right to abortion. Conservative evangelical Christians and Catholics have long supported this policy outcome. But may prohibiting abortion also limit the right to practise one’s religion?
Congregation L’Dor Va-Dor in Florida’s Palm Beach County is arguing that in a lawsuit against the state’s new abortion law. The complaint claims that according to Jewish doctrine, abortion “is required if necessary to protect the health, mental or physical well-being of the mother.”
As a result, the act threatens “the Jewish people by forcing the laws of other religions upon Jews,” denying Jewish women the ability to practise their religion without interference from the government.
Can the First Amendment’s provision for the free exercise of religion be violated by banning abortion?
Religious freedom exists on both sides.
According to The Associated Press, “no faith is monolithic on the abortion question.” Many adherents of faiths that do not forbid abortion, however, are horrified at the idea that a minority’s opinion of Americans may trump their personal freedoms and religious convictions.
According to The New York Times, “deeply rooted Jewish teachings indicate that abortion is permissible — and even required — if a mother’s life is in danger,” for instance. “Jewish leaders from across the ideological spectrum” concur on this point.
If you are an observant Jew, you live by the maxim “Pikuach Nefesh Docheh Et HaKol,” which is written in Hebrew. or, as Cornell Law professor Sherry Colb says at Justia, “if someone’s survival is in jeopardy, the need to solve the problem moves aside any other commitments.”
According to Jewish teachings, “the woman is a person and the zygote/embryo/fetus is not,” which implies that “if a pregnant woman is facing major medical issues that can only be remedied by terminating her pregnancy, then she must remove the contents of her uterus.”
These objections to religion are not sincere ones.
Josh Blackman, a professor at the South Texas College of Law in Houston, claims in an article for Reason that Judaism is not a centralised religion. There is “no Jewish Pope” and “no formal or codified body of teachings,” especially on the subject of whether or not it is required by Jewish law to perform an abortion to save a woman’s life.
The liberal Jews at Congregation L’Dor Va-Dor are in no position to claim such a duty, even if it existed.
Blackman contends that historically, those who have raised Free Exercise claims have tended to be more observant or orthodox.
Less pious people are less likely to face burdens from religious constraints. It is simpler for persons who take their religion more seriously to demonstrate that legislation creates a “substantial burden” on their right to practise their religion under current precedent.
Thus, Blackman adds, “I think the person’s sincerity can be challenged if, for instance, the Jew believes that observing Kosher and avoiding labour on the Sabbath is not binding but regards as binding the interpretation of halacha [Jewish law] that impacts abortion.”
However, “the legal concept of a substantial burden,’ which was developed in the context of Christian faiths, does not neatly map onto a Jewish faith that does not actually impose any requirements on congregants, but instead only offers aspirational principles.”
This person “may sincerely believe that her religion allows — and perhaps even encourages — an abortion in such cases.”
Not only Jews, either.
The American Muslim Bar Association and HEART Women and Girls wrote in April that Muslims in the United States “are uniquely positioned to denounce abortion prohibitions and their attack on every person’s constitutional right to religious liberty.”
According to Zahra Ayubi, a professor of religion at Dartmouth College, Muslims have complicated conceptions of conception, gestation, and life, and “abortion is part of it,” she tells Religion News Service.
Restrictive abortion laws, like the near-total prohibition in Texas, “take away from Muslim rights to abortion in their culture and their religion.” In Islam, abortion has traditionally been permitted for up to 120 days.
Abed Awad, an adjunct law professor at Rutgers University who specialises in Shariah (Islamic) law, claims that the Texas law imposes the “moral viewpoint of the Christian Right and the anti-abortion movement” on other populations with differing beliefs.
This is not only against the Shariah, but it also runs against many aspects of life in a society that values the diversity of religion and culture.
Only conservative Christians are protected by this court.
According to Douglas Laycock, a professor of religious studies at the University of Virginia Law School, “to assert that my faith authorises abortion, or that this act tackles a matter of religious conflict, is not nearly enough.”
“What you do primarily for religious reasons, not what your religion authorises, is what is protected.”
Even though “my religion might permit littering,” Cornell’s Colb writes at Justia that “I would very likely fail if I were to argue that I am entitled to an exemption from the ban against littering because my religion enables me to litter.”
“I can follow my religious standards and abide by the local ordinance at the same time, provided that my religion does not forbid me from littering.” However, she continues, you would still be out of luck with this Supreme Court even if you could show that your religion forbids you from having an abortion.
“Why? Because, no matter how early in pregnancy, five or possibly six of the judges on the court consider abortion to be murder, Colb argues. Imagine Vivien, a woman, telling the judge that it is her religious duty to toss her 2-year-old into a raging volcano.
She claims that the court would rule against Vivien because “most of us would not want it any other way,” and “the state’s interest in preventing innocent people from being killed will supersede Vivien’s religious practice.”
According to Colb, “they will consider claims for religious exemptions exactly like they would Vivien’s stated right to hurl her 2-year-old into an active volcano” as long as the court’s conservatives “see an abortion as murder.”
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Despite appearances to the contrary, this court is not particularly sympathetic to Free Exercise claims, according to Colb, except “to conservative Christianity and, consequently, to Judaism and Islam if the ask is low or the traditions happen to be the same.”
“The sooner we begin the process of finding solutions to our contemporary theocracy problem that do not ask the court to behave with integrity or consistency, the sooner we will come to understand that the court is all about Christianity rather than some capacious vision of religious liberty for all.”
