Catholic and Protestant anti-abortionists have long cited their religious views as their motivation and inspiration for pushing to end abortion in the US. (Less often cited, until recently, is that banning abortion is only one part of their war on women, but they also find religious justification for that.) Now an Indiana appellate court has ruled that Jewish law can override the Indiana ban on abortion. (Note: the ruling is based in part on Indiana’s specific Religious Freedom Restoration Act, so it may not be as persuasive in all states.) Two days ago (but I missed it until now) TPM had a story up about it — Indiana Court Gives Win To Group Arguing Religious Freedom Grants Them Right To Abortion.
An Indiana appeals court Thursday upheld an injunction for plaintiffs arguing that their religious beliefs entitle them to an exemption from the state’s near-total abortion ban.
A few individuals and Hoosier Jews for Choice said that they believe that life does not begin at conception and that the life of the pregnant woman outweighs the “potential for life embodied in a fetus.”
The argument turns one of the anti-abortion movement’s most reliable talking points on its head and takes the mantle of “religious conviction” from conservative Christians, who have wielded it so successfully, both in courts of law and public opinion.
The case is Indiana appellate court case 22A-PL-2938, Individual Members of the Medical Licensing Board of Indiana, et al. v. Anonymous Plaintiff 1, et al., decided April 4, 2024.
Now, this is only a preliminary injunction, and the case was sent back to the lower court because the appellate court thought the injunction was overbroad (it could allow people to get an abortion without asserting a religious claim). But it still felt that plaintiffs were likely to win on the merits — that the Indiana law outlawing abortion is an intolerable infringement on their religious rights.
I’m not going to go into the court’s finding of standing (the plaintiffs have a stake in the case), nor am I going to discuss ripeness (whether the plaintiffs are currently impacted by the law) except to quote this excerpt:
[Plaintiffs] assert that if they were to become pregnant, they would be substantially burdened by the Abortion Law by being unable to obtain an abortion that their religious beliefs direct. They are sexually active women capable of bearing children so the prospect of pregnancy without the availability of a religiously directed abortion is evident. . . .
Through their allegations that the Abortion Law bars them from obtaining abortions that their religious beliefs direct, Plaintiffs have shown that their religious exercise is likely to be substantially burdened by the Abortion Law.
Bit of background here: Some of the plaintiffs (whose identities have been concealed as Anonymous 1, etc) are women who have previously had to have abortions for serious medical reasons. They argue that they want to become pregnant again, but are very concerned that if the new pregnancy were to have the same issues, they would not be able to get an abortion now, even though their religion (Judaism) allows and may even mandate that they get one. The court ruled that this situation makes their case ripe.
(And one side note: Two of the plaintiffs are a same-sex couple, but the court, other than noting it in its introductory descriptions, did not treat them any differently from the other plaintiffs.)
I’m also not going into the details of the ruling here (for one thing, IANAL and could miss a lot of things), but there a few passages that jumped out at me:
If a corporation can engage in a religious exercise by refusing to provide abortifacients—contraceptives that essentially abort a pregnancy after fertilization—it stands to reason that a pregnant person can engage in a religious exercise by pursuing an abortion.
In making this argument , the court used the same logic that SCOTUS did in Burwell v Hobby Lobby (a private corporation can refuse on religious grounds to pay for contraceptives) to achieve the opposite result.
Another passage of interest, discussing why the State of Indiana has not shown a compelling interest that would override a religious objection:
The State does not explain why a victim of rape or incest is entitled to an abortion, but women whose sincere religious beliefs direct an abortion are not.
One final quote from the main opinion, a very interesting footnote given the current state of the argument:
Throughout the course of this case, the parties sometimes have used the term “fetus” to describe all developmental stages of a pregnancy. However, this language deviates from the scientifically accepted language. [further discussion and citations omitted]
Judge Mark Bailey wrote a concurring opinion because he wanted to get a few swipes in on the way the Indiana legislature has been using far-right religious notions as a basis for law, in violation of the Indiana Constitution:
[I]n this post-Dobbs world, our Legislature has done just that –preferred one creed over another. Based upon the premise that the State has a compelling interest in the outcome of a woman’s pregnancy arising at the very moment of conception, there is a codification of when life begins, something intensely debated among adherents to various religions. . . . Indeed, where theologians cannot agree, legislators are ill-equipped to define when life begins.
And he added this gem:
Legislators, an overwhelming majority of whom have not experienced childbirth, nevertheless dictate that virtually all pregnancies in this State must proceed to birth notwithstanding the onerous burden upon women and girls. They have done so not based upon science or viability but upon a blanket assertion that they are the protectors of “life” from the moment of conception. In my view, this is an adoption of a religious viewpoint held by some, but certainly not all, Hoosiers. [emphasis added]
Finally, a few words about the Jewish law on abortion. First, it’s complicated. (You were expecting something else from a people whose motto is “Two Jews, three opinions”?) You can find a good overall summary here. I’ll just mention that even the most ultra-Orthodox rabbis, who would not allow anything that cannot be derived from 16 different verses in the Bible, agree that, until the baby’s head emerges from the womb, the mother’s life takes precedence. Most rabbinic authorities also allow considerations of the mother’s physical and emotional well-being in addition to risk of life.