The right-wing majority of the Supreme Court is responsible for June’s Dobbs decision, which overruled Roe v. Wade. That same majority is understandably loathe to acknowledge that its reasoning was based not on some high-minded principles of constitutional law, but on Christian religious dogma. For Justice Samuel Alito, to do so would be tantamount to admitting that his analysis of abortion in the nation’s history—upon which his opinion is largely based—was arbitrary, selective, and warped by an implicit presumption that Christianity, as the nation’s “true” religion, deserved special deference in matters such as the definition of when “life” begins.
But basing far-reaching legal edicts on the gossamer threads of religious sensibilities is problematic in a country that was constitutionally designed to prevent the imposition of a particular religious dogma on a population consisting of multiple faiths (to say nothing of those with no religious beliefs at all). It becomes doubly problematic when individual states have passed laws guaranteeing religious “freedom,” supposedly protecting individuals from government intrusion on their ability to freely practice their faith.
While such laws were typically enacted with the intent of “protecting” the rights of so-called Christians to discriminate against LGBTQ people and others whom they hate, the statutes that enable these types of “protections” are susceptible to interpretations that their authors certainly never anticipated. For example, the Salem, Massachusetts-based Satanic Temple weighed in earlier this month, filing suits in Idaho and Indiana claiming that those states’ abortion bans violated the Temple’s ability to freely exercise its religion, specifically the right of its members to perform an “abortion ritual.”
While those who actually believe in religious freedom can derive a degree of schadenfreude from lawsuits such as that of the Satanic Temple, the knee-jerk reaction of those on the right is to characterize them as simple trolling, by organizations whose “religion” is simply an artifice specifically designed to evade the prohibition. That sort of reaction is telling in its own right, but it becomes wholly untenable when more “established” religions—such as Judaism, for example—enter the picture.
RELATED: Kentucky and Michigan court decisions on abortion highlight the importance of upcoming ballot votes
In June, the Jewish congregation L'Dor Va-Dor filed suit in Florida, alleging that the state’s abortion ban violated that same state’s statute guaranteeing religious freedom. Specifically, the lawsuit cited the Jewish law which permits or even requires abortion in many circumstances, including to preserve ‘the health, mental or physical well-being” of those who become pregnant. A similar suit, brought by the ACLU on behalf of a group calling itself Hoosier Jews for Choice, is pending in Indiana.
Now a third lawsuit, brought by three Jewish women in Kentucky, asserts that Kentucky laws providing that “life begins” at the moment of fertilization and banning abortions after six weeks, are equally violative of their religious traditions. This suit differs from the others, however, in that it poses not only religious but practical problems—faced by not just those who may wish to terminate a pregnancy, but by those who actually want to become pregnant.
As reported by Yonat Shimron, for The Washington Post:
What’s distinct about the latest suit is that all three of the Jewish women require in vitro fertilization to become pregnant but are afraid of beginning the procedure without greater clarity about what the law will permit them to do with excess frozen embryos. The suit claims the women must spend exorbitant fees to keep their embryos frozen indefinitely, and they are unsure whether they will face felony charges if they dispose of them.
As Shimron reports, the suit also states that “because pregnancies resulting from infertility treatments have a higher rate of stillbirth, the women foresee the possibility of not wanting to carry their IVF pregnancies to term if the fetus is not viable.”
This puts the Republican legislators and forced-birth lobby who pushed these laws into a bit of a bind. It’s perfectly reasonable to conclude that if the law prohibiting abortion was allowed to stay in place, these women would likely choose not to pursue in vitro fertilization, given the risks it entails in forcing them to carry their fetuses to term. In other words, the law has the effect of preventing rather than promoting childbirth.
Shimron’s article quotes Sheila Katz, the CEO of the National Council for Jewish Women, who is advising plaintiffs in all three lawsuits
“It’s a scary time to be pregnant,” Katz said. “The state is telling them their life is not as valuable as the fetus. These women are saying, ‘A, that’s against our religious tradition, and B, you owe us with being less vague about what this will look like so we can start our families.’”
Practical concerns aside, the suit also addresses the heart of the matter: the state’s undue infringement of their rights (and beliefs) by the imposition of a “sectarian theology,” i.e., fundamentalist Christianity. As reported by Bruce Schreiner for the Los Angeles Times, this lawsuit also demolishes Justice Alito’s myopic assumptions about the “historical” precedent for prohibiting abortions.
“Plaintiffs’ religious beliefs have been infringed: they are Jewish and Jewish law (“halakha”) asked and answered the question of fetal personhood thousands of years ago and rabbis, commentators and Jewish legal scholars have repeatedly confirmed these answers in the intervening millenia," the Kentucky lawsuit reads. “While a fetus is deserving of some level of respect under halakha, the birth giver takes precedence. Jews have never believed that life begins at conception.”
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“Judaism has never defined life beginning at conception,” the suit said, adding that “millenia of commentary from Jewish scholars has reaffirmed Judaism’s commitment to reproductive rights.”
“Under Jewish law, a fetus does not become a human being or child until birth,” it said.
The suit also points out that the Kentucky law inherently infringes on the plaintiffs’ constitutional right to bear children through the process of in vitro fertilization. Accordingly, Daniel Cameron, the state’s Republican attorney general—who has vowed to fight the lawsuit—will find himself in the unenviable position of defending a law that not only may violate Kentucky’s so-called “religious freedom” law, but also fails in its supposed intended purpose of forcing childbirth, even against the wishes of the pregnant person.
Kentucky, of course, also has a constitutional amendment on the November ballot.
Kentucky's one-sentence amendment states:
"To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion."
If approved, the measure changes Kentucky's constitution to eliminate the right to abortion.
If rejected, it leaves open the possibility abortion could be declared a state right.
It should go without saying that these types of highly charged personal issues were exactly what prompted the Supreme Court in 1973 to rule that the right to abortion was implicit, and thus protected by the guarantees included in the 14th Amendment of the Constitution. But now that the court and its Republican cohorts in state legislatures have decided to impose their radical religious sensibilities on the rest of the nation, we can doubtlessly expect whole new levels of legal sophistry as they tie themselves into knots, trying fruitlessly to justify their actions.
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