More courts are being asked to consider whether abortion restrictions violate religious freedom

by | Aug 10, 2022

The U.S. Supreme Court’s reversal of Roe v. Wade, holding there is no right to an abortion under the U.S. Constitution, has led abortion-rights activists in multiple states to make religious freedom arguments for abortion.

In Florida, multiple religious entities filed a new lawsuit arguing that the state’s new law banning abortion after 15 weeks violates their religious freedom under the First Amendment and the Florida Religious Freedom Restoration Act. Among other things, the complaint alleges, the 15-week ban “substantially burdens Plaintiffs, as well as their congregants and all members of the Jewish faith, in the exercise of their Jewish beliefs and practices regarding abortion.” (A Florida synagogue filed a similar suit back in June challenging the law on similar grounds.)

In a recent article by Harry Bruinius and Henry Gass in the Christian Science Monitor, Rabbi Danya Ruttenberg, scholar-in-residence for the National Council of Jewish Women, explains this view:

It is a mitzvah, or religious duty in [the Jewish] tradition, she says, to preserve the life, health, and well-being of a pregnant woman, regardless of the timing. And even though every state law that currently bans abortion contains language allowing for exceptions when a woman’s life is endangered, many doctors have been uncertain about when, exactly, a woman’s life can be considered at risk – leading to medical complications. This not only does harm to women, the rabbi says, but it also constrains the free exercise of her religion when it comes to protecting women.

Likewise in an amicus brief filed with the Ohio Supreme Court, a group of rabbi and clergy argued that recently passed legislation restricting abortion violates their religious freedom rights under the Ohio state constitution. S.B. 23 bans abortion after six weeks unless necessary to prevent the death or “serious risk of substantial and irreversible impairment of a major bodily function” of a pregnant person. The brief explains the view that the bill fails to adequately protect their religious freedom.

Many religions recognize the right of a pregnant person to make the deeply personal decision of whether to continue a pregnancy in accordance with their faith at any stage of the pregnancy. For example, under Jewish law and the teachings of the General Synod of the United Church of Christ (the “UCC”), a pregnant person is given the agency to terminate a pregnancy for a variety of reasons including to protect the pregnant person’s physical, mental, and socioeconomic health. S.B. 23 takes that agency away and denies Ohioans the right to act in accordance with their faith free of government intrusion.

The brief goes on to argue that, in addition to impermissibly restricting their religious exercise,  S.B.23 also violates the state’s Establishment Clause by imposing one religious viewpoint about when life begins on those that do not share that view. As BJC Executive Director Amanda Tyler explained to Kelsey Dallas of Deseret News, the manner in which state legislatures proceed in enacting abortion bans could implicate the Establishment Clause. “If these bans are shown to be religious laws,” she said, “that would be unconstitutional even under the Supreme Court’s very limited view of what the Establishment Clause prohibits.”

The Establishment Clause argument has already had some success. A Kentucky judge recently halted the state’s abortion restrictions, in part out of Establishment Clause concerns. In the opinion explaining his decision to grant an injunction, the judge wrote:

The General Assembly is not permitted to single out and endorse the doctrine of a favored faith for preferred treatment. By taking this approach, the bans fail to account for the diverse religious views of many Kentuckians whose faith leads them to take very different views of when life begins. There is nothing in our laws or history that allows for such theocratic based policymaking.

These cases continue to wind their way through their respective state courts. Importantly to the outcomes, each state’s abortion restrictions vary in language and in legislative history, and each state’s constitution and history of interpretation is unique in how it protects religious freedom. Stay tuned as these – and no doubt more – cases making similar arguments are adjudicated.