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Can the ban on abortion infringe religious freedoms?


The Supreme Court’s six conservatives have expanded the scope of religious freedoms in recent years, blurring or erasing several lines between church and state. These same six judges overturned Roe vs. Wade Friday, deciding there is no constitutional right to abortion — a political outcome long championed by conservative evangelical Christians and Catholics. But could banning abortion also restrict the free exercise of religion?

That’s the argument Congregation L’Dor Va-Dor, in Palm Beach County, Florida, is making in a legal challenge to Florida’s new abortion law. According to Jewish teaching, abortion “is required when necessary to protect the health, mental or physical well-being of the woman,” among other reasons, the lawsuit says. “As such, the law prohibits Jewish women from practicing their faith without government intrusion and it violates their right to privacy and religious freedom,” threatening “Jewish people by imposing the laws of other religions on Jews.” .

Can prohibiting abortion violate the First Amendment guarantee of the free exercise of religion?

Religious Freedom Goes Both Ways

“No faith is monolithic on the question of abortion”, The Associated Press reports. “Yet many followers of religions that do not prohibit abortion are appalled that a view held by a minority of Americans could supersede their individual rights and religious beliefs.” For example, “Jewish leaders across the ideological spectrum” agree that “deeply rooted Jewish teachings indicate that abortion is permitted – and even required – if a mother’s life is in danger.” The New York Times adds.

“If you are an observant Jew, then you live by a principle which says, in Hebrew, ‘Pikuach Nefesh Docheh Et HaKol'”, or “if someone’s existence is in jeopardy, the obligation to remedy the situation precludes any further obligation,” Cornell law professor Sherry Colb writes to Justia. This means that “if a pregnant woman experiences serious medical complications that can only be treated by terminating her pregnancy, then she has an obligation to expel the contents of her uterus”, because according to Jewish teachings, ” the woman is a person and the zygote/embryo/fetus is not.”

These are not sincere religious objections

“Judaism is not a centralized religion,” writes Josh Blackman, a professor at South Texas College of Law Houston. Raison. “There is no Jewish equivalent of a pope” and “no official or standardized set of teachings”, including on “whether Jewish law in fact imposes any sort of obligation or duty to be abortion to save a woman’s life”. And even if there were such an obligation, the liberal Jews of Congregation L’Dor Va-Dor are not in a position to claim it.

“Historically, people who have claimed free exercise tend to be more observant or orthodox,” Blackman says. “Those who are less devout are less likely to be burdened by restrictions on religion.” Under current precedent, you have to prove that a law imposes a “substantial burden” on your practice of religion, and that’s easier to prove for people who take their religion more seriously.

So, for example, a Jew who thinks that keeping kosher and not working on the Sabbath is not binding, but “considers binding the interpretation of halakha [Jewish law] that affects abortion, I think the person’s sincerity can be challenged,” Blackman writes. This person “may sincerely believe that their religion permits – and perhaps even encourages – an abortion in such cases”, but “the legal concept of a ‘substantial burden’, which has been developed in the context of Christian religions, does not correspond perfectly to a Jewish faith which in fact does not impose any requirements on the faithful, but which only proposes ambitious principles.

It’s not just the Jews

In fact, Muslim Americans “are uniquely positioned to condemn abortion bans and their attack on everyone’s constitutional right to religious freedom,” the American Muslim Bar Association and HEART Women and Girls wrote in April.

Muslims have a complex understanding of conception, gestation and life, and “abortion is one of them,” said Zahra Ayubi, professor of religion at Dartmouth College. Religious News Service. Abortion has generally been permitted for up to 120 days in Islam, and restrictive abortion laws, such as the near total ban in Texas, “take away from Muslims the right to abortion in their tradition and their religion”.

Texas law imposes the “moral position of the Christian right and the anti-abortion movement” on other communities with different beliefs, says Abed Awad, an assistant law professor at Rutgers who specializes in Sharia (Islamic law). “It is not only contrary to Sharia, but it is also in many ways contrary to living in a plural religious and cultural society.”

This court only protects conservative Christians

“Proclaiming that my religion allows abortion, or that this law addresses a point of religious disagreement, is not enough,” said Douglas Laycock, professor of religious studies at the University of London School of Law. Virginia. Time. “It’s not what your religion allows that is protected, but what you do primarily for religious reasons.”

For example, “my religion may allow littering”, but “I would almost certainly fail if I said that I am entitled to an exemption from the littering ban because my religion allows me to litter writes Cornell’s Colb at Justia. “As long as my religion does not require me to litter, I can obey my religious rules and comply with the local ordinance at the same time.” But even if you could prove that your religion requires you to have an abortion, she adds, you would still be out of luck with this Supreme Court.

“Why? Because five and maybe six of the judges on the court consider abortion murder, no matter how early in the pregnancy,” Colb writes. Imagine a woman named Vivien telling the court that she has a religious obligation to throw her 2-year-old child into an active volcano. The court would say no, she explains, because “the state‘s interest in protecting innocent people from death will outweigh Vivien’s religious observance, and most of us wouldn’t want that. ‘it be otherwise’.

As long as the court’s conservatives “view an abortion as murder,” Colb writes, “they will treat claims for religious exemption the same way they would treat Vivien’s asserted right to throw her 2-year-old child into a volcano. asset”.

“The bottom line is that despite appearances to the contrary, this tribunal is not particularly sympathetic to claims of free exercise”, only “to conservative Christianity and, therefore, to Judaism and Islam where there is minimal demand or traditions happen to be the same,” argues Colb. “The sooner we understand that the court is all about Christianity rather than a broad vision of religious freedom for all, the sooner we will begin the process of finding solutions to our problem of a modern theocracy that does not ask the court to behave with integrity or consistency.”