With Roe in peril, abortion rights advocates prepare appeals to religious liberty

‘The Torah is clear on this issue: Abortion is not only permitted in Judaism, but in some cases required when the life of the pregnant person is at stake,’ said Sheila Katz, head of the National Council of Jewish Women.

People attend the Jewish Rally for Abortion Justice on the National Mall, May 17, 2022, in Washington. RNS photo by Jack Jenkins

WASHINGTON (RNS) — In the early 1990s, as Congress was considering the Religious Freedom Restoration Act, the U.S. Catholic bishops surprised some religious liberty advocates by voicing opposition to the bill. As their representatives explained at a hearing before a Senate committee that included then-Senator Joe Biden, the bishops were concerned RFRA would allow “religiously based abortion claims” — objections to abortion restrictions brought by their fellow people of faith — to prevail.

The bill was eventually amended, mollifying the bishops. But their prognostication about abortion and religious liberty may yet come to pass.

Hours after Politico published Supreme Court Justice Samuel Alito’s draft majority opinion striking down Roe v. Wade earlier this month, Sheila Katz stepped onto a small stage before a throng of protesters gathered outside the Supreme Court to declare, “Abortion is not only permitted in Judaism, but in some cases required when the life of the pregnant person is at stake.”

Sheila Katz. Courtesy photo

Sheila Katz. Courtesy photo

Citing the Torah, Katz, CEO of the National Council of Jewish Women, went on to say, “Restrictive abortion laws rooted in just one understanding of when life begins limits our ability to fully practice our religious tradition.”

She articulated a similar message on Tuesday (May 17), when more than 1,000 Jewish Americans — including rabbis and representatives from an array of Jewish traditions — massed near the U.S. Capitol for a “Jewish Rally for Abortion Justice.”

“I support the right to an abortion because of my Jewish faith, not in spite of it,” Katz said. As supporters cheered and waved signs, she added: “Abortion access is a Jewish value.”

For decades, that view has been drowned out by a chorus of well-organized, amply funded religious opponents of abortion — primarily Catholics and conservative evangelical Christians. But the visibility of religious groups that support abortion rights has increased dramatically in recent years, and since the leak of Alito’s draft opinion, organizations such as NCJW and Catholics for Choice have literally taken center stage at abortion rights rallies across the country.

Activists and scholars say these early ripples of resistance could become a wave of religious freedom challenges to state-level restrictions if the court revokes the right to privacy that undergirds the Roe decision and returns the question of abortion to state legislatures.

Were that to come to pass, legal experts are divided as to whether the same Supreme Court that overturned Roe would find such arguments convincing. But if abortion rights advocates do succeed, scholars say, their path to victory has been paved by conservative Christians who spent years suing for religious exemptions from government regulations.

“I see a potential collision course between extremely expansive abortion restrictions and an increasingly expansive right to religious exemptions from other laws,” said Elizabeth Reiner Platt, director of Columbia Law School’s Law, Rights and Religion Project, which hosted a December forum titled “A Religious Right to Abortion?”

RELATED: With Roe teetering, religious activists on both sides flock to the Supreme Court

Micah Schwartzman, a University of Virginia School of Law professor, split abortion-related religious freedom challenges into two categories: those that cite the U.S. Constitution’s free exercise clause, which allows for the free exercise of religion, and those that invoke the establishment clause, which prohibits government from establishing a state religion.

Challenges to existing abortion restrictions that hedge close to free exercise claims are already making their way through the courts, Schwartzman said. Clergy are among the plaintiffs challenging Texas’ law that allows private citizens to sue abortion providers and anyone else who “aids or abets” an abortion after six weeks. Faith leaders say the law criminalizes their ability to counsel people seeking abortions, a practice some consider an important component of their ministry and part of their Constitutionally protected religious speech.

People attend the Jewish Rally for Abortion Justice on the National Mall, Tuesday, May 17, 2022, in Washington. RNS photo by Jack Jenkins

People attend the Jewish Rally for Abortion Justice on the National Mall, May 17, 2022, in Washington. RNS photo by Jack Jenkins

Jewish Americans who argue their tradition does not teach that life begins at conception may also make a free exercise claim, and Muslim Americans could argue something similar. Abed Awad, a Rutgers University adjunct law professor and an expert in Shariah, Islam’s religious legal system, said Medieval Muslim scholars argued it was permissible for women to end a pregnancy before 120 days, or about 17 weeks.

“For that reason, the termination was not a termination of a life,” Awad said. “Of course there were disagreements, with some scholars giving different dates, but the majority takes this position.”

In an amicus brief filed last year in Dobbs v. Jackson Women’s Health, the abortion case before the Supreme Court, faith groups opposing abortion bans — led by NCJW — cited Jewish Americans who view “the creation of a human life” as “something that happens gradually over time.”

Justice Sonia Sotomayor appeared to refer to their brief during oral arguments over Dobbs in December, when a lawyer described Roe v. Wade as “the right to end a human life.”

Sotomayor stepped in, asking, “How is your interest anything but a religious view?”

“The issue of when life begins has been hotly debated by philosophers since the beginning of time — it’s still debated in religions,” she said. “So, when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it?”

Asma Uddin. Photo by Emily Hardman

Asma Uddin. Photo by Emily Hardman

Asma Uddin, a religious liberty attorney, author and former counsel at the Becket Fund for Religious Liberty, suggested the success of such arguments depends on a key standard in free exercise cases.

“The main challenge I see to that is that the courts will analyze the claim using the strict scrutiny standard, which asks whether the law serves a compelling government interest and is narrowly tailored to serve that interest — and if fetuses are seen as people, and abortion is considered murder, then it’ll be fairly easy to argue that the law serves a compelling government interest and the religious claim should fail,” Uddin said in an email.

But if justices were confronted with such claims, Schwartzman argued, the Supreme Court “has created some serious difficulties for itself.” 

RELATED: How Amy Coney Barrett could change the Supreme Court’s balance on religious liberty

He pointed to the court’s rulings in November 2020 barring public health restrictions imposed on houses of worship in New York and California, arguing it was inconsistent to limit religious gatherings while allowing stores and other institutions to remain open.

“The Supreme Court has expanded its free exercise of jurisprudence over the last several years — it’s granted many more religious exemptions,” Schwartzman said. “There’s a set of questions the court is going to face. To what extent is it required to grant exemptions in the context of abortion regulations?”

Platt noted some abortion providers have even described their work as a ministry. Among them: George Tiller, a Kansas doctor and a Lutheran who was shot and killed in 2009 by an anti-abortion extremist as Tiller served as an usher at his church in Wichita, Kansas.

Abortion rights advocates may also argue abortion restrictions are based on a specifically Christian understanding of when life begins, amounting to a violation of the establishment clause.

“Why does that particular religious position have to be the law of the land superimposed on a very diverse polity in the United States?” Awad asked.

Richard Garnett, director of Notre Dame University’s Program on Church, State and Society, expressed skepticism that religious freedom challenges to abortion restrictions could prevail.

RELATED: Clergy among advocates suing Texas over new law deputizing citizens to enforce abortion ban

“A court would first have to conclude that there was a ‘sincerely held’ religious belief requiring an abortion (which is different from having beliefs that permit abortion) and then have to conclude that the government does not have a ‘compelling’ interest in enforcing its regulation,” he said in an email.

There’s also the issue of amassing sufficient resources to counter the anti-abortion legal movement that has grown up around defeating Roe.

People attend the Jewish Rally for Abortion Justice on the National Mall, Tuesday, May 17, 2022, in Washington. RNS photo by Jack Jenkins

People attend the Jewish Rally for Abortion Justice on the National Mall, May 17, 2022, in Washington. RNS photo by Jack Jenkins

“There are some organizations doing great religious liberty work that talk more in terms of civil rights, antisemitism, fighting religious discrimination, ensuring church-state separation or pluralism — things like that,” Platt said. “But they are extremely outgunned by a handful of organizations that very explicitly focus on religious liberty and have incredible resources to advance their version of what that means.”

Despite such obstacles, Platt believes elected officials who oppose abortion, like Catholic bishops of the 1990s, are already concerned about religious freedom objections to their laws. When the Oklahoma Legislature passed a “copycat” law modeled on Texas’ six-week limit, legislators included a section stipulating that its contents “shall not be subject to any provision of the Oklahoma Religious Freedom Act” — language designed specifically to ward off legal threats, according to the Deseret News.

Platt and Schwartzman noted the provision doesn’t insulate the law from a federal challenge, but agreed it signaled that abortion opponents are preparing for a legal fight on religious liberty grounds. That alone may encourage abortion rights activists.

“I certainly wouldn’t say it would be easy, but I think there is potential,” Platt said.

Alejandra Molina contributed to this story.

This story has been updated.

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