Rabbi Danya Ruttenberg says there are situations in which it would be her religious duty to help a woman get an abortion.
And for her, as for many who follow the traditions of Judaism and other faiths, states that now ban or severely restrict access to abortion services are placing burdens on her own sincerely held religious beliefs and her ability to exercise her faith freely.
“Religious freedom is meant to be a shield to protect, not a sword to harm,” says Rabbi Ruttenberg, scholar-in-residence for the National Council of Jewish Women. “Abortion bans absolutely impose one theology onto the nation, on people who hold other theologies and on people who are not religious, in a way that is deeply problematic.”
It is a mitzvah, or religious duty in her 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.
“For rabbis, this has become a very significant legal issue for us as we talk to our congregants and our community about the full breadth of their lives, including their reproductive lives,” Rabbi Ruttenberg says.
When the Supreme Court in June overturned the constitutional right to abortion, however, its decision in Dobbs v. Jackson Women’s Health did not mention the word “religion” once. Rather, it dismantled the unenumerated right to privacy that had undergirded the right to abortion for almost 50 years and returned the legal question of abortion to each individual state.
Still, for decades, those within the anti-abortion movement have been animated by the belief that life begins at the moment of conception, making abortion, in their view, both a sin and a crime. A central tenet of Roman Catholic teaching and a view held by a majority of evangelical Protestants, this belief has informed the political positions of many religious conservatives who dominate the Republican Party – and who made appointing conservative justices who would overturn Roe v. Wade a well-known priority.
Yet as the legal questions surrounding access to abortion return to the states, a growing number of abortion-rights advocates are now pressing the claim in state courts that abortion bans constitute both an establishment of religion and a violation of religious liberty.
“We are just seeing the tip of the iceberg of the court challenges to come,” said Rachel Rebouché, dean of Temple University’s Beasley School of Law in Philadelphia, in July. Abortion rights advocates have already filed a number of lawsuits in states with new bans, including Arizona, Idaho, Louisiana, Mississippi, and Texas.
“Theocratic-based policymaking”?
In Kentucky, a state judge has blocked the state’s “trigger law” banning abortion. Part of the judge’s reasoning included an understanding of religious freedom in the Kentucky Constitution and the apparent theological underpinnings of the ban. Using the term “unborn human beings” in the law, he said, constituted “theocratic-based policymaking.”
“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,” wrote Jefferson County Circuit Judge Mitch Perry. The trigger ban violates the state’s constitution “by impermissibly establishing a distinctly Christian doctrine of the beginning of life, and by unduly interfering with the free exercise of other religions that do not share that belief.”
Last month, a Jewish congregation in Florida, joined by Unitarian and Buddhist groups, also filed a challenge to the state’s new 15-week ban on abortion, arguing the law infringes on the religious liberty of its members.
“Both anti-abortion and pro-abortion advocates will be using the tools at their disposal to map out what the new legal landscape after Dobbs is going to look like,” says Dean Rebouché. “We already see it, but we should expect it to intensify, and it really tests this idea that [Justice Samuel] Alito had that Roe and Casey were unworkable, and created excessive litigation and hard-to-apply tests consistently. In just over three weeks, we’ve seen that what we have now is not going to be more workable.”
Just as with competing legal claims, the theological positions of many religious traditions are also wide-ranging and complicated – including within Judaism, says Lisa Fishbayn Joffe, director of the Hadassah-Brandeis Institute at Brandeis University in Waltham, Massachusetts.
“There are several avenues through which Jewish communities are expressing concern about these developments about abortion,” she says, noting some of the diversity within Jewish traditions. But unlike Christian traditions, those of Judaism do not hold that life begins at conception.
Citing Exodus, she notes that the Torah teaches if a man accidentally strikes a woman and she dies, the offender must be put to death. But if the man accidentally hits a woman and she miscarries, he must only pay a fine to her husband.
A significant part of Jewish traditions also teach that a fetus can be considered a human life only after 40 days. But even then, she says, it could be considered a religious duty to abort when there is a threat to the life, health, or emotional well-being of a woman.
But Dr. Joffe, too, says some state laws that ban abortion might place a chill on religious counseling.
“Some of these laws raise concerns for me that even having a discussion about the Jewish texts regarding abortion, and the insights around termination of pregnancies in the Jewish tradition – that even just having that conversation, a clergy person advising a parishioner that Jewish law would permit or even require an abortion, that could be viewed as aiding or abetting someone to have an abortion,” Dr. Joffe says.
The American principles of separation of church and state and religious liberty, however, have also been hotly contested over the past decade as a conservative Supreme Court has made these issues a priority.
And on a federal level, while the constitutional right to abortion had been grounded upon an unenumerated right to privacy, the question of abortion and religious liberty is not new, scholars say.
“Even before Roe, there had been half a century of this kind of claim,” says Cary Franklin, professor of law at the University of California, Los Angeles. “A lot of them got dismissed, or were moot. So we haven’t had a ton of case law, even though people have been filing this kind of suit. However I think more and more people will be arguing that their religious rights are being violated.”
In a closely divided decision in 1980, the Supreme Court ruled that the Hyde Amendment, an act of Congress that banned the use federal funds for abortion, did not constitute an establishment of religion. “The fact that the funding restrictions ... may coincide with the religious tenets of the Roman Catholic Church does not, without more, contravene that clause,” the majority wrote in a 5-4 decision in Harris v. McRae.
In another 5-4 decision in 1989, the Supreme Court ruled that a law restricting abortion in Missouri, and which contained a preamble that stated that “the life of each human being begins at conception,” also did not violate the establishment clause.
In Webster v. Reproductive Health Services, Chief Justice William Rehnquist dismissed the preamble as irrelevant to the substance of the law. “The court has emphasized that Roe implies no limitation on a state’s authority to make a value judgment favoring childbirth over abortion, and the preamble can be read simply to express that sort of value judgment,” he wrote.
Legal limits to religious liberty
Indeed, many legal scholars doubt that claims that abortion bans constitute an establishment of religion or a violation of religious freedom would carry much legal weight – at least on a federal level.
“I rely on the distinction that the Supreme Court has often made between religious belief, which is not subject to state control, religious advocacy, the rights to which are quite broad, and religious practice, which is considerably more restricted,” says John Vile, professor of political science at Middle Tennessee State University.
Courts have long rejected such arguments when it comes to polygamy, and in the famous Supreme Court case Employment Division v. Smith, the conservative icon Justice Antonin Scalia rejected the free exercise claims of two Native American men who were fired for smoking peyote, a violation of state law, during a religious ceremony. If religion could be used to opt out of generally applicable laws, “such a system would be courting anarchy,” he wrote.
The case drew criticism from both the left and right, and prompted Congress to pass the Religious Freedom Restoration Act. In the past decade, however, religious conservatives have continued to critique Justice Scalia’s reasoning as they fight for religious exemptions to LGBTQ civil rights protections.
State laws, however, often have more robust legal protections for such religious claims.
Lawsuits such as the one filed by the Jewish congregation in Florida “further supports taking a closer look at state constitutions,” says Dean Rebouché. “And, frankly, the case law that has been developed in states [merits] thinking creatively about how those provisions might protect something like a right to abortion founded on religious beliefs.”
Rabbi Ruttenberg says that she, like other religious minorities, has not felt included in the Supreme Court’s emphasis on religious liberty. Its cases this term and for over a decade have most reflected the interests of conservative evangelical Christians, including overturning Roe v. Wade.
“This idea that we are making policy based on when life begins, that does not reflect Jewish or atheists’ or many other traditions as well,” she says. “We’re already marginalized, so there is a sense that if abortion bans are rooted in an idea of life beginning at conception, that is an imposition of theology into the legal code in a way that excludes other traditions.”
