Pro-Freedom of Religion: Jewish Claimants’ Causes of Action in the Wake of Dobbs and State Abortion Bans

By Eliana Lavine, Volume 22 Staff Writer

A marked shift has occurred in abortion rights following Dobbs v. Jackson Women’s Health Organization and the subsequent overturning of Planned Parenthood v. Casey and Roe v. Wade . This ruling means that the right to an abortion is no longer federally protected.  Dobbs has enabled states to place regulations and/or restrictions on abortion that had been considered unconstitutional for decades prior. Since state abortion laws are, evidently, state-sanctioned action, the consequences can present a First Amendment violation, and, more specifically, lead to First Amendment claims regarding issues of freedom of religion and government endorsed religion.            

The First Amendment is known for its hallmark protections, particularly safeguarding our fundamental rights of speech, press, assembly, petition, and religion. Within the First Amendment protections of religion, there are two categories: the Establishment Clause and the Free Exercise Clause. At the foundation of these religious principles, and in a string of case law, the Supreme Court has long demonstrated the importance of respecting and allowing individuals to practice their sincerely held religious beliefs. Traditionally, the government is not able to regulate an individual’s personal religious beliefs unless those actions pose “a substantial threat to public safety, peace, or order.”

Free Exercise Clause and Causes of Actions

While both prongs of freedom of religion causes of actions could be brought by Jewish claimants, the focus of this blog will be on claims as they relate to the Free Exercise Clause. The Free Exercise Clause explains that no law can be passed on religion that is “prohibiting the free exercise thereof.” This essentially means that, unless compelling government interests and public morals are present necessitating government interference, individuals have the right to believe and practice their own religion as they please. The standard for Free Exercise cases has been Employment Division, Department of Human Resources of Oregon v. Smith. To put it briefly, Smith found that a state law does not violate the Free Exercise Clause if it enacts a criminal statute that is neutral on its face and later refuses to create an exemption for religious practices that fall within the scope. However, the Court has recently been noticeably moving away from this standard. While not outright overturning Smith, the Court, in cases such as Fulton v. City of Philadelphia, has specifically called the correct standard for Free Exercise Clause claims strict scrutiny, which requires a compelling government interest that is narrowly tailored to fit the required end and is the least restrictive means available to reach that interest; in short, it is the most demanding standard of judicial review used by courts, and it is now used when evaluating Free Exercise claims.

Abortion in Jewish Texts

The three different sects of Judaism, namely Orthodoxy, Conservativism, and Reformism, all have varying views on the extent and duration of abortion rights. While an individual’sssincerely held religious beliefs do not need to be held by the entire group or sect to be considered worthy of upholding by the Court, this overview will contain the tenants that all levels of Judaism agree upon. To begin, the Talmud, one of the sacred Jewish texts, draws a distinction between the “moment of determination” and the “moment of creation.” This means that, in Jewish law, the fetus is “mere fluid” and seen only as part of the mother until birth, so the fetus does not get any protections or securities of personhood until it exists outside of its mother. The baby’s “nefesh”, which means soul or spirit in Hebrew, is only gained once its head has emerged into the outside world and not a moment before. Therefore, in the Torah and the Talmud, there is a labeling of the fetus as “lav nefesh hu”, meaning it exists not as a human being, making its needs or survival subordinate to that of the mother. The Talmud provides an instance wherein “if a woman is in hard travail [and her life cannot be saved]” the child’s well-being or safety is subservient as “her life comes before that of [the child].” The fetus is merely a part of the mother and not an independent entity until it physically enters this world; so, the mother, already living and being, is granted the distinctions and protections of personhood over that of the fetus.

Contrasting Jewish Views with Newly Implemented Legislation

Put succinctly, the Jewish religion and those practicing it have a sincerely held religious belief of the prioritization of the health of the mother over that of the unborn child, and in certain instances the requirement of, while in less specific terms during Biblical times, an abortion. Jewish texts emphasize the role of the mother’s bodily autonomy and preeminence in the continual right to an abortion, not treating the fetus as deserving of personhood status, and subsequent protection, until they are born. In sharp contrast to these views, using a state that has been emblematic of restrictions and bans since the Dobbs ruling, Texas created a trigger ban on abortion access. Specifically, Texas law has created criminal and civil penalties for those seeking an abortion at any stage of the pregnancy, long, long before viability. There is no exception for rape or incest in the statute either. There is an extremely nominal exception for the health of the mother, but the abortion can only be performed in certain medical institutions and only under that rigid set of circumstances. To be crass, the woman must be literally on death’s door before Texas will recognize her right to terminate the pregnancy and save her own life.

Future Possibilities and Proposals

It seems nearly self-evident how Texas state law, which is just one of many, hinders a Jewish individual’s ability to practice their sincerely held religious belief. A Jewish claimant could challenge these new laws on religious freedom grounds, saying that their actions do not pose a threat to society at large as it is a decision over their own body. The laws are not neutral either, as religions have differing opinions on when life begins; and Judaism is just one example wherein conception of an embryo or fetus is not dispositive proof of becoming a person or gaining personhood status. This line of argumentation is utilized in cases that have already been brought by Jewish women throughout the country, specifically in Indiana, Florida, and Kentucky. In line with court precedent and formal rulings, these cases are demanding and demonstrating that strict scrutiny is the proper standard of review.

In essence, the strict scrutiny analysis requires the courts to take a deeper look at the motivations behind these laws and the other ways that these desired ends could be reached. For instance, there is a compelling government interest in protecting the right to freedom of religion. And there is also a compelling government interest in protecting the lives of mothers and their unborn children, regardless of the personhood status given or not given to that fetus. The narrowly tailored means to reach both of these ends could be reached by allowing access to abortion until the stage of viability has been reached. This protects both the fetus from the moment it could survive in the world and the mother in her right to bodily autonomy and, in certain cases, religious freedom.

While this is merely an idea of what could be argued in current litigation, as the aforementioned cases continue to make their way through the state court system, it is important to consider the religious and moral implications behind these laws. Both of which are things the government is not legally or traditionally allowed to regulate and, if allowed, poses a true threat to fundamental constitutional rights.