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Can You Challenge Abortion Restrictions on Religious Freedom Grounds?

By Richard Dahl on June 16, 2022 4:07 PM

When we think of religion and abortion, we tend to focus on religion's role in the anti-abortion movement.

New laws banning abortions 15 weeks after conception go into effect this summer in Arizona and Florida. Oklahoma and Texas now ban abortions after detection of a "fetal heartbeat," usually about six weeks after conception. Oklahoma is also the first state to pass a "fetal personhood" law giving fertilized eggs the same rights as human beings — five other states are also considering it. And now the U.S. Supreme Court may be poised to overturn Roe v. Wadeputting numerous "trigger laws" into effect across the country.

A common thread through all these developments is the powerful influence that anti-abortion religious institutions — evangelical Christian churches, the Catholic Church, and others — have wielded in building political support for new, restrictive laws.

But it's not a one-way street.

A Synagogue Files Suit

When a synagogue filed a lawsuit on June 10 challenging Florida's tough new abortion law, it served as a reminder that some denominations hold religious beliefs that support abortion rights.

Congregation L'Dor Va-Dor of Boynton Beach, Florida, argues that the state's new law, which goes into effect July 1, violates Jewish teachings.

"For Jews, all life is precious and thus the decision to bring new life into the world is not taken lightly or determined by state fiat," the lawsuit says. "In Jewish law, abortion is necessary if required to protect the health, mental, or physical well-being of the woman. As such, the act prohibits Jewish women from practicing their faith free of government intrusion, and this violates their privacy rights and religious freedom."

Many Religious Groups Support Abortion Rights

Judaism is not the only religion that supports abortion rights. According to the Pew Research Center, three other major religious groups — Presbyterian Church (U.S.A.), Unitarian Universalist, and United Church of Christ — support abortion rights with few or no limits. Three major religious groups — Episcopal Church, Evangelical Lutheran Church in America, and United Methodist Church — support abortion rights with some limits.

Scores of smaller religious and faith-based organizations support abortion rights in varying degrees.

Does this mean that some of these religious organizations will follow Congregation L'Dor Va-Dor's lead and file lawsuits against restrictive abortion laws on the grounds of religious freedom?

Probably.

Columbia Law School's Law, Rights, and Religion Project suggests that the climate for religion-based challenges from abortion-rights organizations may be warming up.

"Opponents of abortion have claimed that overturning Roe will reduce religious conflicts involving abortion. Nothing could be further from the truth. Most people who get abortions are religious, people of faith from many different religious traditions support the right to abortion, and there is a long and rich tradition of faith-based activism for abortion rights."

Most of this activity occurred prior to passage of Roe v. Wade in 1973. An organization called Clergy Consultation Services (CCS) started as an underground network of clergy, rabbis, and faith leaders who helped tens of thousands of women obtain safe abortions and became involved in legal challenges.

Only three clergy members of that organization ever faced charges for the counseling they provided, and none were convicted. In addition, CCS members filed several lawsuits challenging state laws prohibiting abortion or abortion counseling on religious freedom grounds.

Can They Succeed?

What might be the chances of success for such lawsuits if the Supreme Court does put an end to Roe v. Wade?

Some legal experts say it would be a difficult task and point to a U.S. Supreme Court ruling in Harris v. McRae. A group of women argued that a policy that prohibited the use of Medicaid funds for use in abortion services violated First Amendment religion clauses. In a 5-4 decision, judges ruled against the women on the grounds that their interest was not primarily faith-based.

If Harris is the precedent, as these legal experts believe, it means that plaintiffs will need to show that their religion explains their need for abortion access.

"It is not enough that your religion permits abortion," says Douglas Laycock, a professor of law and religious studies at the University of Virginia. "It has to be the reason, or at least one main reason, for the abortion. I don't know any religion that teaches that as a general matter."

Certainly, however, they will try. And it won't be the first time.

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