Religion, especially the influence of Christian conservatives, has been at the heart of the anti-abortion movement and the drive to overturn Roe v. Wade, the 1973 ruling legalizing abortion in the United States.
But a lawsuit filed last week by a South Florida synagogue challenges new state legislation that bans most abortions after 15 weeks because it violates the state’s rights to privacy and freedom of religion. In Jewish law, the lawsuit states, “abortion is required if necessary to protect the woman’s health, mental or physical well-being.”
The lawsuit, filed by Congregation L’Dor Va-Dor, a progressive synagogue in Palm Beach County that is not affiliated with any wider denomination, could face an uphill climb in court. But it reminds us that abortion raises religious issues beyond those of the Christian right. And it suggests potential legal issues that could surface at a time when Roe is likely to be quashed, and the Supreme Court is aggressively open to a broader role for religion in public and political life.
Florida’s state law restricting abortions, signed by Governor Ron DeSantis in April, goes into effect July 1. By banning abortion after 15 weeks, it makes no exceptions for cases of incest, rape or human trafficking. However, it does allow abortions if the mother’s life is in danger or if two doctors determine that the fetus has a fatal abnormality. The law was challenged earlier this month by the American Civil Liberties Union of Florida on behalf of a group of abortion providers and abortion rights groups.
Mr. DeSantis’s office said in a statement Wednesday that it is “confident that this law will eventually pass all legal challenges.”
Deep-seated Jewish teachings indicate that abortion is allowed — and even required — when a mother’s life is in danger, Jewish leaders across the ideological spectrum said. In Jewish thought, it’s also generally accepted that as long as a fetus is in the womb, it has “potential,” but not fully, personality, said Michal Raucher, an assistant professor of Jewish Studies at Rutgers University.
Rabbi Barry Silver of the Florida Synagogue is a self-proclaimed “Rabbi rioter” and leads a congregation that says it practices “modern, progressive Judaism” based on “reason and science.” Rabbi Silver, attorney and former Democratic member of the Florida House of Representatives, said Jewish law was “in accordance with life beginning at birth.”
But for some Jews, that broad interpretation has become more difficult to defend in today’s political environment.
“It’s an uncomfortable position for many Jews to take publicly because there’s so much that the Christian right has ingrained in that understanding of fetal personality,” Professor Raucher said. “For decades, Jewish institutions have kind of danced around this and said it’s a potential personality, but we still value fetal life.”
Abortion is widely accepted, especially in progressive Jewish communities, outside of life-or-death situations. A 2014 Pew Research poll found that of more than 800 Jews surveyed, 83 percent said abortion should be legal in most or all cases. In May, hundreds of Jews from various movements gathered outside the US Capitol to support abortion rights. The 2022 National Survey of Jewish Voters, conducted by the Jewish Electoral Institute, found that 75 percent of Jews said they feared the Supreme Court would overthrow Roe.
Among Orthodox Jews, the issue is more nuanced, said Rabbi Moshe Hauer, executive vice president of the Orthodox Union. Abortion is necessary when a mother experiences serious physical or psychological harm, he said, but is not allowed because of “simple difficulty” or a “belief in the right to choose.”
“Jewish law believes we have an incredible responsibility for life and even potential life,” he said.
Andrew Shirvell, the founder and executive director of Florida Voice for the Unborn, an anti-abortion group based in Tallahassee, said the lawsuit was just a “publicity stunt” based on “pretty frivolous” arguments.
“This is a synagogue in Palm Beach County,” he said. “They certainly don’t speak for all the Jews in Florida, or even the Jewish religion.”
The legal basis of the suit is weak, Douglas Laycock, a professor of religious studies at the University of Virginia Law School, wrote in an email. There’s probably only a slim chance of lawsuits, as maternal survival exceptions are built into Florida law.
“To claim that my religion allows abortion, or that this statute addresses a point of religious disagreement, is not nearly enough,” he wrote. “It is not what your religion allows that is protected, but what you do primarily for religious reasons.”
But while the lawsuit may fail, its central argument may be prescient, said Mary Ziegler, a law professor at the University of California’s Davis School of Law and an expert on abortion history, politics and law.
“If this lawsuit isn’t the one, there’s going to be a lawsuit with a pregnant person who’s going to say the same thing,” she said.
There is also precedent for progressive efforts to expand access to abortion on the basis of religious freedom, Professor Ziegler noted. Nearly 50 years ago, during discussions of the Hyde Amendment — first passed in 1976, barring the use of federal funds for most abortions — some on the religious left argued that the provision prohibits separation of church and state and the free practice of religion.
With the Supreme Court adopting a broader interpretation of the First Amendment’s right to freely practice religion, some progressives have begun to reconsider that argument.
“This is kind of an appeal to the Supreme Court on the idea that if religious freedom is really for everyone, there should be winners and losers of all kinds, and the winners shouldn’t just have a certain subset of beliefs,” said Professor Ziegler. .