The Florida bill is set to lower the maximum threshold for abortions from 24 weeks down to 15 weeks from July 1, with exceptions in instances where the medical procedure could save the life or prevent serious injury to the mother. It offers no exceptions for victims of incest, rape or human trafficking.
But these restrictions would infringe upon Jewish women’s right to abortion as guaranteed by their faith and are thus incompatible with the Florida constitution’s right to privacy and religious freedom, says the lawsuit, which was brought by Rabbi Barry Silver on behalf of the roughly 150 members of Congregation L’Dor Va-Dor in Palm Beach County.
“If a fetus poses a threat to the health or emotional well-being of its mother, at any stage of gestation up until birth, Jewish law not only entitles but requires the mother to abort the pregnancy and protect herself,” the suit argues.
‘The only alternative’
The suit was filed in advance of a long-expected ruling by US Supreme Court, which on Friday struck down the 1973 law that legalized abortion nationwide.
As the court overturned the Roe v. Wade ruling, it increased individual states’ powers to enforce their own abortion laws, with 26 conservative states now expected to introduce restrictions or outright bans on the procedure.
In Florida, for example, Governor Ron DeSantis quickly promised more restrictions to expand “pro-life protections” in the wake of the ruling, in addition to those already set to come into effect in July 1.
While some have celebrated the Supreme Court’s decision, others have bitterly opposed it. The US National Women’s Law Centre described it as an “extremist attack” on women’s rights, and US President Joe Biden has pledged his administration will do all it can to protect remaining abortion rights.
However, reversing the court’s decision would be practically impossible. According to Emma Long, associate professor of American history and politics at the University of East Anglia in the UK, there are only two ways to rescind a Supreme Court decision.
The first is to convince the court to overturn its own decision, something it has rarely done, which makes the decision to overturn Roe v. Wade extremely unusual. The second is an amendment to the US Constitution itself, which has only happened 17 times since 1791. And as Long says, “particularly on an issue this divisive, it’s just not going to happen”.
A single lawsuit brought in Florida against the state’s constitution (rather than the US Constitution) might thus seem like feeble resistance. But it draws on deep-rooted legal precedents: freedom of religious expression is a First Amendment right. Meanwhile, there is no mention of abortion in the Constitution, meaning constitutional laws around the practice are always interpretative.
Citing such an inalienable right as religion establishes the suit on “stronger legal ground” than trying to push for the creation of new laws to re-legalize abortion, Long said.
“Bringing a constitutional case is literally the only option, but it’s also a very clever legal move.”
A question of religion
Broadly speaking, Jewish law stipulates that life begins at birth and that until that point the mother’s life is prioritized. “So, in order to protect the health of the pregnant person, abortion is permissible and sometimes mandated,” said Samira Mehta, associate professor of women and gender as well as Jewish studies at the University of Colorado at Boulder.
The definition of what counts as a health threat varies between Jewish communities, with the congregation of L’Dor Va-Dor in Florida at the liberal end of the spectrum. But, Mehta said, there is agreement on the principle that abortion is a right. “And that it is a religious matter, not a decision for the state.”
Traditionally, US courts have been sympathetic to legal arguments made on similar constitutional grounds. Historically, minority religious groups have benefited from rulings that protected traditions not accounted for in general law. For example, a 1996 ruling allowed the use of the banned substance peyote exclusively in Native American religious ceremonies.
More recently, the balance of power has changed. “In the last 15 years or so, the Supreme Court has used religious freedom language to protect the rights of majority religious groups, particularly white evangelical Christians,” Long said.
This has led to cases that question the concept of who is a majority and who is a minority, such as those against legalizing gay marriage on the grounds it discriminates against groups who do not support marriage rights for all. While those cases were dismissed, others – namely around religion in schools – have been passed.
In the national discussion around rolling back abortion rights, the National Council of Jewish Women said on its website that the conversation was so dominated by the Christian right that it had “ignored Jewish voices”. In Florida, the L’Dor Va-Dor lawsuit says that new laws amount to “imposing the laws of other religions upon Jews”.
“What we are seeing is a very powerful minority of conservative, Protestant and Catholic Americans dictating something that conflicts with other people's deeply held religious beliefs,” Mehta says. “But religious freedom is something that is enshrined in American law for all Americans. So, what happens when people's rights bump up against each other?”
‘Not much else to lose’
The L’Dor Va-Dor lawsuit challenges the state’s constitution, meaning a win would only have legal implications within Florida. But success could pave the way for similar lawsuits in other states. It could also set the stage for other suits claiming First Amendment violations that could have national implications.
“There is potential in an argument that says the theological teachings prioritize the person who is pregnant,” Long said. “To be legally successful it would have to be framed very carefully, which is what conservatives have been doing very successfully to achieve their policy aims for several decades now.”
In fact, part of the uniqueness of the Florida suit is that it is a rare example of liberals using tactics normally deployed by conservatives to try to sway the courts towards their own values. “This is certainly a different angle and it’s really clever, given the way the court has been thinking about issues of religious liberty in the last decade and a half,” Long said.
Nonetheless, even though the Florida suit contains “an argument that should be taken seriously”, Mehta said it is anyone’s guess what the outcome might be. Most probable is that there will be no quick or easy victories for those fighting to regain abortion rights. Instead, they are likely to face legal obstacles, state-by-state battles and bitter divisions on either side.
“It's a deeply polarized environment,” Mehta said, adding that Jewish activists are also facing rising rates of antisemitism.
And the price of failure in Florida may be high. A loss would give other courts grounds to rule against similar cases, and could feel like another nail in the coffin for reproductive rights in the United States.
“It's high stakes in some ways,” said Long. “But you could argue that, given that Roe v. Wade has now gone, there’s not much else to lose by trying.”
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