Leading up to the visit, the White House called it a “publicity stunt.”

McCarthy said that there needs to be more funding and support for border security to prevent fentanyl from being smuggled into the United States, and that Democrats and the White House need to work with Republicans to address the issue.

McCarthy traveled to Tucson, Arizona, with freshman Republican Reps. Lori Chavez-DeRemer of Oregon, Juan Ciscomani of Arizona, Jen Kiggans of Virginia and Derrick Van Orden of Wisconsin.

The Republican first-termers said they ran for Congress on the issue of border security and because their communities are dealing with the fentanyl crisis.

“This fentanyl crisis is directly impacting and literally killing that American dream for hundreds of thousands of Americans in this country,” Ciscomani said.

During President Joe Biden’s State of the Union Address to Congress, he called for bipartisan action on fentanyl such as expanded access to opioid-related addiction treatment and increased efforts to curb fentanyl trafficking at the Southern border and via commercial delivery packages.

The U.S. Senate Committee on Foreign Affairs held a Wednesday hearing about the fentanyl crisis where several Biden administration officials detailed that funding for better screening technology at ports of entry at the Southern border is needed to catch vehicles trafficking the drug.

Administration pushback

White House officials strongly criticized the visit in advance.

“House Republicans should spend less time on partisan publicity stunts and more time working on solutions,” Ian Sams, a White House spokesperson, said in a statement. “Solutions are what President Biden is focused on, and his plan is working. House Republicans would be wise to join him to work together to strengthen our immigration system and fund border security.”

McCarthy blamed the Biden administration for a record high number of unauthorized border crossings, and said Republicans will bring U.S. Department of Homeland Security Secretary Alejandro Mayorkas in for questioning on security at the border. GOP lawmakers have introduced a resolution to impeach Mayorkas for “high crimes and misdemeanors.”

Sams argued that unauthorized border crossings “are down to their lowest levels in years.” Republicans have criticized the Biden administration for this.

Unauthorized border crossings sharply dropped from December 2022 to January of this year, according to CBP data. It’s a 40% drop from nearly 252,000 migrants who were stopped at the border to about 156,000 migrants stopped at the border. The decline also follows several enforcement policies the Biden administration announced for four countries to allow them to enter the U.S. legally if they had a sponsor in the U.S.

The Biden administration has also kept in place and expanded the use of Title 42, a health policy put in place due to the coronavirus pandemic that allows the U.S. to expel any non-citizens during a health crisis. The U.S. Supreme Court planned to hear arguments on the policy in early March, but removed the case from its calendar on Thursday.

The Biden administration plans to end the COVID-19 public health emergency, which serves as the legal basis of the policy, on May 11.

In November, a federal judge blocked the government from continuing to use Title 42, calling the policy “arbitrary and capricious in violation of the Administrative Procedure Act.”

Border tour

The GOP lawmakers were briefed at U.S. Customs and Border Patrol’s Tucson sector headquarters, went on an aerial tour of the border and visited a local ranch.

So far, Republicans have held House Judiciary and House Oversight and Accountability committee hearings on immigration at the U.S.-Mexico border and plan to hold more this Congress.

The House Judiciary Committee GOP will hold a hearing on the border in Yuma, Arizona, on Feb. 23.

Democrats on that committee called the hearing next week another stunt.

House Judiciary Committee ranking member Jerrold Nadler and Immigration Integrity Security, and Enforcement Subcommittee ranking member Pramila Jayapal said in a statement that Democrats on the committee would take their own trip to the Southern border sometime next month to be briefed by government officials and community members.

“Instead of focusing on real solutions to a complicated problem, Judiciary Republicans will once again not hear from any federal government witnesses at their hearing, further cementing this hearing as a brazen act of political grandstanding,” they said in a joint statement. “As a result, Democrats, who have been to the border regularly the last few years, will not attend next week’s performative hearing.”

Biden will call for expanded access to opioid-related addiction treatment and announce he will ramp up efforts to curb fentanyl trafficking at the Southern border and via commercial delivery packages, officials said.

“The opioid crisis is affecting just about every community in every state, and it’s being driven by synthetic opioids like illicit fentanyl,” said Rahul Gupta, director of the Office of National Drug Control Policy.

Republicans in Congress have cast blame on the administration for fentanyl drug smuggling, while Democrats argue most seizures of the deadly drug are at the border ports of entry and not via migrants seeking asylum.

White House advisers on the call said the president is expected to lay out several bipartisan priorities, such as expanding access to cancer research, improving health care for veterans and investing in the mental health professions — building on the pillars of a so-called unity agenda.

The administration will also work on a national public health advertisement campaign to educate Americans about the dangers of fentanyl, Gupta said.

One White House guest expected at the State of the Union address lost his 20-year-old daughter, Courtney, in a fentanyl overdose. Now Doug Griffin of Newton, New Hampshire, is raising awareness of the crisis.

Griffin has worked to advocate for better access to substance abuse treatment and, in 2021, wrote a letter to Biden and first lady Jill Biden to address the stigma associated with addiction and barriers to treatment.

Gupta said that the administration will also work to push for opioid addiction treatment for people who are incarcerated.

“This is not a red state problem or a blue state problem,” he said. “This is America’s problem, and (Biden) believes it’s going to take all of us, all of us working together.”

Danielle Carnival, the coordinator for the White House Cancer Moonshot, said that in Biden’s previous State of the Union address to Congress, he stated the goal of the Cancer Moonshot was to cut cancer deaths by at least half over a 25-year period. The program is personal to Biden, who lost his son, Beau Biden, to brain cancer.

She said Biden will highlight the program’s progress. “This is an important issue that impacts virtually every single American family and is the second leading cause of death in this country,” Carnival said.

She said Biden’s remarks will focus on the need to accelerate cancer research and treatment, and that Biden will call on Congress to reauthorize the National Cancer Act, which would “enable us to update our systems for today’s fight against cancer and lock in the strong investment in cancer research that passed in 2016 as part of the broadly bipartisan 21st Century Cures Act, which otherwise expires this year.”

Christen Linke Young, the deputy assistant to the president for health and veterans affairs, said Biden wants to address the mental health of veterans, including suicide prevention, by pushing for an expansion of health care services, and for also providing housing for veterans.

Linke Young said Biden will also stress the need to take care of the mental health of young people, and will call on Congress to pass legislation to “ban targeted advertising online for children and young people, enact strong protections for their privacy, health and safety online and improve online privacy and transparency for all.”

Young, diverse voters between the ages of 18 and 29 had the second-highest youth voter turnout in almost three decades, with youth voter turnout at 31% in the nine battleground states of Florida, Georgia, Michigan, North Carolina, New Hampshire, Nevada, Ohio, Pennsylvania and Wisconsin, according to estimates by the Center for Information and Research on Civic Learning and Engagement, an institute at Tufts University.

Control of the Senate is not yet decided but is down to three races — Nevada, Arizona and a runoff election in Georgia — and control of the House is still unknown. Earlier predictions and polling had forecast a Republican “red wave” leading to a takeover of Congress at least in the House.

The center, which studies young voters, also found in analyses of exit polling data that 89% of Black youth and 68% of Latino youth voted for a Democratic U.S. House candidate.

Young voters particularly played a key role in the Pennsylvania, Wisconsin and Georgia races, the center found.

In the Wisconsin governor election, Democratic incumbent Tony Evers won his reelection by a slim margin, 51% to 48%. About 70% of young voters backed Evers compared to 30% for his Republican challenger Tim Michels, the center found in analyzing exit poll data.

Gen Z

Adding to the influence of the youth vote, this is also the first election cycle that members of Gen Z, the generation born between 1997 and 2012, are eligible to run for Congress. Rep.-elect Maxwell Alejandro Frost, (D-Fla.), won his race this week, at 25 becoming the first Gen Z member of Congress and also the first Afro Cuban member.

Compared to earlier generations, Gen Z is the most diverse, with more than half people of color. In addition, 1 in 5 members of Gen Z identify as LGBTQ, according to a Gallup survey.

President Joe Biden also acknowledged youth voter turnout during a midterm election briefing with reporters Wednesday afternoon, and thanked those voters for helping Democrats hold onto competitive House seats and flip a Senate seat in Pennsylvania, electing Democrat John Fetterman.

Organizations like NextGen have worked to register more than 1.4 million young voters and helped get 2.6 million young voters to the polls in 2020 — the largest youth voter turnout in an election cycle.

In the Georgia U.S. Senate race, which is heading to a runoff election next month, young voters backed U.S. Democratic Sen. Raphael Warnock by 63% to 36% compared to his GOP opponent, Herschel Walker, according to estimates from exit polling from the Center for Information and Research on Civic Learning and Engagement.

Latino voting power

Héctor Sánchez Barba, the executive director and CEO of Mi Familia Vota, an organization that works to build Latino voting power, said during a briefing with reporters that the Latino voting bloc is a young population, with 30% of Latino voters ranging in ages from 18 to 29, which is “10 years younger than the national average.” He added that 30% of Latinos are under the age of 18.

“So when we’re talking about the Latino vote, we’re not always talking about the transactional way that sometimes our vote is analyzed in swing states,” he said. “We as an organization are every day in the communities investing in the long-term democracy.”

Latinos are the second-largest voting bloc, said Yvonne Gutierrez, managing director of Latino Victory, which works to help progressive Latino candidates get elected to office and increase Latino voter participation.

Gutierrez said early on, Latino Victory worked on the ground in key states like Nevada, Arizona, New Mexico, Colorado and Texas to endorse Democratic candidates, along with states like Oregon that have emerging Latino populations.

“Latino voters are delivering for Democrats and a formidable pillar of the Democratic coalition, and we need the investment, ongoing continued investment that happens year to year, not a helicopter in at the point of the election cycle,” she said.

Support in congressional races

Voto Latino, an organization that works to register Latinos to vote, found that in election eve polling in Arizona, Latinos backed Democratic U.S. Sen. Mark Kelly over GOP challenger Blake Masters. As of 4 p.m. Eastern on Thursday, Kelly has a lead over Masters, with 51% of the vote with 70% of votes reported.

In Nevada, Latinos in polling supported Democratic U.S. Sen. Catherine Cortez Masto over her GOP challenger Adam Laxalt, according to Voto Latino. Final results of that race will not be known until sometime next week, but as of 4 p.m. Eastern Thursday, Cortez Masto was trailing Laxalt with 47.6% of the vote compared to his 49.5%, with 83% of votes reported.

In Pennsylvania, where Democrats flipped a GOP U.S. Senate seat, Latinos supported Fetterman in polling by a large margin, Voto Latino said.

Latinos also were thought to have contributed to important wins in U.S. House races such as in Colorado, where Democratic U.S. Rep.-elect Yadira Caraveo, a pediatrician and state representative, beat her GOP challenger Barbara Kirkmeyer, a state senator, in Colorado’s newly drawn 8th Congressional District. The district is split evenly between the parties in voter affiliation, and has the highest percentage of Latinos among congressional districts in the state.

Caraveo will become the first Latina to represent Colorado in Congress.

“Latino voters are also instrumental in our efforts to increase Latino representation,” Gutierrez said. “As anti-immigrant and anti-Latino policies and rhetoric grow in the Republican Party, we need more Latino voices at all government levels to ensure our community’s voice is heard.”

Beatriz Lopez, the chief political and communications officer at the Immigration Hub, said in a statement that Democrats should look at the success of Fetterman’s campaign in courting Latino voters.

She said he ran a pro-immigration campaign and his wife, Gisele, who is a “former Dreamer and champion for hard-working immigrants in her state — is a recipe for Democrats on how to talk the talk, counter the attacks, and win big.”

Dreamers is a term used to describe young undocumented immigrants who were brought to the U.S. Those who are enrolled — about 800,000 — in DACA are shielded from deportation. Immigration advocates and DACA recipients have lobbied Congress to create a permanent pathway to citizenship for them, especially as a federal judge considers a case that could outlaw the program.

Siding with Democrats

Clarissa Martinez De Castro, the vice president of UnidosUS Latino Vote Initiative, said that in the midterm elections, Latinos overwhelmingly voted for Democrats in every state except for Florida, where Latinos voted to reelect Republican U.S. Sen. Marco Rubio, who is Cuban American, and Gov. Ron DeSantis.

According to an exit poll by CNN, DeSantis won about 58% of the Latino vote, compared to his Democratic challenger, and former Florida Gov. Charlie Christ, who got 40% of the Latino vote.

Republicans have invested in the Sunshine State for decades, working to court the Latino vote in Florida, primarily by painting Democrats as communists, playing on the fears of regime and dictators that many Latinos in the state previously fled from, said Kenny Sandoval, the vice president of campaigns and partnerships at Voto Latino.

Sandoval expressed frustration that despite Latinos continuing to vote for Democrats, engagement in the community is often an afterthought.

“Latino voters and especially young Latino voters are among the most essential communities, and the Democratic coalition will be the fastest growing, yet what we saw was Latino voters, and the campaigns who engage them, remained an afterthought for Democratic fundraisers throughout the election cycle because they bought into the false and unsupported argument that Republicans have made serious inroads in the Latino community,” he said.

Martinez De Castro said that Hispanic voters are generally issue-based voters.

“As voters, Hispanics generally reject extremes and taking away rights from people, as illustrated by these voters’ views on abortion, for example, where 76% have stated that regardless of their personal belief, they do not believe abortion should be illegal or that that decision should be taken out away from everybody else,” she said.

Yanira Merino, the national president of the Labor Council for Latin American Advancement, said many Latinas went to the polls in the “wake of the attack on reproductive rights,” after the U.S. Supreme Court overturned the constitutional right to abortion access this summer.

LCLAA is a nonprofit, nonpartisan Latino organization affiliated with the AFL-CIO labor organization and the Change to Win labor federation.

“It’s imperative to note the Latino vote must not be taken lightly and that investment into engagement of this group is a must, and it cannot be an afterthought,” she said.

“If we are to hold our elected officials accountable on their policy stance(s), we have to know what they are,” said Nicholas Valentino, a political science and research professor in the Center for Political Studies at the University of Michigan.

The relationship between the press and politicians has always had some amount of contention, throughout Republican and Democratic-controlled congressional terms and White House administrations.

The Obama administration more than any White House administration used the Espionage Act to go after whistleblowers who leaked to the press. For example, the government has used that act 11 times to go after federal workers who shared classified information with the press, and the Obama administration alone used the act seven of those times.

But the refusal to talk to journalists and barring them from covering political events that would inform voters of their policy positions has gotten worse over the years, and it’s showing up in local elections.

“If you can undermine the credibility of the press, then you can also absolve yourself the responsibility to speak to the press, and we’ve seen a dramatic increase in the United States in that kind of behavior,” Valentino said.

He said it’s a trend that worries experts who study democratic stability not only in the United States, but across the world.

“One of the key indicators of democratic backsliding is our restriction of information to the free press and an unwillingness to speak to the press,” Valentino said.

Debates are off the table, too

It’s not just the media that Republican candidates are opting out of speaking to; it’s their own constituents, too. In Iowa, Republicans such as Gov. Kim Reynolds, U.S. Sen. Chuck Grassley and U.S. Reps. Randy Feenstra, Ashley Hinson and Mariannette Miller-Meeks skipped an Iowa State Fair tradition – the Des Moines Register Political Soapbox where candidates talk to the public about where they stand on the issues. The only Republicans who spoke were those challenging GOP incumbents.

A majority of Republican candidates are also refusing to debate their Democratic opponents. Republican Ohio Gov. Mike DeWine refused to debate Republican challengers in the primary and now has said he will not debate his Democratic challenger, former Dayton mayor Nan Whaley.

In Nebraska, GOP governor candidate Jim Pillen also refuses to debate his Democratic challenger, State Sen. Carol Blood. If elected, Pillen would become Nebraska’s first governor since at least the 1970s to be elected without facing his opponents on a debate stage. (Nebraska U.S. Rep. Don Bacon, on the other hand, will participate in two debates and recently tweeted “I love debates.”)

And in a closely watched Georgia U.S. Senate race, Republican candidate Herschel Walker has yet to hold a public debate with Democratic Sen. Raphael Warnock, who became Georgia’s first Black U.S. senator after a special election in January of last year. Walker has challenged Warnock to several debates, which Warnock agreed to, but Walker has backed out of those debates.

Walker has agreed to an Oct. 14 debate hosted by Nexstar Media Group. Warnock has not agreed to the debate, and refused to answer the question when asked by a reporter from the Ledger-Enquirer.

Warnock’s campaign responded to States Newsroom but did not answer if he would attend the Oct. 14 debate.

“How can we expect Herschel Walker to stand up for Georgians in the Senate if he refuses to debate on stage?” Warnock wrote on Twitter on Tuesday.

Walker has also frequently put restrictions on local press, opting to release statements to conservative outlets such as Fox News instead.

Not all Republican candidates are declining debate invitations. For instance, Republican Kansas Attorney General Derek Schmidt, who is running for governor, has agreed to debate Democratic Gov. Laura Kelly. Schmidt, however, waited three months after announcing his running mate before holding his first press conference.

And a few Democratic candidates have been criticized for turning down invitations.

In Pennsylvania, Democratic Senate candidate John Fetterman has largely stayed away from interviews and accepting debate invitations for weeks following a stroke in May. His campaign has largely run on memes, attacking his GOP U.S. Senate nominee Mehmet Oz for being a New Jersey resident.

Oz has agreed to attend what would be the first televised debate for the race, hosted by Pittsburgh’s KDKA-TV, on Sept. 6.

And in Maryland, Democratic candidate Wes Moore and Republican candidate Dan Cox were invited to a Sept. 27 gubernatorial forum by Morgan State University’s student-run news publication. Cox accepted, but Moore declined, with his spokesman saying Moore did not want to “elevate the dangerous views” of his challenger.

The rise of partisanship voting

When political candidates refuse to step on the debate stage to either defend or explain their policy position, it makes it difficult for voters to be informed on what their representatives are doing, Valentino said.

“One of the major discoveries in political psychology over the last 50 or 60 years, which is that in fact, it is highly rare and difficult for constituencies to hold their elected officials accountable,” he said.

And when voters don’t have a clear idea of policy values a candidate holds, then their votes become more partisan, said Daniel Hopkins, a political science professor in the Department of Political Science at the University of Pennsylvania.

“Voters, when they go to the polls, have a lot of information about national politics, and very little information about state and local politics,” he said. “There have been a whole set of very compelling studies in recent years, showing that when local newspapers go out of business, voters then tend to vote in more partisan ways.”

Voting based on party affiliation alone, is also a shift away from American democratic norms, Hopkins added.

“The reason that we ask voters to vote on all of these specific candidates, rather than just voting for a party, is because of the idea that the candidate matters, that candidates can take different positions, that these individuals are not just functionaries of their parties,” he said. “And so if voters are increasingly just joining the party line, that does pose a real tension with the way that we conduct our elections, which asks people to develop opinions about so many different political actors.”

And refusing to allow press into political rallies, also makes it difficult to inform voters, Hopkins added.

“They have less information, and so they’re going to stick with their partisanship,” Hopkins said.

Attacks on the press as strategy

Over the last several years, Hopkins said polarization has increased and certain Republican candidates have been “abandoning the idea that the news media can be a neutral outlet.”

He pointed to former Republican House Speaker Newt Gingrich, whose frequent attacks on the media helped him build a right-wing following ahead of the 2012 presidential primaries. He lost the Republican presidential primary, but the norm of attacking the press as a biased institution, was quickly followed as a tactic for former Republican President Donald Trump.

The Trump administration also frequently attacked media outlets and barred them from press briefings and threatened to take away their White House press credentials. And in 2017, Guardian reporter Ben Jacobs was physically assaulted by U.S. House Montana-at large Republican candidate Greg Gianforte while asking him a question about health care.

Gianforte won the special election and is currently the governor of Montana.

The Republican National Committee this year voted unanimously to withdraw from the Commission on Presidential Debates ahead of the 2024 presidential election, arguing that it would not be a fair debate. The commission is a nonpartisan organization that has sponsored president and vice president debates since the ’80s and has Republican and Democratic membership.

“The Commission on Presidential Debates is biased and has refused to enact simple and common sense reforms to help ensure fair debates including hosting debates before voting begins and selecting moderators who have never worked for candidates on the debate stage,” RNC Chair Ronna McDaniel said in a statement.

And in Florida, GOP elected officials only allowed conservative media outlets to attend Sunshine Summit, an event where Republicans in the state discuss their political agendas. Gov. Ron DeSantis’ press secretary, Christina Pushaw, taunted non-conservative media outlets on Twitter who were barred from the event.

“It has come to my attention that some liberal media activists are mad because they aren’t allowed into #SunshineSummit this weekend,” Pushaw wrote. “My message to them is to try crying about it. Then go to kickboxing and have a margarita. And write the same hit piece you were gonna write anyway.”

Republican Alaskan candidate Sarah Palin also avoided talking to the press during the special election to finish the term of the state’s only member of Congress, Rep. Don Young, who died in March.

However, Palin did answer a survey response by the Alaskan Beacon about her various policy stances such as abortion (she doesn’t believe in codifying Roe. v. Wade), the validity of the 2020 presidential election (she believes the falsehood that former President Donald Trump won the election) and marijuana legalization (she believes it should be legal), among other issues.

She lost against Democratic candidate Mary Peltola after rank choice votes were announced Wednesday night. Peltola will become the first woman to represent Alaska in the U.S. House of Representatives, and the first Alaska Native ever to serve in Congress.

But shutting the press out isn’t the only concern that a democratic country is backsliding, Valentino said. The passage of strict voting laws – a trend among Republican state-controlled legislatures since the 2020 presidential election – and the denying of valid elections are some of the more egregious trends of eroding democracy.

Many 2020 election deniers have been nominated as GOP candidates for governor in four critical swing states – Arizona, Pennsylvania, Michigan and Wisconsin.

Valentino said if election deniers started overturning elections, “that would ironically be one of the first major indications of election fraud occurring on behalf of the party that’s been accusing the other side of election fraud for years now.”

“That in some ways, most scholars would say, is far more serious than attacks on the press, because it would mean that you were actually taking votes that had been cast, and throwing them out,” he said.

“We preserve life at all costs,” she said in an interview with States Newsroom. “But there is a difference between that which is living, and that which is not yet living.”

Bogard is a rabbi at Central Reform Congregation in St. Louis, which is in the progressive tradition of Reform Judaism. She said that whether it’s the Torah — the first five books of the Old Testament in the Hebrew Bible — or the Talmud — the central text of Rabbinic Judaism and the primary source of Jewish religious law and theology — those pieces of Jewish literature “really draw the difference between life and potential life.”

But with the fall of Roe v. Wade in late June, some members of the Jewish faith as well as other religious groups find their beliefs in deep conflict with state laws that ban or greatly restrict abortion — especially if a pregnant patient’s life is in danger.

Since the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision, states now are permitted to craft their own laws regarding abortion, and in Bogard’s home state of Missouri, the procedure is banned.

“Our congregants are heartbroken,” she said. “It’s really violating to be told what you can and can’t do with your own self.”

Legal challenges are resulting. The enactment of state laws that ban or restrict access to abortion has already sparked a lawsuit in Florida from a liberal Jewish congregation in the Sunshine State. In Ohio, another liberal Jewish congregation is joining the American Civil Liberties Union in a lawsuit against the state’s six-week abortion ban.

A coalition of three dozen rabbis also filed a brief on a separate lawsuit in the Buckeye State, where physicians are challenging the new abortion law in the Supreme Court of Ohio.

Similar lawsuits are anticipated, not only from liberal Jewish congregations, but other religious groups as well.

There’s currently a lawsuit in the U.S. District Court for the Southern District of Texas Houston Division filed by the Satanic Temple — not to be confused with the Church of Satan — on behalf of a member who argues the state’s abortion ban violates that temple member’s religious beliefs allowing access to an abortion ritual.

The ritual involves members repeating verses in a mirror to affirm body autonomy and repel any guilt, shame or discomfort that can surface when undergoing an abortion.

“There’s going to be a wave of religious freedom lawsuits,” Rabbi Daniel Bogard, who’s married to Rabbi Karen Bogard, said. “We’re going to find out if this country really believes in religious freedom, or whether this country believes in the freedom of a small minority to impose its will on the rest of us.”

But it’s unclear if these religious-based lawsuits challenging state abortion laws can win in court.

“We’re very much in the wild, wild west of abortion law and religious law,” said Candace Bond-Theriault, the director of racial justice policy and strategy at Columbia Law School’s Center for Gender and Sexuality Law.

Jewish law

According to Jewish law, a fetus is not considered a full human being and the biblical foundation for this is found in Exodus 21:22 of the Torah, Rabbi Daniel Bogard said.

The translation reads: “When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him, the payment to be based on reckoning. But if other damage ensues, the penalty shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.…”

Rabbi Daniel Bogard said that the Jewish legal interpretation of these passages states that a fetus is not a person, because the miscarriage results in only monetary compensation, rather than the “life for life” punishment.

There are several other passages in Jewish literature that make the distinction that the life of the person who is pregnant is prioritized.

“If we’re going to live in a religiously free society, we are each allowed to interpret these verses on our own for our own traditions and a minority in this country can’t impose their conservative white Christian religiosity on the rest of us,” Rabbi Daniel Bogard said.

The lawsuits challenging abortion laws are predominately filed by congregations that practice Reform Judaism, but Conservative Judaism also supports access to abortion.

The question of access to abortion gets more restrictive when it comes to Orthodox Judaism, but access to the medical procedure isn’t barred, says Yedida Eisenstat, a fellow at the Center for the Study of Law and Religion at Emory University in Atlanta.

“Abortion in Judaism absolutely does have a place, and within Jewish law, there absolutely is a place for abortion,” she said. “Judaism is not anti-abortion, like Christianity is, so it absolutely does make sense for Jewish congregations to be saying, ‘Hey, this is a violation of our religious rights.’”

Eisenstat specializes in Jewish biblical interpretation and also works as an editorial associate at the Posen Library of Jewish Culture and Civilization.

“Judaism doesn’t have one voice or one opinion or one ruling about everything,” she said, adding that every situation is different and “there’s all this other gray area,” when it comes to theoretical cases in Jewish law pertaining to abortion.

And interpretations on abortion in Jewish law, or Halacha, vary across American Jewish denominations.

“We use the theoretical cases to illuminate other cases — just like in American law — so there isn’t one blanket answer for every situation, every situation has its own nuances,” she said. “And again, that’s why this is a decision, a very personal decision, not one that the government should be making.”

The Rabbinical Assembly, a major institution of Conservative Judaism, condemned the Supreme Court’s ruling in Dobbs.

“Denying individuals access to the complete spectrum of reproductive healthcare, including contraception, abortion-inducing devices and medications, and abortions, among others, on religious grounds, deprives those who need medical care of their Constitutional right to religious freedom,” the organization said in a statement.

Orthodox Judaism is typically more aligned with Christian conservative views on religious liberty issues, Eisenstat said, but differs on the belief that life begins at conception.

Following the Dobbs decision, the Rabbinical Council of America and Agudath Israel, large organizations that represent Orthodox Jewish communities, urged states to consider exceptions to expand abortion access.

“As the debate over abortion rights enters this new phase, we encourage states to craft policies that will simultaneously express the great value we place on life as well as protecting the rights to abortion when warranted by Jewish law,” the Rabbinical Council of America said in a statement.

Florida lawsuits

Rabbi Barry Silver is a self-proclaimed “rabbi-rouser.”

He’s an attorney, a social activist, a former Democratic legislator in the Florida House of Representative and the leader of the Congregation L’Dor va-Dor, a synagogue practicing progressive Judaism in Palm Beach, Florida.

Silver, along with three rabbis, a United Church of Christ reverend, a Unitarian Universalist minister, an Episcopal Church priest and a Buddhist lama, each have filed separate lawsuits challenging the state’s 15-week abortion ban that went into effect July 1. Those suits argue that the new abortion law violates Florida’s state constitution, as well as U.S. constitutional protections for freedom of speech and religion.

The suits also claim the law creates “substantial” burdens on individuals’ ability to practice their faith, and creates a “potential” burden on religious leaders to advise their members. Because of the vagueness of the law, Silver said, rabbis or other religious leaders who counsel their clergy members on abortion could face criminal charges.

“It criminalizes the practice of Judaism as well as all the other religions that are not aligned with fundamentalist Christianity, which is pretty much everybody,” Silver said of Florida’s new abortion law.

Silver’s Congregation L’Dor Va-Dor also filed a separate suit in June in state court that argues the 15-week abortion ban violates the right to privacy guaranteed by the Florida state constitution.

“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,” according to the lawsuit. “As such, the act prohibits Jewish women from practicing their faith free of government intrusion and this violates their privacy rights and religious freedom.”

Silver said he still plans to counsel his congregants who need or are considering abortion care, despite Florida’s new law.

“We do the right thing and if they want to come after us, they can make our day, we’re not going to stop saying what we need to say. We’re not gonna stop practicing Jewish law,” he said.

A spokesperson with GOP Gov. Ron DeSantis’ office did not answer questions from States Newsroom about whether the newly passed abortion law prevents Jewish people from practicing their faith.

“Governor DeSantis is pro-life, and we believe HB 5 will ultimately withstand all legal challenges,” a spokesperson with DeSantis’ office wrote in an email to States Newsroom, referring to the abortion law. “The struggle for life is not over.”

Congregation L’Dor Va-Dor’s suit claiming Florida’s constitution has an explicit right to privacy is “fairly straightforward, and would generally be unremarkable,” said Caroline Mala Corbin, a law professor at the University of Miami School of Law.

“Under the existing law, it’s a no-brainer challenge,” Corbin said.

She added that the Florida Supreme Court has interpreted that language to cover abortion.

“Except that, like the U.S. Supreme Court, the Florida Supreme Court has taken a sharp turn to the right, so just as you have the U.S. Supreme Court completely remake abortion law, it’s a possibility the Florida Supreme Court will as well,” she said.

Corbin said the court could rule several ways in the congregation’s case.

“They might argue, ‘We question your sincerity,’ which would be shocking given how deferential they are to other claims of religious liberty,” she said.

The court could also rule that the congregation did not prove Florida’s abortion law created a substantial burden, or that even if the law prevents someone from practicing their religion, “the state has a compelling reason for its law, and therefore, the state must prevail,” she said.

“So the state might respond, even if this does affect your ability to live your religious truth, the state has a compelling interest in saving lives and therefore the state still prevails,” Corbin said.

Future cases

Micah Schwartzman, the director of the University of Virginia School of Law’s Karsh Center for Law and Democracy, and the Hardy Cross Dillard professor of law, said lawsuits brought on behalf of a group of people, like the one from Silver’s congregation in Florida, rather than a particular individual, will have more procedural hurdles to prove the group has standing to sue under state and federal law.

“I’m not terribly confident about these early lawsuits,” Schwartzman said.

He pointed to the case in Texas, the one by the Satanic Temple, which the religious organization filed in federal court on behalf of one of its members, and said he expects to see similar cases.

“I think in the future, we’re going to see cases that are brought on behalf of particular individuals who are burdened by abortion restrictions or prohibitions,” he said. “And those types (of cases) will have a stronger chance of surviving the preliminary stages of litigation.”

Schwartzman said there’s also the question of religious exemptions, particularly in states that have enacted trigger law bans or near total bans on abortion, and whether those laws impose a burden on people trying to practice their religion.

State abortion laws are going to have some exemptions for abortion, he said, such as in cases of rape and incest and to protect the life and health of the mother.

“And in those circumstances, courts are going to face the question if these laws have certain secular exceptions, why shouldn’t they also grant exceptions on religious grounds?” he said. “And I think that will be the structure of many challenges that we will see in the future.”

Elizabeth Sepper, a religious liberty, health law and equality scholar at the University of Texas School of Law, said that over the last couple of decades the Supreme Court has “reduced the establishment clause to rubble,” which under the First Amendment prohibits the government from establishing a religion.

When Roe v. Wade was initially issued, Congress passed the Hyde Amendment, which prohibits the use of federal funds to cover the cost of abortions, with some limited exceptions.

Sepper said Congress’ decision to pass a restriction related to abortion in the case of the Hyde Amendment, is an example of “an establishment of religion because when legislators pass abortion bans that say ‘Well, human beings come into life at the moment of conception,’ that’s a doctrine — is a theological stance — that’s rooted in a particular religious faith, and we all know religious faith that is.”

“I think some large segment of the population on both sides of the abortion issue understands (that) to be the truth, which is that many abortion bans require religious reasoning,” Sepper said.

“To be blunt, it would be extraordinary destabilizing,” said Carolyn Shapiro, a law professor at the Chicago-Kent College of Law.

The committee held the hearing in response to concerns that the Supreme Court could uphold the so-called state legislature theory, which argues that the Constitution gives legislatures the ability to regulate federal elections without oversight from state courts.

Conservative activists have pushed the theory, most notably after the 2020 presidential election, when then-President Donald Trump used the theory to try to overturn election results, said Eliza Sweren-Becker of the Brennan Center for Justice, which is a liberal nonprofit law and public policy institute.

If the Supreme Court embraces the theory, she said state legislatures could approve partisan gerrymandering, remove constraints on voter suppression tactics and enact different policies for state and federal elections, causing chaos for voters.

Sweren-Becker said that if the Supreme Court upholds the case, the consequences would stretch beyond North Carolina and “wreak havoc on election nationwide.”

“All this would undermine the public’s already wavering faith in our democracy,” Sweren-Becker said.

She said that federal law would prohibit state legislatures from overturning the results of the election, and that the claim is “not a license to coup.”

“But the notion would open the door to anti-democratic shenanigans and even failed efforts to manipulate our elections, erode trust and ultimately participation in our democracy,” she said.

North Carolina maps

The court will hear the case, Moore v. Harper, next term. The case is about the newly drawn maps for North Carolina’s 14 congressional seats. The North Carolina Supreme Court found the maps violated the state’s constitution because of gerrymandering.

State Republicans argue that the U.S. Constitution’s Elections Clause gives state legislatures the ability to define congressional districts without the checks and balances of the state constitutions or courts.

The ranking member on the U.S. House panel, Rep. Rodney Davis, an Illinois Republican, said that it was a complicated theory and accused Democrats of “suggesting this theory is all a grand plan by Republicans to steal the (2024) election,” and “use this theory as a ‘doomsday type scenario’ to fundraise.”

Rep. Barry Loudermilk, a Georgia Republican, said there are still restraints on state legislatures and that he believed they should not be allowed to overrule their own constitutions.

“I don’t want us to jump to conclusions that the Supreme Court would embrace an extreme version of this,” he said.

Rep. G.K. Butterfield, a North Carolina Democrat, asked NYU constitutional law professor Richard Pildes if lawmakers were overreacting in their concern about the Supreme Court upholding the North Carolina case.

If the Supreme Court upheld parts of the theory, it “would have extremely destabilizing consequences,” Pildes said. “Most of them would have significantly destabilizing consequences, and there are a lot of legal uncertainties that would be unleashed under any version of this doctrine.”

Rep. Bryan Steil, a Wisconsin Republican, asked Sweren-Becker if voters provided a type of checks and balances on state legislatures.

“Yes, absolutely,” she said. “And that’s why it’s so concerning that this notion could remove the power of voters to enact laws through direct democracy.”