Jewish congregations mount legal challenges to state abortion bans

WASHINGTON — Thousands of years of Jewish scripture make it clear that access to abortion care is a requirement of Jewish law and practice, according to Rabbi Karen Bogard.

“We preserve life at all costs,” she said in an interview. “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 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.

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.

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.’”

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 health care, 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.

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, Fla.

Silver, along with three rabbis, a United Church of Christ reverend, a Unitarian Universalist minister, an Episcopal Church priest and a Buddhist lama, each has 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.

A spokesperson for 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.

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,” Caroline Mala Corbin, a law professor at the University of Miami School of Law, said. “Under the existing law, it’s a no-brainer challenge.”

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 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.

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.

Rebecca Rivas/The Missouri Independent vis Georgia Recorder