Written By: Sean Turnipseed
On June 24, 2022, the United States Supreme Court handed down its opinion in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), one of the most anticipated holdings in recent memory. In Dobbs, the Court returned the regulation or prohibition of abortion to the States and rejected the notion that a federal right to on-demand abortion exists in the Constitution. The decision prompted myriad reactions across the nation. Lamentation, fear, anger, and despair resounded in the hearts of many. Yet others rejoiced over the decision, whether it be rooted in a strong belief of federalism or due to religious convictions regarding the morality of abortion. Indeed, Justice Alito recognized this truth in Dobbs when he wrote that “[a]bortion presents a profound moral question.”
But Justice Alito did not answer that question. Nor did he believe the Court should. The answer as to how we view the morality of abortion was instead returned to the States. The problem? We do not live in a homogenous society where our collective morals are shaped by one view of ethics or religion. Rather today, America is shaped by pluralism where numerous religions and codes of ethics affect the lives of over 300 million people. Therefore, if we are to consider the morality of abortion, we cannot ignore the influence of religion, however one may define the term.
A Brief Survey of Selected Religious Views on Abortion
In 2015, the Pew Research Center surveyed the impact religion plays in one’s feelings towards the legalization of abortion. Overall, 53% of adults surveyed believed that abortion should be legal in most cases while 43% believed abortion should be illegal in most cases. The remaining 4% of individuals indicated that they were unsure. But the survey was not merely concerned with how individuals felt regarding the legality of abortion—it also explored the motivations for those feelings in correlation to one’s religion. The survey’s statistics are telling: 47% of Catholics, 63% of Protestants, 70% of Mormons, and 75% of Jehovah’s Witnesses believed that abortion should be illegal in almost all cases. On the other hand, 73% of the religious “nones” believed that abortion should be legal in almost all situations. Only two other groups had a higher percentage: Buddhists (82%) and members of Judaism (83%). In a society where the religious “nones” are on the rise, it is striking that the Jewish community supported abortion at the highest percentage rate in almost all situations.
Paradoxically, although individuals notated on their survey that they conform to a certain religion, very few seemed to consider the role of religion when determining the morality of abortion. For those who felt that abortion should be legal in almost all situations, only 18% said their position was inspired by religion. Conversely, 52% of those who felt that abortion should be illegal in almost all situations were inspired by religion. The statistics also illustrate that very few individuals were guided by prayer or study of religious scripture when faced with the morality of abortion. This presents an interesting question: does this survey negate what we have been told all along—that religion is the motivating factor behind “pro-life” arguments? One Rabbi in Florida filed a lawsuit to prove the opposite—that religion is the motivating factor permitting abortions.
Abortion as an Exercise of Religion?
Rabbi Barry Silver of Congregation L’Dor Va-Dor filed a lawsuit against the State of Florida over the recent passage of House Bill 5, the Reducing Fetal and Infant Mortality Act. (Generation to Generation, LLC v. Florida, Case No. 2022 CA 000980 (Fla. Cir. Ct. 2022)). The bill at issue amended a Florida statute to prohibit the termination of pregnancies after 15 weeks of gestation, with few exceptions. For example, an abortion beyond 15 weeks of gestation is generally permitted only when two physicians agree in writing that the abortion is necessary to save the life of the mother or that the fetus has not achieved viability. Rabbi Silver, a civil rights attorney and former member of Florida’s House of Representatives, argues that the newly amended statute violates the Florida Constitution—specifically, the Free Exercise of Religion and Establishment Clauses. (Fla. Const. Art. I, §3).
In his second amended complaint, Rabbi Silver notes that he fears that the Act harms and threatens the “autonomy of the Jewish family and its right to make reproductive choices free of governmental intrusion.” For example, “[i]n Jewish law, abortion is required if necessary to protect the health, mental or physical well-being of the woman, or for many other reasons not permitted under the Act.” Further, Rabbi Silver argues that “[t]he right to abortion is a critical aspect of Jewish practice.” If Jewish women lack access to an abortion “when necessary to protect the life of the mother physically or psychologically,” Rabbi Silver claims that such prohibition is contrary to Jewish law requirements. As written, the revised statute will prohibit Jewish members of Congregation L’Dor Va-Dor from exercising “critical” practices of their religion according to Rabbi Silver.
An Established Religion in Florida
One may argue that the morality of abortion hinges upon whether an individual believes the fetus does indeed constitute a human life. Again, this question is often answered through religion. Accordingly, the complaint also focuses on whether the statute establishes a specific religious view regarding when life begins. Rabbi Silver believes the Act “establishes and imposes, upon Jews, a Christian view of when life begins and penalizes Jews who practice and live according [sic] the Jewish teachings and views on such issues.” Indeed, “Judaism teaches that the fetus does not possess personhood; rather, life begins at birth.”
Rabbi Silver’s first amended complaint was much harsher. “The Act reflects the views of Christian nationalists who seek to deny religious freedom to all others, including fellow Christians, under the arrogant notion that only they are capable of understanding God’s law and judgments and the religious views of all others are false, evil and not entitled to respect or constitutional protections.” Ouch. This expressive language used by Rabbi Silver helps us see that it is difficult to analyze the issue of abortion apart from religion. In sum, Rabbi Silver argues that the Act restricts Jewish women from practicing their religion and simultaneously establishes the religious views of the Christian populace in Florida.
Food for Thought
The question remains: what role will religion play across the States regarding one’s access to abortion? Here, Rabbi Silver presented a case that calls into question the constitutionality of a law banning abortions past 15 weeks of gestation based upon his interpretation of Judaism as the founder of “Cosmic Judaism.” While courts may not question the sincerity of his beliefs, it raises an interesting point for the purposes of the discussion at hand.
What about other Orthodox Jewish communities that rejoiced at the passage of Dobbs? The Agudath Israel of America serves as the arm and voice of American Orthodox Jewry. This collective body has long opposed the Roe decision and has been troubled by the number of pregnancies in America that ended in abortion since its passage. Though the Agudath Israel of America does not support a complete ban on abortion, its teachings hold that the fetal life is entitled to protection.
The Rabbinical Council of America (“RCA”), the leading membership organization of orthodox rabbis in North America, likewise rejects Rabbi Silver’s expansive view of abortion. Like Rabbi Silver, the RCA recognizes that Jewish law opposes abortion except for cases of danger to the mother. But the similarities end there. Indeed, the RCA does not recognize any permissive right to an abortion of a healthy fetus when the mother’s life is not endangered.
So, if the Florida court agrees and forces the legislature to rewrite the ban to permit abortions “when necessary,” as Rabbi Silver urges, would the legislature then be establishing a specific Jewish view regarding when life begins? How long until an orthodox rabbi or a Christian minister sues the State under the same argument Rabbi Silver raises now?
Have you asked yourself by now, “Why is this blog from the Mississippi College Law Review so focused on religion?” Well, Justice Douglas once wrote, “We are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313 (1952). Accordingly, we cannot erase the influence of religion on our history nor ignore the impact it has had upon our legal system since its inception, for better or worse. Even so, we are witnessing the effects of how religion has changed in the last several decades as it rapidly shifted from traditional and conservative views to more progressive views often driven by science and reason. But these shifts are not across the religious landscape in isolation—they represent shifts across the legal landscape, too.
Since Dobbs, many have sensed a religious revival on the bench. Many states have banned abortions or prohibited them nearly entirely, and critics often point to religion as the basis of those decisions. So, the question is worth asking: has Dobbs opened Pandora’s Box across the States where abortion laws arguably violate the religion clauses of the respective States’ constitutions? Only time will tell, and Rabbi Silver’s case is worth paying close attention to as we await the answer. It will be interesting to see whether Rabbi Silver has standing to sue over an Act that poses no harm to his individual person. Too, has Rabbi Silver evoked a lawsuit too ripe for review? Perhaps his argument would be stronger if members of his congregation were currently seeking to have an abortion but are prohibited by the passage of the law. Either way, the resolution of this dispute could very well open the lid of litigation on Pandora’s Box.
Note: While the 2015 Pew Research Center survey referenced above is the one that Rabbi Silver cited to, there are two surveys which were conducted more recently on June 24, 2022, and July 15, 2022, that include updated statistics.