Do Abortion Bans Violate Religious Freedom?

While Amalia Shifriss, 40, was waiting to get a biopsy at her OB/GYN in June, she received a CNN notification on her phone that she dreaded seeing.

The alert announced that the U.S. Supreme Court had ruled in the Dobbs v. Jackson Women's Health Organization case that the U.S. Constitution did not uphold the right to abortion, thereby overturning Roe v. Wade; soon, nearly half of the 50 states had banned or heavily restrict the right to abortion, including Shifriss’ state of Indiana.

“I just was devastated,” said the Bloomington resident. “The nurse came to take me back. She saw it in my face and I told her what happened. I saw the doctor and I said ‘this just happened.’”

In August, one day before Shifriss’ 40th birthday, Indiana passed a near-total ban on abortions. Shifriss knew that “something had to be done” with reproductive rights being under attack, particularly in a way that goes against the religious views of people like Shifriss, who is Jewish.

“In Judaism,” she explains. “It is O.K. to have an abortion, specifically in some cases; it is not mandated, but it requires you to do so especially if it saves the life of the mother.”

Shifriss started to make connections through social media with other Indiana Jews, who eventually formed Hoosier Jews for Choice, with 130 members including a few men, to fight for both their religious and reproductive rights. They contacted Indiana’s chapter of the American Civil Liberties Union to represent them, along with five anonymous plaintiffs, in a suit against the state, claiming its anti-abortion law violate Indiana’s Religious Freedom Restoration Act, which prohibits “a governmental entity from substantially burdening a person's exercise of religion.”

They are not the only group that is using a religious freedom argument in favor of abortion rights. They were inspired by a multifaith group in Florida that has sued the state over its 15-week abortion ban, citing freedom of religion, freedom of speech, and the separation of church and state as per the U.S. Constitution.

Marci Hamilton, an attorney and professor of practice in the political science department at the University of Pennsylvania, is a leading expert on religious liberty. She is representing this multifaith group, which consists of people who follow Buddhism, Reform Judaism, the United Church of Christ, Episcopalianism, and Unitarian Universalism.

“The vast majority of Americans are believers in some faith,” Hamilton explains; she is basing her case in part on Florida's Religious Freedom Restoration Act, which says “the government shall not substantially burden a person’s exercise of religion.”

“This was an attempt to put them on a level playing field,” she said. “We see the Right is no longer capable of saying it’s the ‘godless Left.’”

Another group inspired by the Florida case is three women in Louisville, Kentucky. Lisa Sobel, along with fellow mom-friends Sarah Baron and Jessica Kalb, all of whom are Jewish, filed a lawsuit to overturn Kentucky’s Human Life Protection Act, which states that life begins at conception. The plaintiffs are asserting that the law violates their religious beliefs, favoring a Christian concept of when life begins over the Jewish belief that “not only permits the termination of pregnancy, but requires it when the life of the pregnant person is in danger.”

Their claim stems from their experiences with in vitro fertilization. All three of the women used IVF to conceive their children and would have to go through the procedure again for any future pregnancies. But, as Sobel explains, Kentucky’s anti-abortion laws make IVF difficult to pursue because under the law, any discarding of unused embryos could be considered fetal homicide.

“That door has been shut,” says Sobel, who cannot conceive without IVF. “Same with Sarah, same with Jessica, same with any other woman with infertility issues. They just don’t know what they can or cannot do because the law is so vague.”

Sobel adds clinics do not know how to proceed because the law is so vague and so overly broad. She also says seeking treatment out of state is not feasible, since Kentucky borders many states with strict laws against abortion; in addition, because their health insurance is based in Kentucky, treatment out of state might not be covered. Late last week, Kentucky Attorney General Daniel Cameron issued an advisory opinion stating that the Human Life Protection Act does not apply to IVF, but an advisory opinion is not binding and does not change the law.

In Florida, Hamilton sees her case as a defense of freedom of speech as well as freedom of religion.

“In Florida,” she says, “anyone who aids and abets in a crime is just as guilty of the crime as the one who did it. The clergy are now in a very difficult position because under Florida law, they are aiders and abettors if they counsel their parishioners in favor of getting an abortion. It’s a severe suppression of speech.”

Sobel explains that she and her fellow plaintiffs read empowering stories to their daughters, and want to be examples to them by not being anonymous plaintiffs. “We were willing to put our name and our face to this story,” she says. “We stood up when we had the chance.”

The judge in the Indiana case has extended the deadline for more documentation to January 3. In Florida, Hamilton is trying to keep the venue for the case in Miami, while the state attorney general wants it to be moved to the plaintiffs’ jurisdictions. The Kentucky case has been moved to a federal court, and the outcome could be impacted by the November 8 election, in which a question on the Kentucky ballot will ask Kentuckians to vote on an amendment to the state’s constitution that would read, “To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.”

Aaron Kemper, the attorney for Sobel and the other two Kentucky women, says, “Whatever happens at the ballot will not change our position to fight for our clients’ religious liberty and fight for our clients’ freedom to have more children.”