Florida synagogue challenges state’s abortion ban on religious grounds for mandating theological doctrine

*** UPDATE (June 24) *** I posted this last night, hours before the Supreme Court handed down its opinion overthrowing Roe v. Wade. But I think the reasoning behind the Florida lawsuit won’t be affected, since it challenges a state law in the state courts. Nor should the religious freedom issue be affected, since it is grounded in the free exercise clause of the First Amendment. Less likely to affect the outcome of the Florida case, but still significant, is this statement by Tarah Demant of Amnesty International, published in The Guardian: “[…] Regardless of what the Supreme Court says, abortion remains a human right and states all over the world are still obligated to uphold that right.”

While the national media were speculating about what the U.S. Supreme Court might do to Roe v. Wade, a Reform Jewish congregation in Florida filed a lawsuit seeking to overturn that state’s new 15-week abortion ban on grounds it violates religious freedom.

That’s right. Religious freedom.

Given recent trends on the Supreme Court, it will be interesting to see where the justices line up on this one.

The plaintiffs, the Palm Beach-area Congregation L’Dor Va-Dor (which means generation to generation in Hebrew), argue that the Florida law is based on the belief that human life begins at conception, and the coercive power of the state should not be used to enforce it on people who do not share that belief.

“In 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,” says the complaint, filed June 10 in a state court at Tallahassee. “As such, the Act prohibits Jewish women from practicing their faith free of government intrusion and thus violates their privacy rights and religious freedom.”

Rabbi Barry Silver of the Reform congregation, who is a practicing attorney, told the Associated Press he believes Jews and other religious minorities suffer when the wall of separation between church and state is breached. Florida Governor DeSantis signed the law at an evangelical Christian church, he added.

“Every time that wall starts to crack, bad things start to happen,” he said.

Rabbi Silver’s lawsuit raises interesting legal questions, especially if it gets into the federal courts. Dahlia Lithwick, legal analyst for the online magazine Slate, and Micah Schwartzman, professor at the University of Virginia Law School, noted yesterday in a piece for Slate that it raises issues of individual religious freedom that the Supreme Court has been receptive to in cases brought by conservative Christians and Orthodox Jews.

If the federal high court were to reject that plea in the synagogue’s case, Lithwick and Schwartzman add, “it will be pulling up the ladder that it has extended to Christian conservatives, who have claimed that their religion was burdened by, variously, cake baking, worship attendance limits, and facilitating the use of contraception.”

Silver’s lawsuit is quite explicit on that point. Some verbatim excerpts from the complaint, posted to documentcloud.org by Howard Friedman of Religion Clause Blog:

The most important institution in Jewish life is the family, which has withstood centuries of persecution and discrimination by clinging to values and ideals which are quintessential to the Jewish faith. By preventing Jews from making intimate, personal decisions about the size of their families, or when and under what circumstances to bring new life into the world, the Act not only threatens the lives, equality and dignity of Jewish women, the Act also threatens the integrity of the Jewish family and denies religious freedom to Jewish women and their families. As such, the Act establishes the religion of its proponents and prohibits the free exercise of the Jewish religion by prohibiting Plaintiff’s members, congregants and supporters from exercising their religious beliefs in the most intimate decisions of their lives in consultation with their rabbis, medical providers and their family.

***

Among the many contributions of the Jewish people to the world is a reverence for life and the belief that all human life is sacred. Plaintiff, its members, congregants, and supporters and their families do not require others to impose their religious views about when life begins and the sanctify of life in order to supplant and replace by judicial fiat and the power of the State the Jewish view of when life begins and the sanctity of life.

The Act reflects the views of Christian nationalists who seek to deny religious freedom to all others, under the arrogant, self-righteous 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. Proponents of this way of thinking used their political power to enshrine their narrow religious views as the law of the State of Florida, which not only results in irreparable harm to Plaintiff and all others who espouse a different view, including many of their co-religionists, but it also threatens and harms the very framework or our Democracy, and the cherished ideal of the separation of church and state which has been the cornerstone of American democracy since its inception and the reason why has been so successful and the envy of freedom-loving people throughout the world.

***

According to the National Council of Jewish Women (NCJW) “Judaism permits Abortion. Full stop. The Constitution gives us the right to have abortions. Full stop.” This view reflects the view of most Jewish organizations, many of whom have led the effort to protect abortion rights as quintessential towards protecting the rights of women, Jews and all people and which is essential in preserving the sanctity of life, and the Jewish goal, which is shared by many others, of living in a society where all children are wanted, cherished and loved.

The Jewish people have often borne the brunt of the horrors that occur when the power of Christianity has merged with the power of the state. The result has been Inquisitions, Crusades, ghettoes and pogroms for the Jews and the eventual loss of freedom for everyone else. The founding fathers, well aware of such evils in Europe, sought to create a form of government free of such horrors and so they enshrined in our founding documents such as the Declaration of Independence and the Constitution of the United States the principle of the separation of church and state as a guiding principle of our democracy, as they eloquently expressed in the letter to the Baptists of Danbury, and the Treaty of Tripoli. The founders viewed this separation as the bedrock of our democracy, essential to freedom and a prerequisite to enjoying the blessings of America. As they understood so well, when this wall of separation experiences a crack or begins to crumble, as is the case with the passage of the Act, the Jewish people are among the first to suffer, followed by the suffering of all others and the collapse of society as well.

Links

Associated Press, “Florida’s new abortion law violates religious freedom, a synagogue’s lawsuit says,” NPR , June 15, 2022 https://www.npr.org/2022/06/15/1105229512/florida-abortion-law-synagogue-lawsuit-15-weeks.

Howard Friedman, “Synagogue Sues In Challenge To Florida’s Restrictive Abortion Law,” Religion Clause Blog, June 15, 2022 https://religionclause.blogspot.com/2022/06/synagogue-sues-in-challenge-to-floridas.html

Dahlia Lithwick and Micah Schwartzman, “Is the Religious Liberty Tent Big Enough to Include the Religious Commitments of Jews?” Slate, June 22, 2022 https://slate.com/news-and-politics/2022/06/do-proponents-of-religious-liberty-really-intend-to-dispute-the-religious-commitments-of-jews.html.

[Published June 23, 2022]