Religious freedom arguments underpin wave of challenges to abortion bans

By Pam Belluck, The New York Times Company

For years, conservative Christians have used the principle of religious freedom to prevail in legal battles on issues like contraceptive insurance mandates and pandemic restrictions. Now abortion rights supporters are employing that argument to challenge one of the right’s most prized accomplishments: state bans on abortion.

In the year since Roe v. Wade was overturned, clergy and members of various religions, including Christian and Jewish denominations, have filed about 15 lawsuits in eight states, saying abortion bans and restrictions infringe on their faiths.

Many of those suing say that according to their religious beliefs, abortion should be allowed in at least some circumstances that the bans prohibit and that the bans violate religious liberty guarantees and the separation of church and state. The suits — some seeking exemptions and others seeking to overturn the bans — often invoke state religious freedom restoration acts enacted and used by conservatives in some battles over social issues.

The lawsuits show “religious liberty doesn’t operate in one direction,” said Elizabeth Sepper, a law professor at University of Texas at Austin.

Aaron Kemper, a lawyer representing three Jewish women who are suing to overturn Kentucky’s abortion ban, said he studied and emulated federal and state religious liberty cases that conservatives won.

“We were like, it works for them, so we thought we should use sections from those cases,” he said.

Although most lawsuits have not yet yielded court rulings, there are signs the arguments may have some legal traction. In Indiana, a judge issued a preliminary injunction blocking the state’s abortion ban, saying it violated the state’s Religious Freedom Restoration Act adopted in 2015 under then-Gov. Mike Pence, an ardent opponent of abortion who is now running for president.

Recognizing a potential threat, Oklahoma and West Virginia recently amended their religious freedom restoration acts to explicitly prevent challenges to abortion bans under the acts.

Some belief systems, including the United Church of Christ’s, support women making their own decisions in pregnancy. Some, including the Episcopal Church and many branches of Judaism, have traditions that abortion should be supported in certain cases, especially where pregnancies threaten women’s physical or mental health or involve serious fetal abnormalities. Some faiths do not define life as beginning with conception.

The Indiana case was filed by Hoosier Jews for Choice, three Jewish women and a woman with independent spiritual beliefs. Judge Heather Welch of Marion County Superior Court has certified it as a class-action lawsuit on behalf of “all persons in Indiana whose religious beliefs direct them to obtain abortions in situations prohibited by” the ban.

“The court has concluded that the plaintiffs’ religious exercise is being substantially burdened, that they are suffering irreparable harm,” Welch wrote in blocking the ban for plaintiffs with religious objections.

The state has appealed, arguing that “‘abortion access’ is not religious exercise.” Like other states fighting such lawsuits, Indiana said it has a “compelling interest” to prohibit abortions.

“Plaintiffs identify no principle that makes abortion a religious act any more than countless other actions that they believe to affect their well-being,” Indiana’s attorney general wrote, adding, “Other acceptable means for plaintiffs to achieve such ends in the context of childbearing include sexual abstinence, contraceptives, IUDs and natural family planning, just to name a few.”

Indiana’s ban had already been on hold because of a preliminary injunction in a lawsuit citing other objections to the law. On Friday, in a ruling in that lawsuit, an appeals court said the ban could be enforced. But those with religious freedom objections can still seek abortions until an appeals court rules in the religious case, lawyers said.

Decades ago, some anti-abortion groups warned that religious freedom arguments might be used to bolster abortion rights. When Congress considered what became the 1993 Religious Freedom Restoration Act, the National Right to Life Committee and the U.S. Catholic Conference raised that concern.

“The Act, if passed, will be used to seek access to abortions,” the Catholic Conference’s general counsel wrote in 1992.

In Florida, lawsuits filed by Episcopal, Buddhist, Unitarian Universalist, Jewish and United Church of Christ clergy say abortion restrictions violate “clerical obligations and faith” and impose “severe barriers” on religious belief, speech and conduct.

“We believe God is the source of all life and has caused us to share in the work of creation,” said one plaintiff, the Rev. Dr. Laurie Hafner, senior pastor of Coral Gables Congregational United Church of Christ. “The privileges and responsibilities of being part of co-creating,” she said, mean “women have the ability and wherewithal to make the decision that’s right for them.”

Hafner said she had counseled parishioners deciding whether to terminate pregnancies, including a 14-year-old girl and a woman whose fetus was nonviable. Florida’s six-week abortion ban is currently on hold, but, she said, “what if it gets to that place where I can no longer sit at the bedside or in the living room or in my office with someone out of fear of what might happen?”

Within any faith, there may be varying opinions on abortion. But many of those suing say abortion bans embed conservative Christian ideology into state law.

One Kentucky plaintiff, Sarah Baron, a 38-year-old mother of two and a board member of a Louisville synagogue, said, “The Torah teaches us that the fetus does not have the same personhood status as the mother until its first breath.”

Baron, who belongs to Judaism’s conservative denomination, said her age and previous fertility struggles raised risks of pregnancy complications or fetal abnormalities.

Under Kentucky’s ban, she said, “I would be unable to make that extremely difficult decision of whether to continue carrying a fetus if the pregnancy is causing severe physical or psychological harm to me or the fetus is nonviable.”

“It’s not only cruel,” she said, “but it represents a situation where Jewish law may require the pregnancy to be terminated.”

Within Judaism, there are differing views, with some Orthodox Jews supporting only very limited circumstances for abortion. But Kemper, the Kentucky plaintiffs’ lawyer, said rabbis from every large Kentucky synagogue have supported the lawsuit.

The lawsuits by members of widely known faiths follow a trail blazed by a less conventional religion, the Satanic Temple, which began filing abortion-related lawsuits after the Supreme Court’s 2014 Hobby Lobby decision exempting family-owned corporations from the Affordable Care Act’s mandate that insurance cover contraceptives. The temple, which is recognized by the IRS as a religion and lists 46 American congregations, has lawsuits pending in Idaho, Texas and Indiana, and it recently started the first telemedicine abortion service operated by a religion, with a goal of using it to challenge abortion restrictions.

A nontheistic religion that construes Satan not as a New Testament evildoer but as the English literary character who battles oppression, the Satanic Temple often employs a strategy of flamboyant provocation, said Joseph Laycock, a religion scholar at Texas State University and the author of a book about the temple. Its antics make some abortion rights supporters worry that it will stoke anti-abortion sentiment. But some courts have taken its religious freedom claims on various issues seriously, including in a recent preliminary ruling ordering a school district in Hellertown, Pennsylvania, to allow its After School Satan Club to meet.

Marci Hamilton, a religious freedom expert at the University of Pennsylvania who represents clergy in abortion rights lawsuits in Florida, called the temple’s lawsuits “extremely helpful.”

“They are saying, ‘OK, courts, if you’re going to favor the religious right, we’re going to show you a faith whose rights are being violated,’” she added.

The temple created an abortion ritual, a recitation of tenets about individual control over one’s body and the importance of making decisions based on science. Its general counsel, Matthew Kezhaya, said the ritual strengthens legal claims by linking “abortion and the religion itself” and establishing a practice “interfered with by these particular laws.”

The temple’s telemedicine service is currently available in New Mexico, where abortion is legal, but it plans to expand to states with bans and religious freedom laws, temple officials said. It has an intentionally inflammatory name, Samuel Alito’s Mom’s Satanic Abortion Clinic (after the Supreme Court justice who wrote the opinion overturning Roe), but it follows standard medical procedures, employs experienced reproductive health nurses and is listed by a national clearinghouse of legitimate medication abortion services.

One patient, Mikayla, 28, who asked to be identified by her first name to protect her privacy, drove from Texas to an Albuquerque, New Mexico, airport hotel to use the service and allowed The New York Times to observe. During video medical consultations, a nurse practitioner and patient care coordinator discussed effects like cramping and bleeding and urged her to call their 24-hour nurse hotline with questions or concerns.

After she received the medication, the process took a different turn. Via Zoom, a minister prompted Mikayla to look in a mirror to reflect on self-empowerment and recite, “One’s body is inviolable, subject to one’s own will alone.” After swallowing the first pill in the two-drug regimen, Mikayla recited a tenet about prioritizing science. The minister advised that after the pregnancy tissue was eventually expelled, Mikayla could recite, “By my body, my blood. By my will, it is done.”

Legal experts said some religious freedom lawsuits seeking abortion rights might succeed, given recent Supreme Court decisions that “supported religious exemptions even in cases where there are really strong health and safety issues,” said Elizabeth Reiner Platt, director of the Law, Rights and Religion Project at Columbia University. Arguments for exemptions might also be persuasive because most abortion bans have some exceptions, like rape, experts said.

“These should be very strong, compelling cases, but I also acknowledge that this is a highly political issue,” Platt said.

Josh Blackman, a professor at South Texas College of Law Houston who has criticized the lawsuits, questioned the plaintiffs’ legal standing, saying, “A lot of these women are sort of making prospective claims that ‘One day, I might be pregnant, and one day, I might have this problem, and that might require me to have an abortion.’”

He said some plaintiffs could have religiously sincere “extenuating individual circumstances” but that allowing widespread exemptions could undermine the law’s larger purpose.

Whichever way courts rule could be groundbreaking.

“We’re in a completely new landscape,” Platt said.

This article originally appeared in The New York Times.

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