Freedom of Religion Argument Goes One-For-Three in the First Round of Pro-Choice Lawsuits

In a victory for anti-abortionists, most of them—according to a recent Public Religion Research Institute survey—White Christian nationalists—the U.S. Supreme Court struck down the right to abortion two years ago.

Across the spectrum of Christian and non-Christian religions, however, a majority of Americans support at least some access to abortion. Some of those religions have protested the high court’s decision on religious freedom grounds, arguing that embedding into law a Christian-based view of when life begins violates the establishment clause of Article One of the Bill of Rights.

Now, that argument has coalesced into a legal strategy in the first three challenges to state abortion bans. On June 28, Kentucky Circuit Judge Brian Edwards dismissed a lawsuit brought by three Jewish mothers who argued that that state’s near-total abortion ban violated their religious freedom. Judaism allows for abortion and, in some cases, where the mother’s life is in danger, requires it. Judaism’s traditional view of the beginning of life is not conception but the first breath taken outside of the womb. The plaintiffs argued that the state’s prohibition of abortion directly countermands Kentucky’s Religious Freedom Restoration Act, which states that the government “shall not substantially burden a person’s freedom of religion.”

Without ruling on the case’s merits, Judge Edwards dismissed it because since the women were not currently pregnant, they suffered no injury from the law and, therefore, lacked standing to pursue the case.

Earlier in June, St. Louis Circuit Judge Jason Sengheiser rejected a case involving a multi-faith coalition of 14 Christian, Jewish and Unitarian clergy who similarly argued that the state of Missouri violated freedom of religion by imposing the beliefs of one religious tradition on others.

Judge Sengheiser’s reasoning contained the conundrum: “While the determination that life begins at conception may run counter to some religious beliefs, it is not itself necessarily a religious belief.”

In both the Missouri and Kentucky cases, appeals are planned.

“We are in the middle of a long, drawn-out twilight struggle, and the steps that we’re taking are the first steps in a very long journey,” said Ben Potash, one of the lawyers who filed the Kentucky complaint and is now working on an appeal.

Potash said the appeal will argue the three Jewish women do have standing and could suffer harm from the law. All three women require in-vitro fertilization to become pregnant, he said, but are afraid of beginning the procedure without knowing precisely what the law will permit them to do with excess frozen embryos or whether they would be required to continue carrying implanted embryos that are determined to be not viable. The three women argued that having more children is a religious obligation underscored by the Biblical command to “be fruitful and multiply.”

“This ruling ignores critical issues central to our case, which impact many individuals and families across our state,” the three women — Lisa Sobel, Jessica Kalb and Sarah Baron — said in a statement. “Our lawsuit seeks clarity on Kentucky’s complex and conflicting anti-abortion laws, spanning over 80 pages and written over the past 50 years. These laws affect families using assistive reproductive technologies like IVF, creating legal uncertainties that are emotionally and financially burdensome.”

Meanwhile, Judge Sengheiser’s hesitation in stating definitively that the determination that life begins at conception is or is not a religious matter opens the door to appeal that case.

Rachel Laser, president and CEO of Americans United for Separation of Church and State, which brought the case on behalf of the 14 Missouri clergy, said the religious freedom argument is still relatively new.

“We are pioneers when it comes to making this argument today before courts,” said Laser. “Don’t forget that for nearly 50 years, the right to abortion was settled law under the right to privacy so we didn’t need to make these arguments at the same time, even though they were also true.”

A third case had a more positive outcome for pro-choice advocates. On April 4, the Indiana Court of Appeals upheld a lower court’s injunction on that state’s near-total abortion ban. Again, the argument—a winning one in this case—was religious freedom.

The case, filed by the American Civil Liberties Union of Indiana on behalf of five anonymous residents and Hoosier Jews for Choice, argued that Indiana’s ban violates the state’s Religious Freedom Restoration Act.

In her majority opinion, Judge Leanna K. Weissmann wrote, “Without a preliminary injunction, Plaintiffs will suffer the loss of their right to exercise their sincere religious beliefs by obtaining an abortion when directed by their religion and prohibited by the Abortion Law.”

In a concurring opinion, Judge L. Mark Bailey wrote, “In accordance with abundant religious liberty and the recognition of a pluralistic society, our Constitution further provides: ‘No preference shall be given, by law, to any creed, religious society, or mode of worship.’ Yet in this post-Dobbs world, our Legislature has done just that — preferred one creed over another.” “We have a long road ahead, and we’re going to stay the course in Kentucky along with Indiana, Missouri, Florida and anyone else who wants to join us,” said attorney Potash. “We are going to continue to fight until we win.”

Photo credits: Judge’s gavel by Chris Potter. CC BY 2.0.