With the fate of Roe vs. Wade again in question following the retirement of Anthony Kennedy from the Supreme Court, some Jews have argued in favor of upholding the decision based on claims of religious liberty. That is, since halakhah—even in the eyes of the most Orthodox—not only permits but requires abortion in certain circumstances, a ban on abortion would threaten Jews’ freedom to practice their religion. Mitchell Rocklin and Howard Slugh contend that this line of reasoning perverts the meaning of religious liberty:
The irony of this particular pro-choice argument is that liberal Jews are advancing it even as they are quick to accuse traditional proponents of “religious liberty” of seeking to impose their religious views on America. . . .
The Supreme Court’s Hobby Lobby case illustrates this [point]. The plaintiff, an arts-and-crafts store named Hobby Lobby privately owned by the Green family, sought an exemption from a regulation requiring employers to provide health insurance that covered abortion-inducing drugs. The Greens argued that providing such insurance would violate their religious liberty, and they therefore requested a religious-liberty-based exemption.
The Greens did not argue that abortion-inducing drugs should be outlawed, that their employees should be prohibited from buying such drugs, or that the government could not require other employers to purchase such insurance. The Greens made a much more modest claim: they should not be required to participate in a process that they considered sinful. The Supreme Court ruled in favor of Hobby Lobby, finding that the government had not proved that exempting employers with sincere religious objections would prevent it from achieving its goal: ensuring that women had access to the drugs in question. The law continued to apply to the vast majority of Americans, and the government was free to fill the gaps through other methods. . . .
This brings us back to abortion. Too many Jewish pro-choicers have, in contrast [to the Greens], demanded a blanket constitutional right to abortion in virtually all circumstances. They insist upon such a permissive abortion regime because, in some circumstances, Jewish law may permit or require a mother to procure an abortion. But they are not arguing that they would need specific religious liberty-based exemptions from an abortion ban. Nor are they arguing that a state may achieve its goal of protecting the life of the unborn, so long as it does not unnecessarily infringe on their religious beliefs.