Jewish attitudes toward abortion vary quite significantly, and even within Orthodoxy there is a spectrum of halakhic opinions about the circumstance under which it is allowed. But there is a general consensus across denominations—based on the Talmud—that when pregnancy threatens a woman’s life, abortion is not only permitted but required. This fact is the basis of a lawsuit in Indiana filed by the American Civil Liberties Union on behalf of a group called Hoosier Jews for Choice. According to the plaintiffs, the state’s abortion ban threatens Jews’ religious liberty in a way that violates Indiana’s Religious Freedom Restoration Act (RFRA). Similar lawsuits have been filed in several other states.
Josh Blackman, Howard Slugh, and Tal Fortgang argue that the claims made in these suits are unconvincing on multiple levels: on the technical grounds that the plaintiffs have no claim that they are being actively harmed by the laws in question; on the grounds that every existing state abortion ban already includes a carve-out for circumstances where a woman’s life is in danger; and because of more fundamental flaws in legal reasoning. They also cite a “pragmatic” concern:
The legal errors in the Indiana case would upset the compromise at the heart of the RFRA. This compromise allows the judiciary to protect religious liberty while allowing the state to burden religious exercise when doing so is necessary to further a compelling government interest. The Indiana trial court’s legal errors would make it nearly impossible for the state to demonstrate that it has sufficient justification to burden religious exercise.
We worry that a ruling for the plaintiffs based on the lower court’s misinterpretation of the RFRA would, in the long run, weaken or even eliminate religious-liberty protections. Faced with the prospect of judicial interpretations that effectively eliminate the delicate legislative balance contained within the RFRA, state legislatures may seek to modify or even repeal their state RFRAs, thus abandoning heightened protections for religious exercise. Other states that are looking to enact RFRAs may reconsider if faced with the choice between protecting religious liberty and enforcing other compelling interests. Any victories in this case for people of faith would be short-lived, as the critical RFRA compromise would be broken.
Read more at Social Science Research Network
More about: Abortion, Judaism, Religious Freedom, Religious Freedom Restoration Act