Last week, a Missouri court ruled against a group of clergymen, among them five rabbis, who sought to challenge the state law banning all abortions “except in cases of medical emergency.” The suit claimed that the law, which went into effect in the wake of the Supreme Court’s Dobbs decision, undermines religious freedom and the separation of church and state.
Besides this lawsuit, there have been numerous cases of liberal Jewish groups filing amicus briefs in various attempts to overturn state-level abortion bans. In particular, they have raised the fact that rabbinic law since ancient times has mandated abortion in certain circumstances. Michael A. Helfand takes a close and objective look at these arguments, as well as other interventions in legal battles concerning abortion by American Jewish groups, noting how attitudes have changed following both Dobbs and evolving understandings of religious liberty.
Jewish law’s approach to abortion resists categorization as either pro-choice or pro-life. Instead, Jewish law . . . disapproves of abortion generally, but still endorses—and even requires—abortion when it promotes the health and “well-being” of the mother, broadly construed.
These unique features of Jewish law, especially the requirement of abortion when the mother’s well-being is at stake, has for some time generated significant religious-liberty advocacy on the part of Jewish organizations. A view of the history, as told through amicus-brief filings over the past 50 years, highlights how shifts in the Supreme Court’s abortion doctrine have generated changes within Jewish religious liberty advocacy. Indeed, in the pre-Dobbs era, religious exemptions found a home within some traditionalist Jewish groups, while progressive Jewish groups discounted their constitutional validity.
By contrast, in the post-Dobbs era, the roles appear to have reversed, with progressive Jewish groups advancing claims for religious exemptions, while the advocacy of some traditional Jewish groups has become more muted. And yet others, given the poor fit between Jewish law and litigation over the right to abortion, have intentionally and explicitly chosen to avoid the fray.
Read more on Social Science Research Network: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4704059