[NOTE: First Amendment: “Congress shall make no law respecting the establishment of religion . . .” Banning abortion will be to “establish” one set of religious notions. Doing it via the Supreme Court rather than Congress won’t make it any less contrary to the Constitution’s plain meaning. And Such Supreme Court usurpation will by no means be the last word.]
From The Guardian:
Melody Schreiber — 02 June 2022
Reproductive rights are under threat in the US as states implement harsher restrictions and the supreme court weighs a case that is widely expected to reverse the constitutional right to abortion.
But while religious arguments around the issue are commonly associated with the anti-abortion movement, abortion restrictions can violate the right to religious liberty, faith leaders and legal experts say. And some organizations are already gearing up for possible legal challenges to looming abortion bans.
Religious liberty for people of all faiths is protected under the US constitution, state constitutions and federal statutes.
In Judaism, abortion is usually seen as permissible and even required in cases where the patient’s life is at risk. In Islam, scholars contend that abortion is allowed for the first 120 days, after which it’s seen as a civil – not a criminal – issue, and it’s permitted at any time when the health of the mother is in danger.
Other believers, including within Christianity, focus on the sacredness of the individual or the family to make such decisions, rather than prosecutors or lawmakers.
Personal beliefs can even contravene the dictums of established religions; for instance, Catholics for Choice believe they have a religious duty to protect reproductive health despite the Catholic church’s stance against abortion.
Nearly half of Protestants and 56% of Catholics believe abortion should be legal in some or all cases, according to a Pew Research survey published in May. More than half of Muslims, 82% of Buddhists and 83% of Jews believe the same, according to a different Pew study from 2014.
“You don’t have to be a member of an organized religion,” said Katherine Franke, a professor of law at Columbia University and the faculty director of the Law, Rights, and Religion Project. “Your religious beliefs could be your own idiosyncratic beliefs. They have to just be religious to you.”
With abortion bans, some clergy object to what they see as a “Christian theocratic imposition on entire swaths of our country”, as Rabbi Danya Ruttenberg, scholar-in-residence at the National Council of Jewish Women, put it.
“There are very serious religious liberty questions here,” Ruttenberg said. “If you ban abortion, when my religious tradition tells me that I am a) permitted and b) possibly required to access abortion care, you are limiting my free exercise of religion.”
The same questions arise in other faiths.
“In the Muslim tradition, scholars from the medieval time had taken the position that until a fetus is ensouled, it is not a life,” said Abed Awad, a lawyer and commentator on Islamic law.
“A Muslim woman living in Texas, or living in Alabama, who has a sincerely and genuinely held religious belief that in her tradition, she can terminate her pregnancy and it is not a violation of her religious requirements or theology up to 120 days, is going to be prevented from exercising her religious right to control her reproductive health,” Awad continued.
The first amendment has two components to protecting religious rights: first, the state can’t substantially burden the free exercise of religion, and second, the establishment clause prohibits the government from endorsing some forms of religion and condemning others, or embracing faith-based perspectives on public policy.
For example, if states adopt laws on fetal personhood, which would recognize fertilized eggs as people, those laws could violate the establishment clause, because such a view hews closely to Catholicism but not to other religious beliefs on ensoulment and personhood.
Legal challenges on the basis of religious liberty could be “the next stage of reproductive rights”, Awad said, and the National Council of Jewish Women is exploring the possibility of such a challenge, Ruttenberg said.
“Our tradition not only permits us to access abortion but also commands us to pursue justice,” she said. “We, as a religious minority with a long and complicated history, know all too well that the separation of church and state is one of the great gifts that our constitution offers. And it is critical that it be taken seriously.”
There is precedent for people with sincerely held religious beliefs fighting against criminal charges for actions that violate the law.
Scott Warren, a humanitarian aid worker for No More Deaths, successfully argued that his work helping migrants crossing the US-Mexico border was in line with his religious beliefs about helping others, and he was acquitted of federal charges in 2019.
Religious leaders or adherents may feel compelled by their beliefs to provide care, funds, transportation, housing or counseling around abortion, Franke said. “It’s not a stretch to see the work that they do in this area as part of a ministry.”