The Volokh Conspiracy
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Tentative Thoughts On The Jewish Claim To A "Religious Abortion"
Recently, Congregation L'Dor Va-Dor, a synagogue in Palm Beach County, Florida, challenged the constitutionality of Florida's new abortion restriction. I think there are many procedural problems with the complaint, including standing and the scope of the proposed remedy. (See my post here.) But here I'd like to address the merits question--or at least offer some tentative thoughts on the issue: does a prohibition on abortion violate the Free Exercise rights of Jewish women? Under Employment Division v. Smith, the abortion law would be considered a neutral rule of general applicability, without any indication of animus towards Jews. This law would easily survive rational basis review. But there is a strong movement to overrule Smith--a step the Court stopped short of in Fulton. So I will consider the separate question of whether this law would violate the pre-Smith framework from Sherbert v. Verner. (The inquiry may be a bit different under a law like RFRA, which Florida has adopted.)
Under the Sherbert test, a court would ask if Florida's abortion law "substantially burdens" the free exercise of religion of certain Jewish women. The Supreme Court has described this element in stark terms. For example, in Sherbert v. Verner, Justice Brennan wrote that South Carolina's policy "forces [the Seventh-day Adventist] to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand." More recently, in Burwell v. Hobby Lobby Stores, the Court observed that "If the owners comply with the HHS mandate, they believe they will be facilitating abortions." This imposition, Justice Alito wrote, obviously amounts to a "substantial burden." In both cases, the government forced a person into a dilemma: follow your religion and suffer civil consequences, or follow the civil law and suffer religious consequences. Described in those terms, there are serious repercussions for flouting either church or state.
In these decisions, the Court never saw fit to discuss, in any depth, what those ecclesiastical consequences were. For example, Justice Alito did not discuss whether the Green Family members believed they would be punished in the afterlife for providing certain contraceptives. The Court likely presumed that the litigants were sincere in their beliefs that there would be spiritual repercussions for taking these actions. Indeed, in Hobby Lobby, "no one . . . disputed the sincerity of their religious beliefs." (In Unraveled, I discussed how the Obama Administration consciously adopted this strategy.)
For Christians, perhaps, quantifying the consequences of committing a sin is easier. For Jews, however, the issue is far more complicated. Judaism is not a centralized religion. There is no Jewish equivalent of a Pope. We often speak of "Orthodox," "Conservative," and "Reform" Jews, but even within these categories, there is no official or standardized set of teachings. Every Congregation, indeed, every Rabbi, may follow the teachings in different fashions. Moreover, every Jew can look to faith in his own fashion. And there is no obligation to be consistent. A Jew could hold one opinion in the morning, and then change his mind over lunch, and go back to the original position after dinner. The old saw, Two Jews, Three Opinions, is apt.
In light of this divergent nature of Judaism, I find it unhelpful to decide whether Jewish law in fact imposes some sort of obligation or duty to have an abortion to save a woman's life. I'm sure there will be robust debates on both sides of this issue, but for purposes of the courts, the answer doesn't matter. If a particular plaintiff sincerely holds the belief that her religion imposes such a duty, a court cannot say otherwise.
Many advocates in the religious liberty community have long been hesitant to empower courts to scrutinize sincerity. If we move to a post-Smith world, I think this paradigm will have to shift. For example, during the pandemic, it is my sense that many of the religious objectors to the vaccine mandates were not sincere. They were looking for some reason--any reason--to resist the jab. Their objection was political or philosophical or medical or something else--but not based on conscience. Intake attorneys at religious liberty firms will attest to this fact. In the aggregate, I think the religious liberty movement will be benefitted by providing relief to those who sincerely hold those beliefs, and winnowing out those who are congregants of convenience. The boy who cries wolf--or god--hurts us all.
Which brings me to Congregation L'Dor Va-Dor. The Congregation's website offers this description: "We are led by Rabbi Barry Silver, whose leadership has allowed us to evolve into a synagogue that practices a special blend of modern, progressive Judaism that, while rooted in the Bible, is also grounded in a modern understanding of reason and science." (Rabbi Silver is also the attorney who filed the complaint in state court--he has been sanctioned in state court.) The website does not clearly associate this congregation with any Reform or Reconstruction organizations, but it is safe to presume that Rabbi Silver does not associate with the Orthodox movement.
One of the biggest differences between Orthodox Judaism and Reform Judaism turns on the treatment of Jewish Law, known as halacha. Orthodox Jews tend to view halacha as binding. Reform Jews tend not to. (This article from ReformJudiasm.org provides one perspective on the issue.) To use an example, Orthodox Jews tend to follow a strict set of dietary laws, known as the laws of Kashrut. By contrast, Reform Jews tend not to treat those rules as binding, and will have no problem with eating non-Kosher food. Orthodox Jews tend to avoid performing work (broadly defined) on the Sabbath. By contrast, Reform Jews tend not to treat those rules as binding, and will have no problem with working on the Sabbath. These statements are admittedly gross generalizations, but they capture the broad trends.
This dichotomy would have some bearing on the Free Exercise Clause. If a state prohibited ritual Kosher slaughter (as several European countries have done), would that law impose a substantial burden on the free exercise of religion? For those Jews who treat the rules of Kashrut as binding, and have an obligation to eat Kosher meat in certain circumstances--a question on which there is some debate--there is absolutely a substantial burden on free exercise. For those Jews who treat the rules of Kashrut as advisory or perhaps aspirational, and routinely eat non-Kosher foods, there probably is not a substantial burden on free exercise. Likewise, imagine if a state conditions the payment of employment benefits on a person's willingness to work on Saturday (the facts in Sherbert v. Verner). A Jew who, in keeping with halacha, never works on the Sabbath could credibly allege a substantial burden. A Jew who treats the prohibition on work on the Sabbath as aspirational, and always works on the Sabbath, could not credibly allege a substantial burden--or more precisely, such an allegation could not be sincere.
This background brings us to the precise claims put forward by Congregation L'Dor Va-Dor. The complaint is somewhat jumbled, but buried in the pleading is a religious claim: Jewish women have some sort of religious obligation to obtain an abortion if the pregnancy threatens their health. This argument is premised on halacha, which, again, Reform Jews tend not to view as binding. So here is the crux of this post: if virtually every other facet of halacha is not binding on members of this congregation, how could it be that this one teaching on abortion is binding--so binding, that a state's prohibition of that teaching actually substantially burdens the free exercise of religion? This complaint differs from the myriad people who conveniently discovered a religious objection to the COVID vaccine, yet received many other vaccinations. Likewise, members of this congregation do not stand in the same shoes as the draft dodgers who miraculously discovered the virtues of Quakerism. Members of Congregation L'Dor Va-Dor have likely held these views on abortion and halacha for some time. But to claim that their religious exercise is substantially burdened, I think there has to be some broader showing that the religious belief is obligatory in nature. The belief can't simply be aspirational. To use an analogy to the law, this precedent cannot be merely persuasive; it must be binding.
Professor Sherry Colb addressed a related argument:
If one wanted to have a chance of prevailing on a "religious abortion" claim, one would have to assert that one's religion requires one to have an abortion rather than that it merely allows one to have one. If one's religion requires an abortion, then the state law that prohibits abortion would plainly interfere with one's ability to practice one's religion. But when would anyone's religion require an abortion?
If this congregation's faith does not require keeping kosher, does not require honoring the Sabbath, and so on, could it be said that this faith actually imposes a duty to have an abortion? Imagine a hypothetical conversation between the Rabbi and a female congregant:
Congregant: Do I have to keep Kosher?
Rabbi: No.
Congregant: Do I have to abstain from working on the Sabbath?
Rabbi: No.
Congregant: But if my pregnancy may affect my health, am I required to have an abortion?
Rabbi: Absolutely, yes. No question about it.
Congregant: If I choose not to obtain an abortion when my health is in jeopardy, would I be sinning? Would there be disapproval of my actions in any way?
Rabbi: No and No.
Stated differently, if a person's religious beliefs view halacha as non-binding--that is, the person is not required to take a certain action to comply with the halacha--it is difficult to claim that a government prohibition of that action is itself a substantial burden of religion. And if a person treats 99.9% of halacha as non-binding--including far more deeply-rooted rules governing Kosher slaughter and sabbath observance--yet deems as binding the interpretation of halacha that affects abortion, I think the person's sincerity can be challenged. To be precise, this person may sincerely believe that her religion allows--and perhaps even encourages--an abortion in such cases, but does not sincerely believe that religion compels this action such that the prohibition substantially burdens her exercise. The legal concept of a "substantial burden," which was developed in the context of Christian faiths, does not neatly map onto a Jewish faith that does not actually impose any requirements on congregants, but instead only offers aspirational principles.
My conclusion here should not be surprising. Historically, the people who brought Free Exercise claims tend to be more observant or orthodox. Those who are less devout are less likely to be burdened by restrictions on religion. Stated differently, those whose religions practices do not conflict with prevailing societal norms are unlikely to seek redress in the courts. It is those people whose religious practices conflict with prevailing societal norms who will seek redress in the courts. What makes the "religious abortion" claim different is that people who tend to be less observant now find themselves at odds with prevailing societal norms--post-Dobbs--and are seeking redress in the courts. The Free Exercise Clause applies to all people, but the question of whether a law substantially burdens the free exercise of religion turns on how a person practices her faith.
