The Volokh Conspiracy

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From Rabbi Michael Simon (Temple Beth Kodesh) on Abortion, Judaism, and Religious Exemptions


As readers know, I've been interested in the question of abortion and religious exemption claims (see this May 9 post), so when I saw this item by Rabbi Simon, I found it much worth passing along. Rabbi Simon had been a lawyer for 20 years before becoming a full-time rabbi, and who has been an Adjunct Professor of Rabbinics at Gratz College and an Adjunct Instructor in Jewish History at Florida Atlantic University; Temple Beth Kodesh, which is in Boynton Beach, Florida, is "a traditional, conservative, egalitarian congregation." Note that it's a sermon that he plans to deliver tomorrow (we bring you tomorrow's news today), which explains the reference to the Court's decision being "yesterday."

Naturally, there are serious legal questions about whether religious exemption claims from abortion laws should be granted, but I thought it would be good to see this opinion on the subject; if others have other views on religious exemption claims from abortion laws, I'd be glad to forward them as well:

Those of you who've been here for a while know that I do not talk politics from the bimah. But there are three areas that I am willing to, and feel it is my duty to speak about, namely, Israel, Antisemitism, and Religious Liberty. This morning I want to talk about a significant issue of religious liberty, specifically as it relates to abortion.

As you are aware, yesterday the Supreme Court overturned a constitutional right to abortion. It now leaves this issue up to the individual states to decide to what extent, if at all, it will permit abortions. To be clear, I am not speaking about whether I believe the Court was right or wrong or whether I believe there is a constitutional right to an abortion. Frankly, my opinion, as a rabbi is irrelevant. My opinion on religious liberty, is however, very relevant.

As you're probably aware, the State of Florida, for instance, enacted a law limiting abortions after fifteen weeks. Rabbi Barry Silver of Congregation L'Dor Va'dor has already filed a lawsuit challenging that law. There has been quite a bit of press over this lawsuit including in the New York Times and I was interviewed on Monday by the Palm Beach Post about it for thirteen minutes, but my comments were not printed.

So let me share with you a bit about what I told that reporter and what I've been discussing with some experts in the field, especially Professor Josh Blackman who spoke to us on Zoom back in December and will come back to discuss the Court's religion cases next month.

The legalities of Religious Liberty and Church-State issues are complicated and muddled. And there are no easy solutions in a multi-religious society. I can't get into all the nuances or possibilities here. But I'll start with this by way of background.

Remember the controversy over contraceptive coverage in health plans that was opposed by various Christian organizations and businesses as violating their religion? How did you feel about that? What does Judaism say about that?

Notice that I say Judaism. I didn't say Jews. I didn't say rabbis. I said Judaism. As if there is one clear cut version of Judaism opinion out there.

You see, unlike the Catholic Church, Judaism doesn't have one authoritative voice telling us what we can and cannot do. And that is one reason why the debate over contraceptive coverage and the Catholic Church is perhaps a bit puzzling to us as Jews.

But without getting into whether it is right or wrong, or how it should be resolved, since that is beyond my role here, I do believe that we need to be more understanding of that particular religious perspective. And one way of understanding it from a Jewish perspective is to try to reframe the issue with the following example.

Suppose we here at Beth Kodesh, or any other shul for that matter, has a rule which says that all food brought into the shul must be kosher. (I know I'm making this up. But humor me.) And suppose we are offered a program where we provide the use of our space for an organization to provide meals to low-income or elderly people.

Now this program is government subsidized and the government says that it must serve a well-balanced, nutritional meal. And what do they consider to be a well-balanced, nutritional meal? Pork chops, Ham and Cheese sandwiches, or God forbid, Chicken Parmigiana.

Now what would we say to that? Of course, we'd say we can't do that. It violates our sincerely held religious principles. We would merely ask the government to shut down the program for everyone? No! We'd only ask for an exemption from this rule in order to be able to serve matzoh ball soup and cholent.

But should there be an exemption from the law for sincerely held religious beliefs? Of course, in this case we say yes. Because in this case, we can see that they are our religious beliefs, which are in danger of being denied. So now, if you use this particular Jewish perspective, you can better see where the Church is coming from when it asks for exemptions on issues of concern to them, such as contraceptive coverage, etc.

With that as background now let me talk specifically about abortion.

Under Jewish law, halacha, there is no so-called "right to choose!" In the words of the OU, "Jewish law prioritizes the life of the pregnant mother over the life of the fetus such that where the pregnancy critically endangers the physical health or mental health of the mother, an abortion may be authorized, if not mandated, by halacha…. Legislation and court rulings….. that absolutely ban abortion without regard for the health of the mother would literally limit our ability to live our lives in accordance with our responsibility to preserve life."

And the more right wing Agudat Israel had this to say. "Thus, we would have to review the precise nuances of the final decision itself—how, for example, it treats abortion rights when the 'mother's life or health is endangered,' or when the 'mother's sincerely-held religious beliefs allow or require' her to seek an abortion."

Abortion is therefore clearly permitted, if not mandated, in certain instances where the health of the mother is at stake, and that includes, in my opinion based on rulings of the Conservative Movement, the physical and mental health of the mother. How "health" is defined and how it plays out in actual cases remains to be seen. Thus, if there is a conflict between a law denying abortions and a religious claim to have an abortion, the claim might prevail, if not under the First Amendment, then at least under a State's Religious Freedom Restoration Act.

And here's something else to consider, not just for this issue, but in our approach to Judaism and its requirements. And that is sincerity. As Professor Blackman and I have been discussing, one of the issues that will come up is whether or not the claim is sincerely held. Just think about this for a second. If a woman says that she doesn't keep kosher or observe Shabbat and doesn't believe that it's mandated by her religion, can she sincerely say that she believes that abortion is mandated?

"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.

In other words, if a person treats far more deeply-rooted rules governing Kosher slaughter and sabbath observance as non-binding, yet deems as binding the interpretation of halacha that affects abortion……." You can fill in the rest….

I'm not going to complicate things for you with all the additional legal requirements and concepts that will arise but just know that if the claim is upheld, the law itself isn't struck down, but rather just like the kosher food example, the remedy is that the woman in question receives an exemption from the law. And as Jews, that's what we ask when our religious requirements conflict with state law. That we be exempted from these laws. The First Amendment and our religious liberty demands no less.

And hopefully now, we as Jews also see the importance of standing up for our religious liberty rights, as a minority religion, as well as standing up for the rights of all religions, even if we don't agree with their teachings.

As one commentator put it, "This kind of religious liberty claim, should be recognizable to those who have successfully obtained religious exemptions from contraceptive coverage requirements under Obamacare, or from civil rights laws protecting LGBTQ Americans, or from public health rules limiting the size of religious gatherings during the pandemic. But will those who have defended the Supreme Court's expansive approach to religious freedom accept that adherents of other faiths might also have sincere religious objections to prohibitions on abortion? The answer to that question hasn't been addressed head-on, but it was surely predictable: Not every religion has an equal claim to religious liberties, and some religious adherents can be deemed less worthy of those claims than others."

If that statement is true then it becomes our task, as committed Jews, committed not only to the practice of Judaism, but also to the ideals of religious liberty, to see to it that these claims, our claims, are not less worthy and are indeed fully accepted by society.

I want to conclude with this anecdote to personalize this issue a bit.

There is a gentleman who comes to our minyan every morning named Marty Zweig. He works in lower Manhattan for the U.S. Park Police and sometimes joins the minyan from his office. And when he does, he puts on his kippah and Tallis and davens from his government office. And he can do that, even if it makes others uncomfortable. Why? Because we have religious freedom, and he has the right to express it his way.

Despite the controversies and difficulties that this issue and similar issues present, let us nevertheless see this as an opportunity to not only be more respectful of others' religious practices as we ask others to be respectful of ours, but at the same time to be more respectful and observant of our own religious obligations, because the more sincere we are in our religious observance the more likely we are to succeed in being able to practice it as we require—and not just see or use religion as an excuse to advance our own personal opinions and beliefs.

Shabbat Shalom