WASHINGTON — Weeks before the Supreme Court overturned Roe v. Wade, revoking a woman’s constitutional right to abortion, a rabbi and lawyer in Boynton Beach was preparing to take action against Florida. The state’s ban on abortions after 15 weeks, he said, directly targets Jews.
“Judaism is in conflict with this law,” Rabbi Barry Silver of Congregation L’Dor Va-Dor said in an interview, explaining that Judaism supports abortions if necessary to protect the health and well-being of the mother. “We’d have to choose between practicing Judaism and this law — and if we go with Judaism, we risk criminal prosecution. I, as a rabbi, if I counsel someone to have an abortion, can be tossed in to jail.”
Across the country, Jewish organizations had watched Florida’s Republican governor, Ron DeSantis, sign the abortion restriction into law in April with alarm. He chose to hold the signing ceremony at Nacion de Fe, an evangelical church in Kissimmee.
Florida’s 15-week law is scheduled to take effect Friday, but a different legal challenge by Planned Parenthood and others is before a judge in Leon County court. The judge has said he will rule from the bench on Thursday in response to plaintiffs’ request for a temporary injunction.
Now, having seen the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, Silver said he is pursuing the lawsuit that was filed June 10, also in Leon County, with an expanded goal not just of scrapping the Florida law but of serving as a template for others challenging state abortion bans nationwide.
“It lays out the religious argument that a synagogue could make,” said Silver, “that their right to practice religion has been infringed upon.”
Silver’s legal challenge faces multiple headwinds. But legal experts and national Jewish organizations say they are paying close attention to the suit, viewing it as a test case in the viability of religious liberty challenges to abortion bans in a post-Roe era.
“We absolutely see this as a violation of our religious freedom,” said Sheila Katz, CEO of the National Council of Jewish Women. “In the Jewish faith, the fetus having more rights than a living, breathing human woman or a person who can get pregnant is contradictory to our law and tradition.”
“We’re following this Florida lawsuit with anticipation,” Katz said. “We do want to see what works or doesn’t work with it. And we’ll be learning from it.”
High legal bar
Most laws applied across the board to the entire population are considered “neutral” or “generally applicable” in court, and are largely impervious to religious liberty challenges.
Silver’s first hurdle will be to prove that Florida’s law is not generally applicable.
“This is not neutral. It was announced at a church. It was motivated by religion,” said Silver, who practices law part time. “When we say we’re protecting a human being, that in and of itself is a religious claim. So they can lie and pretend all they want — it’s trying to impose a religious view of when life begins, and we’re not fooled.”
But legal experts say it will be a tough challenge for Silver.
“Any court that says there is no right to abortion is highly likely to say that the states have a compelling interest in protecting the life of the fetus. And compelling government interests override any constitutional right,” said Douglas Laycock, a professor at the University of Virginia Law School.
Michael Helfand, co-director of the Nootbaar Institute for Law Religion & Ethics at Pepperdine University’s Caruso School of Law, said that medical exceptions built in to most state abortion bans could open them up to religious liberty challenges.
“Most laws that restrict abortion have exceptions for medical necessities, and what’s interesting about that is that Justice Samuel Alito — when he was a judge on the Third Circuit — actually authored an opinion on these sorts of circumstances,” Helfand said.
Alito wrote the majority opinion in the Supreme Court case overturning Roe.
“In his view, the existence of a medical exception to a law that otherwise applies across the board actually renders it insufficiently neutral, and therefore subject to a First Amendment challenge,” Hefland said. “The existence of exceptions narrows the scope, at least, if not undermines the government’s compelling interest — because the logic goes that if it were so compelling, you wouldn’t have any exceptions.”
Still, “even if there are some exceptions, it is still the case that the state can defend the law by saying that granting a religious exemption would undermine its ‘compelling interest,’ ” said Richard Garnett, director of the Notre Dame Program on Church, State and Society and a professor at the law school.
Not seeking an exemption, but a complete overturn of the law
Silver is also asking the state court to throw out Florida’s law entirely — not to carve out a religious exemption for practicing Jews — because he believes exceptions would be “impossible to enforce.” Most religious freedom arguments request an exemption as a remedy, experts said.
Because his lawsuit is in state court, it will never reach the U.S. Supreme Court.
“In order to make out the exception, you’d probably have somebody establish that they’re a practicing Jew. Somebody could challenge that,” Silver said. “What about somebody who believes in Jewish ideals but doesn’t go to synagogue? The state would have a field day with that.”
That legal standard — the requirement of proof that a plaintiff in a religious liberty case is “sincere” in their religious beliefs — poses another challenge to Silver and anyone who presents similar future challenges.
“The free exercise of religion protects only conduct that is religiously motivated,” Laycock said. “It is not enough to say that my religion permits abortion, or that the law regulates in areas of religious disagreement.”
Nevertheless, legal experts agree that a unique set of circumstances could arise in which a harmed individual — likely a demonstrably religious woman seeking an abortion — could pose a serious religious liberty argument in court.
“I’m certainly watching these cases, and in some set of circumstances, I believe, yes, there might be a religious liberty argument,” Helfand said.
Katz said that her organization “will be looking for the right moments to be able to sue states based off of religious freedom, particularly around Jewish women and people who can get pregnant feeling this is a violation of their personal religious freedom.”
“For us,” she added, “it’s going to be a while before we see a case that potentially comes up that’s really winnable in the distance, in the long haul.”
