Rabbi Barry Silver says his Florida synagogue is thinking about future generations.
That’s why Congregation L’Dor Va-Dor – “Generation to Generation” in Hebrew – has filed a lawsuit against a new law in the US state that will outlaw abortion after 15 weeks of pregnancy, even in cases of rape or incest.
But unlike other legal challenges to abortion restrictions in the United States that most often rest on the right to privacy upon which abortion rights have relied for decades, the synagogue is arguing that Florida’s abortion law violates religious freedom.
“Jewish law says that life begins at birth, not at conception,” Silver told Al Jazeera.
“A woman is not just entitled to have an abortion [in Judaism], she is required to have an abortion to protect her mental wellbeing, to protect her health, to protect her safety,” he said.
“This law would prohibit Jewish women from practising Jewish law.”
Roe v Wade
Florida is one of dozens of US states that have passed abortion restrictions in recent months, as the country readies for a US Supreme Court ruling that is expected to overturn a landmark legal precedent that guarantees the right to abortion nationwide.
The top court’s 1973 Roe v Wade decision set out that abortion was protected under “the right of personal privacy”, which in turn is derived from the US Constitution. But in May, a leaked draft opinion in a Mississippi abortion case showed that the conservative-led court intends to overturn Roe, a move that will set back nearly five decades of abortion access.
The leak spurred protests, as well as condemnation and fear among many women, as 26 US states are expected to ban abortion once Roe is likely overturned, according to the Guttmacher Institute, a reproductive rights group. A Supreme Court decision is expected this month.
Activists, community groups and others are nevertheless taking steps to try to challenge state-level curbs to abortion rights, or bolster legal protections and support in parts of the country where the procedure will remain permitted.
“I think faith is going to be a really big component of post-Roe legal strategies, but also just generally organising strategies,” said Elizabeth Reiner Platt, director of the Law, Rights, and Religion Project at Columbia Law School.
She pointed to the key role faith leaders played in helping women access abortion services before Roe, including the Clergy Consultation Service on Abortion, a group of Christian ministers and Jewish rabbis that offered abortion counselling and referrals beginning in the late 1960s.
“There have been various [legal] claims that there is a religious obligation, either to provide [abortion] counselling and support, or to provide the medical care itself, or a religious right in some of the cases to access abortion for one’s self,” Platt also told Al Jazeera.
Church-state separation
There are two primary ways to make religious freedom arguments on abortion, Platt said. A person can argue they have a religious obligation to do something, but that a law or policy punishes them for acting on their beliefs, or they can argue that a law or policy violates church-state separation.
That latter principle is set out in the Establishment Clause of the First Amendment of the US Constitution, which bars the government from passing any law “respecting an establishment of religion”.
“There’s certainly been more decided on that in the federal system,” Platt said, pointing to a ruling (Harris v McRae) that she said ultimately found that “just because a statute happens to coincide with the tenets of some religion doesn’t make it inherently religious”.
Platt said one way to prove a law or policy is “theologically motivated” would be to point to statements lawmakers have made to justify them on religious terms.
In Florida, Governor Ron DeSantis signed the state’s new abortion legislation, known as HB 5, in a ceremony at Nacion de Fe Church in the city of Kissimmee – something that Silver, the rabbi, argued demonstrates that it is religiously-driven and a violation of church-state separation.
“They usually try to hide the religious influence behind [these abortion laws] so that [they] can’t be challenged on religious grounds. But in this case, they weren’t that careful,” he told Al Jazeera. “They announced it at a church, they said God was going to make sure everything is OK – and they clearly revealed the religious influence.”
But DeSantis, a leading Republican, has defended the law – which is expected to come into effect on July 1 – as offering “the most significant protections for life in the state’s modern history”.
“House Bill 5 protects babies in the womb who have beating hearts, who can move, who can taste, who can see, and who can feel pain,” DeSantis said in a statement on April 14, the day he signed it into law. “Life is a sacred gift worthy of our protection, and I am proud to sign this great piece of legislation.”
Florida Lieutenant Governor Jeanette Nunez also defended the law, saying in the same statement, “Life is precious and children are a God-given gift. That is why House Bill 5 is so important, as it provides added protections for the unborn child.”
Asked for comment on the synagogue’s lawsuit, DeSantis’s office told Al Jazeera in an email that the governor “is and always has been pro-life. Our office is confident that this law will ultimately withstand all legal challenges.”
Christian fundamentalism
Staunch opposition to abortion has been a unifying point for many Christian nationalist groups in the US, who for decades have sought to overturn Roe. These groups worked diligently to get states to pass abortion restrictions and stack the Supreme Court with justices who would upend the legal precedent. They have welcomed its impending rollback as a monumental victory.
Approximately three-quarters – 73 percent – of white evangelical protestants said abortion should be illegal in all or most cases in the US, according to a Pew Research Center survey released in May.
But that opposition drops among members of other Christian denominations, including Catholics, who have traditionally held conservative views on abortion. The Pew survey found 13 percent of Catholics said it should be legal in all cases, while 43 percent said it should be legal but with some exceptions.
Silver at L’Dor Va-Dor said a distinction must be made between most Christians and those with more fundamentalist views. “Our beef is not with Christians today; it’s with certain Christians who want to take us back to the intolerant form of Christianity of yesterday,” he said.
Now, the congregation is pushing to get a hearing in front of a Florida judge before July 1, to ask for an injunction to stop the law from coming into effect on that date, Silver said. “We’re standing up not just for Jewish rights, but for the rights of all religions and atheists who don’t practice fundamentalist Christianity.”
Indeed, other religious communities in the US, including Muslims, and non-religious Americans have raised concerns about the influence that hardline Christians are exerting on people who do not share their strict views on abortion – namely, that life begins at conception.
A 2014 Pew Research Center survey found that 55 percent of Muslim respondents said abortion should be legal in most cases in the country – a position shared by 83 percent of Jews, 82 percent of Buddhists, and 68 percent of Hindus, among others.
“I certainly would not think that this [Florida lawsuit] is going to be the last case that we see that contains claims about peoples’ faith beliefs – because the majority of religious people support abortion rights, and there’s a really long history of faith-based activism,” said Platt.
She added that while it is difficult to say whether the Florida challenge will be successful, the case should be taken seriously because the US has “incredibly expansive protection for religious liberty at the state level”.
“And so I don’t think we can be too quick to dismiss these arguments.”
