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.)
