In an earlier version of this story, a caption misidentified the Rev. Tom Capo’s affiliation. He is a member of the Unitarian Universalist Association. The story has been updated.
“I am pro-choice not in spite of my faith, but because of my faith,” Hafner says.
She is among seven Florida clergy members — two Christians, three Jews, one Unitarian Universalist and a Buddhist — who argue in separate lawsuits filed Monday that their ability to live and practice their religious faith is being violated by the state’s new, post-Roe abortion law. The law, which is one of the strictest in the country, making no exceptions for rape or incest, was signed in April by Gov. Ron DeSantis (R), in a Pentecostal church alongside antiabortion lawmakers such as the House speaker, who called life “a gift from God.”
The lawsuits are at the vanguard of a novel legal strategy arguing that new abortion restrictions violate Americans’ religious freedom, including that of clerics who advise pregnant people. The cases are part of an effort among a broad swath of religious Americans who support abortion access to rewrite the dominant modern cultural narrative that says the only “religious” view on abortion is to oppose it.
“The religious right has had the resources and the voices politically and socially to be so loud, and frankly, they don’t represent the Christian faith,” Hafner told The Washington Post. “Those of us on the other side, with maybe a more inclusive voice, need to be strong and more faithful and say: ‘There is another very important voice.’
“Look biblically; Jesus says nothing about abortion. He talks about loving your neighbor and living abundantly and fully. He says: ‘I come that you might have full life.’ Does that mean for a 10-year-old to bear the child of her molester? That you cut your life short because you aren’t able to rid your body of a fetus?”
The five lawsuits seek to invalidate the Florida law, which went info effect July 1 and bans abortions after 15 weeks, except in cases where the mother could face serious injury or death, or if the fetus has a fatal abnormality. It also makes it a felony to “participate” in an abortion, which the suits charge could include counseling someone to have one.
“Since time immemorial, the questions of when a potential fetus or fetus becomes a life and how to value maternal life during pregnancy have been answered according to religious beliefs and creeds,” say the suits, which use identical language except when describing each plaintiff’s faith.
The new law, the suits read, sets “a pernicious elevation of the legal rights of fetuses while at the same time it devalues the quality of life and the health of the woman or girl who is pregnant. It is in direct conflict with Plaintiff’s clerical obligations and faith and imposes severe barriers and substantial burdens to their religious belief, speech and conduct.”
The cases are unusual in that they frame major liberal values through the lens of religious-liberty law. For years, religious conservatives have successfully argued in high-profile Supreme Court cases that their beliefs should allow them to open churches during a global pandemic, discriminate against LGBTQ people and decline to give employees contraception, among other cases.
A lawsuit similar to the clergy members’ was filed in June by a Florida rabbi, who argued the abortion law violates his practice of Judaism. Jewish views on abortion are complex across the ideological spectrum, but law and tradition do not ban it, sometimes appear to require it and do not recognize an unborn fetus as a full, legal person. According to that lawsuit, filed last month in Leon County Circuit Court, Congregation L’Dor Va-Dor of Boynton Beach argues that the new law “prohibits Jewish women from practicing their faith free of government intrusion and … violates their privacy rights and religious freedom.”
Abortion patients and health-care providers who support abortion access have made similar arguments in Indiana, where they are challenging that state’s requirement that fetal tissue from abortions and miscarriages be buried or cremated. That suit, which was filed in 2020, said a group of 2016 laws, signed by then-Gov. Mike Pence (R), compel women “to act in accordance with the State’s view of personhood irrespective of their own beliefs about the status of developing human life” and violate freedom of speech, the separation of church and state, and the requirement for equal protection under the law.
In a statement to The Post, Kelly Stevenson, a spokeswoman for Indiana Attorney General Todd Rokita (R), pointed to the fact that the burial law is neutral and applies equally to everyone. The attorney general said the law “enforces respect for human life.”
At the federal level, the U.S. Supreme Court under Chief Justice John G. Roberts Jr. has ruled more than 81 percent of the time in favor of “religion,” compared with about 50 percent for all previous eras since 1953, according to a study published in April. Still, given the court’s conservative view on abortion, some religious-liberty experts are skeptical that the court will support faith-based arguments for reproductive access.
Douglas Laycock, a professor at the University of Virginia School of Law and an authority on religious-freedom law, said states and the Supreme Court could curtail the efforts among faith leaders who support abortion rights by arguing that there is a “compelling government interest” in protecting fetal life. And the right kind of compelling government interest can be an exception to most constitutional rights, he explained.
“For better or worse, a compelling government interest is whatever five justices say it is,” Laycock said. “It’s a matter of judicial interpretation, not legislative enactment. And pretty clearly, we have six justices who would happily say that the state’s interest in fetal life is compelling” and outweighs the free exercise of religion.
Plus, Laycock said, the justices wouldn’t have taken the monumental step of overturning Roe v. Wade only to turn around and allow “an alternate route to choice, an enormous loophole, or even a small loophole.”
“They may like free exercise, but they oppose abortion more,” he said.
Asma Uddin, a religious-liberty attorney who worked for the Becket Fund and has written books on religious freedom, said an antiabortion state legislature might back up its “compelling interest” by citing scientific descriptions of young fetuses. Thus far, since states haven’t established what status fetal life has because when Roe was in place, antiabortion arguments could go only so far, Uddin wrote to The Post.
Now that Roe is gone, she said, “we’ll see how this plays out.”
Marci Hamilton, a University of Pennsylvania constitutional law scholar and one of the attorneys for the Florida clergy, said the cases are a “test” that she will soon take around the country. The Florida Constitution has a broadly worded right to privacy that the state Supreme Court has found to include the right to abortion. The state also has an “RFRA,” or Religious Freedom Restoration Act, that strongly limits when the government can restrict someone’s religious liberty.
“I think every single American should be able to make these arguments,” Hamilton said. Courts have given considerable deference, she noted, to people who invoke faith for a wide range of things.
“It has to be what you believe,” she said. “It may not be part of anyone else’s belief. We want this on the table: You’re violating millions of people’s religious liberty.”
Hamilton said about two-thirds of states that have strongly limited abortion access or will soon do so also have RFRA laws. Those 15 or so states, she said, are where she expects to take her strategy.
Rabbi Barry Silver, who filed the earlier Florida suit, said he thinks he has a “tremendous case — legally, morally, factually.”
“We have a right in Florida to privacy, and they announce this thing in church. It was like a church service,” Silver said of DeSantis’s signing ceremony.
Polling on abortion is complex and can seem contradictory at times. Nearly 60 percent of Americans support a federal law establishing the right to an abortion before a fetus can survive outside the womb.
The Rev. Tom Capo, one of the plaintiffs in the new case and a minister at the Unitarian Universalist Congregation of Miami, said he left the Catholic Church in his teenage years over the issue of abortion. He and his wife, both children of alcoholics, made a decision to wait 10 years before having children to be sure “we had the emotional resources to care for a child,” Capo said.
Before becoming a minister 15 years ago, Capo was a therapist for 30, and in both positions, he has counseled women and families about issues including marriage and childbearing. He said his perspectives are spiritually informed.
“It has to do with the belief in the inherent worth and dignity of every human being,” Capo said. “When I look at a woman who has changes going on within her body because a sperm and an egg have come together, I still think that it’s her body and continues to be her body throughout the pregnancy and that worth and dignity needs to be respected. It has to be her conscience that decides whether that child becomes a person, to have say over her own body and how she chooses to use it.”
It is not yet clear what the states’ arguments might be. The significant religious diversity on the topic of abortion has never been tested in this way.
Rupali Sharma, director of the Lawyering Project, which represents abortion patients, a nurse and an abortion clinic suing Indiana over its fetal burial law, said there has always been a wide diversity of beliefs about when spiritually significant life begins, but that there is a minority intent on “erasing that diversity” that “believes that their conception is the only conception and the only religious conception.”
John Inazu, a professor of law and religion at Washington University in St. Louis, said that even if the courts rule in favor of government interest over religious liberty in these cases, it’s important that judges and Americans see and accept that people who hold views unlike theirs do so sincerely.
When it comes to religious liberty and abortion, Inazu said, “can a pro-life person see the possibility of the pro-choice view?”