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Opinion Yet another lawsuit shows how abortion bans violate religious freedom

Abortion rights supporters chant at the Kentucky Capitol in Frankfort on April 13. (Bruce Schreiner/AP)
4 min

In July I wrote about a lawsuit in Florida challenging the state’s abortion ban on the grounds that it violates the religious beliefs of Jews — and members of other faiths — who do not believe in the Christian dogma that human life begins at conception. Now, three Jewish women from Kentucky have filed a similar suit.

One of the plaintiffs is undergoing in vitro fertilization. Another one is storing nine embryos. And another is “of advanced maternal age and faces many risk factors if she chooses to have a third child,” the complaint explains. It adds, “Individuals of Ashkenazi Jewish ancestry have a heightened risk of passing on genetic anomalies, like Tay-Sachs disease, for which there is no cure and the average life span of those with the condition is four years of age.”

Yet Kentucky’s abortion law, the complaint argues, would arguably make both an abortion after genetic counseling or the destruction of IVF embryos capital murder.

Contrary to the officiousness of the right-wing Supreme Court justices, who seem not to understand that they applied their own religious views in their ruling overturning abortion rights, the complaint explains:

Judaism has never defined life beginning at conception. Jewish views on the beginning of life originate in the Torah. ... Millenia of commentary from Jewish scholars has reaffirmed Judaism’s commitment to reproductive rights.
Under Jewish law, a fetus does not become a human being or child until birth. Under no circumstances has Jewish law defined a human being or child as the moment that a human spermatozoon fuses with a human ovum.
The question of when life begins for a human being is a religious and philosophical question without universal beliefs across different religions.

The last sentence is key. The so-called state interest in preserving “fetal life” depends on the assumption that a fetus deserves the same protection as a toddler. But for Jews, “the necessity of protecting birth givers in the event a pregnancy endangers the woman’s life and causes the mother physical and mental harm” must control. Moreover, “the law forces Plaintiffs to spend exorbitant fees to keep their embryos frozen indefinitely or face potential felony charges.”

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For that reason, the complaint alleges that the Kentucky abortion law violates the First Amendment and the state constitutional protection for religious freedom — as well as the state’s Religious Freedom Restoration Act. The latter part of the lawsuit may become moot should Kentucky voters pass a ballot measure that would declare the state constitution does not protect abortion access. But, in any case, forcing others to comply with the religious-based edicts of one sect flies in the face of the constitutional guarantee of free religious expression.

The complaint also alleges that the Kentucky law should be void for vagueness under the 5th and 14th Amendments. As with so many laws triggered by Dobbs v. Jackson Women’s Health Organization that predate modern medicine, it’s not clear whether the law requires preservation of the embryos. Moreover, the complaint argues, Kentucky’s abortion law “does not impose clear standards, rules, or regulations regarding the potential experiences of potential birth givers with regards to their access to reproductive technology.”

Regardless of whether the lawsuit succeeds, it raises three critical issues that apply in legal challenges to abortion bans. First, it pulls back the curtain to reveal that judges are acting on a religious, not scientific, view of personhood. The arrogance in assuming that everyone buys into a specific Christian sectarian viewpoint reveals the degree to which right-wing courts and legislatures ignore or disfavor Americans who are not Christian. It’s critical to force politicians, media, pundits, doctors, researchers and ordinary voters to recognize this.

Second, the lawsuit makes clear the negative impact on IVF, which was not in existence when many state abortion bans were passed in the 19th or early 20th century. The current crop of state lawmakers and Supreme Court justices seems willfully oblivious to the implications for such reproductive care. Do they really want to make a commonly used process for procreation effectively impossible?

Finally, it’s not just the Kentucky law that is vague to the point of unintelligibility. Many state statutes use vague, nonmedical terms to put doctors and patients in untenable positions. Should physicians render care to a pregnant woman experiencing a dangerous pregnancy, risking prosecution under the opaque language of a 19th-century law, or should they let the patient’s condition become so acute that she might fit within an exception for preservation of her life? The uncertainty these laws have imposed seems designed to chill the willingness of doctors to provide care, even if it turns out to be legal.

If the Kentucky lawsuit forces state legislators to wrestle with the real harm and chaos these laws have created, then it will be a success. Good thing that there is an election less than a month away.