Synagogue sues Florida over abortion limits, possible model for future challenges

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Roe vs. Wade

A lawsuit filed by a Florida synagogue claims that reducing access to abortion is inconsistent with Jewish law, making it a violation of the constitutional right to freedom of religious expression. Following the Supreme Court’s decision to overturn Roe v. Wade, does the lawsuit provide a model for other legal challenges?

A June 10 lawsuit filed by a Florida synagogue challenged plans to limit abortions in the state on the grounds that it would violate religious rights and therefore be unconstitutional. The Jewish faith considers the right to abortion to be inviolable.

Florida’s bill plans to lower the maximum abortion threshold from 24 weeks to 15 weeks beginning July 1, with exceptions in cases where the medical procedure could save life or prevent serious injury to the body. mother. It offers no exceptions for victims of incest, rape or human trafficking.

But those restrictions would infringe Jewish women’s right to abortion as guaranteed by their faith and are therefore inconsistent with the Florida Constitution’s right to privacy and religious freedom, according to the lawsuit, which was brought by Rabbi Barry Silver on behalf of the approximately 150 members of Congregation L’Dor Va-Dor in Palm Beach County.

“If a fetus poses a threat to the health or emotional well-being of its mother, at any stage of gestation through birth, Jewish law not only permits but requires the mother to abort the pregnancy and to protect themselves,” the lawsuit says.

“The only option”

The lawsuit was filed ahead of a long-awaited decision by the United States Supreme Court, which on Friday struck down the 1973 law that legalized abortion nationwide.

When the court overturned Roe v. Wade, he increased the powers of each state to enforce their own abortion laws, with 26 conservative states now having to introduce outright restrictions or bans on the procedure.

In Florida, for example, Gov. Ron DeSantis was quick to promise more restrictions to expand “pro-life protections” as a result of the ruling, in addition to those already slated to go into effect July 1.

While some celebrated the Supreme Court’s decision, others fiercely opposed it. The National Center for Women’s Rights of the United States described it as an “extremist attackon women’s rights, and US President Joe Biden has pledged his administration will do everything possible to protect remaining abortion rights.

However, reversing the court’s decision would be virtually impossible. According to Emma Long, associate professor of American history and politics at the University of East Anglia in the UK, there are only two ways to overturn a Supreme Court decision.

The first is to convince the court to overturn its own decision, which it has rarely done, making the decision to overturn Roe v. Extremely unusual wade. The second is an amendment to the US Constitution itself, which has happened only 17 times since 1791. And as Long puts it, “especially on such a contentious issue, it just won’t happen.”

A single lawsuit filed in Florida against the state constitution (rather than the US Constitution) might therefore seem like weak resistance. But it relies on deep-rooted legal precedent: freedom of religious expression is a First Amendment right. Meanwhile, there is no mention of abortion in the Constitution, which means that constitutional laws around the practice are still interpretative.

Citing a right as inalienable as religion puts the lawsuit on a “more solid legal footing” than trying to push for the creation of new laws to re-legalize abortion, Long said.

“Bringing a constitutional case is literally the only option, but it’s also a very smart legal move.”

A matter of religion

Generally speaking, Jewish law states that life begins at birth and until then the life of the mother takes precedence. “So in order to protect the health of the pregnant person, abortion is permitted and sometimes compulsory,” said Samira Mehta, associate professor of women and gender as well as Jewish studies at the University of Colorado at Boulder.

The definition of what constitutes a health threat varies among Jewish communities, with the L’Dor Va-Dor congregation in Florida being on the liberal end of the spectrum. But, Mehta said, there is agreement on the principle that abortion is a right. “And that it’s a religious matter, not a state decision.”

Traditionally, US courts have favored legal arguments made on similar constitutional grounds. Historically, minority religious groups have benefited from rulings that protected traditions not considered in common law. For example, a 1996 decision authorized the use of the banned substance peyote exclusively in Native American religious ceremonies.

More recently, the balance of power has changed. “For the past 15 years or so, the Supreme Court has used the language of religious liberty to protect the rights of majority religious groups, particularly white evangelical Christians,” Long said.

This has led to cases that challenge the concept of who is a majority and who is a minority, such as those against legalizing same-sex marriage on the grounds that it discriminates against groups that do not support marriage rights for all. While these cases were dismissed, others – notably around religion in schools – were adopted.

During the national discussion on the rollback of abortion rights, the National Council of Jewish Women said on its website that the conversation was so dominated by the Christian right that it had “ignored the Jewish voices”. In Florida, the L’Dor Va-Dor lawsuit claims that new laws amount to “imposing the laws of other religions on Jews”.

“What we see is a very powerful minority of conservative, Protestant and Catholic Americans dictating something that conflicts with the deeply held religious beliefs of others,” Mehta says. “But religious freedom is something that is enshrined in American law for all Americans. So what happens when people’s rights collide? »

Not much to lose

The L’Dor Va-Dor lawsuit challenges the state’s constitution, meaning a victory would only have legal implications in Florida. But success could pave the way for similar lawsuits in other states. It could also pave the way for other lawsuits alleging First Amendment violations that could have national implications.

“There is potential in an argument that says theological teachings put the pregnant person first,” Long said. “To succeed legally, it would have to be framed very carefully, which the Conservatives have done very successfully to achieve their political goals for several decades now.”

In fact, part of the uniqueness of the Florida lawsuit is that it is a rare example of liberals using tactics normally deployed by conservatives to try to sway the courts toward their own values. “It’s definitely a different angle and it’s really smart, given how the court has thought about religious liberty issues over the last decade and a half,” Long said.

Still, while the Florida lawsuit contains “an argument that needs to be taken seriously,” Mehta said no one can guess what the outcome will be. Most likely, there will be no quick or easy wins for those fighting to regain the right to abortion. Instead, they are likely to face legal hurdles, state-by-state battles, and bitter divisions on either side.

“It’s a deeply polarized environment,” Mehta said, adding that Jewish activists also face rising rates of anti-Semitism.

And the price of failure in Florida can be high. A loss would give other courts grounds to rule against similar cases and could look like another nail in the coffin of reproductive rights in the United States.

“It’s high stakes in some ways,” Long said. “But you could say, given that Roe v. Wade is now gone, there’s not much else to lose by trying.”

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