Tuesday, August 16, 2022

On September 20, several Jewish groups, alongside a Catholic organization, filed a Supreme Court brief arguing that religious concerns should trump secular interests when it comes to the constitutionality of Mississippi’s 15-week abortion ban. If you assumed that these were pro-life groups invoking religion to argue that the Supreme Court should allow states to ban abortion, you were mistaken. In fact, Jewish groups—including the American Jewish Congress and Jewish Women International—joined Catholics for Choice to argue that the Court should defer to their religious beliefs and invalidate Mississippi’s law. These arguments betray such groups’ longstanding championing of the “separation of church and state.” When it comes to abortion, it seems that these Jewish groups wish to do the exact opposite: to impose their religious views on the state.

It is important to understand what these groups are not arguing. They are not arguing that, in some instances, courts might be required to grant religious exemptions from abortion laws. Such a claim would be akin to those that religious objectors typically raise. If the Supreme Court allows the Mississippi law to stand, courts would decide future requests for religious accommodations under the normal rules that apply to such cases. That is how the free exercise of religion is protected in American courts.There is no precedent for doing what these Jewish groups support: invalidating a law (as it applies even to non-objectors) simply because it would potentially violate someone’s religious liberty. This untenable maximalist position undermines the cause of religious liberty by making it incompatible with the functioning of any government in a pluralistic society.

The pro-choice groups openly argue that the Supreme Court should elevate their faith over Mississippi’s interest in protecting the lives of the unborn. For example, they argue that the Supreme Court should strike down Mississippi’s law because it is “at odds with the views of” their religious traditions. They also argue that the ban is impermissible because it “fails to account for—and indeed, disrespects” their religious views. This is not a request for a traditional religious accommodation that applies to religious objectors. It is a demand that religious adherents be granted a religious veto to completely prevent states from adopting any policy that conflicts with their faith.

The religious groups argue that it is actually Mississippi that is attempting to impose its own religious views on them, and should therefore be invalidated not on religious liberty grounds, but because it establishes religion. But even if this was true, it would not justify those groups’ attempt to impose their beliefs on Mississippi in return.

Moreover, the state is doing no such thing. The pro-choice brief simply asserts that there is no conceivable secular reason why Mississippi would want to ban abortions after 15 weeks. If these pro-choice groups were interested in real reasons why Mississippi passed the law, they would not have been difficult to find. The State included them in the law itself.

The law explains that 75% of nations ban abortion after 12 weeks, with exceptions similar to those included in Mississippi’s law. It is reasonable for a state legislature to consider the practice of other countries when deciding hotly contested issues. According to the law, by 12 weeks gestation, “an unborn human being can open and close his or her fingers, starts to make sucking motions, and senses stimulation from the world outside the womb.” It is perfectly possible, without applying any religious convictions, to conclude that killing a fetus with such attributes should be prohibited. Finally, the legislature found that after 15 weeks, most abortions include “the use of surgical instruments to crush and tear the unborn child apart before removing the pieces of the dead child from the womb.” The state concludes that such actions “for non therapeutic or elective reasons” is “barbaric” and “demeaning to the medical profession.” This proposition does not rest upon theological beliefs.

One is free to dispute any one of these justifications, but it is disingenuous to argue that the State was merely trying to impose its faith on others. Such a claim is especially risible when presented by pro-choice groups which are openly calling for the Supreme Court to impose their faith on others.

Imagine if groups opposing Obamacare’s contraceptive mandate had made arguments similar to those promoted by these pro-choice religious groups. If, instead of arguing that specific objectors—such as nuns—should be exempt from providing their employees with contraceptives, they had argued that the Supreme Court should invalidate the entire mandate because it conflicted with their faith. The same groups who submitted this amicus brief would have insisted that the First Amendment was under assault, and that theocracy was on the march. Perhaps those groups should invest in a mirror.

Rabbi Mitchell Rocklin is the president of the Jewish Coalition for Religious Liberty.

Howard Slugh is the general counsel for the Jewish Coalition for Religious Liberty.

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