Wednesday, June 29, 2022

I was heartened recently to read of the L’Dor Va-Dor group in Florida using the tenet of religious freedom to challenge the law in Florida, which prohibited abortions (with a few exceptions) after 15 weeks. In terms of legal application, it made sense to me—Jewish law allows and even requires abortion in certain cases not covered by the Florida law’s list of exceptions, so a civil law that forbids following the dictates of religion presents a burden for someone trying to practice their religion.

Now, I’m no legal expert. I am just applying my very rudimentary understanding to the situation. Additionally, I’m not “pro-abortion.” I don’t think anyone actually is. But I recognize the difficulty presented to Jews by this law and other laws structured similarly. I also saw the potential for people to dismiss the L’Dor Va-Dor group as not representative of a more Orthodox viewpoint, so I stayed quiet because I, as stated, am no expert.

But in truth, the OU’s statement of May 3 shows that the positions at disparate ends of the religious spectrum are more in line with each other than people generally think. The statement, though it decries the idea of abortion on demand, posits that there are cases under which Jewish law would be “authorized, if not mandated.” So I have a question: Why hasn’t the OU come forward to champion this position in the courts and put its theological money where its mouth is?

The Attorney General’s Memorandum of October 2017, outlining the scope of religious liberty states, “A governmental action substantially burdens an exercise of religion under RFRA if it bans an aspect of an adherent’s religious observance or practice, compels an act inconsistent with that observance or practice, or substantially pressures the adherent to modify such observance or practice.” The various state laws that would forbid a Jewish woman from taking steps to protect her life in accordance with the demands of Judaism fly in the face of this statement.

Is it waiting for a case to rise in a state with such a law? As far as I can tell, this isn’t going to happen in New York or New Jersey, but that shouldn’t absolve the OU (and other national, religiously aligned and recognizable organizations) from finding a way to take a public stand on this issue. Couldn’t the organization write a brief stating a sympathetic position to lend some mainstream credence to the L’Dor filing? The OU has affiliate congregations in many states, so I would assume that the overarching organization could find (if it felt motivated to) standing to challenge a problematic law in many different places.

This is no longer a matter of right- and left-wing politics; if we see this as a purely religious issue, then we, in pursuit of protection for our right to live and breathe as Jews, must speak up. If shechita was threatened, would any Orthodox group wait to speak up or would it actively be creating its own court challenges? Why is the safety of women any less important?

The May 3 statement was a start. But it can’t be an endpoint. It must usher in a wave of argument presented to the courts across the U.S., with Orthodox organizations taking a lead in defending religious freedom and practice.

Rabbi Daniel Rosen
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