Does the Florida Abortion Ban Violate the Establishment Clause?

     

Abortion is one of the most polarizing political issues in our country today, and this divide is only exacerbated when religion and constitutionality are added to the mix. With Roe v. Wade being overturned this summer, tensions have come to a height, and this severely divisive issue has come to dominate the political landscape. Recently, many conservative states have made headlines by enacting incredibly restrictive abortion bans. For instance, in Florida, Governor Ron DeSantis recently signed a bill into law dictating that abortions, other than to safe the life of the mother, would not be allowed after 15 weeks with no exceptions for rape or incest. This law also promises criminal prosecution for any involved in the process of an abortion, including counseling leading up to the procedure.

    This law has been met with significant backlash from progressives, and in response to its signing, clergy members of five separate religions have pursued lawsuits against the abortion ban, arguing that their free exercise of religion is being infringed upon. For the purposes of this blog post, I plan to hone in on one lawsuit in particular, that pursued by three Rabbis of Jewish faith. The
lawsuit argues that the three plaintiffs’ “religious beliefs, speech, and conduct are severely burdened by the state of Florida’s criminalization of abortion in many circumstances where the Jewish faith supports the decision to obtain an abortion on religious grounds.” The plaintiffs argue that under Jewish law, there are certain narrow circumstances in which a Jewish woman may be compelled to obtain an abortion because it is mandated by her religious faith. The plaintiffs then go on to assert the main argument of their suit: because the abortion ban will prosecute any involved in the procedure itself as well as the process leading up to it, clergy members of Jewish faith are unable to utilize their free exercise of religion as afforded to them in the First Amendment of the Constitution. The plaintiffs argue that as Rabbis, they have a responsibility to provide religious counseling to churchgoers, asserting that “The rabbinic relationship is designed to facilitate the foundational principle of all religious counseling: guiding the congregation, the broader community, and individual congregants to make decisions in their lives that are informed by the principles and, in some instances, requirements of their faith.” If religious counseling pertaining to abortion becomes criminally prosecutable by law, Rabbis are unable to uphold their clerical obligations, and thus a significant burden is being placed unto them.

    In terms of my own personal opinion on the suit, I think this lawsuit has a very valid argument and brings up an important conversation surrounding religion and abortion access. The recent bans on abortion along with Roe v. Wade being overturned are particularly troubling because they have begun to blur the line between church and state, given that generally, the pro-life movement is associated with evangelical Christianity. This is the most obvious and widespread critique of the recent more conservatively aligned legislation regarding abortion, but this suit brings up another critique that is less widely discussed. I completely agree with the plaintiffs in this suit, as there is clearly a substantial burden being placed on clergy members of Jewish faith if they are unable to uphold their religious duties because of this abortion ban. Additionally, the ban is inhibiting the free exercise of all Jewish individuals in certain cases, because as the Rabbis state in the suit, there are instances in which Jewish Law would encourage a woman to get an abortion. Additionally, if a state wants to reduce the amount of abortions occurring, there are certainly  less restrictive means to achieve this end goal that would not infringe upon the free exercise of Jewish individuals. On the more liberal side, there are many programs and institutions that could be implemented to reduce the amount of abortions happening, such as more affordable healthcare or reforms to the foster care system, but I recognize that this is likely not satisfactory in the eyes of conservative lawmakers. Even so, I believe there is still a conservatively aligned less restrictive means that could place limits on abortion access while not inhibiting the free exercise rights of others, for instance, discarding the part of the law that prosecutes individuals “aiding and abetting” others in the process of having an abortion. Therefore, I believe that a substantial burden has been placed on the plaintiffs in this suit, and that the Florida abortion ban infringes upon their right to free exercise.