Do Jewish Laws on Abortion Reign Over Kentucky's Abortion Ban?

 

In Sobel et al v. Cameron, Three Jewish women have sued the state of Kentucky over its laws which practically ban abortion. The suit is based on the claim that these laws infringe on the freedom to exercise their religion under jewish law (Halacha). According to Halacha, life begins once the fetus emerges from the womb (Midrash Bereishit Rabbah 34:10) which is directly opposed to the Kentucky legislation that contends that life begins at conception.

The suit was filed on behalf of Lisa Sobel, Jessica Kalb and Sarah Baron against Attorney General Daniel Cameron and Jefferson County Attorney Thomas Wine.

The health of the mother is supposed to take precedence over the fetus in Halacha, yet Kentucky’s abortion laws have no exceptions for the mental health of the mother. The only exceptions under Kentucky law prohibit abortion to save the life of the mother or prevent permanent damage to a life-sustaining organ. Jessica Kalb, one of the plaintiffs, stresses that her “greatest fear is that I become pregnant, and I go for a scan. And they say your baby is incompatible with life and we can’t help you; because that is the reality right now in our state”. Another plaintiff in the suit, Lisa Sobel says that she is no longer choosing to have kids at the moment because of her previous pregnancy which was tumultuous. During birth, she required life saving medical care. She stresses that, “I can not risk getting pregnant, because if I have a miscarriage, I could bleed out while a team of lawyers and doctors fight over whether or not I receive care”.

The plaintiffs note how the legislation on abortion violate’s Kentucky’s own Religious Freedom Restoration Act which states that government “shall not substantially burden a person’s freedom of religion” unless it proves a compelling interest and uses “the least restrictive means” to do so.

IVF also comes into play as a result of this lawsuit. Two plaintiffs have used the reproductive method to have children, which is now in limbo because of how Kentucky’s abortion justifies itself on the principle that life begins at conception. This lawsuit notes that fertilized eggs are often discarded during IVF, and the plaintiffs question whether discarding those eggs would be considered a capital offense in Kentucky.

In a statement to the press, Attorney General Cameron said that he will protect unborn life and Kentucky laws because they are an important part of the commonwealth. The salient Constitutional issue at stake: does the Kentucky law infringe on the rights of Jewish women under the First Amendment Free Exercise Clause?

I do believe that their right to freely exercise their religion is being infringed by Kentucky abortion laws. The jewish women have a sincere demonstrated belief that the abortion laws violate their own religious law, Halacha. By directly forcing these women to violate their religious law, they are creating a substantial burden on their freedom of religion by forcing these women to carry a child and give birth. While the state would argue that their compelling interest is the lives of these unborn fetuses, Jewish law would view life to begin at birth, thus the compelling interest does not begin until the fetus is born. Furthermore, the state is using a highly restrictive means of doing so by banning all abortions except in the cases where the life of the mother will be lost or to prevent damage to life sustaining organs. There are no exceptions for women who are victims of rape or incest, no matter how old they are. In the two years preceding this law, the youngest patients to receive an abortion were 9 years old. Now, under current legislation, these nine year olds would be forced to carry their pregnancy to term. Clearly, the state of Kentucky is using the most restrictive means possible.

However, if the court were to declare the law unconstitutional because it violates Jewish belief, other religions which do view life as beginning at conception, such as Evangelical Christians or Catholics, would then be discriminated against. In protecting the rights of one religion, they would effectively discriminate against another. Ever since Planned Parenthood v. Casey was effectively overturned in Dobbs v. Jackson Women’s Health Organization, states have been allowed to decide who does or does not get abortions. Yet the wall that Kentucky has created against abortion has created a salient religious issue. In a case that we previously reviewed, Wisconsin v. Yoder, the court found that forcing Amish children to attend school after the eighth grade violated Amish religious belief. Similarly, the religious beliefs of jewish women are being violated in today's case. However, I do still wonder if there is a way for the government to be neutral towards all religions in crafting abortion laws.