The maximalist view that abortion laws should be invalidated because they violate the First Amendment is unserious.
It is a mistake to elevate abortion to a Jewish sacrament, rather than honestly framing it as an occasionally permissible (and very infrequently required) tragedy.
J udaism demands the death penalty for Sabbath violators; therefore, the First Amendment’s free-exercise clause provides a constitutional right to kill anyone who desecrates the Sabbath. The Bible mandates supporting the poor among us; therefore, programs like food stamps, which many people support because of their religious views, violate the First Amendment’s ban on government establishment of religion.
These arguments aren’t merely legally wrong; they are so absurd that saying them out loud is embarrassing.
Unfortunately, some of our fellow Jews take these ridiculous arguments seriously. A congregation that purports to follow “Cosmic Judaism” filed a lawsuit against Florida. The complaint challenges restrictions on abortion on two grounds. First, that Jewish law sometimes permits or even requires abortions. Second, that supporters of abortion restrictions are sometimes motivated by Christian beliefs. They claim that, for each of those reasons, the statute violates the First Amendment.
While the complaint purports to describe “Jewish law,” this group is, by its own admission, unique in its practices and was founded by a rabbi who rejects “the God of the Bible.” Whatever the merits or demerits of their legal claims — which mostly consist of overheated rhetoric about abortion regulation bringing “our nation back to a time when the merger of Christianity and government produced genocide [and] slavery” — Cosmic Jews speak for themselves, and not for us traditional, Terrestrial Jews who do worship the God of the Bible.
These arguments are not solely the province of fringe sects reminiscent of Mel Brooks’s “Space Jews.” Reform rabbi Danya Ruttenberg made similar arguments in a recent Atlantic article. While neither of us subscribes to Reform Judaism, a large number of American Jews do, and Rabbi Ruttenberg’s positions reflect an emergent view within progressive Judaism.
The legal complaint argues that because some people have religious motivations for restricting abortion, the Florida law violates Jews’ rights by “unconstitutionally establishing religion.” Ruttenberg mirrors this claim when she argues that abortion regulations “enshrine specific Christian concepts” into the law and “trample over other understandings of when life begins.”
These arguments are badly misplaced, to put it mildly. There are secular reasons why someone might support abortion regulation.
Florida’s law prohibits abortions after 15 weeks, with exceptions for when a mother’s life it at risk, or when the child poses a serious and substantial risk to a mother’s health. This is not an example of a statute that could only be motivated by religion. According to the Cleveland Clinic, at 15 weeks,
the fetal heartbeat may now be audible through an instrument called a doppler. The fingers and toes are well-defined. Eyelids, eyebrows, eyelashes, nails and hair are formed. Teeth and bones become denser. The fetus can even suck his or her thumb, yawn, stretch and make faces.
The nervous system is starting to function. The reproductive organs and genitalia are now fully developed, and your doctor can see on ultrasound if the fetus will be designated male or female at birth.
The notion that only religious reasons could lead someone to think that such a child is entitled to legal protection is absurd. Florida’s 15-week abortion ban is in line with (or even more permissive than) the laws of most European countries. We acknowledge that some people may disagree and consider such a child unworthy of legal protection, but it is undeniable that there are secular reasons to consider a 15-week-old human fetus worthy of protection. And a law supported by both religious and secular motivations is not an unconstitutional establishment of religion.
Perhaps the argument is that, even if there are “valid” reasons to support Florida’s statute, it is somehow “infected” with “impermissible” religious motivations because some of its supporters also have a religious motivation. If taken seriously, this argument would lead to the invalidation of many laws, including those protecting minorities’ civil rights because figures such as Rev. Dr. Martin Luther King and millions of other Americans supported them (at least partially) for religious reasons.
Ironically, if the Cosmic understanding of the establishment clause were correct, then the plaintiffs and advocates like Rabbi Ruttenberg would be the ones trying to unconstitutionally enshrine their religious views into the law. After all, Rabbi Ruttenberg wrote that she and others who are “working to protect the right to abortion are doing so because of our religious commitments, not despite them.” She would excoriate lawmakers for trampling over other understandings of when life begins, yet she would do exactly the same thing, except undemocratically, while speaking for a political minority.
Fortunately, the Supreme Court has rejected this argument. In Harris v. McRae (1980), the Court held that a statute does not violate the establishment clause merely because it “happens to coincide or harmonize with the tenets of some or all religions.” In fact, the Court held that the Hyde Amendment, which prohibits federal funding of abortion, “is as much a reflection of ‘traditionalist’ values towards abortion as it is an embodiment of the views of any particular religion.” The same is true regarding Florida’s 15-week abortion ban.
Pro-abortion crusaders also allege that because Judaism allows and, in some cases, may require a woman to obtain an abortion, the Court should declare Florida’s law “void, unenforceable, invalid, and of no legal effect.” Rabbi Ruttenberg makes a somewhat more serious, but still mistaken claim: “Jews are permitted to terminate a pregnancy — and, when our lives are at stake, we may be obligated by Jewish law to do so. Government intervention that would prevent the free exercise of these religious tenets constitutes an infringement of First Amendment rights.”
Unfortunately, all this argument shows is the progressive Jewish movement’s unfamiliarity with the concept of religious liberty — perhaps owing to their continued absence in the fight to allow traditional Jews to continue practicing their rites in the face of a hostile secular culture.
As we have written previously, the complaint’s request that a court invalidate the statute because it (allegedly) burdens their community’s faith completely misunderstands how religious-liberty protections work. When a court finds that a statute inappropriately burdens someone’s religious exercise, the appropriate remedy is to grant that person an accommodation, not to invalidate the entire legal regime. The state is still free to enforce the law against the vast majority of citizens who do not maintain religious objections.
Even if the plaintiffs were to ask for an accommodation, we think they would be unsuccessful. In most instances, the complaint and Rabbi Ruttenberg merely allege that Judaism permits a woman to obtain an abortion, not that it requires or even suggests that she must have one as a matter of religious commitment. There is no conflict when a religion permits something and a statute prohibits it. The Bible does not prohibit driving over the speed limit or carrying an open bottle of alcohol on the street, but the government is not therefore required to allow such behaviors.
A conflict arises only where religion requires (or at least recommends) a course of conduct, and the law prohibits it. As Rabbi Ruttenberg highlighted in the Atlantic, Jewish law may require women to obtain abortions in situations where their pregnancies present mortal danger. The good news is that the Florida law challenged by the Cosmic Jews, the Mississippi abortion regulation currently before the Supreme Court in Dobbs, and all other abortion restrictions that have any serious prospect of becoming law permit abortions in cases when a mother’s life is at stake. Thus, there is no conflict, and there is unlikely to ever be a conflict, between a religious requirement to obtain an abortion and state abortion regulations.
It is conceivable that there may be situations where some might claim that Judaism requires an abortion and a state’s law prohibits it. For example, some might claim that Judaism requires broader health exceptions than a state allows. Even if such a conflict exists — which research from abortion advocates shows it essentially never does — it seems unlikely that a plaintiff would be entitled to an accommodation on religious liberty grounds.
A state is allowed to burden an adherent’s religious exercise if the state has a “compelling interest” to do so and there are no alternative, less restrictive means of furthering that interest. That is why we cannot kill Sabbath violators. That is why no religious person could ever claim a right to human sacrifice, tax evasion, female genital mutilation, child marriage, or anything of the sort. States have a compelling interest in preventing violence against their citizens. States have a compelling interest in protecting the lives of unborn children for a variety of reasons, whether you think that abortion is murder or merely ends “potential life.” Therefore, even if such a conflict were to arise, accommodation would be inappropriate.
The maximalist view that state abortion laws should be entirely invalidated because they violate the First Amendment’s free-exercise clause or establishment clause is unserious. The more modest arguments that, in some rare cases, someone who objects to an abortion regulation for religious reasons might be entitled to legal accommodations are less absurd but are still deeply flawed. Rabbi Ruttenberg’s and the Cosmic Jews’ fundamental mistake is in wrongly elevating abortion to a Jewish sacrament, rather than honestly framing its place in the Jewish tradition: an occasionally permissible (and very infrequently required) tragedy.
Howard Slugh is the general counsel for the Jewish Coalition for Religious Liberty. Tal Fortgang is a law student, Tikvah Legal Fellow, and 2021–22 Krauthammer Fellow.