As readers know, I have been interested in the issue of abortion and religious exemption claims (see this May 9 article), so when I saw this article by Rabbi Simon, I found that worth passing on. Rabbi Simon had been a lawyer for 20 years before becoming a full-time rabbi, and who served as adjunct professor of rabbinics at Gratz College and adjunct instructor in Jewish history at Florida Atlantic University; Beth Kodesh Temple, which is located in Boynton Beach, Florida, is “a traditional, conservative, and egalitarian congregation.” Note that this is a sermon he plans to deliver tomorrow (we bring you tomorrow’s news today), which explains the reference to the Court’s decision being “yesterday”.
Of course, there are serious legal questions about whether claims for religious exemption from abortion laws should be granted, but I thought it would be good to see this opinion on the subject; If anyone else has other views on claims for religious exemption from abortion laws, I’d be happy to pass them on as well:
Those of you who have been here a while know that I don’t talk about politics from bimah. But there are three areas that I am willing to talk about and that I feel it is my duty to talk about, namely Israel, anti-Semitism and religious freedom. This morning, I want to talk about an important issue of religious freedom, more specifically as it relates to abortion.
As you know, the Supreme Court yesterday overturned a constitutional right to abortion. It now leaves that question up to each state to decide to what extent, if any, it will allow abortions. To be clear, I am not talking about whether I believe the Court was right or wrong or whether I believe there is a constitutional right to abortion. Frankly, my opinion as a rabbi is irrelevant. My opinion on religious freedom, however, is very relevant.
As you probably know, the state of Florida, for example, has enacted a law limiting abortions after fifteen weeks. Rabbi Barry Silver of Congregation L’Dor Va’dor has already filed a lawsuit challenging the law. There has been quite a bit of press about this lawsuit, including the New York Times and I was interviewed by the Palm Beach Post on Monday about it for thirteen minutes, but my comments did not make it to print.
So let me share with you a little bit what I said to this reporter and what I discussed with some experts in the field, in particular Professor Josh Blackman who spoke to us on Zoom in December and will be back for discuss the Court’s religion. case next month.
The legalities of religious freedom and church-state issues are complicated and confusing. And there are no easy solutions in a multi-religious society. I can’t get into all the nuances or possibilities here. But I’ll start with that for context.
Remember the controversy over contraceptive coverage in health plans that various Christian organizations and businesses argued against as violating their religion? How did you feel about this? What does Judaism say about this?
Notice I say Judaism. I didn’t say Jews. I didn’t say rabbis. I said Judaism. As if there is a clear version of the opinion on Judaism.
You see, unlike the Catholic Church, Judaism does not have a single authoritative voice telling us what we can and cannot do. And that’s one of the reasons why the debate over contraceptive coverage and the Catholic Church is perhaps a little confusing for us as Jews.
But without getting into whether it’s right or wrong, or how it should be resolved, since that’s beyond my role here, I believe we need to better understand this particular religious perspective. And one way to understand it from a Jewish perspective is to try to reframe the issue with the following example.
Suppose we here in Beth Kodesh, or any shul for that matter, have a rule that all food brought into the shul must be kosher. (I know I’m making that up. But please me.) And let’s say we’re offered a program where we provide the use of our space to an organization to provide meals to elderly or low-income people.
Now this program is subsidized by the government and the government says it must serve a well-balanced nutritious meal. And what do they consider a well-balanced, nutritious meal? Pork chops, ham and cheese sandwiches, or God forbid, Chicken Parmigiana.
Now, what would we say to that? Of course, we would say we can’t do that. It violates our sincere religious principles. We would just ask the government to shut down the program for everyone? Nope! We would only ask for a waiver of this rule to be able to serve matzoh dumpling soup and cholent.
But should there be an exemption from the law for sincere religious beliefs? Of course, in this case, we say yes. Because in this case, we can see that it is our religious beliefs that are in danger of being denied. So now, if you use this particular Jewish perspective, you can better see where the Church is coming from when asking for exemptions on issues that concern them, like contraceptive coverage, etc.
With that as a background, let me now speak specifically about abortion.
According to Jewish law, halakha, there is no so-called “right to choose!” In the words of the UO, “Jewish law prioritizes the life of the pregnant mother over the life of the fetus, so that when the pregnancy seriously endangers the physical or mental health of the mother, a abortion may be permitted, otherwise mandated, by halacha…. Legislation and court rulings…that absolutely prohibit abortion without regard to the health of the mother would literally limit our ability to live our lives in accordance with our responsibility to preserve life.”
And Agudat Israel, further to the right, had this to say. “Thus, we should revisit the precise nuances of the final decision itself – how, for example, it deals with the right to abortion when ‘the life or health of the mother is in danger’, or when ‘the beliefs mother’s sincere nuns allow or require‘ that she have an abortion.”
Abortion is therefore clearly authorized, otherwise mandated, in some cases where the health of the mother is at stake, and that includes, in my opinion based on the decisions of the conservative movement, the physical and mental health of the mother. It remains to be seen how “health” is defined and how it plays out in real cases. Thus, if there is a conflict between a law denying abortions and a religious claim to abortion, the claim could prevail, if not under the First Amendment, then under the Restoration of Liberty Act. religion of a state.
And here’s something else to consider, not just on this issue, but in our approach to Judaism and its demands. And that’s sincerity. As Professor Blackman and I have discussed, one of the questions that will arise is whether the request is sincere or not. Think about it for a second. If a woman says she does not practice kosher or observe Shabbat and does not believe it is mandated by her religion, can she honestly say that she believes abortion is compulsory?
“Imagine a hypothetical conversation between the rabbi and a worshiper:
Congregant: Should I keep kosher?
Companion: Should I refrain from working on the Sabbath?
Congregant: But if my pregnancy could affect my health, should I have an abortion?
Rabbi: Absolutely, yes. No questions about this.
Congregation: If I choose not to have an abortion when my health is in danger, am I sinning? Would there be disapproval of my actions in any way?
Rabbi: No and no.
In other words, if a person regards much more deeply rooted rules governing kosher slaughter and Sabbath observance as non-binding, while viewing as binding the interpretation of halakha that affects abortion…….” You can fill in the rest….
I’m not going to complicate things for you with all the additional legal requirements and concepts that will arise, but just know that if the claim is upheld, the law itself is not overridden, but rather, just like the example of the kosher food, the remedy is that the woman in question be granted an exemption from the law. And as Jews, that’s what we ask for when our religious requirements conflict with state law. May we be exempt from these laws. The First Amendment and our religious freedom demand nothing less.
And I hope that now, as Jews, we also see the importance of defending our rights to religious freedom, as a minority religion, as well as defending the rights of all religions, even if we are not agree with their teachings.
As one commentator put it, “This kind of religious freedom claim should be recognizable to those who have successfully won religious exemptions from contraceptive coverage requirements under Obamacare, or civil rights laws protecting LGBTQ Americans, or public health rules limiting the size of religious gatherings during the pandemic But will those who have championed the Supreme Court’s expansive approach to religious liberty accept that followers of other faiths can also have sincere religious objections the ban on abortion? The answer to this question was not addressed head-on, but it was surely predictable: all religions do not have the same right to religious freedoms, and some religious followers may be considered less worthy of these rights than others.”
If this statement is true, then it becomes our task, as committed Jews, committed not only to the practice of Judaism, but also to the ideals of religious freedom, to ensure that these claims, our claims, are not less dignified and are fully accepted by society.
I want to conclude with this anecdote to personalize this issue a little.
There is a gentleman who comes to our minyan every morning named Marty Zweig. He works in lower Manhattan for the US Park Police and sometimes joins the minyan from his office. And when he does, he puts on his yarmulke and Tallis and his davens from his government office. And he can do it, even if it makes others uncomfortable. Why? Because we have religious freedom, and he has the right to express it in his own way.
Despite the controversies and difficulties that this and similar questions present, let us nevertheless see this as an opportunity not only to be more respectful of the religious practices of others as we ask others to be respectful of ours, but at the same time to to be more respectful and observant of our own religious obligations, because the more sincere we are in our religious observance, the more likely we are to succeed in being able to practice it as we demand – and not just see or use the religion as an excuse to advance our own personal views and beliefs.