JEWISH FEMINISTS KNOW better than most that the First Amendment right to religious freedom is too often used not as a shield to protect non-Christian religious groups, but as a sword to strike out. Look at anti-abortion legislation. As of June 24th, abortion was completely banned in the state of Missouri via a trigger law passed in 2019, a law that was waiting for a case like Dobbs to spring into effect.
But some religious folks are fighting back. Recently, a band of religious leaders and clergy-including three Jewish feminist rabbis-rallied to file a suit on the grounds that the abortion ban violates the right to the separation of church and state. The lawsuit specifically names three sections of Article A of the Missouri Constitution that prevent the state government from acting on preference for a particular religion: Section 5 states “no human authority can control or interfere with the rights of conscience,” and Section 7 states “no preference shall be given to nor any discrimination made against any church, sect or creed of religion nor any form of religious faith or worship.”
Yet, the lawsuit says, that is precisely what conservative lawmakers have done.
“I will not pay taxes to support a law that is based on someone else’s religious beliefs,” Rabbi Susan Talve of Central Reform Congregation and a plaintiff in the lawsuit told me. “They have weaponized their religious beliefs to control the bodies of pregnant people.”
It helps that right-wing politicians have made it clear that this abortion ban was religiously motivated from a minority, Christian fundamentalist viewpoint. The law itself begins with “in recognition that Almighty God is the author of life ‘… it is the intention of the General Assembly to defend the right to life of all humans, born and unborn.”
Then-Rep. Nick Schroer, who is the lead sponsor of the bill banning abortion, even said, that “As a Catholic, I do believe life begins at conception, and that is built into our legislative findings.” The ban states that “life begins at conception,” a Christian belief. One of the bill’s cosponsors, Rep. Barry Hovis, said, “from the Biblical side of it…life does occur at the point of conception.”
An abortion provider who violates the ban can expect to be charged with a felony and could serve anywhere from five to 15 years in prison. They would also lose their license to practice medicine. “Since the ban took effect,” said Rabbi Talve, “I’ve heard stories of such suffering and people taking their lives. The people who put these bans in place have blood on their hands.”
“It’s very clear in Jewish tradition that the life and health of the person who is carrying the pregnancy always take precedence over the fetus or the potential life that is developing,” plaintiff Rabbi Andrea Goldstein of Shaare Emeth told Lilith. “It’s rooted in this Jewish notion of b’tzelem elohim, that each of us has been created in the image of God. We are trusted to make decisions that are best for us and our families. When that right is infringed upon, then we are no longer being honored as children of God. We’re being controlled.”
Missouri was hostile towards abortion long before 2022. Abortion seekers were required to receive state-mandated counseling designed to discourage the procedure, and then wait 72 hours. Minors had to acquire judicial bypass if they could not get parental consent for their abortion. TRAP laws forced clinics to meet medically unnecessary standards to provide care, which often forced them to shutter. “The Missouri legislature has been slowly chipping away at the right to reproductive health care,” said Rabbi Goldstein. “For many years it’s been almost impossible to really get abortion services here. So what happened last June was devastating… but practically speaking, it was like it had already happened in Missouri.”
While there are three other similar lawsuits filed in Indiana, Kentucky, and Florida on the basis of religious freedom, the Missouri lawsuit aims to completely nullify the abortion ban because it violates the state constitution’s articles on the separation of church and state.
“This is a religious freedom issue,” said Rabbi Goldstein. “Roe didn’t frame the issue that way. I’m excited about the opportunity that the lawsuit brings to talk about this issue in a very different way.”
“When we have the chance to overturn this ban and the Dobbs decision, let’s not settle for Roe,” said Rabbi Talve. “Let’s make sure that Medicaid dollars go to pay for abortion care because otherwise, we’re still punishing the poor. And that is just not Jewish.”
Steph Black is a Jewish activist and writer based in D.C. where she fights to expand abortion access and reproductive justice. Her writing and newsletter can be found at stephblackstrategies.com.