The Torah tells its followers to “be fruitful and multiply, and fill the earth,” so that’s what Lisa Sobel, a devout Jewish woman from Louisville, Kentucky, set out to do.
It wasn’t easy. First, she endured three years of infertility. Then, she and her husband embarked on a $50,000 in vitro fertilization (IVF) journey, during which they had to discard four embryos before implantation because of genetic abnormalities. Finally, in April 2019, Sobel delivered a healthy baby girl. Immediately after, she began hemorrhaging and almost died.
Now 38, Sobel wants to have another child. It’s not the IVF process or her birth trauma that’s holding her back. Instead, she says the anti-abortion laws Kentucky enacted in the wake of the US Supreme Court’s Dobbs v. Jackson Women’s Health decision prevent her from getting pregnant in a manner that complies with her religious views. It’s why she and two other Jewish women—both of whom also depend on IVF to conceive—are suing the state of Kentucky on the grounds that its laws are vague, difficult to understand, and that they violate their religious freedoms under Kentucky’s Religious Freedom Restoration Act, which stipulates that the “government shall not substantially burden a person’s freedom of religion.”
Kentucky’s abortion laws are so unclear, Sobel’s lawyers say, that it would be reasonable to infer it is a crime to discard unneeded or genetically imperfect embryos, a common outcome in IVF. The laws allow no exceptions for situations in which a fetus has a fatal medical condition yet still has a heartbeat, which would go against the plaintiffs’ religious belief that an abortion to prevent the physical suffering of a child or the mental anguish of a mother is justified. The laws are also somewhat contradictory when it comes to what steps a physician can take if a pregnant person’s life is in danger. One statute says abortion would be permitted only if a mother faces a serious risk of “substantial and irreversible impairment of a major bodily function” or death; another requires physicians to “make reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of the unborn.”
Doctors who fail to abide by these convoluted statutes risk monetary fines, the loss of their medical licenses, and prison time; pregnant people whose doctors are confused by the statutes risk death. Multiple pregnant women have almost died as a result of having incomplete miscarriages in several other states with similarly confusing abortion laws that prompted medical professionals to delay their care. Sobel, who bled during her first pregnancy and required emergency blood transfusions after delivering her daughter, fears she could face a similar fate. Even though her faith clearly prescribes that a mother’s life takes precedence over her fetus, Kentucky’s laws are more ambiguous.
“If I were bleeding out from a miscarriage in the state of Kentucky,” Sobel says, “I do not know that I would receive the life-saving care I would need.”
Sobel and her two co-plaintiffs aren’t unique in arguing their state’s anti-abortion bans violate their religious freedoms and impose burdens on their ability to seek abortions in a way that complies with their faith. The Indiana chapter of the American Civil Liberties Union is representing five anonymous plaintiffs of various religions suing the state over its near-total abortion ban. Thirteen faith leaders representing Jewish and Christian denominations have brought a similar suit against Missouri’s abortion laws with the help of the National Women’s Law Center and Americans United for Separation of Church and State. And in Florida, Rabbi and civil rights attorney Barry Silver has sued over the state’s 15-week abortion ban, which he says is a “blatant threat to the Founding Fathers’ ideals of separating church and state.”
If state courts don’t grant the plaintiffs relief, their decisions may indicate a judicial bias in which the freedom to exercise one’s chosen religion only applies if it is congruent with the court’s religious preference. On the flip side, if courts judge these religious freedom cases in a manner consistent with how the US Supreme Court has been interpreting other religious freedom cases in recent years, the lawsuits could roll back some of the nation’s harshest abortion restrictions in the states where they are being argued, and serve as an instructive guide for religious groups in other states to follow. “If the recent understanding of free exercise holds,” Micah Schwartzman, a constitutional law professor at the University of Virginia, tells Mother Jones, “I think there are really powerful claims in these abortion cases.”
No matter which way the courts rule, the lawsuits represent a hefty dose of irony: It was a religious movement based on one interpretation of Christianity that helped sparked the decades-long movement to restrict abortion across America back in the 1970s, and it was a politicized revival of that religious fervor that culminated in the US Supreme Court overturning Roe v. Wade in 2022. Now it’s another religious movement, led by faith leaders and devout adherents of multiple religions, who are trying to overturn these religiously motivated abortion laws.
“We are multiple faiths, multiple belief systems, and we all support abortion because of our faith,” Rabbi Susan Talve, one of the plaintiffs in the Missouri lawsuit, tells Mother Jones. “Not in spite of our faith. Because of our faith.”
When Gov. Ron DeSantis signed Florida’s 15-week abortion ban (without exceptions for rape or incest) into law on April 14, 2022, the ceremony was not held in the state Capitol in Tallahassee. The venue for the historic bill signing was an evangelical church in Kissimmee called Nacion de Fe, which translates to Nation of Faith.
As Missouri legislators debated their total abortion ban, which took effect in June, many referenced their Christian beliefs as the basis of their vote to enact it. “As a Catholic, I do believe life begins at conception and that is built into our legislative findings,” said the bill’s lead sponsor, state Rep. Nick Schroer. The Missouri legislation states, unequivocally, that “Almighty God is the author of life” and that “the life of an individual human being begins at conception.” But this is not a scientific fact. Nor is it one embraced by all religions.
Scientifically, pregnancy does not begin until several days after a sperm fertilizes an egg. Before that, a fertilized egg is something called a zygote, and then a blastocyst, which is merely a hollow ball of cells. A person is considered pregnant after the blastocyst implants in the uterus, either naturally or through a process like IVF.
Religiously speaking, Abrahamic religions like Judaism and some Christian denominations do not hold that life begins at conception. The Talmud, a 1,500-year-old text that helps Jews interpret the Torah and the Jewish canon, notes that a fetus is “mere water” for the first 40 days of gestation. While many Jews no longer believe that definition to be true in a literal sense, given innovations in modern science and medicine, most Jewish denominations consider a fetus to be “a limb of its mother” until it is born and takes its first breath.
Some Jews and Christians believe that Exodus (21:22-25), which describes two outcomes of a physical altercation in which a woman is inadvertently injured, supports this religious theory. In the first outcome, the fighting men strike a pregnant woman and cause her fetus to miscarry, but do not cause further injury to the woman; their penalty is a monetary fine. The penalty for causing physical harm to the woman, however, is an “eye for an eye” or a “life for a life.”
The lesson that followers of Judaism and several Christian denominations tend to derive from this scripture is that a woman and her fetus are not considered equal, since the penalty for harming a woman is far greater than it is for harming her fetus. A recurring theme in the Torah, that life occurs when God breathes life into a person’s nostrils, is also interpreted by Jews and some Christians to mean that life does not begin at conception but at birth.
“Life begins at birth,” says Rabbi Silver, who leads the L’Dor Va-Dor congregation in Boynton Beach, Florida. “There’s really no other way of reading it.”
That discernment between the value of a fetus and when life begins does not mean that every rabbi, Jewish person, or non-Catholic Christian supports abortion as a general matter. Avi Shafran, an Orthodox rabbi, and the director of public affairs at Agudath Israel of America—a group representing Haredi Jews, who adhere to strict interpretations of Jewish law—points out that the miscarriage described in Exodus was an accidental one. While he and some Orthodox Jews agree the scripture shows a mother’s life “takes precedence over a fetus,” many Orthodox Jews only endorse abortions when a rabbi determines a woman’s life is in jeopardy. Over time, some Orthodox rabbis have expanded their definition of what jeopardizes a mother’s life to include extreme mental suffering. Thus, an Orthodox Jewish woman may be able to find a rabbi who permits an abortion if a fetus is doomed to a brief and painful life due to a degenerative condition like Tay-Sachs, as an abortion would prevent her child’s physical suffering and some of her own mental anguish.
Regardless, Orthodox Jews often do not view abortion nearly as liberally as other Jewish factions. “To actively choose to end the potential life that is a fetus when there is no threat to the mother’s life is a matter of great gravity,” Shafran says, “and not permitted by Jewish religious law.”
His views, however, are in the minority. An overwhelming majority of Jewish people in the US—83 percent, according to Pew Research Center—support abortions in all or most cases. As do 82 percent of Buddhists, 68 percent of Hindus, 60 percent of mainline Protestants, 55 percent of Muslims, and 73 percent of non-religious Americans.
And even Shafran is concerned that anti-abortion laws may infringe on a woman’s religious right to make decisions on such important matters with her rabbi. “I worry that some of the more radical proposals giving a fetus the status of a born person would hamper the religious right of a Jewish woman to end her pregnancy on the decision of a [rabbi],” he says. “At the same time, I bemoan the treatment of developing lives in utero as mere foreign tissue, to be disposed of at will.”
Today, anti-abortion views may appear to be inextricably tied to religion. But the pro-choice movement and religion are also intertwined. Before Roe, hundreds of rabbis and ministers formed a referral service called the Clergy Consultation Service (CCS), which is estimated to have helped upward of half a million women get safe abortions since its 1967 founding, including in places where it was illegal. At the same time, these clergy members were pushing for states to repeal anti-abortion laws using arguments similar to those underpinning the religious freedom lawsuits challenging today’s anti-abortion laws. “Believing as clergymen that there are higher laws and moral obligations transcending legal codes,” the founding members of the religious abortion referral network wrote over 50 years ago, “we believe it is our pastoral responsibility and religious duty to give aid and assistance to all women with problem pregnancies.”
That wasn’t a radical view. Through the 1960s, it was primarily Catholics who opposed abortion as a moral matter. Before that, “the plurality of religious denominations agreed upon therapeutic abortion,” says Gillian Frank, a visiting fellow at Princeton University’s Center for the Study of Religion. “Most agreed on abortion on demand, with the exception of Catholics.”
Catholics eventually looked outward to build a larger anti-abortion coalition. They did so by stripping outwardly Catholic imagery like rosaries from their anti-abortion messaging and framing state attempts to pass liberal abortion laws as an important piece of a broader war against “traditional values.” People who wanted abortions weren’t just sinners but morally corrupt baby murderers, they argued. Abortion’s newfound national legal recognition after the 1973 Roe decision supercharged this perspective. From that point forward, Frank says, “religion never left the public square.”
The vivid rhetoric and graphic imagery they employed—mangled fetuses, for instance—helped the religious coalition elect a wave of like-minded, conservative politicians who strove to codify their religious perspective into government doctrine, bolstering the rise of Christian nationalism.
It’s the evolution of these forces that culminated in a Republican governor enacting a religiously motivated bill into law inside of a church, says Silver, whose lawsuit claims that Florida’s law violates the state constitution’s religious establishment and free religious exercise clauses. DeSantis is “imposing a theocratic tyranny upon everyone else, in which he’s no longer the governor for all the people of Florida,” Silver adds, “he’s now the representative for Christians—and only a certain brand of them.”
A self-described “rabbi-rouser,” Silver faced a temporary setback in proceeding with his lawsuit due to treatment for stage-four colon cancer. But his claim, which was first filed in June, was recently granted an April hearing over the state’s motion to dismiss it in Florida’s Second Circuit after Silver filed repeated motions to expedite the process.
Missouri’s Republican-led government has until the end of February to respond to the complaint by the religious leaders in the St. Louis Circuit Court. Rachel Laser, the president and CEO of Americans United for Separation of Church and State, a group helping to represent the plaintiffs, says she expects the state’s Republican attorney general to file a motion to dismiss. Whatever the lower court decides—whether it rules Missouri’s abortion restrictions can stand or that they violate religious freedoms—the case will likely be appealed to the state’s supreme court by the losing party.
Not only are abortion access and religious freedom at risk in these cases, says Laser, but so is the very foundation of American democracy. “Church and state separation is like apple pie and vanilla ice cream to America,” she argues. “Without it, America wouldn’t be America.”
The anonymous Jewish, Muslim, and spiritual plaintiffs in Indiana are further along in their case, which was filed in September. An Indiana trial court ruled in favor of the plaintiffs’ claim that the state’s near-total abortion ban violated Indiana’s Religious Freedom Restoration Act (RFRA). “In this case, the State’s arguments unfairly criticize the Plaintiffs’ Religious practices as subjective and minimize the importance of the Plaintiffs’ religious beliefs which are permitted under RFRA,” Judge Heather Welch wrote. “The Plaintiffs’ religious beliefs are no more or less subjective than believing that a human being comes into existence at the moment that a sperm meets an egg or at the moment of birth.”
Indiana’s Republican attorney general tried to bypass the normal appeals court process by asking the state’s supreme court to weigh in directly—but his request was denied. The case is instead being argued before the Indiana Court of Appeals, though it may later work its way to the state supreme court if either side appeals the next decision.
Sobel and her co-plaintiffs are also still waiting for a hearing on their religious freedom case, which they filed in October. In the meantime, the Kentucky abortion ban remains in effect.
Though still in the early stages of their legal battles, judicial history provides hope for the plaintiffs. In the 1990s, for example, there was a case in which the Fraternal Order of Police challenged Newark, New Jersey’s police uniform code, which required male officers to be clean-shaven. The primary exception to the policy was for medical conditions such as folliculitis, an inflammatory reaction some experience when shaving. But Muslim officers felt this uniform rule violated their religious beliefs that the Prophet of Islam encouraged beard growth. Then a Third Circuit Court of Appeals judge, Samuel Alito, wrote the majority opinion, in which he argued that putting secular or medical interests over religious interests undermined the applicability of free-exercise clauses, which are guaranteed by both the federal and state constitutions.
More recently, at the height of the coronavirus pandemic, the US Supreme Court decided in favor of the Roman Catholic Diocese of Brooklyn, which argued that the state’s law setting capacity limits on religious gatherings violated the First Amendment’s Free Exercise Clause because certain secular businesses were not subject to the same restrictions despite similar risks of infection spread. The court granted the plaintiffs a preliminary injunction blocking the restrictions on capacities at religious gatherings.
The states where plaintiffs are suing anti-abortion laws over free exercise claims should face similar scrutiny because they also make secular exemptions—such as allowing abortions in cases of rape, incest, or when the life of a mother is at risk. Schwartzman, the University of Virginia law professor, argues that under current free exercise doctrine, it doesn’t matter whether it is rape, incest, or religious views that cause a pregnant person to seek an abortion, the outcome is the same: fetal death. Therefore, he says, if the state wants to create an exception on secular grounds, it has to provide a compelling reason as to why it will not give a religious exemption as well.
Still, the outcome of the religious freedom cases will depend on how high into the states’ respective court systems these cases go and what the makeup of those courts is. Missouri’s state supreme court judges are recommended by a non-partisan judicial panel, and in Kentucky, state supreme court justices are elected by popular vote. All of the state supreme court justices in Florida and Indiana, however, were appointed by Republican governors.
Courts may “invariably favor certain religious believers over others,” Schwartzman and fellow University of Virginia law professor Richard Schragger wrote in a recent legal review article.
Sobel, however, has faith that the judges in Kentucky will see the strength of her legal claim. “I believe that level-headed, educated judges in our justice system will have the guidance they need from their legal training to see that our arguments are sound,” she says, “and that the laws as they are currently written violate my rights as a woman, a Jew, and as a Kentuckian.”
Though she adds, solemnly, such a decision may not come soon enough for her family to be fruitful and further multiply. “By the time this lawsuit goes all the way through,” she says, “I will more than likely be too old, or I will have no eggs left.”