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opinion | Yet another lawsuit shows how an abortion ban violates religious freedom

In July, I wrote about a lawsuit in Florida challenging the state’s abortion ban on the grounds that it violates the religious beliefs of Jews — and members of other religions — who do not believe in the Christian dogma that life begins at conception. Now three Jewish women from Kentucky have filed a similar lawsuit.

One of the plaintiffs is undergoing in vitro fertilization. Another preserves nine embryos. And another is “of advanced age and faces many risk factors if she chooses to have a third child,” the complaint explains. It adds: “Individuals of Ashkenazi Jewish descent are at increased risk of passing on genetic abnormalities, such as Tay-Sachs disease, for which there is no cure and the average lifespan of those with the condition is four years.”

But according to the indictment, Kentucky’s abortion law would make both a genetic counseling abortion and the destruction of IVF embryos a capital murder.

Contrary to the brutality of the right-wing Supreme Court justices, who seem to fail to understand that they applied their own religious views in their ruling to overturn abortion rights, the complaint explains:

Judaism has never defined life that begins at conception. Jewish ideas about the beginning of life have their origin in the Torah. … Millennia of commentary from Jewish scholars have reaffirmed Judaism’s commitment to reproductive rights.

According to Jewish law, a fetus only becomes a human or child at birth. Under no circumstances has Jewish law defined a human or child as the moment when a human sperm cell fuses with a human egg cell.

The question of when life begins for a human being is a religious and philosophical question without universal beliefs in different religions.

The last sentence is the key. The so-called state interest in preserving ‘fetal life’ depends on the assumption that a fetus deserves the same protection as a toddler. But for Jews, “the need to protect the birth givers in the event that a pregnancy endangers the woman’s life and causes physical and mental harm to the mother” must be mastered. In addition, “the law forces claimants to spend exorbitant fees to keep their embryos frozen indefinitely or face potential crimes.”

For that reason, the complaint alleges that Kentucky’s abortion law violates the First Amendment and the state’s constitutional protections for religious freedom — as well as the state’s Religious Freedom Restoration Act. The latter part of the lawsuit could become moot if Kentucky voters pass a ballot measure that would declare the state constitution does not protect access to abortion. But either way, forcing others to abide by a cult’s religion-based edicts goes against the constitutional guarantee of free religious expression.

The complaint also alleges that Kentucky’s law should be invalid due to vagueness under the 5th and 14th amendments. As with so many laws that are activated by Dobbs v. Jackson Women’s Health Organization predating modern medicine, it is not clear whether the law requires the preservation of the embryos. In addition, the complaint argues that Kentucky’s abortion law “does not impose clear standards, rules or regulations regarding the potential experiences of potential birth givers regarding their access to reproductive technology.”

Regardless of whether the lawsuit succeeds, it raises three critical issues that apply to legal challenges to abortion bans. First, it pulls the curtain to reveal that judges act on the basis of a religious, not scientific, view of personality. The arrogance of assuming that everyone holds a specific Christian sectarian stance reveals the extent to which right-wing courts and legislatures ignore or disapprove of Americans who are not Christian. It is crucial to force politicians, media, experts, doctors, researchers and ordinary voters to recognize this.

Second, the lawsuit highlights the negative impact on IVF, which did not exist when many state abortion bans were passed in the 19th or early 20th century. The current crop of state legislators and Supreme Court justices seem deliberately oblivious to the implications for such reproductive care. Do they really want to effectively disable a commonly used reproductive process?

Finally, it is not just Kentucky law that is so vague as to be incomprehensible. Many state statutes use vague, non-medical terms to place doctors and patients in untenable positions. Should physicians care for a pregnant woman who is going through a dangerous pregnancy that puts her at risk of prosecution in the opaque language of a 19th-century law, or should they allow the patient’s condition to become so acute that she might exception fits for the preservation of her life? The uncertainty imposed by these laws appears to be designed to reduce physicians’ willingness to provide care, even if it turns out to be legal.

If the Kentucky lawsuit forces state lawmakers to grapple with the real damage and chaos these laws have caused, then it will be a success. It’s a good thing there’s elections in less than a month.

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