Justice Kennedy and a Kosher Court

By: Rabbi Mitchell Rocklin and Howard Slugh

Following Justice Kennedy’s retirement from the Supreme Court, the continued viability of Roe v. Wade has dominated the headlines. American Jews are overwhelmingly pro-choice, and many if not most want the courts to uphold a constitutional right to abortion under nearly any circumstance. In what should amount to a surprising twist, some have argued that overturning Roe would threaten Jews’ religious freedom.

Their argument goes like this: in some circumstances—namely when the life or health of the mother is in danger—Jewish law may permit or even require a mother to procure an abortion. Thus, bans on abortion could, in theory, prevent women from terminating a pregnancy in a case where their religion obligated them to do so. Let’s ignore for a moment the fact that the overwhelming majority of abortions are not performed to save a mother’s life, and that any abortion regulation would include an exception for such cases. Instead, let’s focus on the ways in which this argument stems from a distorted understanding of religious freedom.

The irony of this partiular pro-choice argument is that liberal Jews are advancing it even as they are are quick to accuse traditional proponents of “religious liberty” of seeking to impose their religious views on America. In truth, traditional proponents just want to be left alone. It has been secularist Jewish organizations that have joined non-Jewish colleagues in seeking the hegemony of their moral values. Traditionalists request accommodation, while too many otherwise liberal Jews seek domination.

Americans seeking traditional religious liberty exemptions do not wish to impose their views on their neighbors. Religious liberty protections allow for the creation of a neutral space, one in which citizens with differing viewpoints can coexist without trampling on each other’s beliefs. Laws like the Religious Freedom Restoration Act merely state that, whenever possible, the government must exempt religious adherents from laws that conflict with their sincerely held beliefs.

Exemptions are not mandatory or automatic; if a religious exemption would prevent the government from accomplishing a compelling mission, then no exemption is granted. Religious liberty laws do not prohibit the government from enforcing a law against most Americans; they simply require exemptions in cases where the law would put an intolerable and unnecessary burden on religious people. For instance, prisons are not required to accommodate religious practices if doing so would be unsafe for inmates. If the government can both achieve its goals and protect Americans’ conscience rights, then it must do so. In a very real sense, then, religious liberty laws protect pluralism and demonstrate a live-and-let-live attitude.

The Supreme Court’s Hobby Lobby case illustrates this principle. The plaintiff, an arts and crafts store named Hobby Lobby privately owned by the Green family, sought an exemption from a regulation requiring employers to provide health insurance covering abortion-inducing drugs. The Greens argued that providing such insurance would violate their religious liberty, and they therefore requested a religious liberty-based exemption.

The Greens did not argue that abortion-inducing drugs should be outlawed, that their employees should be prohibited from buying such drugs, or that the government could not require other employers to purchase such insurance. The Greens made a much more modest claim: they should not be required to participate in a process that they considered sinful.

The Supreme Court ruled in favor of Hobby Lobby, finding that the government had not proven that exempting employers with sincere religious objections would prevent it from achieving its goal: ensuring that women had access to the drugs in question. The law continued to apply to the vast majority of Americans, and the government was free to fill the gaps through other methods. The Court concluded that since both the Greens and their employees could be protected, an exemption was appropriate.

The same is true for a long list of other individuals who have brought traditional religious liberty claims. People like Native American feather dancers who want access to eagle feathers, Amish people who want to homeschool their children, Muslims who want access to Halal food in prison, and Sikhs who want to wear turbans in the military are not trying to impose their faith on anyone – all of them are merely trying to observe their religions in peace.

This brings us back to abortion. Too many Jewish pro-choicers have, on the other hand, demanded a blanket constitutional right to abortion in virtually all circumstances. They insist upon such a permissive abortion regime because, in some circumstances, Jewish law may permit or require a mother to procure an abortion. But they are not arguing that they would need specific religious liberty-based exemptions from an abortion ban. Nor are they arguing that a state may achieve its goal of  protecting the life of the unborn, so long as it does not unnecessarily infringe on their religious beliefs. Quite the contrary. They are arguing that the Supreme Court should maintain that all Americans have a right to abortion to prevent the remote possibility that laws prohibiting abortion might, occasionally, interfere with their religious beliefs.

This maximalist argument is a distorted fun-house mirror version of that made by traditional religious liberty proponents. Whereas the traditionalists ask for an exception and peaceful coexistence, some otherwise liberal Americans demand that the entire country be governed by their religious dictates, with no exceptions allowed. This despite the US being an outlier in allowing for abortions in virtually all cases, including, for instance, those involving horrific pain to unborn babies.

Ironically, the very same Jewish organizations demanding that the law follow their religious views on abortion have accused traditional proponents of religious liberty of wanting to impose their religious views on the nation. Sadly, groups like the American Jewish Committee and the Anti Defamation League side with those whose policies would rob Jews of the ability to practice their faith freely should it fall out of favor with the mainstream.

It is these opponents of religious liberty who have tried to impose their views on America. They have tried to coerce: Catholic nuns and evangelical pharmacists into providing abortion-inducing drugs; religiously affiliated crisis pregnancy centers into advertising for state-subsidized abortions; and a cake artist into customizing a celebratory wedding cake for a same-sex wedding despite his conscientious objections. These religious individuals were not discriminating against anyone nor interfering with anyone’s ability to procure goods or services, which were readily available from other sources. But this was not good enough. Supposedly tolerant organizations insisted that these conscientious objectors participate in a secular agenda or be crushed by the law.

As we debate the next Supreme Court nominee and consider how American law ought to protect religious liberty, we ought to pursue two broad and interrelated goals. First, when possible, American law should accommodate those who wish to practice their religion. Second, we should attempt to build a society in which Americans of all types can live in harmony.

This includes promoting a healthy democracy by allowing perfectly reasonable debates about changes to our abortion laws that would, if anything, bring them more in line with those in other Western nations.

Rabbi Mitchell Rocklin is the President of the Jewish Coalition for Religious Liberty, as well as a Resident Research Fellow at the Tikvah Fund and a reservist military chaplain.

Howard Slugh is the General Counsel of the Jewish Coalition for Religious Liberty, as well as an attorney practicing constitutional law in Washington, DC.