Religious Freedom vs. Abortion Ban
April 13, 2024 9:34 AM Subscribe
ACLU files a suit for religious exemption based on Judaism, Islam, and Paganism. ACLU: "On September 8, we filed suit to stop SB 1 on the grounds that it violates Indiana’s Religious Freedom Restoration Act (RFRA). Our class action lawsuit was filed on behalf of Hoosier Jews for Choice, and five women who, like many Hoosiers, have sincere religious beliefs that they must be able to obtain an abortion under circumstances prohibited by Indiana’s abortion ban. Our plaintiffs are at risk of needing an abortion in the future that are allowed by their religious beliefs."
The ACLU has also filed a more general suit against the ban. "On August 30, we filed a lawsuit alongside our partners to stop the ban from taking effect. The lawsuit argues SB 1 violates both the Indiana Constitution’s right to privacy and equal privileges protections. From its very inception, the Indiana Constitution has protected the right to privacy. Implicit in this right, is the right for a woman to make medical decisions regarding her own reproductive health. "
I'm surprised I haven't heard about the religious freedom suit before.
The ACLU has also filed a more general suit against the ban. "On August 30, we filed a lawsuit alongside our partners to stop the ban from taking effect. The lawsuit argues SB 1 violates both the Indiana Constitution’s right to privacy and equal privileges protections. From its very inception, the Indiana Constitution has protected the right to privacy. Implicit in this right, is the right for a woman to make medical decisions regarding her own reproductive health. "
I'm surprised I haven't heard about the religious freedom suit before.
It looks like Indiana Court of Appeals recently ruled a religious objection to SB 1 had standing and likely would prevail on its merits.
posted by rubatan at 10:04 AM on April 13 [18 favorites]
And just like countless times before, religious conservatives will claim this isn't covered, for reasons that will ignore any reasonable attempt at functioning logic. They'll claim that protections for THEIR religion are paramount as protection of ALL religion... but protections that primarily affect minority faiths (or philosophical positions every bit as fundamental to a person's identity but technically not religious in nature) will be hand-waived away, as always.
The idea, central to any properly-functioning society (and to any democracy of any form with a pluralistic populous), that a religion only prohibits actions for the believers of it, and has no binding effect on those who are not its adherents, is toxic to religious conservatives. You can't have abortion rights because it impacts their beliefs (and control over you). You must follow their dictates, and be happy they allow you to live at all.
posted by mystyk at 10:09 AM on April 13 [40 favorites]
The idea, central to any properly-functioning society (and to any democracy of any form with a pluralistic populous), that a religion only prohibits actions for the believers of it, and has no binding effect on those who are not its adherents, is toxic to religious conservatives. You can't have abortion rights because it impacts their beliefs (and control over you). You must follow their dictates, and be happy they allow you to live at all.
posted by mystyk at 10:09 AM on April 13 [40 favorites]
Indiana allows vaccine exemptions based on religion, so like...this approach makes sense? (And if it held, could that rationale spread?)
posted by mittens at 10:10 AM on April 13 [2 favorites]
posted by mittens at 10:10 AM on April 13 [2 favorites]
As mystyk points out, whether it makes sense doesn't matter. The conservatives on the Supreme Court do not care about rationality, only rationalization. The 5-4 podcast really made this explicit for me.
posted by agentofselection at 10:26 AM on April 13 [18 favorites]
posted by agentofselection at 10:26 AM on April 13 [18 favorites]
the other thing that concerns me is that even if people can get religious exemptions for abortions, will there be providers?
posted by Nancy Lebovitz at 10:30 AM on April 13 [10 favorites]
posted by Nancy Lebovitz at 10:30 AM on April 13 [10 favorites]
Politico says there are approximately 10-12 such religious based lawsuits in support of abortion rights in 2023. I didn't look for all of them but Missouri and Florida seem to be the ones I hear about the most.
Also, the talking points I hear are no longer religious and have shifted to a generic right to life (similar to a generic anti-death penalty or anti-assisted suicide belief) and puts forth that rape, incest and mother's life are adequate exceptions. And this generic right to life approach is part of the approach being used against contraception.
All of this continues to ignore the nuanced healthcare needs of pregnant women and that institutions won't permit their staff to perform abortions if any legal threat exists. The Texas Medical Board issued guidelines that essentially reiterated the law and did not offer any real clarification of medical necessity or stage of assessment constituted the medical need for an abortion.
Side note: An obstetrician I know believes this is the natural end result of the slippery slope of settling cases due to litigation costs rather than actual malpractice. The hospital executive boards, in his opinion, don't actually care about healthcare anymore and have not for decades.
posted by beaning at 10:33 AM on April 13 [8 favorites]
Also, the talking points I hear are no longer religious and have shifted to a generic right to life (similar to a generic anti-death penalty or anti-assisted suicide belief) and puts forth that rape, incest and mother's life are adequate exceptions. And this generic right to life approach is part of the approach being used against contraception.
All of this continues to ignore the nuanced healthcare needs of pregnant women and that institutions won't permit their staff to perform abortions if any legal threat exists. The Texas Medical Board issued guidelines that essentially reiterated the law and did not offer any real clarification of medical necessity or stage of assessment constituted the medical need for an abortion.
Side note: An obstetrician I know believes this is the natural end result of the slippery slope of settling cases due to litigation costs rather than actual malpractice. The hospital executive boards, in his opinion, don't actually care about healthcare anymore and have not for decades.
posted by beaning at 10:33 AM on April 13 [8 favorites]
my bullshit trumps your bullshit!
can somebody shoot me in a cannon back to ~1765?
posted by torokunai at 11:18 AM on April 13 [3 favorites]
can somebody shoot me in a cannon back to ~1765?
posted by torokunai at 11:18 AM on April 13 [3 favorites]
I feel like if this works, religious belief exemptions will come back to bite us. We'll end up with federally-protected interference in medical care, because someone will say that it's against their religious beliefs as a Fundover Baptocostal Universal Spite Church member to have an abortion take place within a mile of their parking space.
posted by rum-soaked space hobo at 11:34 AM on April 13 [6 favorites]
posted by rum-soaked space hobo at 11:34 AM on April 13 [6 favorites]
Yeah this (if it works) is absolutely planting a land-mine for us to trip over later.
posted by june_dodecahedron at 11:52 AM on April 13 [3 favorites]
posted by june_dodecahedron at 11:52 AM on April 13 [3 favorites]
That landmine was planted over 200 years ago. Admittedly at the time "freedom of religion" meant "protestant vs other kind of protestant" but the courts have reliably expanded it to other Christian sects and other religions, as long as they aren't too at odds with mainstream Protestant ethics. (Ie: no polygamy.)
I think the ACLU argument is very strong and worth pursuing. My understanding is the Jewish belief is rooted in the need to protect the mother. That's a sincere moral impulse with a long history, it's not just some Church of Satan offshoot trolling people.
posted by Nelson at 11:57 AM on April 13 [9 favorites]
I think the ACLU argument is very strong and worth pursuing. My understanding is the Jewish belief is rooted in the need to protect the mother. That's a sincere moral impulse with a long history, it's not just some Church of Satan offshoot trolling people.
posted by Nelson at 11:57 AM on April 13 [9 favorites]
The "religious exemption" landmine was already planted by the anti-abortion extremists using this principle as legal justification for individuals and organizations being able to deny women healthcare. This is an attempt to do one of two things:
1. Defuse that landmine immediately by forcing the courts to apply the rule consistently, which necessarily means giving people whose religious beliefs do not include prohibitions on abortion the right to access healthcare, or
2. Counter-mine by forcing the courts to go on the record as applying the rule capriciously in favor of one religious group over others. This does not help anyone right away but means that in the future when the composition of the courts hopefully change to something less dominated by Federalist Society activists, it will be very easy for those hypothetical less-biased jurists to justify overturning the rule.
1 would be better, but 2 is more likely; both are better than doing nothing.
posted by biogeo at 12:43 PM on April 13 [14 favorites]
1. Defuse that landmine immediately by forcing the courts to apply the rule consistently, which necessarily means giving people whose religious beliefs do not include prohibitions on abortion the right to access healthcare, or
2. Counter-mine by forcing the courts to go on the record as applying the rule capriciously in favor of one religious group over others. This does not help anyone right away but means that in the future when the composition of the courts hopefully change to something less dominated by Federalist Society activists, it will be very easy for those hypothetical less-biased jurists to justify overturning the rule.
1 would be better, but 2 is more likely; both are better than doing nothing.
posted by biogeo at 12:43 PM on April 13 [14 favorites]
Well, yes, but it is also important, I think, not to make it all about the Jews. That historically does not go well in Indiana, nor other places. I do with they had included Christian sects that believe in abortion, like Unitarians and Presbyterians. but we are late in this kind of litigation.
[upon review, they do include Unitarians, but don't claim that Unitarians are Christian. ok, interesting]
I would say that I have a strong authentic belief in in the life of the mother, based in human rights and viability. Those pictures on the billboards do not represent people. that was based in theology taught to me by Catholicism, but based on how Catholic institutions disavow their own teaching, for the sake of political power, I cannot authentically participate in such lawsuits. I do hope this suit succeeds for religions who are not so compromised as the one I was raised in. all of the priests I had been following have been excommunicated for preaching that women should be able to be priests. oh well. What religion am I now? After witnessing how (oil) money and land seizure have changed all these pro-abortion 'Christian' religions, can I apply to be an authentic anticapitalist?
I would say that it is past time. The previous series of lawsuits on the vaccine issues were about the right of institutions TO vaccine participants, based on the religious rights to not be threatened by the unvaccinated. This was led by people in the jewish faith. That kind of "freedom from fear" legal precedent seems to be overturned now that courts don't abide by medical expertise.
We could feasibly return to the moral core of the United States, the liberal "leader of the free world" it was envisioned in 1942; of if we organize within the United States for our country to adopt the priniciples we so easily pushed onto other countries through the united nations after WWII.
That will require much more than court action, but this court action seems like an obvious part of a larger strategy to confirm the 1st, 4th, and 14th amendments though legislation, if not new amendments. like the second bill of rights from 1944.
posted by eustatic at 12:43 PM on April 13 [2 favorites]
[upon review, they do include Unitarians, but don't claim that Unitarians are Christian. ok, interesting]
I would say that I have a strong authentic belief in in the life of the mother, based in human rights and viability. Those pictures on the billboards do not represent people. that was based in theology taught to me by Catholicism, but based on how Catholic institutions disavow their own teaching, for the sake of political power, I cannot authentically participate in such lawsuits. I do hope this suit succeeds for religions who are not so compromised as the one I was raised in. all of the priests I had been following have been excommunicated for preaching that women should be able to be priests. oh well. What religion am I now? After witnessing how (oil) money and land seizure have changed all these pro-abortion 'Christian' religions, can I apply to be an authentic anticapitalist?
I would say that it is past time. The previous series of lawsuits on the vaccine issues were about the right of institutions TO vaccine participants, based on the religious rights to not be threatened by the unvaccinated. This was led by people in the jewish faith. That kind of "freedom from fear" legal precedent seems to be overturned now that courts don't abide by medical expertise.
We could feasibly return to the moral core of the United States, the liberal "leader of the free world" it was envisioned in 1942; of if we organize within the United States for our country to adopt the priniciples we so easily pushed onto other countries through the united nations after WWII.
That will require much more than court action, but this court action seems like an obvious part of a larger strategy to confirm the 1st, 4th, and 14th amendments though legislation, if not new amendments. like the second bill of rights from 1944.
posted by eustatic at 12:43 PM on April 13 [2 favorites]
Rabbi Danya Ruttenberg: The Torah of Reproductive Freedom, The Jewish Case for Abortion Justice
posted by indexy at 12:50 PM on April 13 [7 favorites]
posted by indexy at 12:50 PM on April 13 [7 favorites]
And just like countless times before, religious conservatives will claim this isn't covered, for reasons that will ignore any reasonable attempt at functioning logic.
Oh, it has a logic, all right. But the logic boils down to, "Silly rabbit, free exercise claims are for Christians!" Native Americans have lost some similar cases about having religious free exercise exemptions from drug laws to do peyote ceremonies (which has been a successful alcoholism cure for some). So I'm not sure if this will work, since the need to maintain ideological consistency doesn't really constrain right-wing culture warrior courts anymore.
posted by jonp72 at 1:13 PM on April 13 [6 favorites]
Oh, it has a logic, all right. But the logic boils down to, "Silly rabbit, free exercise claims are for Christians!" Native Americans have lost some similar cases about having religious free exercise exemptions from drug laws to do peyote ceremonies (which has been a successful alcoholism cure for some). So I'm not sure if this will work, since the need to maintain ideological consistency doesn't really constrain right-wing culture warrior courts anymore.
posted by jonp72 at 1:13 PM on April 13 [6 favorites]
This being Indiana, it was quite a surprise the appeals court ruled for the plaintiffs. It was an even bigger surprise that it was a unanimous decision. That point is especially important when the case goes before Indiana’s supreme court.
The decision and the individual concurrence are great reads.
posted by Thorzdad at 1:43 PM on April 13 [5 favorites]
The decision and the individual concurrence are great reads.
posted by Thorzdad at 1:43 PM on April 13 [5 favorites]
Oh, it has a logic, all right. But the logic boils down to, "Silly rabbit, free exercise claims are for Christians!"
"So let us be blunt about it. We must use the doctrine of religious liberty to gain independence for Christian schools until we train up a generation of people who know that there is no religious neutrality, no neutral law, no neutral education, and no neutral civil government. Then they will get busy in constructing a Bible-based social, political and religious order which finally denies the religious liberty of the enemies of God." —Gary North
posted by non canadian guy at 3:05 PM on April 13 [10 favorites]
"So let us be blunt about it. We must use the doctrine of religious liberty to gain independence for Christian schools until we train up a generation of people who know that there is no religious neutrality, no neutral law, no neutral education, and no neutral civil government. Then they will get busy in constructing a Bible-based social, political and religious order which finally denies the religious liberty of the enemies of God." —Gary North
posted by non canadian guy at 3:05 PM on April 13 [10 favorites]
The decision and the individual concurrence are great reads.
They certainly are. Here is link to them from the article rubatan linked upthread. The concurrence is in the last three pages.
From Bailey's concurrence:
Legislators, an overwhelming majority of whom have not experienced childbirth, nevertheless dictate that virtually all pregnancies in this State must proceed to birth notwithstanding the onerous burden upon women and girls. They have done so not based upon science or viability but upon a blanket assertion that they are the protectors of “life” from the moment of conception. In my view, this is an adoption of a religious viewpoint held by some, but certainly not all, Hoosiers. The least that can be expected is that the remaining Hoosiers of child bearing ability will be given the opportunity to act in accordance with their own consciences and religious creeds.
posted by Avelwood at 3:08 PM on April 13 [5 favorites]
They certainly are. Here is link to them from the article rubatan linked upthread. The concurrence is in the last three pages.
From Bailey's concurrence:
Legislators, an overwhelming majority of whom have not experienced childbirth, nevertheless dictate that virtually all pregnancies in this State must proceed to birth notwithstanding the onerous burden upon women and girls. They have done so not based upon science or viability but upon a blanket assertion that they are the protectors of “life” from the moment of conception. In my view, this is an adoption of a religious viewpoint held by some, but certainly not all, Hoosiers. The least that can be expected is that the remaining Hoosiers of child bearing ability will be given the opportunity to act in accordance with their own consciences and religious creeds.
posted by Avelwood at 3:08 PM on April 13 [5 favorites]
We make fun of sovereign citizens for playing Calvinball with the interpretation of laws, rules, and words, but what they do is no different than what legislators and judges do.
The difference is that they don't have power. It's the same difference between what gets called a religion and what gets called a cult. If you disagree (and think this religious right to abortion argument has any chance of prevailing) then you need to be told how the world works.
posted by AlSweigart at 3:36 PM on April 13 [1 favorite]
The difference is that they don't have power. It's the same difference between what gets called a religion and what gets called a cult. If you disagree (and think this religious right to abortion argument has any chance of prevailing) then you need to be told how the world works.
posted by AlSweigart at 3:36 PM on April 13 [1 favorite]
And just like countless times before, religious conservatives will claim this isn't covered, for reasons that will ignore any reasonable attempt at functioning logic.
Well they won't really be able to admit to the real reason they don't care, bigotry. I've always believed in exactly this. All "pro-life" legislation is anti-Semitic because some Jews believe that until ensoulment occurs, there's no moral issue with abortion.
However, I've been thinking that since G-d is omniscient, G-d knows which babies aren't going to go full-term and wouldn't waste time/energy/souls installing souls into those babies.
Therefore not a single miscarried or aborted baby ever had a soul and every "pro-lifer" objection offered is unfounded. Of course, I started this by identifying their true motive, bigotry. (misogyny, all the bad things ending in -y)
posted by mikelieman at 4:38 PM on April 13 [8 favorites]
Well they won't really be able to admit to the real reason they don't care, bigotry. I've always believed in exactly this. All "pro-life" legislation is anti-Semitic because some Jews believe that until ensoulment occurs, there's no moral issue with abortion.
However, I've been thinking that since G-d is omniscient, G-d knows which babies aren't going to go full-term and wouldn't waste time/energy/souls installing souls into those babies.
Therefore not a single miscarried or aborted baby ever had a soul and every "pro-lifer" objection offered is unfounded. Of course, I started this by identifying their true motive, bigotry. (misogyny, all the bad things ending in -y)
posted by mikelieman at 4:38 PM on April 13 [8 favorites]
If successful I wonder if the equivalent of the Universal Life church, or even a part of it, will spring up to serve this need.
all of the priests I had been following have been excommunicated for preaching that women should be able to be priests. oh well. What religion am I now?
Go with Catholic, they're the ones who suck, why should you change.
posted by Mitheral at 4:49 PM on April 13 [1 favorite]
all of the priests I had been following have been excommunicated for preaching that women should be able to be priests. oh well. What religion am I now?
Go with Catholic, they're the ones who suck, why should you change.
posted by Mitheral at 4:49 PM on April 13 [1 favorite]
it's not just some Church of Satan offshoot trolling people
Do you think the Satanic Temple challenges to Christian dominance of the public square do harm?
I don't. I think they do good.
posted by gurple at 10:42 AM on April 14 [4 favorites]
Do you think the Satanic Temple challenges to Christian dominance of the public square do harm?
I don't. I think they do good.
posted by gurple at 10:42 AM on April 14 [4 favorites]
No I do not think that. Please do not put words in my mouth.
posted by Nelson at 12:11 PM on April 14 [2 favorites]
posted by Nelson at 12:11 PM on April 14 [2 favorites]
We already know how this will turn out at the Supreme Court because the Supreme Court already ruled on something even less dear to its heart than abortion and ordered non-Christians to STFU and accept that their filthy religions didn't count.
In Oregon v Smith the Supreme Court ruled that free exercise of religion did NOT include native Americans smoking peyote and Scalia quoted the earlier Reynolds decision that said:
Religious freedom applies to mainstream conservative Christians, not anyone else.
posted by sotonohito at 12:40 PM on April 14 [11 favorites]
In Oregon v Smith the Supreme Court ruled that free exercise of religion did NOT include native Americans smoking peyote and Scalia quoted the earlier Reynolds decision that said:
Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.This would be the same Scalia who later ruled that OF COURSE religious freedom meant employers could prohibit employees from getting contraception.
Religious freedom applies to mainstream conservative Christians, not anyone else.
posted by sotonohito at 12:40 PM on April 14 [11 favorites]
…Church of Satan offshootI don't want to appear to be dogpiling, but The Satanic Temple is critically NOT an offshoot of Church of Satan.
posted by WaylandSmith at 8:10 PM on April 14 [8 favorites]
This seems like a fairly weak argument? 'Our religion allows us to do this' doesn't move the needle for me. If it required it, maybe? But otherwise you're on a bit of a slippery slope to 'well the Bible doesn't say I can't have a machine gun' for justifying things? 'We all agree that our religion doesn't forbid this thing' doesn't seem like a strong argument that your religious freedoms are being violated if you can't do the thing, compared to things that are required religious practice (like, e.g. observing religious holidays, or engaging in prayer, or whatever).
But obvs IANAL.
posted by Dysk at 8:19 PM on April 14
But obvs IANAL.
posted by Dysk at 8:19 PM on April 14
I think the point is that it is obligatory according to their beliefs. If you have a health need, and a treatment for that health need exists, there is a school of thought, which the plaintiffs appear to be invoking, that it is a moral obligation to get treatment. Abortion is healthcare, ergo, for cases when abortion is called for as proper healthcare, it is obligatory under their credo, and the state preventing them from obtaining one is an infringement of the individuals' free exercise of their religious practices. Perhaps I am not correct as to their beliefs, as I don't share the plaintiffs' religious views, but that is my understanding of the argument at least. And an important principle, of course, is that the secular government should not be in the business of adjudicating individuals' sincere religious beliefs, so whether this argument is orthodox within any specific belief system is immaterial to the law. Or at least it's supposed to be.
posted by biogeo at 8:45 PM on April 14 [4 favorites]
posted by biogeo at 8:45 PM on April 14 [4 favorites]
so whether this argument is orthodox within any specific belief system is immaterial to the law. Or at least it's supposed to be.
That sounds like an opening for just saying that 'well MY personal sincere religious conviction is...' about well, anything at all? (This is why I don't like religious exemptions as a concept, but then I don't live in the USA.)
IANAL, and you may be right, but all the language I saw in the article was about allowing for ("can"), not about requiring ("must"). Maybe I should go have a more thorough read.
posted by Dysk at 8:49 PM on April 14
That sounds like an opening for just saying that 'well MY personal sincere religious conviction is...' about well, anything at all? (This is why I don't like religious exemptions as a concept, but then I don't live in the USA.)
IANAL, and you may be right, but all the language I saw in the article was about allowing for ("can"), not about requiring ("must"). Maybe I should go have a more thorough read.
posted by Dysk at 8:49 PM on April 14
(Not to abuse the edit window, I see the word 'must' does come up with reference to the Jewish plaintiff, but the language is a little ambiguous - "must have access to" doesn't necessarily read as "is obligated to have" to me, but that may be a personal quirk.)
posted by Dysk at 8:53 PM on April 14
posted by Dysk at 8:53 PM on April 14
Must have access to (be allowed to access abortion)
Is obligated to have (of course not? That would mean if you have access you MUST get an abortion)
posted by tiny frying pan at 5:45 AM on April 15
Is obligated to have (of course not? That would mean if you have access you MUST get an abortion)
posted by tiny frying pan at 5:45 AM on April 15
The obligation is to save the life of a pregnant person. Judaism doesn’t consider an embryo or fetus a person. Preserving life is paramount and by life they mean the person who is actually alive.
posted by hydropsyche at 10:38 AM on April 15 [10 favorites]
posted by hydropsyche at 10:38 AM on April 15 [10 favorites]
Yes, I understand that. Sorry my phrasing said otherwise.
posted by tiny frying pan at 7:38 AM on April 16
posted by tiny frying pan at 7:38 AM on April 16
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