Abortion ban challengers argue such restrictions violate their religious freedom

Since the U.S. Supreme Court overturned Roe v. Wade in June 2022, lawyers representing groups of people of various religious backgrounds have started using the evangelical Christian’s argument that their religious convictions inform their views to challenge abortion bans.

From Florida to Kentucky, Indiana, Texas, Florida, and Idaho, attorneys are using successful past religious liberty cases to challenge the bans. Aaron Kemper of Kentucky is one of them.

“What we are trying to ask is, does religious freedom just apply to a narrow group of Christians, or do we all have religious freedom?” Kemper tells the American Independent Foundation.

Kemper is representing three Jewish women who are suing to overturn Kentucky’s abortion law, which bans the procedure except in cases where the pregnant person’s life is in danger and does not offer exemptions for rape or incest. He said:

So when we drafted our complaint for the Religious Freedom Act, and we filed for summary judgment, we had gone straight to cases that were recently ruled on in Kentucky, where churches said during COVID that they should reopen. … One of the lawsuits that they won, the current attorney general [Republican Daniel Cameron], who was the defendant in our lawsuit, joined their action for the church against the governor [Democratic Gov. Andy Beshear], saying let these churches reopen under religious freedom. And so we have taken their arguments verbatim.

Religious legal arguments have been used for decades in the U.S. to battle against the right to abortion, from the Rev. Jerry Falwell and his sermons in the 1970s, referring to abortion as murder, to right-wing political organizations such as the Alliance Defending Freedom and the Federalist Society working to reorganize the courts with conservative judicial appointments — all of which was aimed at the movement’s ultimate goal: overturning Roe.

“I’m not religious at all, and none of my family is, and yet now, we’re all expected to abide by laws that are based on religious views that we don’t agree with or don’t live. And so it obviously is a problem, and the bigger issue is that this is a long-term attack on separation of church and state,” Michelle “Shelly” Henry, an attorney and the vice chair of Americans United for Separation of Church and State, tells the American Independent Foundation.

Americans United and the National Women’s Law Center are currently challenging Missouri’s abortion ban on behalf of 14 clergy from seven different denominations. Plaintiffs include an Episcopal bishop, a United Methodist pastor, and Reform Jewish rabbis.

The Missouri lawsuit charges that the abortion ban uses overtly religious language and shows a preference for one religion.

“We’re saying that the ban would be null and void as to everyone because it violates the state’s commitment to not favor one set of religious beliefs over others or religion over nonreligion,” Rachel Laser, president and CEO of Americans United for Separation of Church and State tells the American Independent Foundation.

“The law has religious language embedded right in it. They wrote into the bill itself that, quote, ‘Almighty God is the author of life.’ And that ‘it is the intention of the General Assembly to defend the right to life of all humans, born and unborn.’”

The case is currently in the discovery phase.

Last year, the American Civil Liberties Union of Indiana filed a lawsuit on behalf of five anonymous plaintiffs and a group called Hoosier Jews for Choice in Marion County, Indiana. Lawyers based their arguments on a law that former Gov. Mike Pence had signed in 2015.

The suit was granted class-action status by a superior court judge on the grounds that Indiana’s current abortion law stands in direct violation of the state’s Religious Freedom Restoration Act.

“Although some religions, and adherents of those religions, believe that human life begins at conception (however defined), this is not a theological opinion shared by all religions or all religious persons,” the complaint reads.

Kemper explains that the concept of fetal personhood, as defined by the state of Kentucky as beginning at conception, is in conflict with the religious beliefs of his clients.

“Our clients believe, and I think there is a majority belief in Judaism, that life begins at birth. That’s when you get a soul, you know, that’s the moment when you take the first breath. Before the first breath, you’re just not considered a person legally,” Kemper says.

Lisa Sobel is a plaintiff in the Kentucky case challenging the abortion ban. She tells the American Independent Foundation that she became involved in the case after realizing that the method she would need to use to become pregnant, in vitro fertilization, would be impacted by the state’s abortion ban.

When a person uses IVF, a fertility doctor extracts dozens of their eggs in order to produce dozens of fertilized embryos. Of those dozens, one or two embryos are then implanted in the uterus, and the rest are either frozen, discarded, or donated to use for research. The ban could criminalize someone for discarding unused embryos.

“I felt very strongly that, as somebody who is very strong in their Jewish identity and Jewish faith, and somebody who most definitely needs IVF and fertility services, that I needed to stand up and say, Hey, these laws affect me in ways that you did not intend, I hope,” Sobel says. “And you’re preventing those of us who want to have children but need help doing that from being able to do that.”

Although using IVF is not against the law, Kemper says, and Kentucky Attorney General Cameron has indicated that he will not prosecute those using IVF. However, Cameron, who is currently running for governor, will no longer be attorney general in 2025. Kentucky has given an embryo personhood rights under the law.

“So if you’re going to define that as a person, it doesn’t take a big leap to prosecute for discarding that embryo,” Kemper says.

In July 2022, three Jewish rabbis filed a lawsuit in Florida challenging the state’s 15-week abortion ban on the grounds that it “violates the liberty of speech and free exercise and enjoyment of religion” under the Florida Constitution.

In April, Republican Gov. Ron DeSantis signed a six-week abortion ban, but the law is currently on hold until the Florida Supreme Court rules in the suit.

“We’re living in an age of emboldened Christian nationalism where politicians and policymakers are running on stoking the Christian nationalist base in this country,” Laser says:

And even though white Christians are dramatically reduced in terms of their percentage of the population today as compared to 30 years ago —they’re down to 42% of Americans, and white evangelical Christians are down to 14% of Americans — white evangelical Christians still form about a quarter of the voting bloc. And so it’s a powerful voting bloc, and it’s been emboldened by Trump’s presidency and the changing demographics in our country. … And that’s why what we sort of try to call out as truth is the white Christian nationalism that is thriving and emboldened today, the belief that America was created for white Christians and that our laws need to codify that privilege before it goes away.

Published with permission of The American Independent Foundation.