The sleeper legal strategy that could topple abortion bans

WEBSTER GROVES, Mo. — Revs. Jan Barnes and Krista Taves have logged hundreds of hours standing outside abortion clinics across Missouri and Illinois, going back to the mid-1980s. But unlike other clergy members around the country, they never pleaded with patients to turn back.

The sight of the two women in clerical collars holding up messages of love and support for people terminating a pregnancy “so infuriated the anti-abortion protesters that they would heap abuse on us and it drew the abuse away from the women,” recalled Taves, a minister at Eliot Unitarian Chapel in Kirkwood, Missouri, as she sat on a couch at Barnes’ stately church in this quiet suburb of St. Louis.

“I thought: ‘Whoa, these people really are not messing around.’ But then I thought, ‘Well, I'm not messing around either.’”

So when Missouri’s abortion ban took effect after the Supreme Court overturned Roe v. Wade last year, Barnes and Taves decided to fight back. Along with rabbis and ministers across several denominations, they joined a first-of-its-kind lawsuit arguing Missouri blurred the line between church and state, imposed a particular Christian idea of when life begins over the beliefs of other denominations, and threatened their ability to practice their religions.

As the nation nears the one year anniversary of the fall of Roe, the Missouri case is one of nearly a dozen challenges to abortion restrictions filed by clergy members and practitioners of everything from Judaism to Satanism that are now making their way through state and federal courts — a strategy that aims to restore access to the procedure and chip away at the assumption that all religious people oppose abortion.

In fact, many of the lawsuits are wielding religious protection laws enacted by anti-abortion state officials to target those officials’ own restrictions on the procedure.

In Indiana, a group of Jewish, Muslim and other religious plaintiffs sued over the state's near-total abortion ban. Their argument: that it violates the Religious Freedom Restoration Act signed into law in 2015 by then-Gov. Mike Pence. A lower court judge sided with them in December and blocked the state’s ban from taking effect — the most significant win the religious challengers have notched so far.

Then, earlier this month, the Indiana judge granted the challengers class action status, meaning a win for them could apply to anyone in the state whose religion supports abortion access in cases prohibited by state law.

Even if the Religious Freedom law was intended by Mike Pence to discriminate against people, we thought: ‘Let’s use this for good instead,’” said Amalia Shifriss, a leader of Hoosier Jews for Choice, one of the Indiana plaintiffs. “It brings me joy to think how much this must upset him.”

A Pence spokesperson characterized the lawsuit as a “pursuit to legalize abortion up to and even after birth. They added: “It will probably strike Americans as pretty tasteless to call the latest iteration of their abortion crusade as a cause 'for good' and a source of 'joy.'"

Conservatives with a history of mounting their own religious challenges to state laws dismiss the effort as doomed to fail, arguing that even if people can prove the abortion bans violate their beliefs, it won’t be enough to halt enforcement.

“As Justice Ruth Bader Ginsburg explained in one Free Exercise case, the right to swing your arm ends just where the other man's nose begins,” said Denise Harle, senior counsel with Alliance Defending Freedom, a conservative legal group that has filed briefs defending state abortion restrictions, including from faith-based challenges in Wyoming and Florida. “Even if you have religious freedom, there is a line at which you are doing actual deadly harm and destroying human life, so it’s appropriate to limit what can be done in the name of religion.”

But with oral arguments and rulings in several of the cases expected this summer and fall, other legal experts say there’s a solid chance the challengers can persuade courts to grant religious exemptions to abortion bans if not strike them down altogether.

Shlomo C. Pill, a lecturer at the Emory University School of Law who specializes in religious rights, said the lawsuits have “a strong basis and should be successful,” particularly after a series of Covid-19-related cases paved the way for more religious exemptions. Pill pointed to multiple Supreme Court decisions during the pandemic that said whenever states create secular exemptions to laws — like indoor gathering restrictions or vaccine mandates — they have to justify not offering religious exemptions as well.

“So the fact that secularly-motivated exemptions to abortion bans exist — such as for rape and incest — means the legislature could also have to offer similar exemptions for people with religious objections,” he said.

'Real chutzpa'

Most of the cases, including those in Indiana, Kentucky, and Texas, are demanding exemptions from the bans for people whose religions support abortion rights. But a few, including the lawsuits in Florida, Missouri and Wyoming, are attempting to have the bans struck down entirely.

In Missouri, the plaintiffs argue that because lawmakers put religious language in the text of the abortion ban itself and made explicit religious appeals when voting on it, they violated the Establishment Clause.

“It took real chutzpah for the legislators to voice their own religious motivations, to wantonly and shamelessly purport to know what God wants or doesn’t want and to enshrine that into law,” said Rabbi James Bennett of Congregation Shaare Emeth in St. Louis, another plaintiff in the Missouri lawsuit. “They’re entitled to their interpretation of when life begins, but they're not entitled to have the exclusive one.”

Last week, the group faced off in a St. Louis courtroom with state officials who are pushing to have the case thrown out. A ruling could come as soon as this summer.

In Florida, clergy representing Reform Judaism, Buddhism, the Episcopal Church, the United Church of Christ and the Unitarian Universalist Church sued in state court both to overturn the state’s 15-week abortion ban, and — if that fails — to secure religious exemptions. Their case makes free speech arguments as well — claiming that state bans on “aiding and abetting” abortions are muzzling clergy members who want to offer counseling to parishioners grappling with whether to terminate a pregnancy.

In Kentucky, three Jewish women are arguing that the state’s near-total abortion ban violates their belief that life only begins when a baby takes its first breath, saying it’s preventing them from pursuing pregnancy through in-vitro fertilization.

“To have someone else’s religious belief that an embryo is a human being imposed on me in a way that’s so personal, that prevents me from growing my family, is just rude and un-American,” Lisa Berlow, the lead plaintiff in that case, said in an interview. Berlow had one child through IVF and was planning to have another before Dobbs made her and her fellow plaintiffs fear prosecution. “Discarding non-viable embryos could now be criminalized, or I could miscarry and not know what type of medical care I would get or whether I would be investigated for causing the miscarriage,” she said.

The Satanic Temple is in federal court challenging abortion bans in Texas, Idaho and Indiana, arguing that the laws infringe upon their congregants’ belief in bodily autonomy and right to practice abortion as a religious ritual. A Texas District Court ruled against the Satanists last fall, saying they didn’t prove the need for a temporary restraining order blocking enforcement of the ban against its members. The 5th U.S. Circuit Court of Appeals is poised to rule on the challenge in the coming weeks.

These cases are unlikely to restore abortion rights at the federal level given the weaker religious rights protections in the U.S. Constitution compared to many state constitutions as well as the federal judiciary’s rightward tilt.

Elizabeth Reiner Platt, director of the Law, Rights, and Religion Project at Columbia Law School, stressed that the Supreme Court has a record of protecting the religious rights of some groups and not others, pointing to its back-to-back decisions in 2017 upholding the right of a Christian baker to refuse to bake a cake for a same-sex wedding and allowing the right of the Trump administration to deny entry to travelers from majority-Muslim countries.

“While I don't like to read the tea leaves, I don’t have any hope that the current Supreme Court would, after ruling that there was no due process right or privacy right to abortion, would find a right under the Free Exercise Clause or the Establishment Clause,” Platt said.

Still, she and other legal experts see the state-level religious challenges as one of the best chances abortion-rights advocates have to chip away at bans on the procedure.

“The arguments are quite powerful for creating religious exemptions in the reproductive context under First Amendment doctrine and under state laws for Free Exercise,” said Micah Schwartzman, director of the Karsh Center for Law and Democracy at the University of Virginia Law School. “What judges do with them is another story.”

In order to succeed, these lawsuits must prove: that the right to an abortion is central to the religious practices of the people suing; that they are sincere in their beliefs and have a track record of observing them; and that state abortion bans make it impossible for them to live according to their faith.

The cases challenging abortion restrictions in their entirety face an additional hurdle: proving that state officials stepped over the line separating church and state in crafting the bans.

“We have a really strong Establishment Clause argument because it's clear that these bills were passed for religious reasons,” said Marci Hamilton, a professor of constitutional law at the University of Pennsylvania who is part of the legal team representing clergy in Florida. “The 15-week bill was signed in a church and members of the state legislature repeatedly referred to God when arguing why this had to be done.”

Other experts are skeptical, however, of the strength of these arguments.

“There are a million-and-one other explanations a state could give for their abortion restrictions,” Pill said. “They could argue it’s a matter of secular conscience, for example. And once you have any kind of secular justification, an Establishment Clause argument becomes more difficult.”

For their part, the states defending their abortion laws and the conservative legal groups supporting them have to prove that they have a compelling interest — unrelated to religion — in protecting fetal life, that they’re using the least restrictive means to protect that interest, and that the challengers’ claims are speculative and premature because none of them have actually sought an abortion or been blocked from obtaining one since the laws took effect.

“I think these are much more like political stunts than they are viable court cases,” said Lori Windham, a vice president and senior counsel at the Becket Fund, the legal firm behind the Hobby Lobby case that secured a Supreme Court ruling allowing many employers to opt out of covering certain forms of birth control for their workers due to a religious objection. “You can have a sincere political belief or policy preference, and it can be passionate and deeply held, but that doesn't make it a religious practice.”

Citing scripture

Judges have historically avoided questioning the sincerity of someone’s religious beliefs, but Becket and other groups have filed amicus briefs that do so.

To combat these accusations, the challengers point to scripture that lays out a case for abortion rights as well as support from religious leaders for their claims.

The Jewish challengers in Kentucky cite religious texts including the Mishnah that say life begins when a baby takes its first breath, not when it is conceived, and if medical issues arise during pregnancy, the pregnant person’s life “comes before the life of [the child].” They also submitted to the court letters from rabbis arguing that current state exemptions for life-threatening medical emergencies aren’t enough, saying Jewish law permits, and in some cases requires, an abortion when there is “a risk of poverty, abuse, addiction, or mental illness.”

The case challenging Missouri’s ban cites the United Church of Christ’s vote in 1971 to acknowledge the right to abortion and members’ “autonomy to determine what happens to their own bodies,” as well as the Episcopal Church’s “long-standing opposition” to any government attempt to infringe on reproductive choices.

“There's a tendency to see these cases as kind of a clever, legal switcheroo. Like, here's a way to take these laws that are often thought of as very conservative and use them to protect abortion rights,” Platt said. “But the idea of reproductive rights as a religious liberty issue is absolutely not something that came from lawyers. It's how faith communities themselves have been talking about their approach to reproductive rights for literally decades.”