Overturning Roe and The Right to Abortion for people of Jewish Faith?
June 25, 2022 1:22 AM   Subscribe

Is it legal for SCOTUS to have overturned Roe when Jewish law requires abortions under certain circumstances?
posted by defmute to Law & Government (11 answers total) 8 users marked this as a favorite
Best answer: The Supreme Court defines what is unconstitutional and constitutional, legal and illegal. It is not possible for their decisions to be illegal.

Further, the Supreme Court did not ban abortion. They rules there is no Constitutional right to abortion. Multiple states will still have legal abortion.
posted by saeculorum at 1:24 AM on June 25, 2022 [9 favorites]

Also, you've just spotted a court case which could bring this issue back to the Supreme Court in the future.

That's the tricky bit - for an issue to come to the Supreme Court, there has to be a case that works its way through the lower courts first. The lower courts rule on a case, and then there's an appeal to a higher court to rule on the ruling there - and then maybe another higher court still gives its own take - and then it hits the Supreme Court.

And the Court is restricted to making a ruling based on the circumstances of that particular case. Roe v. Wade was technically not about "abortion" in and of itself - the details of the case were about whether a woman's decisions about her own health should be overruled by her state's government. The Supreme Court then ruled that the 14th Amendment guaranteed a degree of protection of privacy - such as, the privacy you'd give to a woman making a medical decision with her doctor. And so, the ruling went on, any state law that interfered with that (to a point) was unConstitutional.

At the time there was a patchwork of different states giving different levels of access to abortion. Roe v. Wade just put some control on that - states could still pass some laws curbing abortion, but were largely stuck to late-term abortions because Roe found that first-trimester stuff was protected by the right to privacy.

And so much of the past 50 years the pro-life activists have been looking for other cases that they could bring before the Supreme Court to chip away at that. Did the Constitution protect this little obscure medical detail? Or that little right? In the 1990s there was a case before the court, Planned Parenthood v. Casey, which altered Roe's ruling - Roe based its ruling on a "trimester" framework, saying that any woman seeking an abortion during the first trimester was constitutionally protected. Planned Parenthood v. Casey largely just ruled that "okay the trimester thing isn't the right way to measure that, we have to go with fetal viability now". In other words - under Roe, if a state made a law that said "you aren't allowed to get an abortion after 20 weeks of pregnancy" the courts would say "that's 1st Trimester, that's unconstitutional". But under Planned Parenthood v. Casey, if a state made that law, the courts would say "well....actually some fetuses are viable after 20 weeks. I guess it's okay."

And that was a crack in the protections. The case that got decided yesterday, Dobbs v. Jackson, was about a Mississippi law banning abortion after 15 weeks. Under Roe that would be unconstitutional - but under Planned Parenthood v. Casey, that was a "well, maybe...." and the Dobbs case was more about "okay, hold up, the Constitution doesn't talk about abortion or privacy at all technically so why is our Mississippi law unconstitutional?" And so what the Supreme Court ruling is about isn't so much "abortion is illegal", it's more like "you're right, there's nothing in the Constitution about privacy specifically affecting abortion on a federal level. This should be something decided by the states." And so now we're back to the patchwork system again, where different states have different laws.

BUT. What that ALSO means is - a Jewish woman living in one of those restrictive states could bring her OWN case to the court, attacking an abortion law on a DIFFERENT front: "I am a Jewish woman living in Louisiana. My religious practice dictates that I needed an abortion because of [circumstance]. But my state's laws prevented me. My First Amendment right to religious freedom was impinged by this law. Therefore - laws against abortion are unconstitutional - based on the FIRST Amendment, though, not the 14th." And THAT is a case that could escalate to the Supreme Court and give them a chance to make a ruling on THAT basis.

It'll take a long time. But - the pro-life team started working to strike down Roe back in 1973, and they just got it. Maybe the time for pro-choice to start working on a counter case is now.
posted by EmpressCallipygos at 5:40 AM on June 25, 2022 [48 favorites]

Coming back in to point out that it looks like that is 100% exactly what is now starting to happen. A synagogue in Florida just challenged a Florida state abortion ban on the grounds of it being an impingement of religious rights and their protections under the First Amendment. So - a few years from now we may be hearing a Supreme Court ruling on Congregation L’Dor Va-Dor V. Florida which ends up reversing the Dobbs v. Jackson ruling from yesterday.
posted by EmpressCallipygos at 7:40 AM on June 25, 2022 [20 favorites]

For Congregation L’Dor Va-Dor V. Florida to result in a ruling that abortion rights are protected on a federal level, it is likely that the composition of SCOTUS would need to be different.
posted by plonkee at 7:49 AM on June 25, 2022 [3 favorites]

It's a dead end. Courts almost never hold that people have the right to do generally prohibited things on the basis of their religion. Catholics can't build schools that violate the fire code and Muslims can't take additional wives, etc.

It's a sharp contrast to other treatments:

Courts regularly hold that faith can excuse non-compliance with mandates (as opposed to prohibitions): saying the Pledge of Allegiance, combat duties for draftees, covering birth control in employee health insurance.

Courts almost uniformly hold that people cannot be singled out to be deprived of general rights on the basis of their faith.

Courts usually hold that faith-related institutions can be granted special privileges (e.g., tax exemption, the right to discriminate on the basis of religion) as long as all faith-related institutions get the privileges (can't exempt a Baptist church from property tax while taxing the Methodist church across the street).
posted by MattD at 7:53 AM on June 25, 2022 [6 favorites]

For Congregation L’Dor Va-Dor V. Florida to result in a ruling that abortion rights are protected on a federal level, it is likely that the composition of SCOTUS would need to be different.

To re-state: such cases take time to work their way to the Supreme Court. And much can happen in that time.

One such thing that will change from this current court's composition - Ketanji Brown Jackson will be joining the court for its next session, replacing Justice Breyer. The Supreme Court is only in session from October through July of each year, so the court we had yesterday will ALREADY be different from the court we have this coming October.

And next year's Court session may not even choose to hear Congregation L'Dor va-Dor yet - it may not have even worked its way up to the point where the Supreme Court could rule on it yet.

And....John Roberts is 67, Sam Alito is 72, and Clarence Thomas is 74 - and Thomas is also facing public pressure due to his wife's alleged involvement with the January 6 insurrection. Roberts, Alito, or Thomas could choose to retire at any point - Thomas may at some future point be quietly encouraged to do so for propriety's sake if his wife gets caught up in the insurrection hearings even further. They could also choose to say "fuck you, I'm staying", of course...but Justices also die before retiring, and would also need to be replaced.

Courts almost never hold that people have the right to do generally prohibited things on the basis of their religion. Catholics can't build schools that violate the fire code and Muslims can't take additional wives, etc.

Ah, but the courts have found that one group's religious outlook setting precedent for those outside the faith wasn't constitutional either. The legal basis of this argument might not be "I get to do generally prohibited things on my religious grounds", the legal basis of this argument might better be "this ruling was guided by principles held by only one religion and thus it is a state enforcement of a specific religion, and therefore it is unconstitutional". So not so much "i'm a Jew and therefore I'm exempt from this law", more like "that law uses Christian principles and so it gives preferential treatment to one religion, and THAT'S why it's unconstitutional, I just happen to be the Jew who's affected this time".
posted by EmpressCallipygos at 8:26 AM on June 25, 2022 [7 favorites]

Female Genital mutilation is religious practice for some. It can and should be held unallowable. In some cases, judges have required lifesaving treatment is violation of religious belief, such as blood transfusion.

And this SCROTUS doesn't particularly GAF about anybody except fundamentalist Christians.
posted by theora55 at 12:22 PM on June 25, 2022

I think we are getting away from the actual question, so I will try very hard to confine my remarks to the question:

Granted, I am a layperson. But to my mind, whether or not such a case coming before the Supreme Court could win depends heavily on the content of the court at that moment - which, as I have argued, could change by the time such a case turns up - and, more importantly, on how the legal challenged is framed.

If it is framed as "I am an individual who objects to this law because of my own religion", it may not pass. That framing doesn't challenge the law's nature itself - it's just saying "I should be exempt because I'm different". And "I should be exempt because I'm different" isn't really about the law, it's about the person.

But if it is framed as "THIS LAW was based on the teachings of one specific religion, which means that it is a legal endorsement of that religion and that ain't good", that's not about the person, that's about the law itself. That's something that the Supreme Court CAN discuss. And even better, then it doesn't even have to be a Jewish person who brings the suit on - it could be a Muslim person, a Buddhist person, an atheist person, or even better, all of the above and more. And best of all - even if the court makeup is much as it is here, it's still going to be PRETTY DAMN HARD for them to find Constitutional support for "The First Amendment works different for Christians".

But again, it depends on the suit itself, how it is framed, and when (and if) it goes before the Supreme Court. It's also entirely possible that such a suit could hit a state's own Supreme Court, and that state's court would say "you know what, you're right" and strike down the law just within that state, and then the case never escalates to the Supreme Court at all.
posted by EmpressCallipygos at 3:17 PM on June 25, 2022 [1 favorite]

It should probably be noted here that religious exemptions to broader laws have historically been limited only to people who are legitimate members of the faith in question. Amish exemptions from Social Security taxes don’t exempt all people from Social Security. American Indian exemptions from drug laws for use of peyote don’t make peyote legal for all Americans. Correspondingly, if the Supreme Court did eventually rule that laws banning abortion require an exemption for Jewish people, it’s likely such an exemption would only apply to Jewish people.
posted by saeculorum at 4:29 PM on June 25, 2022 [1 favorite]

What about people who do not follow a popular recognized faith, or atheists/agnostics? It seems that this court is defining freedom of religion to only apply to the specific sects they approve, and denying rights to any others, which is complete horseshit. (no offense intended to horses)
posted by geezlouise at 11:12 PM on June 26, 2022 [1 favorite]

The Satanic Temple filed a lawsuit in February 2021, arguing that Texas law requiring a sonogram and a 24-hour waiting period violates the religious rights of its members (TST holds bodily autonomy and a belief in science as parts of its central creed). You can read more about the Satanic Temple's lawsuit at their website.
Prior to filing the lawsuit, TST's attorney sent a letter to the Texas Health and Human Services Commission, which demanded an exemption from the abortion restrictions on behalf of Ann Doe. TST's attorney explained:
"The abortion ritual (1) requires an abortion; and (2) affirms her religious subscription to TST's Third and Fifth Tenets. But before Ms. Doe can get her abortion–and therefore participate in the abortion ritual–the government has required that she get a sonogram… [ These ] requirements substantially interfere with Ms. Doe's religious beliefs and practices for two reasons. First, the requirements are a precondition to Ms. Doe's ability to participate in a religious ceremony. It is a substantial interference per se for the state to place a regulatory hurdle–one that costs money–in front of a religious exercise. The state might as well tax and regulate Mass."
posted by kristi at 12:59 PM on June 27, 2022

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