50 years after Roe v. Wade, fight for choice turns into battle for religious freedom

NEW YORK — When Elly got pregnant with her second child, her husband Arkady painted a series of seeds and fruits to show the growth of the fetus — a poppy seed, a blueberry, an artichoke. Then at 17 weeks, the couple found out the fetus had trisomy-18, a chromosomal abnormality that is usually fatal. They decided to end the pregnancy.

“What made us comfortable with terminating the pregnancy is that I was raised to believe that life doesn’t begin until a fetus is born. And that is very much rooted in my Jewish identity and Jewish law,” Elly, whose last name is withheld, says in the opening scenes of Paula Eiselt’s new documentary, “Under G-d.”

January 22 marks what would have been the 50th anniversary of the landmark US Supreme Court ruling in the Roe v. Wade case that legalized a woman’s right to abortion. In the wake of the recent June 24, 2022, Dobbs decision, which overturned Roe v. Wade, Americans of all faiths are again fighting for reproductive rights and increasingly turning to freedom of religion as their basis.

“Under G-d,” which recently screened at the Sundance Film Festival, explores how many people of faith don’t conceive of abortion under the same rubric as do their Christian neighbors. It also channels these religious minorities’ feelings of powerlessness in expressing their convictions against the Christian political majority into a work of activism.

“Like everyone else, I was grieving when the Dobbs decision came, but as an artist I had to put my feelings into action,” Eiselt said. “I wanted to show there was something we can do to fight back. The film shows how we can flip the script on religious freedom, which has so far been used by the courts to protect fundamentalist Christianity.”

“As Jews, we know what happens when there is no line between church and state. So we are leading the fight against this and our interfaith brothers and sisters are joining us,” Eiselt said.

FILE – A small group, including Stephanie Batchelor, left, sits on the steps of the Georgia state Capitol protesting the overturning of Roe v. Wade on June 26, 2022. (AP Photo/Ben Gray, File)

Jewish and Muslim teachings on when life begins

For decades, Roman Catholic and Evangelical Christian interpretations of when life begins have dominated the discourse about abortion rights and reproductive freedom, said Daphne Lazar Price, executive director of the Jewish Orthodox Feminist Alliance (JOFA). Those interpretations have become law, threatening the free exercise of religious beliefs.

“I think there is a message that other religions don’t count,” Price said.

“As a matter of principle, JOFA supports every woman’s legal right to make decisions about, and have control over, her own body, without the involvement of the government or any other entity. Every woman should have the right to make her own decisions about religious and medical matters, including abortion, free from stigma and while retaining human dignity,” she added.

Elly spoke about her decision to have an abortion in Paula Eiselt’s documentary ‘Under G-d.’ (Paula Eiselt)

According to most interpretations of Jewish law, life begins at birth — before that, the mother’s physical and emotional well-being takes priority. Thus, if and when a mother’s life is at stake, abortion is not only allowed but required. According to Muslim teachings, a fetus doesn’t receive a soul until 120 days after birth.

“The Quran is actually quite liberal when it comes to abortion. A woman can end her pregnancy for health reasons or for economic reasons,” said Ani Zonneveld, president and founder of the Los Angeles-based Muslims for Progressive Values (MPV).

It’s equivalent to other religious extremists like the Taliban

As Zonneveld sees it, the Dobbs decision shows there is no true freedom of religion in the United States when it comes to protecting reproductive health.

“It’s a particular kind of Christianity. I’ve been saying this for years — it’s equivalent to other religious extremists like the Taliban. There is no difference. We are now a theocracy,” she said.

Abortion rights protesters attend a rally outside the state Capitol in Lansing, Michigan, on June 24, 2022, following the United States Supreme Court’s decision to overturn Roe v. Wade. (AP Photo/Paul Sancya, File)

Pushing back against these restrictions requires grassroots efforts, Zonneveld said. To that end, MPV engages in educational outreach. It has also worked with Muslim and non-Muslim physicians who are trying to fight back against abortion restrictions in Ohio.

In the courts we trust

According to a March 2022 Institute for Social Policy and Understanding survey, 56 percent of Muslim Americans believe abortion should be legal in all or most instances. At least 80% of Jews support abortion in most cases, said Michal Raucher, professor of Jewish studies at Rutgers University, in the documentary “Under G-d.”

After the Dobbs decision a slew of lawsuits were filed, each one arguing that Roe’s repeal is an assault on religious freedom.

On January 19, clergy from six faith traditions filed a lawsuit challenging Missouri’s abortion bans as unconstitutionally imposing one narrow religious doctrine on all Missouri residents.

From left to right: Rev. Traci Blackmon, Maharat Rori Picker Neiss and Americans United for Separation of Church & State CEO Rachel Laser march to the Civil Courts building in St. Louis. (Courtesy of Americans United for Separation of Church & State via JTA)

Put another way, “it’s religion protecting itself from government intervention,” said Rachel Laser, president and CEO at Americans United for Separation of Church and State.

“That these clergy came together to advocate for freedom of religion — that’s America, that’s Missouri at her best. Reproductive freedom is religious freedom,” Laser, who is Jewish, added.

Reproductive freedom is religious freedom

The suit argues that Gov. Michael Parson and the Missouri legislature violated the state constitution by enshrining their personal religious beliefs about abortion into law. According to the lawsuit, legislators openly and repeatedly emphasize they were writing their religious beliefs into the bans, even declaring in the bill itself that “Almighty God is the author of life.”

In Kentucky, the lawsuit Daniel Cameron v. EMW Women’s Surgical Center, P.S.C. et al., contends that the state’s definition of when life begins doesn’t square with Jewish law.

Sheila Katz, CEO of the National Council of Jewish Women. (Courtesy NCJW)

The National Council of Jewish Women (NCJW) coordinated and submitted an amicus brief in that case. Two Muslim organizations — MPV and Muslim Women Lawyers for Human Rights — also signed onto the brief.

The brief argues that religious traditions don’t share the same view of when life begins; that religious traditions affirm moral rights to decide whether and when to end a pregnancy; and lastly, that religious traditions affirm the importance of reproductive choice for pregnant people in marginalized communities.

“As important as the lawsuits and briefs are, they are also Band-Aids,” said NCJW CEO Sheila Katz.

To that end, NCJW rallied with a half dozen interfaith clergy on January 18 in front of the Supreme Court.

“We need a long-term solution that involves rebuilding a fair judiciary. We need to organize and mobilize — Jews, Muslims, Hindus and Sikhs,” Katz said.

Building grassroots, one case at a time

In Indiana, a group of Jewish, Muslim, and non-Christian women sued, saying the state’s law infringes on religious freedom. Marion County Superior Court Judge Heather Welch issued a primary injunction against the ban, saying the law “substantially burdens the religious exercise of the Plaintiffs.”

Although MPV didn’t sign onto the recent amicus briefs, it has done so in the past. It was part of a coalition of left-of-center religious groups that filed an amicus brief in the Fifth Circuit Court of Appeals relating to the Whole Women’s Health v. Hellerstedt case, which concerned the disposal of fetal tissue after an abortion or loss of a pregnancy.

Michael A. Helfand, Brenden Mann Foundation Chair in Law and Religion at Pepperdine University’s Caruso School of Law. (Courtesy)

“These sorts of lawsuits are not long shots,” said Michael Helfand, professor at Pepperdine University’s Caruso School of law.

He explained that if under the Fourteenth Amendment, the Supreme Court ruled it’s unconstitutional for abortion restrictions not to include a medical exception, then it would also have to rule it’s unconstitutional not to include a religious exception.

As these cases wind their way through court, groups such as NCJW and MPV and individuals like Eiselt plan to keep writing opinion pieces, putting out films, and holding interfaith press conferences.

“It is always a positive sign to me when Jewish and Muslim women find common ground. So it’s nice to participate in something that can protect our own lives. Commonality and proximity is what builds relationships and community,” Price said.