After the U.S. Supreme Court struck down Roe v. Wade this summer, “trigger laws” took effect in some states. These laws were designed to severely restrict abortion in the event that Roe was overturned. One state with a trigger law is Kentucky, which now generally bans abortion unless the health of the pregnant woman is at risk.
Recently, three women brought a lawsuit in a Kentucky state court against the abortion ban. Although many such lawsuits have been filed against abortion bans nationwide, this case takes a distinctive approach. The plaintiffs, who are Jewish, argue that the abortion ban conflicts with religious freedom under the Kentucky Constitution. According to the lawsuit, Judaism does not define life as beginning at conception and does not consider a fetus a human being until they are born. Thus, the interests of the pregnant woman greatly exceed the interests of the fetus.
In addition to their state constitutional claim, the plaintiffs argue that the abortion ban violates the Religious Freedom Restoration Act. The federal government and many states, such as Kentucky, have enacted various versions of this law. It provides that the government cannot substantially burden freedom of religion unless it has a compelling interest and uses the least restrictive means to further that interest. (In legal terms, the statute requires “strict scrutiny” for religious freedom cases.)
Lawsuits in Florida and Indiana have used similar strategies to challenge abortion laws. A synagogue brought a lawsuit against the Florida law, arguing that it violates the privacy rights and religious freedom of Jewish women. The ACLU has brought a lawsuit against the Indiana abortion ban, pointing out that the religious freedom law in the state should protect people of all faiths, rather than just Christians. If these lawsuits gain traction, pro-choice advocates in other states could follow their lead.
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