Opinion Interview with Dahlia Lithwick | Do You Really Want That Abortion?

Deep-red Indiana isn’t a state you’d ordinarily look to as the leading edge of post-Roe v. Wade abortion politics. Now, though, a case in the Indiana state courts could have consequences not just for abortion rights but for religious liberty. A group called Hoosier Jews for Choice and several women, including three Jews and one Muslim, sued to block the state’s near-total abortion ban on the basis that it infringed on their religious liberty. A judge allowed the suit to go forward under the state’s robust Religious Freedom Restoration Act, or RFRA (signed in 2015 by then-governor Mike Pence). Having progressed furthest of the multiple religious-freedom challenges to abortion bans being brought by Jews and others around the country, the Indiana case has provoked the sharpest backlash. The Becket Fund for Religious Liberty, a law firm that has represented many religious conservatives, filed a brief asserting in so many words that the Jewish plaintiffs were insincere in their religious convictions. Dahlia Lithwick, Slate’s legal affairs correspondent and a court watcher, calls the Becket brief’s argument “astonishing in its frank and candid willingness to impugn the religious beliefs of Jews and other religious minorities.” Is this the shape that future church-state disputes could take once liberals, not just conservatives, assert that their religious convictions are entitled to deference? Lithwick spoke with Moment Opinion Editor Amy E. Schwartz.

Was this how you anticipated the post-Roe landscape would look?

No! To have the Becket Fund call into question the religious sincerity of Jewish and Muslim plaintiffs was shocking. It crosses so many lines on how we treat other faiths. There were many ways to oppose the plaintiffs’ case without inviting courts to engage in this really diabolical project of deciding who’s faking their religion and who isn’t. They could have stopped at the argument that the state has a compelling interest in fetal life. I’m not suggesting courts never have to weigh issues of religious sincerity. Under RFRA they often must determine whether something is a real religious objection. But not like this. After another recent case, Becket issued a celebratory press release saying the result showed that “Courts can’t decide what it means to be Catholic—only the Church can do that.” But in this case they’re essentially saying, “We invite the courts to say what Judaism is and is not.”

Last summer, South Texas College of Law professor Josh Blackman wrote a piece with some “tentative thoughts” questioning the religious sincerity of non-Orthodox Jews generally. He argued that unless you follow all of halacha, you’re picking and choosing, and therefore you have no meaningful religious obligations. In other words, Reform and Conservative Jews don’t need to be taken seriously as religious objectors. University of Virginia Law Professor Micah Schwartzman and I responded at the time, writing how dangerous and deeply disturbing that argument was and how it was anathema to First Amendment religious provisions. Blackman’s not even describing the law correctly; under RFRA, you don’t have to break an affirmative religious command to have your religious exercise burdened; it’s enough to say, “This is my religious conviction.” And it’s really important to head off at the pass this notion that Reform and Conservative Jews just make it up as they go along.

There’s a very good brief in the Indiana case recounting the history of everything the Indiana Jewish community was doing pre-Roe, and also afterwards, to support women who needed abortion care. Nobody could suggest this is anything but long-standing Jewish conduct. There was an abortion underground, there was organizing, there were sermons explicitly supporting abortion and birth control, rabbis taking the position that children need to be wanted.

How will these claims of insincerity play at the Supreme Court?

It’s possible that Becket miscalculated: The court is probably reluctant to take a case that’s cast as “the Jews and the Muslims are lying liars.” The court wants to hold itself out as being open to all comers religiously. Still, in the Roberts court, some religions seem to win more. Whether it’s Hobby Lobby, where religious employers get an exemption from the contraception mandate, or the COVID cases, where the court overruled public health regulations that capped the size of religious gatherings, it’s been “Yes, yes, yes.” People who seek religious exemptions from providing abortions prevail far more frequently than people saying, “My religion prohibits me from waiting to help until someone is bleeding out on the table.”

Does this case uniquely impact Jews?

Not at all. One plaintiff is Muslim. A lot of faiths require that the fetus not be privileged over the life of the mother. It’s really sad that we’re learning this only in the wake of Dobbs. Faith communities were absolutely central to liberalizing abortion laws in the 1960s and 1970s, but after Roe, they fell silent. And then the Moral Majority came in and claimed that only one side, the evangelical and Catholic groups, had skin in the game. The groups that had worked so tirelessly for decades stopped paying attention, and they stopped grounding their support for abortion rights in morality and faith.

What other cases should people be watching closely?

There are abortion-and-religious-liberty cases filed in Florida, Idaho, Indiana, Kentucky and Texas, among others. Each one is a harbinger of where religious liberty is going.