Doctors and patients deserve a ‘conscience’ exception to abortion bans

A lawsuit in Florida brought by the Jewish Congregation L’Dor Va-Dor challenges the state’s 15-week abortion ban by arguing that it is vague and violates equal protection and due process protections. But it also makes an interesting argument that raises some important legal and moral questions: that the law tramples First Amendment rights and the state constitution’s free-exercise clause. The complaint alleges, “The Act establishes as the law of the State of Florida, a particular religious view about abortion and when life begins, which is contrary to the views of Plaintiff, its members, congregants, and supporters as well as many other Floridians.” The suit explains: The Act reflects the views of Christian nationalists who seek to deny religious freedom to all others, under the arrogant, self-righteous notion that only they are capable of understanding God’s law and judgments and the religious views of all others are false, evil and not entitled to respect or constitutional protections. Proponents of this way of thinking used their political power to enshrine their narrow religious views as the law of the State of Florida, which not only results in irreparable harm to Plaintiff and all others who espouse a different view, including many of their co-religionists, but it also threatens and harms the very framework or our Democracy, and the cherished ideal of the separation of church and state which has been the cornerstone of American democracy since its inception and the reason it has been so successful and the envy of freedom-loving people throughout the world. Laws that ban abortion rest on the belief that “fetal life” is conterminous with “personhood.” The complaint explains why this assumption is so arrogant: “Jewish law does not consider life to begin at conception or at 15 weeks and most Jews such as Plaintiff, its members and congregants do not believe that all the rights of personhood are conferred upon a fetus.” The complaints adds, “In fact, under traditional Jewish law life begins at birth and if a fetus poses a threat to the health or emotional well-being of its mother, at any stage of gestation up until birth, Jewish law requires the mother to abort the pregnancy and protect herself.” Avraham Steinberg, an Israeli physician, explains in a paper for the Journal of Medical Ethics that Jewish medical ethicists prioritize not only human life but also the value of personal autonomy. “Autonomy is not only the privilege of the patient. It is widely agreed that the physician’s autonomy, too, must be respected,” he writes. A doctor’s professional and ethical obligations are generally to prevent risk of harm, favor less risky and invasive procedures over more risky and complicated ones. In a similar vein, medical ethicist Dr. Jay B. Lavine explains, “Everything possible must be done for every patient in terms of preserving life, treating illness, and relieving suffering. All therapeutic decisions must be in the patient’s best interests. The safest, gentlest treatment for a given condition must always be the preferred one.” Lavine adds, “Prevention is the highest form of healing. Drugs and surgery have their place in the holy art of healing, but the need to resort to invasive treatment must also be regarded as a failure in prevention.” Florida’s abortion ban would no doubt prevent the procedure in situations that Jewish ethics would either permit or require it. Whether this is sufficient to prove a violation of federal or state religious-freedom rights is an open question that will be litigated around the country. (Put it down on the list of legal conundrums that doctors and patients must now sift through thanks to the Supreme Court.) In any event, this is an issue the forced-birth crowd should care about. For years, right-wingers have strenuously insisted on religious carve-outs to allow employers to avoid government mandates for contraception coverage or health providers to deny certain services they disagreed with. While the federal ReligiousFreedom Restoration Act mandating conscience clauses was ruled unconstitutional as it applied to the states, 21 states have conscience clause laws in place as a matter of state law. Those just happen to include many of the states that have the most severe abortion bans in place. Failure to respect faith traditions with regard to abortion bans would prove that the right is looking out for Christians — and that it is willing to blithely infringe upon the rights of other religious groups. We will see whether state or federal constitutional claims invoking free-exercise clauses can prevail against state abortion bans. In the meantime, forced-birth advocates should be honest enough to acknowledge that protections for “fetal life” are nothing more than state enactment of a particular religious dogma. Moreover, they should ask themselves: If they value the right to opt out of state laws to protect their religious views, why do they find it acceptable to deny the same protections for those who don’t agree that personhood starts at conception? https://www.washingtonpost.com/opinions/2022/07/24/abortion-bans-need-conscience-exceptions-jewish-religious-freedom/?utm_campaign=wp_follow_jennifer_rubin&utm_medium=email&utm_source=newsletter&wpisrc=nl-jenniferrubin&carta-url=https%3A%2F%2Fs2.washingtonpost.com%2Fcar-ln-tr%2F3776c45%2F62dd52efcfe8a21601033d1e%2F5976f806ade4e26514bcc8c9%2F6%2F16%2F62dd52efcfe8a21601033d1e&wp_cu=798fbc1be6589a3768fb139e53083601%7C654c090c-4cc9-11e0-a478-1231380f446b