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Religion-based claims are piling up against Florida’s 15-week abortion ban


Religion-based claims are piling up against Florida’s 15-week abortion ban

Aug 09, 2022 | 7:00 am ET
By Michael Moline
Religion-based claims are piling up against Florida’s 15-week abortion ban
Wat Buddharangsi Buddhist Temple of Miami. Credit: Javierfv1212 via Wikimedia Commons

Legal complaints are stacking up against Florida’s 15-week abortion ban, all of them arguing that the law imposes a narrowly sectarian definition of when life begins upon other elements of the faith community that hold markedly different ideas about the matter.

The trend began in early June, when Barry Silver, a South Florida lawyer and former lawmaker turned rabbi, filed a lawsuit in Leon County Circuit Court challenging the abortion law as violating the religious rights of his Congregation L’Dor Va-Dor in Palm Beach County.

“In Jewish law, abortion is required if necessary to protect the health, mental or physical well-being of the woman, or for many other reasons not permitted under the act. As such, the act prohibits Jewish women from practicing their faith free of government intrusion and thus violates their privacy rights and religious freedom,” Silver’s complaint reads.

Then, on Aug. 2, came separate litigation, organized by the Jayam Law group, based in Chicago, raising similar claims in Miami-Dade County Circuit Court on behalf of three rabbis and clergy associated with United Church of Christ, Unitarian Universalist, Episcopal, and Buddhist congregations.

Religion-based claims are piling up against Florida’s 15-week abortion ban
St. John’s Episcopal Church in Tallahassee. Credit: Tim Ross via Wikimedia commons

These claims, like Silver’s, assert violations of freedom of speech and free exercise and enjoyment of religion under Article I Sections 3 and 4 of the Florida Constitution; the Florida Religious Freedom Restoration Act; and freedom of speech and free exercise of religion under the First and Fourteenth Amendments to the United States Constitution.

“Since time immemorial, the questions of when a potential fetus or fetus becomes a life and how to value maternal life during a pregnancy have been answered according to religious beliefs and creeds,” one of these lawsuits, filed on behalf of an Episcopal priest in that faith argues.

“HB 5 codifies one of the possible religious viewpoints on the question, and in its operation imposes severe burdens on other believers including Episcopalians and their clergy like plaintiff.”

Amended complaint

The latest development is Silver’s announcement during a telephone interview that he plans as early as Monday to file an amended complaint adding a Unitarian minister, a Buddhist, an atheist rape survivor who’s undergone two abortions, and the Los Angeles-based Shalom Center.

“In order to support this law, the state has to show that it has some type of compelling governmental interest,” Silver, an active litigator who served in the Florida House between 1996 and 1998, told the Phoenix.

“The only interest that’s being served is the political ambitions of Gov. [Ron] DeSantis. He has to curry favor with his base, which believes that they have the right to inflict their Biblical misimpressions, misunderstandings, on everyone else,” he continued.

“They certainly don’t have the right to inflict them on Jewish people — we wrote the Bible,” he said. “And, unlike DeSantis and these fundamentalists and Catholics, we actually can read it in the original. We know what it says.”

The law in question, HB 5, bans abortions after 15 weeks’ gestational age, or following the last menstrual cycle. The law contains exceptions only to protect the pregnant person’s health or life or in cases of fatal fetal abnormalities — but not rape or incest.

All of the religious plaintiffs seek a court order barring enforcement of the law.

Opponents of the abortion ban have already realized a preliminary legal victory. That came on July 5, four days after the law took effect, when Leon County Circuit Judge John Cooper declared that it violated the privacy clause in the Florida Constitution.

The Florida Supreme Court in 1989 had ruled the privacy clause covered the right to abortion. The Legislature passed the 15-week ban, and DeSantis signed it in April, in anticipation that the U.S. Supreme Court would overrule Roe v. Wade, which that court did on June 24.

Notwithstanding all that, Cooper concluded that he was bound by the 1989 Florida precedent, which stuck down a parental abortion notification law for minors.

On appeal

However, the Florida First District Court of Appeal allowed the ban to take effect. The case remains before that court pending further proceedings on its merits. It presumably will eventually land before the Florida Supreme Court, which DeSantis appointments have rendered far more conservative than in 1989 and can’t be relied upon to sustain its own precedent.

The Jayam litigants, like those in Silver’s case, argue that clergy belonging to denominations that sanction abortion under some circumstances could face felony penalties of up to five years in prison if they counsel congregants to undergo the procedure.

“Under HB 5 and Florida’s criminal law, plaintiff is at risk of prosecution for counseling women, girls, and families to obtain an abortion beyond the narrow bounds of HB 5 as someone who aids and abets the crime. Under Florida’s aiding and abetting law, he commits the crime itself by counseling in favor of it,” a brief filed for a Unitarian minister reads.

“HB 5 violates the sacred trust between a clergy member and their disciples, and tramples plaintiff’s First Amendment and Florida constitutional rights to free speech and free exercise of religion, and the rights under the [Florida Religious Freedom Restoration Act]. It also violates the separation of church and state under the federal and state constitutions,” reads a brief filed for a Buddhist lama.

It’s a misconception that the Bible teaches that life begins at conception, Silver said.

“They’re confusing potential with actual. It makes as much sense as calling an acorn an oak tree or an egg a chicken. It’s not a preborn baby, it’s a fetus. And it’s not fully developed, it’s not human, until birth, according to Jewish law. And we have the right as Jews to practice our law but we also are championing the rights of others. That’s why we expanded this lawsuit to cover other religions,” he said.

Silver described what DeSantis and the Legislature are trying to do this way:

“There’s a legal term for that,” Silver said. “It’s called chutzpah.”