Conservatives—namely, white evangelical Christians—have long weaponized religious values as a shoddy defense for their decades-long conquest to criminalize abortion in the United States. But after a leaked draft of the Supreme Court’s decision to strike down Roe v. Wade sent shockwaves through the public consciousness on Monday night, a different kind of group of religious text-swinging heroes has emerged.

Coalitions of Rabbis across different sects of Judaism and a contingent of Jewish abortion activists are defending Jewish pregnant people’s right to abortion access, raising what they claim is a valid legal challenge: A national abortion ban would violate their right to religious freedom as guaranteed by the First Amendment. And as the right to bodily autonomy for women and pregnant people is threatened—largely impacting low-income Black and brown people—by conservative justices’ arguments that we should simply rewind to the good old years when women didn’t have any rights because, you know, some 17th century witch-hunter said so, Jewish communities are putting their foot down to say, “Not in my religion.”......

For evidence, Rabbi Ruttenberg points to the Book of Exodus in the Torah, which discusses a case where two men accidentally knock over a pregnant person and cause them to miscarry:

“When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other harm ensues, the one responsible shall be fined when the woman’s husband demands compensation; the payment will be determined by judges. But if other harm ensues, the penalty shall be life for life.”

The Hebrew Bible, she says, does not regard the fetus as a person, for the Torah doesn’t specify how long the woman has been pregnant when the miscarriage happens. Another annotated text states, “If she is found pregnant, until the fortieth day it is mere fluid,” meaning the fetus does not have agency for at least forty days of pregnancy. For that reason, some interpretations of Jewish law say that personhood begins with the first breath. “It’s not murder, basically, and the Talmud lays that out really explicitly,” she says.

Americans United for Separation of Church and State President and CEO Rachel Laser issued the following statement in response to the Indiana Court of Appeals’s opinion today that the state’s abortion ban violates the religious-freedom rights of many state residents:

“The court rightly found that Indiana’s abortion ban cannot override religious freedom protections in Indiana law. As we told the court, abortion bans undermine religious freedom by imposing one religious viewpoint on all of us. Abortion bans are a direct attack on the separation of church and state.

“If America is to make good on its promise of religious freedom, each of us must be free to make our own decisions about our own bodies based on our own beliefs. That’s why we need a national recommitment to the separation of church and state. It’s the shield that protects freedom without favor and equality without exception for all of us.”

Judge L. Mark Bailey, the presiding judge of the first district Court of Appeals of Indiana, wrote a concurring opinion that cited several church-state provisions of the Indiana Constitution, including that “[n]o preference shall be given, by law, to any creed.” He observed, “Yet in this post-Dobbs world, our Legislature has done just that – preferred one creed over another” by taking a position on the question of when life begins.

This is the argument Americans United, joined by 14 religious and civil-rights organizations, raised in an amicus brief in the case. We urged the court to protect religious freedom by affirming an injunction against a state abortion ban that imposes legislators’ religious views on all Hoosiers, in violation of the religious-freedom protections in the Indiana Constitution. The brief was authored by Interim Legal Director Alex J. Luchenitser and Steven Gey Constitutional Litigation Fellow Kalli A. Joslin.

Judge Bailey wrote, “where theologians cannot agree, legislators are ill-equipped to define when life begins.” He also connected the protections of church-state separation to religious freedom and abortion rights:

“Legislators, an overwhelming majority of whom have not experienced childbirth, nevertheless dictate that virtually all pregnancies in this State must proceed to birth notwithstanding the onerous burden upon women and girls. They have done so not based upon science or viability but upon a blanket assertion that they are the protectors of ‘life’ from the moment of conception. In my view, this is an adoption of a religious viewpoint held by some, but certainly not all, Hoosiers. The least that can be expected is that the remaining Hoosiers of child bearing ability will be given the opportunity to act in accordance with their own consciences and religious creeds.”