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Rabbi's suit over Florida abortion law tests bounds of religious objections after Roe

Michael Wilner, McClatchy Washington Bureau on

Published in News & Features

Most laws applied across the board to the entire population are considered “neutral” or “generally applicable” in court, and are largely impervious to religious liberty challenges.

Silver’s first hurdle will be to prove that Florida’s law is not generally applicable.

“This is not neutral. It was announced at a church. It was motivated by religion,” said Silver, who practices law part time. “When we say we’re protecting a human being, that in and of itself is a religious claim. So they can lie and pretend all they want — it’s trying to impose a religious view of when life begins, and we’re not fooled.”

But legal experts say it will be a tough challenge for Silver.

“Any court that says there is no right to abortion is highly likely to say that the states have a compelling interest in protecting the life of the fetus. And compelling government interests override any constitutional right,” said Douglas Laycock, a professor at the University of Virginia Law School.

Michael Helfand, co-director of the Nootbaar Institute for Law Religion & Ethics at Pepperdine University’s Caruso School of Law, said that medical exceptions built in to most state abortion bans could open them up to religious liberty challenges.

 

“Most laws that restrict abortion have exceptions for medical necessities, and what’s interesting about that is that Justice Samuel Alito — when he was a judge on the Third Circuit — actually authored an opinion on these sorts of circumstances,” Helfand said.

Alito wrote the majority opinion in the Supreme Court case overturning Roe.

“In his view, the existence of a medical exception to a law that otherwise applies across the board actually renders it insufficiently neutral, and therefore subject to a First Amendment challenge,” Hefland said. “The existence of exceptions narrows the scope, at least, if not undermines the government’s compelling interest — because the logic goes that if it were so compelling, you wouldn’t have any exceptions.”

Still, “even if there are some exceptions, it is still the case that the state can defend the law by saying that granting a religious exemption would undermine its ‘compelling interest,’ ” said Richard Garnett, director of the Notre Dame Program on Church, State and Society and a professor at the law school.

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