Professor Michael Helfand, "Using Jewish Law: Jewish Religious Liberty Advocacy for the Right to Abortion" -- Wayne Law Review

Professor Michael A. Helfand's article, "Using Jewish Law: Jewish Religious Liberty Advocacy for the Right to Abortion," (SSRN) is published in the Wayne Law Review, Wayne L. Rev. 51 (2024). The article considers the unique features of Jewish Law's approach to abortion.

Abtract of "Using Jewish Law: Jewish Religious Liberty Advocacy for the Right to Abortion"

In the wake of Dobbs v. Jackson Whole Women’s Health, scholars and courts alike have turned their attention to Jewish Law’s approach to abortion—an approach that resists categorization as either pro-choice or pro-life. Instead, Jewish law both disapproves of abortion generally, but still endorses—and even requires—abortion when it promotes the health and “well-being” of the mother, broadly construed. These unique features of Jewish law, especially the requirement of abortion when the mother’s well-being is at stake, has for some time generated significant religious liberty advocacy on the part of Jewish organizations. A view of the history, as told through amicus brief filings over the past 50 years, highlights how shifts in the Supreme Court’s abortion doctrine have generated changes within Jewish religious liberty advocacy. Indeed, in the pre-Dobbs era, religious exemptions found a home within some traditionalist Jewish groups, while progressive Jewish groups discounted their constitutional validity. By contrast, in the post-Dobbs era, the roles appear to have reversed, with progressive Jewish groups advancing claims for religious exemptions, while the advocacy of some traditional Jewish groups has become more muted. And yet others, given the poor fit between Jewish law and litigation over the right to abortion, have intentionally and explicitly chosen to avoid the fray. All told, the story of Jewish religious liberty advocacy on abortion captures the dilemma’s facing a religious minority in its attempt to maintain the consistency and integrity of its legal advocacy amidst ongoing culture wars.