Opinion

With abortion rights at stake across U.S. and Kansas, whose religious freedom do we value?

July 12, 2022 3:33 am

Demonstrators rally before the U.S. Supreme Court, which overturned Roe v. Wade, the landmark case that found Americans have the right to an abortion. (Robin Bravender/States Newsroom)

The Kansas Reflector welcomes opinion pieces from writers who share our goal of widening the conversation about how public policies affect the day-to-day lives of people throughout our state. Sharon Brett is legal director at the ACLU of Kansas.

Two decisions issued by the U.S. Supreme Court last month — one overturning Roe v. Wade and the other allowing for religious prayer at public school sporting events — signal an alarming shift toward allowing personal religious beliefs to dominate public policy.

After reading the decisions in Dobbs v. Jackson Women’s Health Organization and Kennedy v. Bremerton School District, the message from the Supreme Court was clear: Anyone who believes in religious liberty should be alarmed.

The debate about religious liberty and abortion access will collide this summer when Kansas becomes the first state to vote on the right to abortion health care in a post-Roe world.

As a civil rights attorney, I believe deeply in the right of people to practice their religion. But I believe just as deeply in the right of people to live free from any government entanglement with religion.

I am also Jewish. This means that when the government uses religion (in this case, a narrow, extremely conservative Christian worldview) to justify policy, it doesn’t always line up with the religion I and millions of others practice. This is all the more reason to keep religion completely out of government: Religion is complex and nuanced, and allowing it to animate laws — particularly laws that infringe on people’s rights — risks the unintended oppression of non-dominant religions.

Dobbs and Kennedy were issued back to back, and although they deal with different areas of the law, when read together their message is clear. Religious freedom for non-Christian people hangs in the balance. 

Let’s start with Dobbs. By overturning 50-year-old precedent, the Supreme Court granted license to conservative state legislatures to pursue abortion bans in all circumstances. Anti-choice advocates often have used religion as a justification for enacting restrictive measures that remove health care decision-making authority from pregnant people. Dobbs opened the floodgates for such laws.

Then came Kennedy, in which the court held that the coach of a public high school football team could lead his team in Christian prayer on the field at the end of games. The court did not concern itself with the discomfort non-Christian athletes might feel, or the signal such prayer would send about the school district’s endorsement or favoritism of one religion over another. In doing so, as Justice Sonia Sotomayor wrote in her dissent, the court set our country on “a perilous path” toward entangling states with religion, which, “Is no victory for religious liberty.”

Most voters would not want school districts pressuring their children to pray with a coach who practiced a religion different from their own at the end of a football game. And most voters wouldn’t want lawmakers to interfere with their personal health care decisions, particularly when those decisions are animated by the lawmakers’ religious faith.

But the signal from the court at the end of this year’s term was that both of these things are perfectly fine.

On Aug. 2, Kansas voters will decide on a constitutional amendment that would fundamentally alter our constitutional landscape and, in the wake of Dobbs, potentially lead to legislation next session outlawing abortion in all circumstances. These laws would apply to all Kansans, regardless of their religious beliefs.

My faith — Judaism — doesn’t align with the religious right’s view on abortion. Jewish teachings, including from the Talmud (a key text in interpreting Jewish law), and the Mishnah (a book of Jewish legal theory) clearly indicate that abortion is permitted — indeed, required — when the life of the mother is at risk.

– Sharon Brett

My faith — Judaism — doesn’t align with the religious right’s view on abortion. Jewish teachings, including from the Talmud (a key text in interpreting Jewish law), and the Mishnah (a book of Jewish legal theory) clearly indicate that abortion is permitted — indeed, required — when the life of the mother is at risk.

Even the Orthodox Union, representing a decidedly more conservative branch of the Jewish faith, put out a statement in May that “Jewish law prioritizes the life of the pregnant mother over the life of the fetus such that where the pregnancy critically endangers the physical health or mental health of the mother, an abortion may be authorized, if not mandated, by halacha (Jewish law) and should be available to all women irrespective of their economic status.”

In my religion, personhood belongs to the person bearing the child, first and foremost; and only after that is secure do rights convey to the fetus. But abortion laws that have begun passing in states like Oklahoma and Texas — and which would undoubtedly come to Kansas, if the constitutional amendment passes — run contrary to this belief.

So the decision in Dobbs, although not explicitly about freedom of religion, serves to foreclose my ability to make health care decisions in a way that is consistent with religious liberty. In that way, overturning Roe sets us down the same perilous path towards dismantling the separation of church and state as the court’s decision in Kennedy.

As a civil rights lawyer; as a Jewish woman; and perhaps most importantly, as the mother of two young children who I hope to raise in a state (and a world) where their religious rights are as respected as much as anyone else’s, I realize how much is at stake Aug. 2.

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Sharon Brett
Sharon Brett

Sharon Brett is Legal Director at the ACLU of Kansas. Before joining the ACLU, Sharon was a Senior Staff Attorney at the Criminal Justice Policy Program at Harvard Law School, where she conducted policy research and advocacy related to the criminal legal system.

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