A religious right to abortion?

For several decades now, the conservative legal movement has been waging a war on two key fronts simultaneously: the battle to contract abortion rights and the battle to expand religious liberty protections. Now, in 2022, as conservative-dominated courts have given Christians cause to celebrate resounding victories on both fronts, we are slowly waking up to the possibility that these will prove Pyrrhic victories when religious liberty is used to advance abortion rights. For, while we thought the two campaigns were advancing along parallel lines, pro-abortion activists are trying to put them at cross-purposes.

One of the clearest signs of this conflict appeared in Indiana earlier this month, when a Marion County Superior Court judge blocked the state’s new abortion ban from taking effect on grounds that it violated the landmark 2015 “Religious Freedom Restoration Act.” As the judge wrote, “For many individuals, such as the Plaintiffs, questions such as the beginning of life or when personhood begins cannot be stated without reference to moral, ethical, spiritual, and religious beliefs.” Since the plaintiffs insisted that it was their religious conviction that fetuses are not persons, the state could not prevent them exercising their right to abort.

Who could have foreseen that this law, which generated such fanfare among conservatives and outrage among progressives when signed into law by evangelical Christian Mike Pence, would be used as an engine for the expansion of abortion rights? In retrospect, it shouldn’t be surprising.

The foundations of such a move were laid at least as early as 1990 in the infamous Planned Parenthood v. Casey case. The fact that this case re-affirmed Roe v. Wade was grievous enough; much worse, however, was the grounds on which it did so.

Anthony Kennedy, writing with the majority, famously opined that since the Fourteenth Amendment protected liberty, and since, “at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life,” then the Fourteenth Amendment conferred a right to abort. The most troubling thing, though, was that Kennedy’s definition of liberty sounded an awful lot like the idea of specifically religious liberty, at least as it has increasingly come to function in modern jurisprudence.

There was a time, to be sure, when courts generally ruled that the First Amendment’s guarantee of “free exercise of religion” applied chiefly to religious institutions, or at least to individuals engaging in (or refraining from) practices on the basis of longstanding norms within their religious communities. Examples included the right of Quakers, Mennonites, and the like to claim the status of a “conscientious objector” to military service; a mere personal moral stance against war was not given equal weight. As American society became more secular and individualistic, however, the boundaries widened, so that in the midst of the Vietnam War, United States v. Seeger allowed private individuals claiming a “sincere and meaningful belief” against war the benefit of a religious exemption.

The problem with such an ever-expanding definition of “religious exercise” is that it could be broad enough to encompass just about anything and subjective enough to be almost impervious to judicial scrutiny. If I have a religious belief that private property is a violation of God’s will (as even many Christians have throughout history), then shouldn’t I be able to steal with impunity? What if I am convinced that those who worship other gods have forfeited their right to live, and God wants me to kill them (not an uncommon sentiment by historical standards)? Do I have a religious right to murder? Anthony Kennedy’s definition would suggest so, and the Indiana court has simply applied the logic remorselessly.

Conservatives may certainly object that our courts tend to be very selective in what logic they choose to apply. After all, Judge Heather Welch, who authored the decision in question, was elected by an overwhelming Democratic district, and may well have been predisposed to find reasons to block the abortion ban. Moreover, courts have frequently held that religious liberty cannot be used to justify harms to third parties.

On the other hand, this ruling is simply the flipside of Justice Alito’s finding in the high-profile Burwell v. Hobby Lobby case, which determined that, since the question of when life begins was a religious conviction, Hobby Lobby should not have to comply with the Affordable Care Act’s requirements to provide contraception. And the “third-party harm” standard is notoriously slippery, for if applied strictly, it seems to justify sweeping Covid-19 church closures that conservatives opposed. Plus, it all depends on what you think is “harmful,” something progressives and conservatives rarely agree upon.

Conservatives are sometimes tempted to use religious liberty as a judicial get-out-of-jail-free card, and progressives have now shown they can try to play that game too. Sooner rather than later, we will have to learn how to make and win our case for conservative principles on substantive moral grounds. After all, God did not create a world in which abortion is against “my morality” or “my religion,” but in which it violates the laws of human nature itself.