Yet another flawed argument for abortion

Faced with the prospect of a post-Roe world in which states will finally have a chance to protect life at all stages of development, Politico reports that pro-abortion forces are now looking to an unlikely argument—religious liberty—to fight state abortion limitations. That is a non-starter.

The free exercise clause of the First Amendment to the U.S. Constitution allows citizens to pursue their religion freely and without government interference. The clause guarantees not only the right to be religious in some metaphysical sense but also the right to actively practice one’s faith. It also prohibits the government from singling out religious adherents for worse treatment—thus, as the U.S. Supreme Court recently held, states may not subject churches to stricter COVID-19 restrictions than casinos. Nor may the government deny playground grants to religious preschools simply because they are religious. And in early May, the court held that if the city of Boston allows groups to fly various flags on a city flagpole, it cannot refuse to fly a Christian flag. A related federal statute, the Religious Freedom Restoration Act, provides that when the government substantially burdens religion it must show it has a compelling interest to do so.

These constitutional and statutory protections for religious liberty have emboldened pro-abortion advocates to think creatively. According to the president of the Center for Reproductive Rights, the religion clauses in the First Amendment could require states to permit abortion because there “are religions which are supportive of abortion rights.” Thus, “a free exercise claim is absolutely on the table.”

This argument is ridiculous, but it is not new. In fact, in a brief filed in Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992, 178 pro-abortion groups argued that the fact that some religions might permit abortion in certain circumstances justified Roe v. Wade. That recycled argument fails for several reasons.

To start, only beliefs that are sincerely held and religious in nature are protected by the First Amendment. As law professor Josh Blackman explains, “It will be difficult for a pregnant woman, who has never before expressed any connection to these religious teachings, to demonstrate the necessary sincerity to obtain a time-sensitive abortion.” Further, a person’s beliefs about abortion must be part of that person’s religion, not merely a philosophical belief.

In the amicus brief filed in Casey, the pro-abortion groups argued that “in the light of Jewish traditions which in some cases command abortion, and in many others permit it, the existing constitutional rules, set down by Roe v. Wade, should be maintained.” In other words, pro-abortion advocates argued that the religious objections of some should prohibit the states from protecting the lives of all unborn children. As a brief filed by the Jewish Coalition for Religious Liberty in this term’s Dobbs v. Jackson Woman’s Health Organization case explains, this religious-veto idea of the free exercise clause has no basis in the Constitution.

Even in the unlikely event that a plaintiff does sincerely hold religious beliefs that require her to obtain an abortion, the remedy would be to hold that the state’s abortion laws could not be applied to the individual plaintiff. A court would not hold that the state’s abortion law is itself invalid.

Further, as the Supreme Court has long recognized, abortion is unique. As the state of Mississippi’s brief in Dobbs notes, no other right ever recognized by the court permits the killing of an innocent third party. And as the late Justice Ruth Bader Ginsburg noted in a different context concerning free exercise claims, the “right to swing your arms ends just where the other man’s nose begins.” Indeed, in a case from the late 1800s, the Supreme Court explained that there may be limits to the free exercise clause when a particular religious practice causes third-party harm. For instance, even if someone sincerely believed that human sacrifices were a required part of religious worship, the government could interfere to prevent the sacrifice. So too for an abortion that necessarily ends the life of an unborn child. The third-party harm doctrine prevents a free exercise claim to an abortion.

The idea that the free exercise clause protects a right to an abortion is one that the federal courts have declined to accept for 30 years. And with good reason. To be protected by the First Amendment, a belief must be sincere and religious in nature—a hurdle that will be almost impossible for women seeking abortions to show. Further, because abortion takes the life of an innocent third party, the courts would likely find that the government may prevent the purposeful termination of a human life. The Constitution—including the free exercise clause—simply does not protect any so-called right to an abortion. It is dishonest to argue otherwise.