Abortion proponents appeal to religious rights

At a rally in Washington, D.C., last Tuesday, a group of mostly liberal Jews advocated for abortion rights. One woman held a sign that said, “No Establishment of Religion. Free Exercise.” That message explicitly ties the so-called right to abortion to the Constitution’s protection of the free exercise of religion.

In a commentary in The Washington Post a few days earlier, Rachel Kranson, a religious studies professor at the University of Pittsburgh, asked the question: “Might the Constitution guarantee abortion access as a First Amendment, religious right?” In the article, Kranson points to multiple faith traditions that permit abortion in some instances. She claims that the Jewish faith may require it when the life of the mother is endangered.

Abortion supporters are scrambling for new strategies to protect what they term “reproductive rights.” An upcoming Supreme Court ruling that pro-lifers hope will overturn Roe v. Wade, the 1973 ruling that legalized abortion nationwide, could launch a multi-front, state-by-state battle. Some states like Oklahoma would protect life from the moment of conception. Others like New York would allow abortion for the full term of a pregnancy. Rooting a right to abortion in the free exercise clause of the First Amendment provides an avenue — at least for the religious — to trump restrictive state laws and take refuge in a federal constitutional right.

Brad Jacob, a constitutional law professor at Regent University, said the argument last surfaced in the early ’90s, when abortion rights supporters feared the Supreme Court would overrule Roe. A bipartisan group in Congress was attempting to pass what became the Religious Freedom Restoration Act (RFRA) and faced opposition from the National Right to Life Committee and the U.S. Conference of Catholic Bishops. They feared the law would be used by pro-abortion forces to argue for a First Amendment right to abortion. When the court’s holding in Planned Parenthood v. Casey reaffirmed Roe without resorting to a First Amendment argument, the National Right to Life Committee and the bishops conference renewed their support for RFRA, and the law passed in 1993.

While not new, the free exercise argument has never been accepted by the Supreme Court. In its 1980 opinion in Harris v. McRae, the Supreme Court ruled 5-4 against a group of women who argued that a policy preventing Medicaid funds from being used to cover abortion violated religious liberty. The court majority felt that the group’s interest in abortion access was not primarily faith-based.

In a recent article in Reason, Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, lists several reasons why the argument may prove deficient. Blackman said that a state that protects the life of the unborn will argue that its interest is compelling enough to override any religious liberty interest, and that there are no less burdensome means of protecting its interest. He also points to an 1879 Supreme Court case, Reynolds v. United States, that recognized that a religious practice could be circumscribed where a severe harm to a third party would occur.

“Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice?” wrote Chief Justice Morrison Waite in that case. “Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband; would it be beyond the power of the civil government to prevent her carrying her belief into practice?”

Beyond such third-party harm to the unborn child, there is little indication any religions require abortions, apart from when the life of the mother is endangered, even as some permit them. The Satanic Temple, an organization less about Satan and more about removing religion from the public arena, contends abortion is a religious ritual for its members. But no court has accepted that argument. Last August, a judge dismissed the group’s claim that abortion restrictions violated Texas’ Religious Freedom Restoration Act for lack of jurisdiction.

“It is not enough that your religion permits abortion; it has to be the reason, or at least one main reason, for the abortion,” Douglas Laycock, a constitutional professor at the University of Virginia, told Deseret News. “I don’t know any religion that teaches that as a general matter.”

Even were a court to accept the free exercise argument for abortion, wrote Blackman, an expansive reading of the free exercise clause by the Supreme Court might have consequences progressives would abhor — like an argument by some conservatives that carrying a firearm is a religious duty. So, he advises abortion rights supporters, “Be careful what you wish for.”