- 1 The Court did not address the issue of whether religious freedom allowed the plaintiff to ignore an (...)
1In the past decade, religious liberty arguments weaponized by American conservatives have promoted a narrow understanding of religious freedom. They have been used to defend the privileges of some religious groups who claim that their beliefs should allow them to ignore laws with which they disagree. In one instance, a Colorado baker who refused to make a wedding cake for a same-sex couple affirmed that his Christian beliefs were being violated by the state’s anti-discrimination laws. The case reached the Supreme Court, which ruled in his favor by endorsing the idea that Colorado had displayed animosity towards religion (Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018)1. Emboldened by Religious Freedom Restauration Acts they had lobbied for in their states, other conservatives have used a similar argument to refuse, among other things, to issue marriage licenses, provide their employees with comprehensive healthcare, fill medical prescriptions, as well as to advocate in favor of book bans, challenge pandemic restrictions, and prohibitions on school prayers.
- 2 The First Amendment limits the role of the federal government but also, through incorporation into (...)
2This recent understanding of First Amendment2 protections should not obscure the fact that, throughout most of the 20th century, religious freedom represented "a pluralist, egalitarian aspiration" (Lewis A. and E. McDaniel, 2023). In the 1960s and 1970s, progressives and members of religious minorities relied on the First Amendment to fight mandatory school prayers, involvement in the Vietnam war, and to advocate for reproductive rights. In the five years that preceded the establishment of abortion as a constitutionally protected right in Roe v. Wade (1973), ministers and rabbis who had founded the largest referral network in the country – the Clergy Consultation Service (CCS) – argued that anti-abortion laws violated the principle of religious freedom.
3However, perhaps because the women’s movement popularized the language of bodily autonomy and the violent opposition to abortion which later emerged relied heavily on religious rhetoric, the idea that one could advocate for abortion access on religious grounds vanished from the public forum after Roe v. Wade. The radical change brought about by the Dobbs v. Jackson Women’s Health Organization Supreme Court ruling has sparked renewed interest in strategies that might support a constitutional right to abortion. Religious freedom claims make for a strong constitutional argument that should not be readily dismissed. Although unlikely to be supported by the current conservative justices (Schwartzman M. and R. Schragger, 2023; Corbin C.M., 2023), this argument should, at least in theory, appeal to the majority of Americans who support the separation between church and state.
- 3 Many of the cases can be accessed on the Brennan Center For Justice’s State Court Abortion Litigati (...)
4Since Roe v. Wade was overturned, more than a dozen lawsuits in eight states have been filed by clergy and members of various denominations arguing their state abortion bans violated their religious freedom (Belluk P., 2023; Miranda Ollstein A., 2023). In Indiana, Missouri, Florida, and Kentucky, these cases are pending and could ultimately reach the Supreme Court3. The challenges rely on the protections established by the First Amendment to the U.S. Constitution and by the states’ own constitutions or Religious Restauration Acts. They put forth two main arguments:
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Legislation that prohibits abortion, because it is based on the religious view that "life" begins at conception – a perspective that is not universally shared by America’s diverse religious traditions – constitutes an "establishment of religion".
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Abortion bans interfere with the "free exercise of religion" by citizens and religious leaders whose spiritual beliefs do not coincide with those enforced by the government.
5Before and after Roe v. Wade, challenges to the constitutionality of anti-abortion legislation have argued that they violate the principle of state neutrality by imposing a specific set of beliefs on a religiously diverse population (Parsons S., 1971). Different denominations in the United States have different perspectives on pregnancy, personhood, and agency, which are reflected in their congregants’ views on abortion. Studies conducted by the Pew Research Center highlight longstanding disparities among religious groups on the issue. While a majority of Evangelical Christians currently believe abortion should be illegal in all or most cases, most mainline and Black Protestants disagree. The majority of American Catholics, Muslims, Orthodox Christians, Buddhists, Hindus, and Jewish Americans also believe abortion should be legal in all or most cases (Pew Research Study, 2014; Fami D., 2020).
6Support for abortion rights is especially high among Jewish Americans, whose religious traditions are at odds with abortion bans. Although Jewish law (Halakha) values potential life, it is very clear on the fact that full personhood is not achieved until birth. Any law based on the idea that a fertilized ovum, an embryo, or a fetus is a person is thus clearly in conflict with Jewish teachings. Because Jewish law also mandates protecting people from assailants, rabbinical authorities have concluded that in cases where the mother’s life is threatened by the pregnancy, abortion becomes a religious commandment (Jakobovits E., 1965).
7While Protestant denominations vary in their approaches to moral issues, they generally consider individual decision making to be at the center of their faith, leading some to believe choices in the area of reproductive freedom to be part of their religious faith. The United Church of Christ, the American Presbyterian Church and the Unitarian Universalist Association express clear support for reproductive rights. The United Methodist Church, the Evangelical Lutheran Church and the Episcopal Church also oppose blanket abortion bans (Masci D., 2016). In addition to that, some religious groups which currently oppose abortion rights with few exceptions have only recently embraced these views. One such example is the Southern Baptist Convention, which, although morally opposed to abortion, expressed opposition to bans as late as 1979 based on the Church’s "conviction about the limited role of government in dealing with matters relating to abortion" and its support of "the right of expectant mothers to the full range of medical services and personal counseling for the preservation of life and health" (Southern Baptist Church, 1979).
8Although less vocal in the abortion debate, American Muslims tend to support access to abortion (NPR, 2023). One of the plaintiffs in the Indiana class action lawsuit filed anonymously by five individuals and a Jewish organization in August 2022 (Anonymous Plaintiffs v. Members of the Medical Licensing Board of Indiana) is an observant Muslim woman. Her religious beliefs include the understanding that life does not begin at conception: "until the fetus gains a consciousness or awareness, or perhaps a soul, known as "ruh" in Arabic, the fetus is only a part of the mother’s body. […U]nder Islamic traditions, the ruh is breathed into a womb at around 120 days’ gestation". The plaintiff also believes, "according to the teachings of Islam, […] that the life of a pregnant woman, including her overall wellbeing, always takes precedence over a fetus" (Anonymous Plaintiffs, 2022: 19). The Indiana law, by imposing one narrow view of when "life" begins, thus interferes with "her ability to obtain abortions as directed by [her] sincere religious beliefs" (Ibid., p. 2).
9To make the case that abortion bans are an establishment of religion, citizens must not only demonstrate that the laws contradict religious teachings, but also that they are not motivated by a secular purpose. The case filed in January 2023 by Missouri religious leaders representing the Episcopalian, Orthodox Judaism, Reform Judaism, Unitarian Universalism and United Methodist traditions, does this by listing numerous comments made by state lawmakers in support of various anti-abortion state laws. The challenge (The Reverend Traci Blackmon v. Missouri, 2023) thus underlines the fact that "the true purpose and effect of these laws was to enshrine certain religious beliefs in law". The complaint mentions for instance that the bill’s lead sponsor, Representative Nick Schroer, stated that "as a Catholic" he did "believe life begins at conception and that [this was] built into [the state’s] legislative findings" (Ibid., p. 6-7).
10One of the two cases filed on religious grounds in Florida in August 2022 (Haffner v. Florida, a consolidation of five cases filed by Jewish, Protestant and Buddhist leaders from Miami-Dade county) summarizes the establishment clause argument and introduces a second argument associated with first amendment claims – the free exercise of religion: "Since time immemorial, the questions of when a potential fetus or fetus becomes a life and how to value maternal life during a pregnancy have been answered according to religious beliefs and creeds. HB 5 [the state’s 2022 abortion ban] codifies one of the possible religious viewpoints on the question, and in its operation imposes severe burdens on other believers including the […] plaintiff" (Capo v. Florida, 2022: 6-7).
11The specific impact of anti-abortion legislation on people of faith is perhaps best exemplified by an ongoing lawsuit filed in October 2022 by three Jewish women from Kentucky (Sobel v. Cameron, 2022). The three women wish to become pregnant to fulfill their religion’s "divine injunction to ‘Be fruitful and multiply’" but are experiencing reproductive difficulties. These challenges are forcing them to rely on reproductive technology in which embryos are frequently discarded. The plaintiffs’ "sincere religious beliefs of having more children" are therefore jeopardized by state restrictions. One of the plaintiffs, who is of "advanced maternal health" and of Ashkenazi ancestry – which makes her more likely to pass on genetic anomalies, like Tay-Sachs disease – also argues that "Kentucky’s current law related to reproduction has discouraged [her] from having more children" (Ibid., p. 17) because termination would not be available to her if she was faced with fetal health issues.
12The lawsuit filed in Missouri features another objection shared by various Christian denominations: because their faith values individual agency in moral decisions, when the state takes away their reproductive choices, it violates their religious rights. The lead plaintiff in this case, a United Church of Christ minister, Rev. Blackmon, sees her work as "guided by the principle that God resides in every person. Integral to her faith is her belief that God is a God of choice, that people are called on to wrestle with complex decisions, and that individuals should have the autonomy to determine what happens to their own bodies" (The Reverend Traci Blackmon v. Missouri, 2023: 1).
- 4 See for example Capo v. Florida, op. cit., p. 5.
13Rev. Blackmon also claims that abortion bans interfere with the free exercise of religion by limiting the ability of religious leaders to counsel their congregants on matters involving reproductive health. This argument, linked to the special protections afforded to religious speech under the First Amendment, was at the heart of the work conducted by the Clergy Consultation Service in the 1960s and 1970s. The ministers and rabbis who organized to assist women seeking abortion care evaded prosecution by arguing that it was their "pastoral responsibility and religious duty to give aid and assistance to all women with problem pregnancies" (Carmen A. and H. Moody, 1973: 31). Plaintiffs in the Florida abortion-rights cases filed in August 2022 have made clear a free speech claim, arguing that given their duties as religious leaders, they intend "to engage in counseling regarding abortion beyond the narrow limits" of the law and therefore, risk "incarceration and financial penalties"4.
14Inspired by the example of progressive clergy who advocated for abortion rights on religious grounds before Roe v. Wade, religious leaders across the country have mounted legal challenges to abortion laws enforced after the Dobbs v. Jackson Women’s Health Organization ruling. In using the religious freedom argument to support abortion rights, they have returned to the fundamental meaning of the First Amendment’s establishment and free exercise clauses which prohibit the government from adjudicating between theological claims that divide Americans.