Religious freedom is both a bedrock principle of American democracy and, lately, a powerful weapon in the hands of the right. Although the Constitution forbids the establishment of any state religion, a persistent faction imagines a Christian nation anyway, and it is close to achieving its goal. Last year, the Supreme Court handed it a major victory with Dobbs and the overturning of Roe v. Wade. Though legal arguments against abortion are typically couched in secular language, scratch lightly and a religious rationale appears. The war on abortion is not only deeply religious but Christian, and a specific strain of Christianity at that. Not all religious traditions prohibit abortion on moral grounds, and to many people of faith, abortion bans infringe upon their own right to religious liberty. Now, some religious groups are taking that argument to court.
The New York Times reported last week that members of various religious groups, including some Christian and Jewish organizations, have filed around 15 lawsuits in eight states to challenge abortion restrictions. In doing so, they’re taking far-right arguments that have expanded religious liberty at the expense of minority groups and turned those arguments inside out. “The suits, some seeking exemptions and others seeking to overturn the bans, often invoke state religious-freedom restoration acts enacted and used by conservatives in some battles over social issues,” the Times explained.
“We were like, it works for them, so we thought we should use sections from those cases,” explained Aaron Kemper, an attorney for three Jewish women who want to overturn abortion restrictions in Kentucky. Though it’s too early to tell if the overall strategy will work, there’s some evidence that Kemper’s argument may, according to the Times: An Indiana judge “issued a preliminary injunction blocking the state’s abortion ban, saying it violated the state’s Religious Freedom Restoration Act adopted in 2015 under then-Governor Mike Pence, an ardent abortion opponent who is now running for president.” Oklahoma and West Virginia recently amended their own religious-freedom restoration acts to try to prevent challenges to their abortion bans.
In response to the suits, states like Indiana have argued that they have “a compelling interest” to ban abortion and suggested the plaintiffs practice abstinence or use contraception, including IUDs. This is disingenuous. First, some anti-abortion activists falsely consider IUDs to be abortifacients, and legal experts have feared that restrictions on Plan B and IUDs may be next. Plaintiffs could see their options shrink as the conservative legal movement gains ground. Second, women will always need abortions, for medical reasons or because they simply do not want to be pregnant — and while certain religious traditions may frown on the latter reason, others fully embrace a woman’s right to choose how, when, and if she bears children.
“We believe God is the source of all life and has caused us to share in the work of creation,” one plaintiff, the Reverend Dr. Laurie Hafner of Coral Gables Congregational United Church of Christ, told the Times. “The privileges and responsibilities of being part of co-creating” mean that “women have the ability and wherewithal to make the decision that’s right for them.” Another plaintiff, Sarah Baron, is a board member at a Louisville synagogue and explained that in her Jewish tradition, a fetus does not achieve personhood until it takes its first breath. Citing her age and fertility issues, she said she is at higher risk for pregnancy complications and Kentucky’s abortion ban could force her to continue a pregnancy that Jewish law “may require” to be terminated.
In the conservative Evangelical tradition of my childhood, other religious views were rarely, if ever, considered, especially on the topic of abortion. The speculative rights of the fetus trumped all. This appears to be the tack taken by conservative lawmakers and jurists. Though anti-abortion activists aren’t all Evangelical, they share similar — and deeply religious — views on the personhood of the fetus. The Constitution does protect their beliefs; a person can live according to their interpretation of the Bible and the teachings of their church and reject abortion as an option for themselves. But the anti-abortion movement was never satisfied with this personal expression of religious liberty, nor could it be, given its conviction that abortion murders babies. Its religious underpinnings pushed the movement toward an exclusionary definition of religious freedom, in which its beliefs must triumph over others.
The courts have privileged such a view. In 2014’s Burwell v. Hobby Lobby Stores, justices sided with the Evangelical owners of Hobby Lobby, who believed certain forms of birth control are abortifacients and sought an exemption from the Affordable Care Act’s mandate that company health-insurance plans cover contraception. Though the Greens owned a for-profit company engaged in secular business, they argued that the federal Religious Freedom Restoration Act empowered them to refuse to cover contraception. When the Supreme Court agreed, it prioritized the religious views of the Green family over those of its employees. Workers too deserve the freedom to exercise their conscience — but not according to the conservative legal movement or the justices who align with it. Later, with Dobbs, the high court allowed states to restrict abortion in accordance with the religious views of lawmakers, no matter the damage to women with differing views.
Abortion bans harm democracy in two ways: They relegate women to second-class citizenship and elevate one religious view at the expense of others. Neither outcome is compatible with a pluralistic and free society. The lawsuits, then, have performed a necessary function already. Even if they ultimately fail, they’re forcing an overdue reckoning with the way the courts have defined religious freedom. The principle is far too important to surrender to the right.
