Many pro-choice advocates have begun to employ a new argument: that anti-abortion laws violate religious liberty protections by imposing Christian norms on American society.
Steven Waldman, writing in Newsweek, recently argued that abortion is protected by the First Amendment’s free exercise clause, since “it may be your religious belief that you have a duty to provide a Biblically-sanctioned abortion. By blocking you from offering that service, the law is forcing you to violate your Hippocratic oath and the guidance from your religion.” In the New York Times, Linda Greenhouse insisted that any restriction on abortion would formally establish a religion: “If the First Amendment’s Establishment Clause means anything, it has to mean that God’s will cannot be a constitutional justification for a law that erases an individual right.”
Ironically, many of the abortion defenders using religious liberty arguments have previously criticized religious liberty, claiming that if states protect it too much, they will be powerless to stop religious people from cruelly imposing their faith on oppressed minorities. In one of the most shocking examples, opponents of Michigan’s attempt to pass a Religious Freedom Restoration Act (RFRA) went so far as to claim that the law would enable Christian EMTs to let gay people die on the street. Fortunately, this distorted version of religious liberty does not reflect the actual law, only the opponents’ own nightmares made flesh.
Pro-choice advocates seem to have forgotten that the religious-liberty boogeyman was a monster that they themselves invented in order to scare people into rejecting a fundamental right. Now, they are trying to use their own mythical version of religious liberty to defeat pro-life legislation.
The Free Exercise of Religion
Let’s review the facts. The Constitution has two clauses that touch on religion. First, the Free Exercise Clause guarantees people the right to practice their own faith. Second, the Establishment Clause prohibits the government from endorsing a particular religion or coercing people to follow it. These two clauses work in tandem, ensuring that Americans enjoy religious liberty.
Neither clause prevents a state from protecting the lives of its most vulnerable people. We do not allow murder in the name of religion.
Under the Supreme Court’s case law, statutes only violate the Free Exercise Clause if they specifically target a particular religious group. Even if a statute has a severe negative impact on a particular religious group, members cannot bring a claim under the Free Exercise Clause as long as the law applies to everyone and is neutral regarding religion. In this context, a law qualifies as neutral as long as it does not purposefully single out religious people with hardships not imposed on others. For example, the Supreme Court decided that Native Americans were not entitled to a religious liberty accommodation regarding a law prohibiting the use of peyote, because the law did not single out Native American religious groups or apply only to them. Under current Free Exercise precedent, abortion regulations are an easy case—these bills apply regardless of one’s faith, and therefore do not implicate that constitutional provision.
Religious-liberty organizations have dedicated much of their effort to changing the law so that anyone whose faith was negatively impacted by even a generally applicable law can bring a claim under the Free Exercise Clause. But even assuming that the Supreme Court changes its precedent, as it ought to do, this would still not create a free-for-all. We know a lot about how such a regime would look, because this was the law prior to 1990. It is also the regime created by various state and federal iterations of the Religious Freedom Restoration Act (RFRA). As much as they have been maligned by many in the press, these statutes simply restore the pre-1990 status-quo, which allowed an adherent to challenge any statute that burdened his religious exercise.
Even under a newly revitalized Free Exercise Clause, or in a jurisdiction with a RFRA law, attacks on anti-abortion laws would still likely fail. Even at its maximal strength, religious liberty is not absolute. Under a robust understanding of the Free Exercise Clause, the government could still burden religion where doing so furthers a compelling state interest and the state has no alternative means to further that interest. This is why, for example, human sacrifice is not protected by the Free Exercise clause. No matter how stridently a religious leader insists that a virgin must be sacrificed in order to ensure a good harvest, no state has to allow his followers to get away with murder.
This is what distinguishes Waldman’s arguments from a Supreme Court decision like Hobby Lobby, which found that a religious accommodation was required. In Hobby Lobby, the Court assumed, for the sake of argument, that the federal government had a compelling interest in ensuring that women had cost-free access to abortifacients. But an accommodation was still required, because the government failed to prove that forcing Hobby Lobby to violate its faith was the only way to achieve Congress’s goal. (For instance, the government could subsidize the purchase of such drugs.) In Hobby Lobby, the decision was simple, since the government had already admitted that it could satisfy its interest by an alternative means; it had already accommodated certain religious nonprofits while still ensuring coverage for their employees.
When it comes to abortion, a state would have a significantly stronger argument. A state that passed a law protecting unborn children from being slaughtered might claim that it had a compelling interest in protecting unborn children from being slaughtered. Indeed, it is difficult to imagine a more compelling interest than protecting human life. Unlike in Hobby Lobby, the state could not satisfy its interest by another mechanism. Any exemption would lead to a death and negate the state’s interest in preventing the killing of innocents.
Pro-choicers might object that unborn children are not alive. Indeed, Steven Waldman writes that many believe that “life begins at birth, not conception.” But this opinion is factually false. It contradicts a scientific fact (as embryology textbooks readily and uncontroversially acknowledge): a living human organism comes into existence at conception. There may well exist contested philosophical or theological questions regarding the rights of human beings, but it is certainly well within the powers of the state to determine that it wants to protect human life to the maximum extent possible.
What makes no sense is to posit, as pro-choice advocates have recently done, that abortion laws tread on the free exercise of religion because they do not allow abortions to be performed by people who have no religious objections to them. No serious interpretation of religious liberty allows people to do whatever they want simply because their religion allows or promotes it. And even if a court decided that a state lacks a compelling interest in regulating abortion, and that individual religious views ought to receive protection from the law, laws restricting abortion would not be invalidated. That simply is not a legally possible outcome in these types of cases. Religious liberty statutes only create accommodations or exemptions for those people who have sincere religious objections to complying with a law.
The availability of such accommodations is dubious for yet another reason. Most of the Free Exercise-style arguments made by pro-choicers highlight the fact that some religions permit abortions. Yet the mere fact that a religion does not prohibit an act cannot be the basis of an accommodation. A request for an accommodation must be premised on the fact that a law prohibits something that a religion requires (or at least encourages). In the abortion context, it is unclear if such a situation ever arises. For instance, Judaism requires an abortion if a mother’s life is at risk. Yet every abortion regulation offers an exemption in such cases. Situations that represent an actual conflict between state laws and abortions required or encouraged by religion will be extremely rare, if any exist at all.
The Free Exercise Clause and Religious Freedom Restoration Acts protect religious liberty by requiring the government to show that it has a compelling need before forcing someone to violate his faith. This ensures that the government will not trample on people’s consciences lightly, or when alternatives exist. But they are not trump cards that allow religious people to be above the law, as critics have claimed—at first in an attempt to sow fear of religious liberty, and then in a misguided attempt to use their own scare tactic to promote abortion, as if it actually reflected the law.
The Establishment of Religion
Now let’s turn to another false argument: that anti-abortion laws violate the Establishment Clause by imposing Christian norms on all of society. Courts have ruled that the government may not establish religion, but there is no clear legal test for determining when it has done so. The most restrictive test likely to apply to an abortion ban is called the “Lemon Test.” That test is named for a case called Lemon v. Kurtzman, in which the Supreme Court decided that, in order to comply with the Establishment Clause, every statute must (1) have a secular purpose, (2) not have the primary effect of promoting religion, and (3) not excessively entangle the government in religious questions. While the original meaning of the Establishment Clause was less restrictive, even the “Lemon Test” would allow anti-abortion legislation.
Anti-abortion laws easily satisfy the latter two of these three prongs. The second prong, the primary effect test, looks to see whether the central outcome of a statute is to advance religion. This prong of the test does not look at incidental or secondary effects. Since the primary effect of anti-abortion laws is to prohibit abortions, they pass this part of the test. The third prong, avoiding excessive government entanglement, only applies if the law creates a longstanding relationship between a religious organization and the government. No one alleges that pro-life legislation does this. Thus, such legislation passes this prong as well.
The only prong of the test that might be applicable is the purpose test, which considers whether a statute has any secular purpose. However, so long as the legislators could have had a secular purpose for passing the law, that is enough. It does not matter that some legislators may have a religious impulse as well. This makes sense, since otherwise the Establishment Clause would invalidate nearly all laws aimed at benefiting the poor, simply because the Bible favors charity. Helping the poor is clearly permissible, even if the legislator thinks God wants him to do so. But many pro-choice advocates say that abortion is different, and that anti-abortion laws serve purely religious purposes. Let’s consider whether that is actually true.
Anti-abortion laws satisfy the secular purpose requirement because such laws can be justified on an entirely secular basis. The argument that living humans (based on scientific and philosophical principles) ought to be provided with legal protections is not an intrinsically religious one. Pro-choice claims that abortion regulations are based solely, or even largely, on religious principles simply ignore the actual arguments made in support of such laws. To better illustrate this, consider that one could make the argument that there are individual rights based on religious arguments—but one could also advocate for such rights on secular grounds. Defending individual rights, however, does not involve an establishment of religion merely because such rights could be defend using religious principles. What matters is that such rights can be independently and vigorously defended using secular arguments alone.
In their zeal to protect abortion, pro-choice advocates often assume that because they disagree with pro-lifers’ secular arguments, they can simply discount them, thereby leaving only religious arguments standing. But this is not how the law or political discourse works. Most arguments are not self-evidently correct—hence the need for political debate. Pro-choice advocates are essentially trying to rewrite the arguments of their adversaries in order to render them illegitimate under the Establishment Clause.
Pro-Life Arguments from Non-Christian Sources
From a human rights perspective, Steven Waldman’s Newsweek piece was disturbing because of the historical antecedents it invokes. He contended that some Jewish and Muslim doctors have a supposed “duty” to perform an abortion, simply because their religions might permit it. Let’s leave aside the logical fallacy of this contention—that something merely permissible is somehow a “duty”—and consider the source of his authority: some “Reform rabbis” who have “decreed” that abortions are permitted in order to prevent a child from being “born imperfect physically, and even mentally.” This language evokes the horrifying claims of the eugenics movement of the 1920s. It should not be used to justify barbarism. Eugenicists, racists, Nazis, and Communists have all sought to reform their populations by eliminating “imperfect” human beings from their midst. Religious language must not rehabilitate such ideas.
Furthermore, the common contention that Christianity is the source of anti-abortion views is simply wrong. Judaism stood against abortion and infanticide before Christianity produced an anti-abortion theology, as is evident in contemporaneous historical accounts of Jewish belief, including those of Philo, Josephus, and Tacitus. Moreover, while Judaism and Christianity spurred the opposition to abortion that dominates the West today, other religions, including Roman religion, Hinduism, and Zoroastrianism, have given rise to arguments against abortion as well. On the Jewish side, for instance, the three most well-known Orthodox Jewish rabbis of the past several generations, Rabbis Moses Feinstein, Joseph Soloveitchik, and Menachem Schneerson, all emphatically insisted that abortion constitutes murder.
When it comes to attempts to force a Hobson’s choice between pro-abortion and pro-religious liberty policies, there is really no choice at all. Real arguments for religious liberty—not the straw men fabricated by opponents of religious liberty—seek to protect people’s religious exercise from unnecessary limitations. They do not wave a magic wand to automatically exempt people from laws that are necessary to serve compelling governmental interests. And they certainly don’t give you the right to kill someone simply because your religion allows it.