Counterintuitive idea: Does religious freedom require abortion access?

Written by William C. Duncan

May 18, 2022

The leak of a draft Supreme Court opinion in a case challenging Mississippi’s abortion law has spurred debate about the possibility that the 1973 Roe v. Wade precedent could be overturned.

Amidst the pro-con discussion about abortion laws, an interesting and perhaps surprising theme has emerged – a claim that overturning Roe would violate religious freedom. The title of one article gives the idea: “The fall of ‘Roe’ would also be an attack on religious liberty.” Similar pieces have been published in The Washington Post and Los Angeles Times.

Most would assume that individuals who support restrictions on abortion also support religious freedom (though the overlap is not complete). There would thus be great irony if the principles of religious freedom cherished by this group were to require that access to abortion not be limited. The counterintuitive idea that protecting religious freedom requires unfettered access to abortion seems to be made for a “gotcha” culture: pro-life groups hoist with their own petard.

Is there any legal merit to the claim, though? A safe legalistic answer would be, “It depends.”

To assess the question, the first consideration is what overturning Roe v. Wade would do. That decision held that a right to privacy implied by the U.S. Constitution precluded limitations on abortion by the states. Thus, if the decision were overturned, the regulation of abortion would be returned to the states. Some states would enact limitations, as Mississippi has done; others would increase abortion access even more than the Supreme Court has done (for instance, by providing public funding, which the Supreme Court has held is not required).

So overturning Roe, by itself, would not implicate religious freedom.

Since abandoning the federal courts’ monopoly on abortion regulation would surely result in some states enacting limitations on abortions, would these laws restrict religious freedom?

Under the Supreme Court’s current test for First Amendment protection of religious freedom, a religious freedom claim for abortion would likely fail. The test is whether a challenged law or government action treats the same conduct differently based on whether it is religious or secular in nature. So, if the law prohibits use of peyote by any person, then a law prohibiting its use does not become unconstitutional because it applies to the use of the drug in a religious ceremony.

Thus, under this analysis, a regulation on all abortions would withstand scrutiny under the free exercise clause.

Assuming a more robust protection of religious freedom – such as provided for by state and federal Religious Freedom Restoration Acts (RFRAs) – there are two possible religious freedom claims that could be made against limitations on abortion. The answer to this question depends on the nature of those claims.

RFRAs require that a state law which burdens religious practices must be justified by a compelling government interest, and the law must be limited in its application so it does not limit the religious practice more than is absolutely necessary to advance that interest.

The religious freedom claim to abortion as made in the articles above would likely fail. A religious belief that abortion is not morally wrong, or even that it can be beneficial in some way, is not burdened by a government policy that regulates or prohibits abortions. Some simple analogies illustrate this: A religious group that opposes the death penalty does not have its religious freedom infringed by laws that allow for the death penalty. To take another example, a religious group that believes the government should be more generous in funding social programs would not be able to challenge a tax cut as a violation of its religious freedom.

A closer case might be a group that has a belief that abortion itself is a religious duty. There is one group that has made that claim – the Satanic Temple, which says it treats abortion as a religious ceremony. Assuming (which may be asking too much) that the group is not just trolling, a sincere religious belief that one must practice abortion would be burdened if that practice is illegal.

That would not end the analysis, though, because the state could still prevail if the challenged regulation narrowly protects a compelling interest. The state would likely win this argument, since the protection of life is the quintessential example of a compelling interest. In fact, law classes often use a hypothetical religion that practices human sacrifice as an example of an exercise of religion that can be prohibited.

So, the religious freedom argument for abortion is unlikely to have real traction as a way to keep the states from regulating the practice. Though intriguing, the argument is probably too clever by half.

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