Religious freedom requires access to abortion? Maybe not

Written by William C. Duncan

May 29, 2024

​Since the U.S. Supreme Court allowed states to regulate abortion in 2021, states that have chosen to limit the commission of abortion have been faced with lawsuits arguing that state laws or constitutions require those states to allow abortions.

One of the more intriguing arguments is that state protections of religious freedom require states to allow abortions. It is an alternative to a broader claim that a state constitution contains an unwritten right to abortion that is unlikely to prevail where state courts feel constrained by the actual language of the state constitution. It also appeals to a sense of irony or schadenfreude among those who might enjoy seeing a legal principle they dislike (“an antisocial legal cudgel,” as expressed in one article) be the means of advancing a result they favor.

The interest in this approach has been heightened by a recent Indiana Court of Appeals decision that accepts a version of the argument. That decision highlights the possibilities of the claim as well as its limitations.

The Indiana court determined that the state’s law could not, pending an appeal, be enforced against a small group of plaintiffs who allege that their religious beliefs require them to have an abortion in unusual circumstances, such as when a mother’s life would be in jeopardy if pregnancy continues. The court determined that denying the plaintiffs an abortion under these circumstances was likely to conflict with a state law that provides that the government cannot burden a religious practice unless doing so is necessary to advance a compelling government interest.

The question of burden is particularly important and sets this case apart from the more typical way of framing the religious argument in favor of access to abortion. That argument maintains that limiting circumstances in which an abortion can be performed violates the religious freedom of those who believe that abortions should be allowed in most or all circumstances.

The Indiana court did not have to address this typical framing. As previously described here and in a brief filed with the Utah Supreme Court, such an argument is likely to fail. The fact of a religious belief at odds with a particular legal policy is not enough to create a religious freedom right to have the policy struck down. That someone sincerely believes that immigration should be welcomed or that sexual relations outside of marriage are wrong does not require the government to open borders or criminalize extramarital relationships.

As the Sutherland amicus brief explained: “The essential nature of a claim that one has been deprived of the ability to freely exercise religion or a right of conscience is that the claimant has a religious or conscientious duty either to do or to refrain from doing something and has been subjected to a state sponsored burden for doing or failing to do that thing.”

The plaintiffs in Indiana argue that they do have a religious duty to pursue an abortion under certain circumstances, so their stance arguably raises the possibility of a burden. This claim is still only arguable, though, because the burden has to be imposed by the government. This will require showing that the circumstances under which the plaintiffs believe they must choose abortion are not already exempted by Indiana’s law, which allows for an abortion when the mother is facing serious health risks, when ending a pregnancy is necessary to save her life, or when the unborn child is “diagnosed with a lethal fetal anomaly.” The Indiana court did not address this question at length, perhaps because the case is still at a preliminary stage, but if a state law does not prevent abortions under the circumstances that coincide with the religious belief, that belief would not be implicated by the law.

Another aspect of Indiana’s religious freedom law is that it does not require the state to allow even religious practices that are at odds with a compelling interest of the state. Although the Indiana Supreme Court had specifically ruled that the state does have a compelling interest in protecting unborn life in a pre-Roe case, the Indiana Court of Appeals did not feel bound by that decision. In part, they argued that allowing exceptions means the interest is not truly compelling. The Indiana Supreme Court will likely weigh in on that conclusion, and it may be inclined to agree with the state’s argument that allowing abortions in the event of rape or incest or to protect a mother’s life do not undercut the state’s interest in protecting an unborn child from an intentional abortion where other potentially countervailing factors do not exist.

Whatever happens as this case continues in the courts, the implications are likely to be very narrow and only apply to rare instances where someone can plausibly claim that abortion limits directly conflict with religious responsibilities.

Religious freedom protections are meant to provide critical protections for those who cannot conscientiously do or refrain from doing something that would otherwise be required by a government law or policy. They are not intended to be used to promote wholesale changes to the law, and they should also not be pressed into service to provide a comeuppance to those whose policy views differ from ours. That is what taking the law seriously requires.

Insights: analysis, research, and informed commentary from Sutherland experts. For elected officials and public policy professionals.

  • Some advocates have argued that religious freedom laws can be interpreted to require a broad right to abortion.
  • An Indiana appeals court gave initial acceptance to such an argument in a case where plaintiffs argue that their religious beliefs require abortion in unusual circumstances, such as when a mother’s life would be endangered by continuing a pregnancy.
  • Principles of religious freedom are likely to provide a defense against abortion restrictions in very limited circumstances (if at all).

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