RFRA and Abortion

by Ramesh Ponnuru

I got this email a few weeks ago in response to an article about the Religious Freedom Restoration Act and the HHS mandate. Since I’ve just revisited the topic of religious freedom, I figured I’d run it and try to answer it.

I guess I just don’t see this religious liberty argument as a real one because you people don’t really believe in it. You don’t want religious freedom on abortion, you want to make everyone follow the view of some Christian churches (not even all of them). If you were consistent on this it would be a great example for conservatives but until then I don’t take this seriously.

I’ve made the argument many, many times about why laws against abortion do not amount to the imposition of theological views on people who do not believe them, so I’m not going to repeat it here. (Short version: A government that bans the killing of a three-month-old fetus is not taking a position on whether the fetus has an immortal soul any more than a government that bans the killing of a forty-year-old is taking a position on whether he does.) Instead, I’ll just make the point that people who object to abortion laws should be able to file RFRA-style claims against them.

Let’s say Roe has been overturned, and a state has a RFRA and bans abortion. To get a religous exemption from it, a pregnant woman (for example) would need to show that she sincerely believes she has a religious duty to obtain an abortion. She would also need to defeat the state’s case that the protection of human life from abortion is a compelling governmental interest or show that the state could serve that goal without burdening her conscience. I don’t think these arguments would be very strong. RFRA would allow them to be made but not require that they prevail: as is true for other religious believers pressing their claims.

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