There’s no sound legal reason to use the state’s Religious Freedom Restoration Act against its abortion restrictions.
There’s no sound legal reason to use the state’s Religious Freedom Restoration Act against its abortion restrictions.
O n December 2, an Indiana judge embraced religious superstition, rejected science, and in doing so dragged the Hoosier State back into the Dark Ages. In the case, Anonymous Plaintiff 1, et al. v. The Individual Members of the Medical Licensing Board of Indiana, the trial court found that Indiana could not enforce a commonsense, abortion-limiting, and science-driven regulation that restricted abortions with limited exceptions against religious objectors who advocate for broad abortion access. The court did this under Indiana’s Religious Freedom Restoration Act (RFRA), a law once derided for its propensity to “turn back the clock on equality and foster a culture of intolerance.”
Of course, such a description is overwrought — just as concerns about Indiana’s RFRA were badly overwrought years ago, when it first became law. But now progressives who once put religious liberty in scare quotes are celebrating the use of religion as a sword against the state, so long as it is used to slay the right foe: laws limiting access to abortion. Yet in their exuberance for such a clever reclamation of the First Amendment, they have managed to bungle the concept of religious liberty altogether. And, because of their errors, they — unlike true proponents of religious liberty — are bringing about the harms they prophesied Indiana’s RFRA would cause.
The court in the Anonymous Plaintiff 1 case held that religious law rather than science dictates “when life begins.” According to the district-court judge, a sincerely held religious view can serve as an omnipotent objection to the law in question, not merely in demonstrating that a law imposes a substantial burden on religious practice, but also in subsequently preventing the state from explaining that it had a competing interest in protecting fetal life that could justify such a burden. But to hold that a religious conviction conflicting with state law wins, end of story, is to misunderstand religious liberty. It is anathema to religious pluralism, contradicts clear Supreme Court precedent, and violates the First Amendment.
A coalition of religiously diverse plaintiffs challenged Indiana’s abortion laws under the state’s RFRA. Indiana now prohibits abortions except for cases in which “performing the abortion is necessary to prevent any serious health risk to the pregnant woman,” cases of “lethal fetal anomaly,” or cases where the pregnancy is the result of rape or incest and the abortion is performed within the first ten weeks. The plaintiffs argued that this violates RFRA because it would prohibit them from aborting children in cases where they are theologically required to do so.
Courts engage in a two-step analysis to determine whether a law violates Indiana’s RFRA. First, the court determines whether the law substantially burdens an adherent’s religious exercise. If the religious person can show that, then, at step two, the state must show that it is trying to advance a compelling government interest and should still be allowed to enforce the law as designed because doing so is the least restrictive means of accomplishing its goals.
Religious objectors must prevail on both questions in order to obtain an accommodation. We will briefly look at the court’s analysis regarding the first question, but we will focus on the court’s “compelling interest” analysis, because that is where the court erred most grievously.
The court first concluded that the law would burden plaintiffs’ sincere religious belief regarding the need to obtain abortions. This is largely, though not necessarily completely, unobjectionable because courts should generally defer to plaintiffs’ understanding of their own faith. It does not matter what Jewish law “truly” holds; it is sufficient that these plaintiffs sincerely believe they are required to abort children in some cases. (Though we, as Orthodox Jews, reject such an interpretation of the Jewish tradition and think it mistaken, we believe that courts should not be in the business of trying to interpret religious law or theology for themselves. Whether these plaintiffs are Jews or Universalists, Orthodox or Reform, is ultimately immaterial. As long as their beliefs are sincerely held, the court should defer.) And there can be little doubt that if the plaintiffs believe they are obligated to perpetrate abortions, this law would substantially burden their fulfillment of such an obligation.
Unfortunately, the court did not merely accept the plaintiffs’ understanding of their faith. It recited the plaintiffs’ beliefs in absolute terms as if they were Judaism’s undisputed teaching. This is especially glaring given that, a few paragraphs later, the court acknowledges that other faiths, such as Islam, contain diverse views on abortion. This may not be legal error because the outcome is probably the same regardless — the plaintiffs’ sincerely held religious beliefs should be credited. But it is incorrect and deeply offensive to Jews who disagree with the plaintiffs. At the beginning of the opinion, the court’s overbroad language might be excused as inartful writing or sloppiness, but this religious imperialism soon takes a much more nefarious turn.
The court proceeded to examine whether Indiana had a compelling need to enforce the law despite its burden on religious observance. Or at least it purported to. The court so badly distorted this prong of the analysis that it effectively repeated the first prong a second time — and unsurprisingly reached the same conclusion.
The court concluded that Indiana does not have a compelling interest in protecting fetal life. Holding that the plaintiffs’ religious beliefs dictate that life begins only at birth, and that their understanding of their own religion deserves due deference, it found that Indiana was not permitted to adopt a contrary view in order to defend its law. If you’re thinking that such a logical leap — accounting only for the plaintiffs’ religious beliefs when examining the state’s interest — makes no sense, rest assured that you are not alone.
According to the court, “facts about the process of human zygotic, embryonic, and fetal development do not answer the question of when life begins.” Let’s hope that the judge does not have one of those In This House We Believe in SCIENCE signs sitting in front of her courtroom, because she is completely wrong. Unless you radically redefine “life,” you know — as even defenders of abortion frequently admit — that an embryo is a living member of the species Homo sapiens.
The judge based this shocking conclusion on the fact that there were “competing factual affidavits filed by both sides” in the case. Indiana’s legislature was not permitted to sort through disputed scientific evidence and pass laws based on its own evidence-based conclusions. Instead, she concluded that given the scientific disagreement, Indiana had to accept the plaintiffs’ religious views as the final word on the matter.
The judge cited Supreme Court precedents such as the Hobby Lobby case, which deferred to religious business owners’ conscientious objections to generally applicable laws, to defend her holding. However, the language the judge cited refers to the proper conclusion that courts cannot second-guess religious adherents’ understanding of their faith when determining whether a law burdens their religious exercise. That is the first step of the RFRA analysis.
Nothing in any of the cases cited suggests that an adherent’s faith is relevant to the state’s interest in passing the law. In fact, the Court in Hobby Lobby simply assumed that the government had a compelling reason for adopting the regulation at issue in the case. Holding that the state’s reasons for wanting to enforce a law cannot conflict with a religious objector’s faith means that, by definition, a state can never cite sufficiently strong reasons for enforcing a law over religious objections. That is simply not what RFRA requires — it is the caricature that RFRA’s opponents drew of it when Indiana’s RFRA bill was a progressive bogeyman.
The judge was equally mistaken in her conclusion that a state cannot pass laws based on its own views regarding disputed scientific facts. As the Supreme Court has noted, “the Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” And there is no exception for abortion cases. As the Supreme Court has held, “medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts.”
In this case, the court should have credited the state’s explanation that it passed an abortion regulation to protect the lives of unborn children. There was no evidence that either party’s explanations were insincere. The court did not state any valid basis for accepting one and rejecting the other. Its opinion should be, and likely will be, reversed on appeal.
But beyond the legal issues, it is worth considering how badly this case misunderstands the constitutional value of the free exercise of religion. RFRA has two distinct steps because it seeks to balance two crucially important interests. It is intended to ensure that religious minorities can freely exercise their faith while also allowing the state to pursue its most important goals of advancing public health, safety, and morality. Because some state goals are crucial but inevitably collide with religious objections, religious adherents cannot, for instance, claim an RFRA right to discriminate on the basis of race or to commit human sacrifice.
It is a delicate balance between liberty and order. But this case upsets that balance by putting a thumb too heavily on the scale in favor of the religious adherents by denying the state’s right to advance its view of the public good. At first blush, one might think that proponents of religious liberty would celebrate such an imbalance so long as it seems to benefit religious people. That would be a serious mistake.
Not only would the unprecedented view of RFRA adopted in this case likely violate the First Amendment’s prohibition against a state’s establishing religion — giving some religious groups veto power over the state government — it would also make religious pluralism and compromise much more difficult. Under this standard, it would be impossible for the government to ever satisfy its burden of showing its compelling interest to overcome religious objections. RFRA really would be a “get out of jail free card” that allowed religious adherents to ignore any law they considered objectionable.
If that was indeed what the law demanded, no state would ever pass a law accommodating religious interests. They would speedily repeal all such laws already in place. RFRA would simply be too dangerous to leave in place. Fortunately, that is not what RFRA or any other law protecting religious liberty requires. Those tasked with interpreting and applying it should be careful not to shirk from the difficult trade-offs inherent in balancing individual rights and state powers.
The purpose of the First Amendment and laws such as RFRA is to allow religious minorities to observe their faith while living in a religiously pluralistic republic. Contrary to what critics of religious liberty once argued, RFRA has never given religious adherents an absolute veto over a state’s legislative agenda. It certainly does not allow religious adherents to dictate state policy regarding contested moral, philosophical, and theological questions. But those unaccustomed to making religious-liberty arguments seem to find the practice of balancing competing interests quite foreign, to embarrassing effect.
Howard Slugh is the general counsel for the Jewish Coalition for Religious Liberty. Tal Fortgang is a law student and Tikvah Legal Fellow.