Religious Freedom Doesn’t Justify Abortion

A bortion fanatics, reeling from the demise of Roe v. Wade, are now trying to manipulate the principles and legal precedent of religious freedom in a desperate attempt to undermine new state laws restricting abortion. Alas, one court of appeals in Indiana bought their argument earlier this month, concluding that the state’s abortion law could be enjoined. Courts reviewing this case on appeal, or reviewing similar attacks on state abortion laws, must not be so easily duped.

Indiana is one of several states that, following the Court’s decision in Dobbs v. Jackson Women’s Health Organization, enacted near-total abortion bans or restricted abortions to the earliest weeks of a pregnancy. The Indiana law prohibits all abortions except in the case of a fatal fetal anomaly, of serious health risk to the mother, and of rape or incest.

Unwilling to accept any restrictions on the gruesome procedure, the Indiana chapter of the American Civil Liberties Union filed suit in state court on behalf of “Hoosier Jews for Choice” and four anonymous women. Their complaint asserts that Judaism, Islam, Unitarian Universalism, and Paganism demand unfettered abortion access. The plaintiffs claim that the new law infringes on their religious beliefs and violates Indiana’s Religious Freedom Restoration Act (RFRA). Their request for a preliminary injunction was granted, and the court certified the case as a class action. A state appellate court largely agreed.

Under Indiana’s RFRA, as in the federal equivalent, a party establishes a prima facie case by showing that the disputed governmental action substantially burdens sincerely held religious belief. The burden then shifts to the government to establish that a compelling governmental interest is “satisfied through application of the challenged law” to the claimant whose sincere exercise of religion is allegedly substantially burdened. The government must also establish that the burden “is the least restrictive means of furthering that interest.”

Indiana sensibly argued in court that the plaintiffs failed to meet this burden because abortion is not a religious exercise. In a decision that can be attributed only to the blindness of abortion zealotry, Judge Leanna K. Weissmann disagreed. Citing the Supreme Court’s decision absolving the craft-store giant Hobby Lobby from the Affordable Care Act’s “contraceptive mandate,” Weissman concluded that “if a corporation can engage in a religious exercise by refusing to provide abortifacients — contraceptives that essentially abort a pregnancy after fertilization — it stands to reason that a pregnant person can engage in a religious exercise by pursuing an abortion.” Such a leap of logic is as astounding as it is disturbing. A religious teaching permitting (not prohibiting) an activity is not the same as requiring that activity.

Becket Law, the religious-freedom powerhouse that has litigated cases under state and federal RFRAs and represented Hobby Lobby in the Supreme Court, filed an important amicus brief. It explained that it is concerned that “plaintiffs’ attempted expansion of RFRA will damage the law of RFRA and ultimately the free exercise of religion in Indiana.” They pointed to evidence that “plaintiffs’ beliefs are insincere,” adding that there is a “reasonable inference” that plaintiffs “disagree with the Supreme Court’s intervening decision in Dobbs — not because their alleged religious beliefs are ‘truly held.’” Becket’s brief also noted that “plaintiffs cite no case finding a religious right to take a life, the court below cited no such case, and Amicus is unaware of any such case.”

One of Judge Weissmann’s colleagues, Judge Mark Bailey, revealed an even greater degree of pro-abortion zealotry in his concurring opinion. “Legislators, an overwhelming majority of whom have not experienced childbirth, nevertheless dictate that virtually all pregnancies in this State must proceed to birth notwithstanding the onerous burden upon women and girls.” Bailey even attacked the religious motivations of some of his state’s lawmakers: “They have done so not based upon science or viability but upon a blanket assertion that they are the protectors of ‘life’ from the moment of conception. In my view, this is an adoption of a religious viewpoint held by some, but certainly not all, Hoosiers.” Editors at the notoriously pro-abortion online magazine Slate hailed Bailey’s concurrence, writing that “given the opportunity, some ideas will not be repressed, and in Indiana, the idea that abortion is a matter of religious freedom has broken through in the lower courts.”

That’s hogwash. This sort of reasoning would render all homicide laws, for example, religious impositions; after all, the prohibition is found in the Ten Commandments and elsewhere in religious texts.

Lawmakers in the Hoosier State, shortly after the Supreme Court restored the right of states to regulate abortion, passed a law limiting the procedure in the state. They weren’t alone. Many states have similarly passed laws placing restrictions on the procedure. And, like Indiana, seven other states are defending against lawsuits by claiming a religious interest in terminating pregnancy. It’s as if there is a concerted legal strategy being waged.

The three-judge appellate panel in Indiana undermined the will of the people, the first state court to adopt such specious religious-liberty claims. Its decision must be reversed. Otherwise we face the disgusting prospect of abortion being treated as a religious practice under the law.