Abortion Is Not A Religious Exercise

Some abortion advocates are so zealous that, I’ve heard people say, it’s as if abortion is their religion. Now, in the latest entry to the truth-can-be-stranger-than-fiction file: Abortion extremists in Indiana claim that the state’s law banning most abortions violates their right to…wait for it…exercise religion. The Indiana Supreme Court is now considering their lawsuit.

This is the legal backstory. The First Amendment protects the fundamental right to freely exercise religion. Because this right is so important, the Supreme Court has long said that government needs a “compelling” purpose to interfere with it. In 1972, some creative law professors argued that a woman exercises religion when she has an abortion allowed by her religious or moral beliefs. Since protecting human beings in the womb is not a “compelling” government purpose, the argument goes, pro-life laws violate the First Amendment.

In 1990, however, the Supreme Court said the compelling purpose standard applies only when the government deliberately undermines religious practice. That hardly ever happens, which means the government almost never violates the First Amendment, no matter how it hinders, or even prohibits, the exercise of religion. Congress responded by passing the Religious Freedom Restoration Act (RFRA) to bring back the compelling purpose standard for all religious exercise cases. Many states, including Indiana, have passed RFRAs to similarly protect religious exercise against state government action.

When Congress considered RFRA, some pro-life groups warned that abortion advocates might once again claim that pro-life laws violate the right to exercise religion, this time citing RFRA rather than the First Amendment. The nation’s leading First Amendment scholars pushed back, arguing that, to be an exercise of religion, a decision or action must actually result from religious belief. Simply being consistent with, or not prohibited by, those beliefs is not enough.

The Supreme Court had taken this position in 1980 when it upheld the Hyde Amendment, a federal law banning taxpayer funding of most abortions. The Court said that, to be an “exercise of religion,” an action or decision must actually be compelled by, rather than just consistent with, religious belief.

Now abortion advocates are, once again, making the same argument in challenging Indiana’s pro-life law. Their first hurdle, which the Indiana Supreme Court explored in the argument on September 10, is whether the plaintiffs have legal standing to challenge the pro-life law at all. A plaintiff must have suffered an actual or imminent legal injury caused by the defendant that the court can address. In this case, none of the plaintiffs is pregnant, intends to become pregnant, or has ever been denied an abortion. Indiana has never even attempted to enforce the law they are challenging. Instead, the plaintiffs can only make the hypothetical claim that the state prohibits abortions that they might, someday, seek to obtain.

The second hurdle is the one the Supreme Court addressed almost five decades ago in Harris v. McRae. The plaintiffs say that the hypothetical abortion they might someday seek, but that the state would prohibit, is “consistent” with their religious beliefs — exactly what the Court in Harris said was not enough. Imagine how many decisions or actions your religious or moral beliefs do not explicitly prohibit. Then think of how many laws of all sorts you could ignore simply by claiming that your beliefs allow you to do what those laws prohibit or refrain from doing what they require.

The third hurdle — if they get past the first two — is that government has an obvious compelling reason to protect human beings in the womb. Abortion, after all, is homicide committed earlier, and by different methods, than the homicide the law already prohibits. Calling it “abortion” rather than “homicide” can’t change that. If protecting human beings from being killed isn’t a compelling government purpose, what is?

This Indiana case is one of several similar attempts to eliminate pro-life laws. Abortion advocates did not need this religious argument after the Supreme Court created a right to abortion, but they want to bring it back now that the Supreme Court has said the abortion right does not exist. Their argument is no more valid today than it was when it was proffered and rejected in the past.

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Thomas Jipping is a senior legal fellow at Advancing American Freedom.