In 1973, before the Supreme Court decided Roe v. Wade, two members of a group of clergy committed to helping women receive abortion care stated: “every woman must possess the freedom, guaranteed by the U.S. Constitution, to follow her religious conscience in the determination of whether she will or will not bear a child.”1 Religious supporters of abortion access also cited the Establishment Clause: states were adopting, in a religiously diverse nation, a religious view about when life begins and how to value fetal and maternal life. These pre-Roe examples, Elizabeth Sepper argues in Free Exercise of Abortion, are part of a long history of recognizing the religious dimensions of abortion decisions. A significant post-Roe example is the initial success, in federal district court, of a free exercise challenge to the Hyde Amendment, which excluded most abortions from Medicaid coverage while funding all other pregnancy-related expenses. After hearing extensive testimony by religious authorities about religious teachings on abortion, Judge Dooling framed a woman’s abortion decision, when “medically necessary to her health” and exercised “in conformity with religious belief and teaching,” as “conscientious,” and doubly protected under the Due Process Clause and the First Amendment.2 However, the U.S. Supreme Court, in upholding the Hyde Amendment in Harris v. MacRae, avoided reaching the Free Exercise argument and rejected plaintiffs’ Establishment Clause argument.
Despite this history, Sepper argues that in popular representation and in the political arena, religion and abortion are typically viewed in stark opposition, with “the religious position on abortion” assumed to be “pro-life” or “anti-choice.” (P. 179.) However, since the Supreme Court’s 2022 decision in Dobbs v. Jackson’s Women’s Health Organization returned the issue of abortion to “the people and their elected representatives,” appeals to conscience and religion to challenge abortion bans have become more visible. These claims about religious liberty, “for the first time in many decades,” center women “as the relevant religious and moral agents” and “make visible what we once knew and were made to forget”: “that we undertake religious decisions—to have children, form a family, and end a pregnancy—consistent with conscience and religious faith.” (P. 180.)
Such claims, however, meet with skeptical reactions from proponents of religious exemptions in other contexts. (P. 180.) Reactions include questioning the sincerity of persons raising them, redefining religion so that certain religions—such as liberal Jewish denominations—are not “really” religions, and arguing that free exercise only protects acts that are compelled by religious faith. (Pp. 196-205.) In Free Exercise of Abortion, Sepper refutes these skeptical responses and provides a useful primer on why such claims of religious liberty should prevail. She argues that the Roberts Court, in the last decade or so, has “turbocharged religious liberty rights,” with robust protection of Free Exercise claims to religious exemptions from a wide range of state laws—and similar expansive protection under the federal Religious Freedom Restoration Act. (P. 191.)
As for why such claims should prevail: Sepper explains that, under the Court’s so-called “most favored nation” approach, initially used in cases about governmental restrictions imposed during the COVID-19 pandemic, such as Tandon v. Newsom, if a restrictive law provides any secular exemptions, then it is no longer a “generally applicable” law; it must satisfy a strict scrutiny test for not providing religious exemptions. (P. 192.) Even if a law generally furthers a compelling interest, the Court, in Fulton v. City of Philadelphia, required that a state show a compelling state interest in “denying an exemption” to a specific religious person (or entity) objecting to the law.
On this approach, if an abortion ban provides any exemptions, then it must satisfy a strict scrutiny standard to explain why it does not exempt abortions sought for religious reasons. As Sepper observes: “virtually all bans allow the disposal of embryos created through in vitro fertilization”—a “dramatic underinclusion” because government “authorizes some significant destruction of embryonic life.” (P. 221.) Other common exceptions include pregnancy due to rape or incest, fetal anomaly, and ectopic pregnancy. (P. 221.) States have not offered plausible explanations for allowing these exceptions, which pose the same “danger” to fetal life, but not exceptions for abortion sought for religious reasons. These abortion prohibitions should fail strict scrutiny, given the Court’s own jurisprudence, but Sepper predicts that review by the Court will be “strict in theory,” but “unprincipled in fact.” (P. 218.) As Caroline Corbin observes, “the conservatives currently wielding power on the Supreme court share the conservative Christian views of states passing these bans.”
But the story need not end there. State courts interpreting the religion clauses of their state constitutions provide another forum that may be more receptive to religious liberty claims. Sepper urges state courts to “refuse to go along” if U.S. Supreme Court review proves “unprincipled in fact.” (P. 236.) Indeed, there have been some initial successes in state courts—in Kentucky, Indiana, and Utah—on constitutional and RFRA claims brought by persons whose reproductive lives are affected by these restrictive state laws, as well as doctors and clinics. (Pp. 195-96.)
Since the publication of Sepper’s article, an encouraging development in the Indiana case, Individual Members of the Medical Licensing Board v. Anonymous Plaintiffs,3 is that the Indiana Court of Appeals held that several women (four of them Jewish and one with spiritual beliefs not associated with any particular religious organization) and Hoosier Jews for Choice had shown a likelihood to succeed on the merits of their claim that Indiana’s restrictive abortion law infringed on their religious liberty, in violation of Indiana’s RFRA. The court concluded that terminating a pregnancy is a form of religious exercise, drawing on the U.S. Supreme Court’s expansive definition of the “exercise of religion” to include “not only belief and profession but the performance of (or abstention from) physical acts that are engaged in for religious reasons.” (P. 449 (citing Burwell v. Hobby Lobby Stores).)
In Burwell, for-profit corporations successfully argued that the Affordable Care Act (ACA)’s requirement that employers provide employees with insurance that covered reproductive health care (including contraceptive methods that Hobby Lobby and other plaintiffs found objectionable) violated their religious beliefs. In an important rejection of what Sepper has elsewhere described as the “asymmetric” protection of conscience, the Indiana court described the case before it as “the other side of the Burwell coin”: “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.” (Pp. 450-51.)
Respect for religious diversity among Hoosiers reflected the “whole range of religious belief and practice” among those who settled in Indiana. The court invoked U.S. Supreme Court precedents to argue that there need be no unity among “people of varying faiths” about reproductive choices for such choices to be protected. (P. 451.) Similar to the analysis that Sepper outlines, the court concluded that: (1) Indiana had not shown a compelling interest in protecting potential life from fertilization, given that its law permits abortions at all stages of pregnancy, under certain circumstances; and that (2) even if Indiana could show a compelling interest, its abortion law was not the least restrictive alternative of furthering it. The reasons that religious persons sought abortions—e.g., for their health—were similar in kind to the law’s exceptions. (Pp. 452-54.)
Worth mention, as well, is Judge Bailey’s concurring opinion, which concluded that Indiana’s legislature had “preferred one creed over another,” establishing one religion over another in violation of the Indiana Constitution’s bar on establishing religion. (Pp. 459-60.) The premise of Indiana’s law—that Indiana “has a compelling interest in the outcome of a woman’s pregnancy arising at the very moment of conception”—codifies a view of “when life begins, something intensely debated among adherents to various religions.” Further, the legislature “has not—to date—enacted wholly consistent statutory schemes conferring the rights of a human being upon zygotes, embryos, and fetuses” (mentioning the exemption for IVF). (P. 460.) Bailey argues that Indiana’s law adopts “a religious viewpoint held by some, but certainly, not all, Hoosiers.” (P. 461.)
Judge Bailey’s alternative vision of reproductive decision making in a “more perfect world” resembles that upheld by Judge Dooling and by early U.S. Supreme Court decisions about decisional privacy: a pregnant woman should “have no burden beyond examining her individual conscience, counseling with her spiritual advisor, and consulting with her medical provider.” (P. 460.)
These new challenges to state abortion bans have, as Sepper points out, brought to the fore stories of how decisions about abortion are, for many women and other pregnant persons, religious decisions. Instead of distrusting religious women and their capacity for moral agency and continuing the historical erasure of “pro-choice religious beliefs from the public square,” Sepper argues persuasively for recognizing that religious liberty implicates “central issues of reproductive justice.” (Pp. 211, 235.)
- Sepper at 183 citing Olivia Roat, Free-Exercise Arguments for the Right to Abortion: Reimagining the Relationship Between Religion and Reproductive Rights, 29 UCLA Women’s L.J. 1 (2022) (quoting Reverend Moody and Arlene Carmen, CSS, in 1973).
- Rhonda Copelon & Sylvia A. Law, “Nearly Allied to Her Right to Be”—Medicaid Funding for Abortion: The Story of Harris v. McRae, in Women and the Law Stories (2011).
- 233 N.E.3d 416 (Ct. App. Ind. 2024).
