Abortion and Religious Liberty

Abstract

For nearly five decades, Roe v. Wade was treated as the law of the land. During that period, the Supreme Court mistakenly read the Fourteenth Amendment’s Due Process Clause to constrain abortion laws. Now, with the ink on Dobbs barely dry, a small crack in American abortion jurisprudence has widened into a fissure. Pro-choice groups have quickly pivoted from substantive due process to the free exercise of religion as the basis for constitutional challenges to state abortion regulations. Plaintiffs across the country have filed lawsuits asserting that abortion laws violate the federal and state Religious Freedom Restoration Acts (RFRAs).

This Article proceeds in six parts. Part I sketches the strengths and weaknesses of the claim that RFRA provides a right to abortion until birth. Part II explains the procedural hurdles to litigating RFRA-abortion claims, with regard to individual plaintiffs as well as organizations or classes. Part III analyzes the first prong of RFRA: do the plaintiffs sincerely believe that a restriction on abortion substantially burdens their free exercise of religion? Part IV addresses whether the state has a compelling interest to protect fetal life. Part V responds to the argument that abortion laws are not narrowly tailored because they have exemptions for rape and incest, among others. Part VI closes with a warning about the “ad hoc nullification” machine’s next target for distortion: religious freedom.

Keywords: Abortion, Religious Liberty, RFRA, Dobbs