In the aftermath of the oral argument in Dobbs v. Jackson Women’s Health Organization, the writing was on the wall. Everyone who listened could confidently predict that the Court would soon be overruling Roe v. Wade and Planned Parenthood v. Casey and would accordingly invite the states and federal government to force women to carry unwanted pregnancies to term and then birth the babies that they did not wish to create in the first place. Five Justices showed no interest in gradually thinning out a woman’s right against forced pregnancy and birth; they appeared to have the votes and would therefore fulfill Donald J. Trump’s promise to his religious followers. The leaked opinion by Samuel Alito was certainly shocking in some ways, such as its utter failure to even acknowledge the extreme intrusion that unwanted pregnancy places upon its victims. Yet no one who was paying attention could have expected the Court to show any regard for the bodily integrity of half the population.
Much to their credit, some readers of the Alito leak believed that, like men, women are entitled to expel unwanted raw material from their bodies. These people began strategizing a way of finding an exception. And because this Supreme Court has seemed to value the free exercise of religion above all other constitutional provisions, with the possible exception of the right to bear arms, people objecting to the Court’s betrayal of women thought that religion might offer an exit ramp from the Court’s religious ruling in Dobbs. In this column, I will consider why this exit ramp, though well-intentioned, will not work.
The argument offered by well-meaning people is that if an abortion constitutes part of a woman’s (or a trans man’s or a nonbinary person’s) religious practice, then the Supreme Court will respect at least that abortion because the Justices care about the exercise of religion. There are two ways in which someone might refer to an abortion as religious, and I will next explain each one, along with why I am pessimistic about its likelihood of swaying the Justices.
My Religion Permits Abortion
One way in which a person might use the phrase “this abortion is religious in nature” is to refer to an abortion that their religion allows. Many religions reject the idea that a one-celled human DNA pack is the equivalent of a baby. I cannot help but note here that this idea of one cell as a baby has nothing to recommend it in terms of logic (or linguistics) apart from straight religious dogma. It is therefore unsurprising that many religions reject it. In Judaism, for instance, the zygote/embryo/fetus is not the pregnant woman’s equal until a specified point in labor and delivery. I think the Jewish idea here goes too far in the other direction by denying personhood to a full-term fetus, but it is certainly less absurd than the notion that a zygote is a baby the “rights” of which ought to play a role in regulating women’s behavior.
Assume that a particular religion provides that abortion is permissible until a particular point in pregnancy, such as viability. If I belong to this religion, I might say “there is a conflict between my state’s law prohibiting abortion and my religion allowing abortion, and I should therefore have a right, under the Free Exercise Clause of the First Amendment, not to be forced to remain pregnant and give birth against my will. This argument sounds nice, but it does not work, sadly. Religions frequently govern different kinds of behavior from what the government regulates. That fact does not add up to a conflict.
My religion might permit littering, while an ordinance of my municipality prohibits littering. The existence of the ordinance does mean that I must refrain from littering notwithstanding the absence of any religious prohibition within my religion on the behavior. I would almost certainly fail if I were to argue that I am entitled to an exemption from the prohibition against littering because my religion allows me to litter. So long as my religion does not require me to litter, I can obey my religious rules and comply with the local ordinance at the same time. No conflict.
To be sure, one could complain that Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett seem to be allowing states and the federal government to impose their peculiar religious vision of “life” on people who practice a religion that rejects such a view. The word “religion” appears nowhere in Justice Alito’s leaked draft opinion, but the “fervent” religious motivation for the decision is still evident. Yet this complaint is really a challenge to the Court’s anticipated ruling on abortion, on Establishment Clause grounds. I regard such a challenge as very well-founded because I have no desire to be governed by a religious orthodoxy of any type, let alone one that some Trump Justices unleash on the population. The problem, however, is that the Court already made its decision to ignore the Establishment Clause, so the argument that prohibiting abortion violates that clause is an argument for overruling what will likely become the decision in Dobbs and not an argument for an exception to Dobbs. Someday, I believe, the Court will no longer be in the grip of religious dogma, and the new Justices will view this “life begins at conception” declaration as the unconstitutional insinuation of religion into the business of judging that it is. Until that day, “my religion permits abortion” will necessarily fail.
My Religion Requires Abortion
If one wanted to have a chance of prevailing on a “religious abortion” claim, one would have to assert that one’s religion requires one to have an abortion rather than that it merely allows one to have one. If one’s religion requires an abortion, then the state law that prohibits abortion would plainly interfere with one’s ability to practice one’s religion. But when would anyone’s religion require an abortion?
Well, if you are an observant Jew, then you live by a principle that says, in Hebrew, “Pikuach Nefesh Docheh Et HaKol.” It means that if someone’s existence is in peril, the obligation to address the situation moves aside any other obligations. In practice, this means that a doctor can work on the Sabbath, despite the prohibition against doing so, because helping the sick is more important than obeying the Sabbath, even if many of the sick people are unlikely to die in the absence of emergency treatment. Prohibitions against touching another man’s wife also go by the wayside if the wife is your patient, and you are acting to address that patient’s sickness. You can probably figure out where this line of argument is headed.
If a pregnant woman is experiencing serious medical complications that can be treated only by terminating her pregnancy, then she has an obligation to expel the contents of her uterus. The fact that such contents, in Jewish law, do not qualify as her equal is an important element of the rule here. If the Jewish religion took the same position that some Christians take that a one-celled human DNA-pack is the equal of the woman in whose body one may find it, then an abortion would be impermissible instead of mandatory. But because the woman is a person and the zygote/embryo/fetus is not, one must rescue the woman from her serious health problem by expelling the harmful tissue. So would the woman who wants an abortion for her health be able to rely on the Free Exercise Clause of the First Amendment to successfully terminate in a state that bans abortion?
Why the Second Argument Doesn’t Work Either
I hate to be the bearer of bad news, but the above, second, argument, is also unlikely to persuade the Justices. Why? Because despite Justice Alito’s pretense that “some” (rather than he and his colleagues) embrace the personhood of zygotes, he and his majority plainly do embrace it. After all, in no other context does the fact that some people think something provide a basis for grotesque intrusions into citizens’ bodily integrity, and yet it does so here. Because five and perhaps six of the Justices on the Court view abortion as murder, no matter how early in pregnancy, we must imagine a religious person bringing a Free Exercise claim involving murder to the Court.
Let us say that Vivien Volcano brings a case to the Court saying that she has a religious obligation to take her two-year-old child and throw her into an active volcano. She argues the case on Free Exercise grounds. What would happen? First, her religious obligation would present a square conflict between the law, on the one hand, and her religion, on the other. The Court might therefore be willing to apply strict scrutiny to the law in question and ask whether the murder law, as applied to the killing of Vivien’s child, rests on a compelling governmental interest.
On the other hand, the Court might apply the Free Exercise test announced in Employment Division v. Smith. Under Smith, statutes and policies that conflict with religious requirements do not trigger strict scrutiny so long as the challenged law is neutral and generally applicable. The murder law applied to Vivien Volcano is neutral and might therefore trigger only rational basis scrutiny.
But even if the Court were to apply a more demanding standard like strict scrutiny, how would it answer Vivien Volcano’s plea? With a resounding “no way.” The state’s interest in protecting innocent people from being killed will override Vivien’s religious observance, and most of us would not want it any other way. The fact that her desire to kill her child comes from sincere religious commitments will not matter in a case like that. Even applying strict scrutiny, the Court would deny Vivien’s claim.
To the extent that Justice Alito and his colleagues view an abortion as murder and are willing to continue to ignore the fact that the zygote/embryo/fetus is inside a person and is imposing tremendous physical and psychological burdens and risks, they will treat claims for religious exemptions just as they would Vivien’s asserted right to throw her two-year-old into an active volcano. They will thoroughly reject such claims. I understand that the goal of the argument is to give at least some people the right to abortion, even if most people cannot have it. But the effort to distinguish between the person who wants an abortion for religious reasons and the person who wants the abortion for secular reasons will fail so long as the Court treats the zygote as a baby.
The bottom line is that despite appearances to the contrary, this Court is not especially friendly to Free Exercise claims. It has issued ludicrous rulings, in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission and Fulton v. Philadelphia, not because it is religion-friendly. Its rulings instead reflect its friendliness to conservative Christianity and, accordingly, to Judaism and Islam where the ask is minimal or the traditions happen to be the same. Christians can violate the anti-discrimination laws for religious reasons because they are Christians. The sooner we come to understand that the Court is all about Christianity rather than some capacious vision of religious liberty for all, the sooner we will begin the process of finding solutions to our modern-day theocracy problem that do not ask the Court to behave with integrity or consistency. We are Charlie Brown, and a majority of the Court is Lucy. ’Tis better to know that rather than to remain in a state of denial.