Following my online analysis of the Supreme Court’s opinion overruling Roe v. Wade, Dobbs v. Jackson Women’s Health, I heard from folks who were unperturbed by the fact that Dobbs is based on a religious belief—life begins at conception—rather than a legal foundation. One man politely chastised me for my views and suggested that I need to be saved by Christ. When I responded that I am in fact a Christian who disagrees with his beliefs, he told me that, “There is no such thing as TWO true Christianities.” Another conversant urged me to take “the spiritual approach,” which would lead me to truly understand Dobbs and the bans on abortion.
Here was my response: “With all the due respect required by the tolerance necessary to our democracy, I do not share your beliefs. Indeed, my faith rejects them. The Constitution is not supposed to be interpreted through one religious viewpoint. Here is irrefutable original intent: the Framers rejected a theocracy in favor of a democratic republic.”
I tell these stories to highlight the danger the forces behind the theologically-driven Dobbs opinion are to our pluralist democracy and religious diversity. Most Americans have been gas-lit by the religious right to cower from declaring our own beliefs. At the same time, their fellow believers have been persuaded that constitutional rights should rest on their religious beliefs. Their persistent labeling of their beliefs as “religious” and everyone else’s as “secular” has led millions of Americans to think that this has been a culture war between true believers and religious outsiders. That’s a lie. It’s never been a culture war—it’s a religious war. Tragically, only the right has understood that. Until now.
In fact, those who disagree with the religious right on abortion are also religious, whether explicitly or simply as part of the person’s religious worldview. They just don’t believe what the pro-life believers and a majority of the Justices do. It’s time for the majority of Americans to insist that their beliefs and religious worldviews be recognized in the courts on the abortion issue, and others as well.
Pregnant Girls and Women Should and Can Invoke Religious Freedom Restoration Acts in Many of the States with Abortion Bans (and Likely Bans)
In a rich irony, the pathway for pregnant girls and women to obtain an abortion in the abortion ban states is through the statutes that have been central to the religious right’s religious war against civil rights: the Religious Freedom Restoration Acts (RFRAs). There is a federal RFRA that applies to federal law and Washington, DC, and there are 24 RFRAs in the states. I am no fan of the RFRAs, as explained in my book, God vs. the Gavel: The Perils of Extreme Religious Liberty, but I will leave those arguments aside to focus on how they can be turned into a weapon for the girls and women whose rights to bodily autonomy have been summarily dissolved by the Supreme Court.
The Court majority has made a severe miscalculation by believing what it’s hearing in its own echo chamber: a goal of complete elimination of abortion in every state is legitimate and possible and their religious beliefs are appropriately at the center of that universe. But that scheme is directly in opposition to millions of believers. A world without a choice on abortion is a world in violation of the free exercise of millions of believers.
The RFRA advocates have made it as broad as possible, which will enable the pregnant to argue in RFRA cases on the basis of their broad religious worldview. Why? Because the beliefs that trigger RFRA protection need not be central to a faith tradition. According to the federal RFRA, which is the model for all the others: “RFRA applies to all sincerely held religious beliefs, whether or not central to, or mandated by, a particular religious organization or tradition.” You read that right: RFRA protects tangential beliefs that are part of a religious worldview, not beliefs cataloged in anyone’s Bible, Koran, or Torah. Those invoking these extreme religious liberty statutes in the public health and the land use context have not bothered to tether their beliefs to anything concrete or historically provable. It’s simply what they believe now.
Here’s the irony: the abortion ban states map onto the RFRA states pretty neatly. While the numbers are in some flux, right now my research indicates that there are 16 states where a pregnant girl or woman would have the weapon of a RFRA to obtain an abortion against a ban. The following map shows the states where there is a RFRA and those states where there are partial or full abortion bans or likely bans. The stripes show the states that have both a RFRA and a ban. Note the overlap!
The Arguments to Make Under a RFRA to Vindicate the Beliefs of Pregnant Girls and Women to Invalidate Abortion Bans
The RFRAs hand a believer a weapon: a private right of action to invalidate a law that burdens their faith. When it comes to abortion, there are a variety of beliefs by denomination, as the Pew Research Center documented here and here. But, of course, the First Amendment is not limited to the beliefs of organized religions. Each of us has an absolute right to believe whatever we choose and to invoke religious liberty based on our individual beliefs.
Here is the RFRA roadmap: First, the believer must prove that a law imposes a substantial burden and sometimes just a “burden” on their faith. Once they succeed, the burden of proof shifts to the government to show that the law under attack serves a compelling interest in the least restrictive means for that believer. Here is how the arguments break down:
Proving substantial burden. There was a time when the believer was required to actually prove a “substantial” burden on their faith. Incidental burdens did not justify invoking religious liberty protections. That’s still true for the First Amendment, but not for RFRA. The Supreme Court in the RFRA case, Burwell v. Hobby Lobby Stores, watered down the “substantial” burden requirement, and that is persuasive authority for the state RFRAs. So it shouldn’t be difficult to prove that an abortion ban or partial ban substantially burdens a belief in obtaining abortion medical care.
What Is a Compelling Interest. To defend an abortion ban, the state must show that banning abortion serves a compelling interest. It will be interesting to see how the states do this. Will they argue that the ban serves a compelling interest, because life begins at conception? A court cannot take their religious assertions as fact. If states were to pursue that path, they would be arguing that the government’s beliefs can overcome their citizens’ beliefs. By definition, they would be arguing that their compelling interest is to establish a theocracy.
Can the state show that there is a compelling interest that serves the economy? No way, because banning abortion costs the state billions in economic losses as women are removed from the workforce while they carry compelled pregnancies, are medically disabled, or die. It also results in a dramatic decrease in future thriving for girls when they are forced to carry a fetus, including negative impacts on health, education, and livelihood. Will the states argue they have a compelling interest in letting a woman die and be permanently disabled? Or for a girl to carry a pregnancy imposed on her by her incestuous father? I kind of feel sorry for the state attorneys general trying to defend these laws.
What would be the least restrictive means. This is the element that offers opportunities for imagination. Let’s say the abortion ban criminalizes abortion; a fine is a lot less restrictive than criminalization. But that’s not the “least” restrictive means for the girl or woman who believes in the protection of a mother’s health or life through abortion medical treatment. The least restrictive is to invalidate the ban and permit her to obtain the medical treatment she believes is required as a matter of her religious worldview. Think about how some have argued against vaccine mandates using the federal RFRA—they say that their faith protects their right to bodily autonomy against vaccines and, therefore, the government may not enforce the mandate against them. The “least restrictive means” for them is to block the mandate. Similarly, the ban on abortion medical procedures violates many women’s faith that they should not die from pregnancy, or a parent’s faith that their daughter should not be forced to give birth to a rapist’s child, or a girl’s religious conviction that God put her on earth to achieve greatness in her chosen field of study and not to carry an unplanned pregnancy to term. Those beliefs are not secular; they are grounded in their religious worldviews and, therefore, must be accommodated through RFRA.
Attorney’s fees. Practically speaking, attorney’s fees are the most important element in these cases. Like the federal RFRA, the state RFRAs (except for Kentucky and Tennessee), provide for attorney’s fees to the prevailing party. That incentivizes lawyers to take these cases, even pro bono. The prospect of attorney’s fees at the end is sufficient for many a lawyer to get started.
I expect lawyers in the abortion RFRA cases may follow the pattern set by the attorneys who represent believers in other RFRA and RLUIPA (the federal law that provides the same high standard for religious landowners) cases: When such a lawsuit is filed, the government is under threat of having to pay attorneys fees on both sides, so there are strong incentives to settle and get rid of the case. While the RFRA formula normally requires the party to prevail to obtain fees, most settlements include attorney’s fees even if the plaintiff wasn’t going to win. In short, the claimant in a RFRA suit need not prevail to get attorney’s fees; they often just need to file. That will attract attorneys and make it possible for claimants to vindicate their rights under the RFRA without paying.
One last note: We haven’t seen anti-abortion believers filing RFRA lawsuits against abortion choice laws. That’s because abortion choice laws do not burden their faith. They don’t force them to undergo an abortion. They can still choose to die or be permanently disabled if they have an at-risk pregnancy or to carry a fetus to term that will die upon birth. Their free exercise is accommodated by choice and the bans.
For everyone else, abortion bans deny their free exercise rights to choose abortion under their own religious lights. To be precise: only abortion choice accommodates all religious believers.
