A recent court case about religious liberty helps to show the moral case for a right to abortion.
Abortion bans often have exceptions for rape, incest and lethal fetal defects. These exceptions presuppose that in some cases, the suffering of pregnant women matters enough to outweigh whatever rights a fetus may have. In its recent rulings on religious liberty, the Supreme Court has said that states can’t treat religious reasons any worse than comparable secular reasons for wanting legal exceptions to broadly applicable laws.
An Indiana court has therefore held — correctly, I’ll argue — that abortion must therefore be permitted for religious reasons. As the exceptions proliferate, in each case because of certain burdens on pregnant women, they highlight that any unwanted pregnancy generally involves comparable burdens.
The U.S. has often modified its laws to accommodate religious minorities. Quakers were exempted from the military draft; Catholics were allowed to use sacramental wine during Prohibition. In a similar spirit, Indiana’s Religious Freedom Restoration Act provides that the state “may substantially burden a person’s exercise of religion only if [it] demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
The Supreme Court also requires religious exemptions, but uses a different formulation: such exemptions are presumptively available “under the Free Exercise Clause, whenever [the laws] treat any comparable secular activity more favorably than religious exercise.” The court explained that “whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue.”
After Roe v. Wade was overturned, Indiana enacted a law criminalizing almost all abortions. The law permits abortions to save the woman’s life or in cases of serious health risk; rape or incest; or when a fetus has a lethal anomaly. It allows in vitro fertilization, which routinely destroys zygotes.
A group of plaintiffs sued under the state’s Religious Freedom Restoration Act. Among them are Jews who assert a religious obligation to terminate pregnancy under certain circumstances. In liberal Judaism — which is to say, for most American Jews — a woman has a duty to exercise her judgment about what is necessary to her own well-being. This duty may require her to end a pregnancy.
Indiana did not dispute the burden on religion, but asserted a compelling interest in protecting fetal life. In April, the Indiana Court of Appeals disagreed, quoting the U.S. Supreme Court: A law cannot be viewed as protecting an interest “of the highest order” if it leaves “appreciable damage to that supposedly vital interest unprohibited.” The law’s exceptions show that the state itself doesn’t regard the interest as compelling.
The case is being appealed to the state supreme court.
In a recent City Journal article, Stephanie H. Barclay of Georgetown Law and Richard W. Garnett of Notre Dame Law argue that the religious claim should be rejected. The two professors write that the court should ask “whether the accommodation requested would undermine the state’s interest. And in this case, any accommodation would.”
But in many other exemption cases, the state had to accept some setback to its interests, so long as it had deemed acceptable a similar setback based on nonreligious reasons. The Supreme Court has come close to saying that any secular exception to a law implies that there must be a religious one.
Even with a less wooden understanding of religious liberty than that, the Indiana plaintiffs ought to prevail, because their religious interests are being invidiously devalued. The exceptions to the abortion ban written into the law make no sense unless the state regards the death of fetuses as a less serious matter than the death of born persons, one that can be outweighed by the hardship that pregnancy imposes on the woman.
Consider Indiana’s exception for cases where the fetus has a “lethal anomaly.” The state’s code elsewhere defines that term as “a fetal condition diagnosed before birth that, if the pregnancy results in a live birth, will with reasonable certainty result in the death of the child not more than three months after the child’s birth.”
If a fetus has the same rights as a child, then how can abortion be permissible in such a case? We do not allow homicides of persons who are likely to die soon anyway.
Both this exception and the ones for rape and incest are evidently motivated by the distress of the woman (or, in some horrible cases, the girl) who is forced to carry a pregnancy to term. Denying a religious accommodation necessarily implies that the religious hardship matters less than these secular ones. With in vitro fertilization, the hardship is not even that of unintended childbirth, but the lesser (though still serious) burden of being unable to produce children of one’s own.
Barclay and Garnett try to explain away the rape and fetal defect exceptions: Indiana might reasonably have thought “that such pregnancies could bring acute psychological pain; that ending them might be excused, by analogy to the duress defense; or that juries might thus refuse to convict in such cases, and that limited enforcement resources are therefore better spent elsewhere.”
But how can one confidently say that the “acute psychological pain” of a pregnancy resulting from rape or incest is more acute than psychological pain based on religious duty? Also, jury nullification almost never happens, and the prospect of criminal prosecution prevents even medically urgent abortions — so there have been no trials. ProPublica just reported that two Georgia women died after doctors waited to end their pregnancies until it was too late.
As for IVF, Barclay and Garnett write that the state “could conclude that, say, terminating the lives of embryos, and ending their development toward birth and maturity, is not the same as thawing frozen embryos that were never going to be implanted.” But “thawing frozen embryos that were never going to be implanted” is still killing a human being if one regards the embryos as full persons. Again, it is not acceptable to kill people who are certain to die eventually; we are all going to die eventually.
They are right that “requiring the implantation of all embryos created during IVF would implicate constitutional rights against forced medical treatments and interventions.” But clinics could be required to keep them frozen in perpetuity. Spending one’s whole life as a frozen embryo doesn’t sound like fun, but surely Barclay and Garnett are not proposing to discriminate on the basis of quality of life.
Barclay and Garnett are two of the smartest people I know. If they can’t justify rejecting the Jewish plaintiffs’ claim, it probably can’t be done.
Granting the religious exemption to Indiana’s abortion ban would have a more profound implication. If the legal, moral and personhood status of a fetus is deemed uncertain enough to warrant these exceptions, that status would nonetheless defeat the hopes and plans of all the other women who seek to control their bodies and their lives.
Look at the clumsy overgeneralizations: religion outranks all other personal ideals and hopes; the pain of bearing a rapist’s child outranks any other pain caused by an unwanted pregnancy.
Prohibitions on abortion resemble religious persecution in that they arrogantly commandeer the most personal decisions of people about whom the legislature knows nothing.
Andrew Koppelman, the John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed.”
