The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
It seems likely that a majority of the Justices will indeed conclude that there is no constitutionally protected right to get an abortion, because the Constitution "makes no mention" of abortion, and doesn't otherwise implicitly authorize.
But the Constitution does make mention of the free exercise of religion. In Fulton v. City of Philadelphia (2021), six Justices (Thomas, Alito, and Gorsuch, plus Breyer, Kavanaugh, and Barrett) took the view that the Free Exercise Clause provide at least some sorts of religious exemptions from neutral, generally applicable laws. Three of them (Thomas, Alito, and Gorsuch) took the view that such exemptions have to be given unless denying the exemption is narrowly tailored to a compelling government interest. And at least five Justices (Thomas, Alito, Gorsuch, Kavanaugh, and Barrett) have taken the view that such a "strict scrutiny" level of protection for religious objectors should apply if the laws have some secular exemptions. All of them took the view that "free exercise of religion" doesn't just apply to worship services or religious rituals, but also applies to people's presumptively right to act consistently with their religious beliefs (or to refuse to act when the action would violate their religious beliefs), even when the action or inaction is illegal.
So this brings back an old question, but one that had been not very important so long as Roe and Casey generally protected abortion rights: When are abortions protected by the Free Exercise Clause, even if not through the Due Process Clause?
Here's one concrete hypothetical example:
- Say that a state statute bans doctors from performing abortions, likely with an exception for protecting the life and perhaps the physical health of the mother, but without an exception for protecting the mental health of the mother.
- And say that a doctor sincerely believes that he has a religious obligation (perhaps based on his view of the parable of the Good Samaritan) to do whatever he can to prevent harms to people's health, including psychological health, and that therefore he has an obligation to perform abortions on women who he believes would otherwise be psychologically harmed. (He acknowledges, of course, that his religious obligation is limited by the rights of others, so that he can't, for instance, steal medicine to give it to the woman, or kidnap people to transfer their kidneys to those who badly need a transplant. But he doesn't believe that fetuses count as rights-holding others, at least with respect to the women carrying them, whatever state law might say.)
- He then sues under the Free Exercise Clause, claiming that the ban on performing abortions substantially burdens his religious beliefs, by criminalizing something that he views as a religious obligation.
Under at least the Thomas/Alito/Gorsuch view, it seems like this will bring things back to where they were under Roe, albeit only for abortion providers who have such a religious belief: The provider would have to be exempted from the abortion ban, unless the court concludes that denying the exemption is narrowly tailored to serving a compelling government interest.
Perhaps the Court might eventually conclude that abortion bans are indeed narrowly tailored to serving a compelling government interest (likely in protecting fetal life). But that would be the very sort of question that Roe said had to be asked (and answered "no"), and that the Dobbs draft opinion appears to be aimed at avoiding. Recall that the premise of the draft opinion is not that abortion bans generally pass such strict scrutiny, but rather that "rational-basis review is the appropriate standard for such challenges" to abortion laws under substantive due process, since "procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution's text or in our Nation's history." But, again, Justice Alito's view, expressed in Fulton, is that a presumptive right to religious exemptions from neutral, generally applicable laws does have a basis in the Constitution's text and in the Nation's history.
[UPDATE: One analogy, in case it's helpful. Say that a person believes his religion requires him or at least motivates him to eat a particular kind of meat for certain religious holidays (e.g., he's a Jew who believes that he ought to eat lamb for Passover). But say that California, or some town in California, concludes that all mammals have rights, and that eating mammals is therefore improper. (California has indeed banned the sale of horsemeat for human consumption; naturally, it would take a major cultural change to extend that to all mammals, but say it does.) Under Justice Alito's view of the Free Exercise Clause, it's not enough for the state to say, "we think mammals have the right to life, and there's a compelling government interest in banning the killing and eating of mammals." The Supreme Court would have to actually agree that there is such a compelling government interest. Likewise, to reject a sincere religious objection to the abortion ban, the Court would have to accept that there's a compelling government interest in protecting fetal life, a question that the draft Dobbs opinion deliberately avoided having to decide.]
Of course, all this assumes that the provider has this sincere religious belief, and that the court is persuaded that this is so. (I'm not sure, for instance, whether the Satanic Temple lawsuits are likely to prevail, though I don't know enough about them to be certain.) But I expect that some providers may indeed believe they have a religious obligation to offer what they see as vital help to women who seek an abortion—and recall that the American law of religious exemptions focuses on the objector's own individual religious beliefs, rather than on whether some denomination has adopted the belief as an official article of faith.
This also assumes that the challenge is to a law forbidding people from performing abortions. If a law forbids a woman from getting an abortion, then she would presumably have to raise her own religious objection to the law, based on her own religious beliefs, and would have to show that she is sincerely religiously compelled (or perhaps just sincerely religiously motivated) to get an abortion.
Finally, there are of course many possible implications one can draw from this, including (but not limited to):
- This is indeed the right approach: There is no constitutional right to an abortion, but there is a constitutional right to free exercise of religion, which includes the freedom to do what one's religious beliefs command (or perhaps even just counsel), including performing abortions (if that's what one believes).
- This is indeed the right approach generally, but ultimately there's a compelling interest in protecting fetal life, and abortion bans are narrowly tailored to that interest.
- All this just shows that viewing the Free Exercise Clause as securing a right to exemption from neutral, generally applicable laws is a bad idea (cf. my argument here, though it discusses other subjects than abortion).
- All this shows that at least the Free Exercise Clause shouldn't be read as requiring strict scrutiny of denials of religious exemptions, but something less (as Justice Barrett's concurrence in Fulton suggests might be right)—what, exactly?
There's of course much more to be said about this, and perhaps I'll say a bit more in the coming days. But for now, I wanted to flag this, and see what you folks have to say about it.