Some Unsolicited Advice on Abortion and the Religion Clauses

The Free Exercise Clause, the Establishment Clause, and the Third-Party Harm Doctrine.

Today Politico explored various strategies that abortion-rights groups will pursue if Roe is overruled. Most of these approaches do not begin in the courts. These groups will lobby Congress and state houses for protections, and promote state constitutional amendments. Democracy in America! Moreover, we should expect some creative executive actions from the Biden administration, which will invariably end up in Court. For example, the executive branch will "interpret" old statutes in new ways that conveniently recognize abortion protections. Who knew that the Emergency Medical Treatment and Labor Act, which President Reagan signed into law in 1986, requires hospitals to perform certain abortions!

Still, the most intriguing strategy involves the Free Exercise of Religion. Politico spells out how this argument could work:

Attorneys are also exploring a tactic long used by the anti-abortion side — religious freedom — as a tool to fight state bans on abortion. Specifically, they're looking into mobilizing Jewish plaintiffs whose religion allows abortion and even requires it in some circumstances, such as a threat to the life of the mother.

"The Supreme Court has never ruled on the application of the free exercise clause of the First Amendment to the right to access abortion services," said Nancy Northup, president and CEO of the Center for Reproductive Rights. "And there are religions which are supportive of abortion rights, and so a free exercise claim is absolutely on the table."

The free exercise clause prohibits states from passing laws that substantially burden the ability of people to exercise their religious beliefs. Leila Abolfazli, director of federal reproductive rights at the National Women's Law Center, said such cases brought by Jewish plaintiffs could present "a profound moment for a country that has only talked about abortion in negative terms for nearly 49 years."

"Those types of cases really help people understand this is not a black-and-white issue," she said. "People come to it with incredible passion and some with incredible religious beliefs that drive them, and that's an important part that the other side has tried to dominate."

I think abortion rights advocates are especially keen on this argument because it sets up the conservative Justices as hypocrites! Conservatives have religious liberty, but liberals do not?! The Slate pitches write themselves.

Still, as someone with experience litigating religious liberty cases, I offer some unsolicited advice to my fair-weathered friends.

First, we must begin with sincerity. The federal courts will (generally) not scrutinize the specific aspects of religious doctrine. Courts will not actually decide if Judaism, or other faiths, in fact imposes some sort of religious obligation to perform or receive abortions. Nor will the courts mediate whether teachings of Reform Judaism or teachings of Orthodox Judaism are the "true" faith. But courts can scrutinize whether an individual plaintiff sincerely holds such beliefs. It is well known that during military drafts, people suddenly discover pacifist faiths like Quakerism. And during the pandemic, many people who were looking for an excuse to avoid vaccination mandates found religion. I think it will be difficult for a pregnant woman, who has never before expressed any connection to these religious teachings, to demonstrate the necessary sincerity to obtain a time-sensitive abortion. But some abortion doctors, who routinely perform these procedures, may be able to establish this showing of sincerity. Some doctors–not all doctors. Atheist doctors need not apply. Or these groups could follow the lead from the International Church of Cannabis, and form a new faith in which abortion is a sacrament. Call them Roetarians, not to be confused with Rotarians. Norma McCorvey could be the patron saint.

Second, I am intrigued by the focus on Jewish plaintiffs. Eugene's recent post focused more broadly on a religious person, in general, who "sincerely believes that he has a religious obligation (perhaps based on his view of the parable of the Good Samaritan)." In January, Professor Sherry Colb wrote about this issue from the Jewish perspective:

I even received a message from a scholar of Jewish law proposing that protecting the free exercise of Judaism might in some cases require the government to allow a woman to get an abortion. Here is the example: a woman is sick because of her pregnancy, but she is not in danger of dying. She is, however, becoming increasingly depressed because of the physical debilitation. In Jewish law, the raw material inside a woman's uterus is not a person until a designated stage of labor. Therefore, if a woman is sick and depressed because she is pregnant, she may have a religious obligation to terminate her pregnancy. With a robust protection of the free exercise of religion, couldn't this Jewish woman and her doctor obtain an exemption from a law prohibiting abortion?

For purposes of this analysis, I will presume that the Jewish doctor and Jewish woman sincerely hold these religious beliefs. And I'll presume the Free Exercise claim is successful. What remedy would a court craft? There could be an as-applied challenge: in this particular case, a state's abortion laws could not be applied to the particular doctor and patient. Still, I'm skeptical courts could move quickly enough to enter a temporary restraining order based on very difficult questions about religious doctrine. Courts have mandated fast-track procedures for judicial bypass with minor abortions, for example. But I don't think similar procedures would exist for free exercise claims. I suppose lawyers could certify a class of all Jewish patients and all Jewish doctors who share these beliefs about abortion. Due to the intricacies of faith, I think certification will be difficult. But let's assume Rule 23 works. What would that remedy look like? Only Jewish doctors can perform abortions? Only Jewish patients can receive abortions?

Third, welcome to the Establishment Clause. With these sorts of remedies, only religious people could perform and receive abortions. But non-religious doctors and patients would be out of luck. Pregnant atheists would be stuck. Generally, the government violates the Establishment Clause by granting a benefit only to religious people, but denying that same benefit to non-religious people. What, then, should the courts do? Level up or level down? Perhaps the courts could say that it would be unconstitutional to only allow religious people to perform and receive abortions, so everyone gets an abortion, regardless of faith! This argument would invoke Eisenstadt v. Baird–it violates Equal Protection to only provide contraception to married couples. Or the courts could find that a remedy only for Jewish patients and doctors would be unconstitutional, so they would deny relief for everyone on those grounds. I don't think there is that much play in the joints.

Fourth, don't forget about the third-party harms doctrine. I'm old enough to remember Justice Ginsburg's poignant Hobby Lobby dissent:

In sum, with respect to free exercise claims no less than free speech claims, "'[y]our right to swing your arms ends just where the other man's nose begins.'" Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev. 932, 957 (1919).

If the draft Dobbs majority opinion holds, the Court need not resolve at what point life begins. But this opinion does defer to Mississippi's finding that the state's compelling interest to protect life begins at fifteen weeks–and presumably earlier. And, it follows, that a doctor or patient who seeks an exemption from the abortion ban will have to overcome that third-party harm to the fetus. This harm is far more clearly defined than the harm at issue in Hobby Lobby. In that case, female employees had ample alternative means to obtain certain forms of contraception. But if the abortion is performed, the harm to the fetus is unavoidable.

Plus, there is longstanding precedent on point. Indeed, Reynolds v. United States (1879) is one of the oldest Free Exercise Clause precedents. Chief Justice Morrison Waite explained:

Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband; would it be beyond the power of the civil government to prevent her carrying her belief into practice?

Reynolds is even older than Jacobson v. Massachusetts, so it must be a valid and current statement of constitutional law!

Fifth, Roe and Casey were tethered to fetal development: as the fetus gets closer to term, the state's interest in protecting life would increase. But the Free Exercise Clause claim would not be premised on fetal development. Rather, the religious belief in terminating the pregnancy would exist throughout all nine months. If this argument is granted, abortion providers and women would have an even greater right to abortion that Roe and Casey permit.

Sixth, abortion rights groups should be careful what they wish for. If the Court recognizes a Free Exercise right to perform or receive an abortion, then conservatives can cook up even more aggressive religious liberty strategies. I'll bring the bagels for the next meeting of the Temple of Automatic Weapons.

These thoughts are only tentative. And I'm sure that abortion rights groups are not interested in what I have to say.