The First Amendment could save abortion rights

Many Americans are surprised by the notion that a religious tradition could permit or even mandate the termination of a pregnancy. They assume all religions endorse the conservative Christian view that life begins at conception, rendering abortion akin to murder.

But this isn’t the consensus of all Christians, and neither Jewish nor Muslim traditions share this belief. One can find leaders within all three religions who affirm the ethics of abortion. Jewish law actually requires abortion in some situations, most consistently in a case where a pregnancy endangers the life of the person carrying it.

That’s why advocates of reproductive freedom from the National Council of Jewish Women and the Religious Coalition for Reproductive Choice have been urgently reminding us that curtailing reproductive care is a violation of religious liberty.

The past 30 years have witnessed tremendous, successful efforts to strengthen the First Amendment’s guarantee of the free exercise of religion. In theory, this should open up new pathways to secure access to abortion. But considering the record of the current Supreme Court, it is hard to imagine that their enthusiasm for the First Amendment will extend to those whose traditions support reproductive rights.

The question of whether abortion ought to be protected by the First Amendment has haunted religious politics for decades. It nearly derailed the 1993 passage of the Religious Freedom Restoration Act, legislation that prevented the government from burdening the free exercise of religion unless it could prove a compelling interest for doing so.

In the 1990 Employment Division v. Smith case, the Supreme Court decided in favor of Oregon’s Department of Human Resources when it fired two Native American employees who had ingested peyote as part of a religious service. Writing the opinion of the court, Justice Antonin Scalia argued that the laws criminalizing peyote use for the general populace also applied to Native Americans who consumed it as a sacrament. Scalia understood this decision weakened the First Amendment and disadvantaged religious minorities, whose sacred practices were often misunderstood by the wider public. This was the “unavoidable consequence,” he opined, of governing “a cosmopolitan nation made up of people of almost every conceivable religious preference.”

The Religious Freedom Restoration Act aimed to reinvigorate the free exercise clause of the First Amendment in the wake of the unpopular Smith decision. Organizations ranging from the American Civil Liberties Union to the National Association of Evangelicals supported its passage.

The broad, ideologically diverse coalition advocating for this legislation started to unravel over the issue of abortion. Antiabortion activists worried that a strengthened First Amendment would provide a “tremendous loophole” for women seeking abortions in the United States. In the spring of 1991, the National Right to Life Committee, Beverley LaHaye’s Concerned Women for America, the Missouri Synod of the Lutheran Church and the National Conference of Catholic Bishops refused to support the Religious Freedom Restoration Act unless it included an “abortion neutral” amendment. The proposed amendment specified that the law would not “grant, secure, or guarantee any right to abortion, access to abortion services, or funding of abortion.”

As controversy mounted, Rep. Paul Henry (R-Mich.), who along with Democratic Rep. Stephen Solarz (D-N.Y.) had initially co-sponsored the bipartisan legislation, considered withdrawing his endorsement. Rep. Henry Hyde (R-Ill.), a prominent opponent of abortion access, threatened to use his considerable clout to block the act if it did not include the amendment.

Liberal backers of the Religious Freedom Restoration Act quickly pointed out that this proposed “abortion neutral” amendment was in no way neutral on abortion. A truly neutral law — explained First Amendment experts like Michael McConnell of the University of Chicago Law School, Edward McGlynn Gaffney of Valparaiso University School of Law, Douglas Laycock from the University of Texas at Austin and Marc Stern from the American Jewish Congress — would provide religious exemptions to those who preferred not to offer abortion care while also protecting women whose religious convictions affirmed their right to abort. Instead of offering neutrality on abortion, the proposed amendment threatened to transform the Religious Freedom Restoration Act into a discriminatory law. It would shield the rights of people whose religious traditions rejected abortion, while undermining the rights of those whose religions permitted, supported or mandated the procedure.

Other supporters of the Religious Freedom Restoration Act — like Forest Montgomery of the National Association of Evangelicals and David Zwiebel of the Ultra-Orthodox Jewish Agudath Israel, both of whom generally approved of restrictions on abortion — were just as flummoxed by these attempts to thwart the bill. They thought: Were antiabortion activists really going to risk the religious freedom of all Americans because of the remote possibility that this law, under the then-unlikely scenario that Roe could be overturned, might also strengthen abortion access?

The answer was yes. Thirty years ago, lawyers of the National Right to Life Committee were already playing the long game — undercutting potential legal avenues that might continue to support abortion access should Roe v. Wade be overturned.

Eventually, in their eagerness to pass this popular legislation, proponents and opponents of the “abortion neutral” amendment reached a compromise. The Religious Freedom Restoration Act passed in 1993 with only minor changes to the text of the bill. However, the congressional report submitted along with the act stipulated that its intent was not to create an “independent statutory basis” for reproductive rights. It clarified that the Religious Freedom Restoration Act was not meant to establish new pathways to abortion access if Roe were no longer the law of the land.

In the 30 years since its passage, the Religious Freedom Restoration Act has not been neutral with regards to reproductive freedom. On the contrary. The Supreme Court harnessed this legislation to restrict reproductive rights, above and beyond what its bipartisan supporters envisioned in the early 1990s. This law undergirded the court’s decision in the 2014 Burwell v. Hobby Lobby case, which enabled the Hobby Lobby corporation to opt out of covering contraception for their employees under the Affordable Care Act. Combined with the additional exemptions established through Little Sister of the Poor v. Pennsylvania and Trump v. Pennsylvania in 2020, thousands lost their birth control coverage.

If Roe is overturned, it is likely that a Jewish or Muslim person, denied a religiously mandated abortion, will sue their home state for violating their religious freedom.

Ideally, this argument would carry a lot of weight. After all, since the installation of Justice Amy Coney Barrett, the Supreme Court has been drastically expanding free exercise exemptions under the First Amendment and granting a remarkable proportion of claims. The Tandom v. Newsom case, for instance, declared covid-era public health restrictions on religious gatherings to be an infringement of First Amendment rights. As the Law, Rights and Religion project at Columbia Law School has argued, the court’s recent opinions have “created a hierarchy of constitutional rights, with religious rights at the top.”

Should the Supreme Court deny a First Amendment right to abortion, it will expose the limits of its commitment to religious freedom. It would send a message to members of religious minorities, and anyone with a uterus, that the protections of the First Amendment do not apply to them — at least not when they try to make reproductive decisions informed by religious conscience.