By Nathan Berkeley

Many religious progressives in America understand abortion to be supported by their faith. Does that mean the law must recognize it as a protected exercise of religion for them? The answer is no, but it is worth exploring why. Two articles, one by Andrea Picciotti-Bayer in National Review and the other by Charles McCrary in The New Republic, take up this question in response to a recent case in which the Indiana Court of Appeals decided that abortion can be an exercise of religion. Similar lawsuits have been filed in Kentucky, Texas, Florida, Missouri, and Wyoming.

In our post-Dobbs world, states may now restrict abortion throughout pregnancy in ways they could not under Roe v. Wade and Planned Parenthood v. Casey (see this article by Notre Dame’s Carter Snead for a summary of each case and their effects). And religious progressives are now raising an old argument about how abortion can constitute an exercise of religion and thus be exempt from these state restrictions. 

Violence and the Limits of Religious Freedom

At the outset it must be said that abortion – by which I mean “the directly intended termination of pregnancy before viability or the directly intended destruction of a viable fetus” – is a form of violence against innocent human life. Religious freedom, rightly understood, does not provide any protection for such violence. On this basis, whether abortion is sincerely understood by some to be a religious practice is irrelevant to the question whether religious freedom can rightly be asserted to overcome abortion restrictions. Religious freedom is vast in scope, but it does have limits, and violence against innocent human life is certainly one of them. This should settle the religious freedom question in this context. But since the “abortion as religious practice” claim persists in politics and the courts, it is still worth investigating other facets of it.  

Religious Exemptions and Obligations

In the Indiana case, as Picciotti-Bayer noted, the plaintiffs (Hoosier Jews for Choice and four anonymous women) needed to show that “the disputed governmental action [i.e., Indiana’s abortion law] substantially burdens sincerely held religious belief.” Their claim relies on the state’s Religious Freedom Restoration Act, which calls for an inquiry into this matter. The state, Picciotti-Bayer continues, “sensibly argued in court that the plaintiffs failed to meet this burden because abortion is not a religious exercise.” But Picciotti-Bayer then points out that the court rejected that argument by turning to the 2013 Hobby Lobby case that dealt with the federal Affordable Care Act’s contraceptive mandate. In its decision, the Indiana Court of Appeals argued: 

If a corporation can engage in a religious exercise by refusing to provide abortifacients—contraceptives that essentially abort a pregnancy after fertilization—it stands to reason that a pregnant person can engage in a religious exercise by pursuing an abortion. In both situations, the claimant is required to take or abstain from action that the claimant’s sincere religious beliefs direct. (51)

Picciotti-Bayer calls attention to a critical point at the heart of the court’s faulty reasoning when she writes: “A religious teaching permitting (not prohibiting) an activity is not the same as requiring that activity.” The refusal of Hobby Lobby and other organizations to comply with the federal contraceptive mandate was grounded in their conviction that providing some or all contraceptives in their health insurance coverage would make them complicit in something immoral. The religious convictions of Hobby Lobby’s owners did not merely permit them to deny certain contraceptives in the company’s health insurance plans but rather obliged the owners to deny them. 

Now, some religious people consider abortion as I defined it above to be a legitimate moral option. While I reject that position, it should still be possible for those who accept it to see that religious freedom cannot rightly be asserted to overcome a neutral, generally applicable law, such as abortion restrictions, in defense of an act that is for them merely religiously permissible. Religious exemptions arise in the context of government interference with the fulfillment of religious obligations, not to safeguard the pursuit of that which is within the realm of the allowable.  

Sincerity and the Nature of Religion 

Charles McCrary, writing for The New Republic, views the matter quite differently. Responding to the Indiana appellate court ruling, he writes, “the claimants’ beliefs and practices involve bodily autonomy, the beginning of life at birth, and the precedence of a pregnant patient’s physical and emotional health over that of the potential life.” He then laments that “For the past decade, many of the most prominent and successful religious freedom claimants have been conservative Christians.” McCrary also disparages religious freedom as “often a right-wing tool for oppression and discrimination” and then asks whether “liberals and leftists [should] be fighting to beat it back, or does it make more sense to embrace this doctrine and use it to further their own ends.” It is at this point that he urges religious progressives to proclaim the sincerity of their religious faith, instead of ceding that ground to conservatives.

McCrary’s denigration of the convictions of conservative Christians is never far from the surface of his article. But he is also frustrated by what he sees as disparate treatment in the courts in which “conservative Christian beliefs have generally been assumed to be sincere and religious, especially when they are focused on sex and gender issues, [while] progressives have received more scrutiny.” McCrary references (and laments) challenges both to the sincerity of progressive beliefs on abortion as well as the notion that they are actually religious. As an example, he cites comments by Becket senior counsel Lori Windham regarding the plaintiffs in this and similar cases, where she remarked, “I think these are much more like political stunts than they are viable court cases…You can have a sincere political belief or policy preference, and it can be passionate and deeply held, but that doesn’t make it a religious practice.” 

McCrary then considers the meaning of mixed motives in this context. Specifically, he called into question distinguishing “religious” from “political, sociological, or philosophical” views. And he gave historical examples, such as the Civil Rights Movement, in which courts wrongly imposed a bright dividing line between religious and political motives. Turning to the present, McCrary derided the state of Indiana for seeming “to suggest that any action or belief that might also be secular or political cannot then be religious.” I’ll say only briefly that McCrary is more than a little misleading on this point. What the state was arguing, and what Becket elaborated quite convincingly in its amicus brief (at pages 11-17) is that there is ample evidence that political motives shaped the purported religious beliefs of the plaintiffs in this case, not the other way around.          

Amazingly, McCrary ends up tipping his hand as someone who rejects the entire notion of religious freedom. He writes, “Trying to isolate something called ‘religion’ from other aspects of life is an incoherent project from the start. And yet, religious freedom rests on such an impossibility.” 

So, the thrust of his argument is not really the careful articulation of pro-abortion religious beliefs in order to secure their proper recognition in the courts but rather mounting an equal treatment argument that goes like this: “…if those conservatives are religious, then these liberals are as well.” In other words, if the law is going to make a fundamental error that benefits our opponents, it better make the same error to benefit our side. 

McCrary is surely wrong, however. It is possible to recognize an exercise of religion as distinct from other kinds of action in the world and to appreciate the special kind of burden it is for the government to impede or restrict that exercise. And the possibility that multiple motives might be at play when only one is expressly religious does not remove the resulting act from the domain of religious exercise, especially given that many religions are comprehensive ways of life. Their tenets, therefore, will inevitably work themselves out in familial, educational, professional, political, and other spheres of life.

Progressive Religious Beliefs on Abortion and Religious Exemptions

Even if we stipulated, for the sake of argument, the sincerity of the progressive religious beliefs in this case as well as the notion that they are actually religious, there would still be a major problem. The distinction I made previously between permission and obligation is at its core. 

McCrary points to an amicus brief authored by a group of historians “explaining the history of religious belief and activity in support of abortion rights…showing that progressive religions do in fact exist, have a long history, and are not convenient ‘cloaks’ for political activity.” In reading the brief, it becomes clear that many of the progressive religious communities cited – Jewish and Mainline Protestant – staked out positions diminishing, or denying altogether, the inherent dignity of human life in the womb. They also argued that abortion, properly understood, is a matter of individual conscience. 

Becket’s brief also provides multiple examples in which the plaintiffs testified that abortion belongs to the realm of individual choice based on some combination of beliefs about the non-human status of the unborn child and the dignity and autonomy of the pregnant woman. Nevertheless, specific references to religious justifications for abortion remained squarely within the realm of permission, not obligation. There were no formulations of progressive religious beliefs that characterized carrying a pregnancy and giving birth as acts of defiance toward God such that obtaining an abortion would be a necessary act of faithfulness. Essentially, they call for treating a “may” as if it was a “must.”  

Conclusion

However McCrary or other progressives think the law should deal with matters of religious permission, approaching the issue as if it is plainly analogous to forcing a religious individual or institution to defy something that is religiously obligatory (whether prohibited or required) is a serious error in principle with far reaching practical problems. All Americans are due the full protections of religious freedom, wherever they may fall on the spectrum of conservative to progressive faith. But religious exemptions become mostly or entirely inapt when upholding the principle of individual autonomy as such, even when religiously rooted, rather than their intended aim of securing one’s freedom to keep God’s commands. 

To be clear, even if someone did make a sincere claim that her faith required her to seek a direct abortion in violation of state law, it should not earn her a religious exemption due to the limitations around religious freedom I noted at the beginning. But I think it is telling that neither the plaintiffs in this case nor the amicus brief to which McCrary points attempt to construe abortion as anything other than a religiously inspired matter of choice.  

Extending to religious people an exemption from a neutral, generally applicable law that merely burdens one of a range of religiously permissible options would make religious freedom unworkable, which is perhaps part of the point. Such an approach also fails to meet one of the fundamental purposes of religious freedom, which is protecting citizens to the greatest extent possible from the immense burden of a government mandate to disobey God.    

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Nathan A. Berkeley is RFI’s Communications Director and Research Coordinator.