The religious liberty argument for abortion rights: Unconvincing and grotesque
Opinion by Adam Carrington, Washington Examiner, 6/27/23
You have to hand it to the pro-choice movement. Rather than stand down in the aftermath of Dobbs v. Jackson, they have redoubled their efforts to secure abortion on demand. This redoubling has involved every plausible tool to oppose pro-life legislation.
Politico noted one new approach it calls “The sleeper legal strategy that could topple abortion bans.” That strategy consists of claiming abortion as a religious right. Progressive clergy in places such as Missouri and Indiana have appealed to those states’ Religious Freedom Restoration Acts to say that near-total abortion bans place a substantial burden on their sincere exercise of religion.
The argument is clever. But it should fail to achieve its goal of outsmarting state abortion regulations. Moreover, it reveals something especially ugly about the pro-choice movement, especially its religious defenders.
Regarding the argument itself, it is true that courts should apply religious liberty protections equally without regard to whether the intended policy outcome fulfills conservative or liberal political goals. Nor should it matter whether the religious claims are “traditional” or “progressive” in the theological sense. Under state and national RFRAs, as well as under the First Amendment, all sincere, substantive claims should receive the full protection of those laws.
But the free exercise of religion has never been absolute, even for advocates of the most expansive deference to persons of faith. In the Northwest Ordinance of 1787, the Confederation Congress protected religious belief and practice but only so long as a person was “demeaning himself in a peaceable and orderly manner.” Thomas Jefferson’s “Letter to the Danbury Baptists,” which contains the famous “wall of separation” quote, likewise upheld a broad view of religious liberty. But he added that, “the legitimate powers of government reach actions,” including religious ones.
Given the forum in which this issue will be fought, what the Supreme Court has said will matter even more than these Founding documents. But the court has essentially agreed with the Confederation Congress and Thomas Jefferson. Even at its most stringent support for religious liberty, the court has said that government can restrict religious practice if it has a “compelling interest” for doing so.
On abortion, we have such a “compelling interest” if ever one existed. Any accommodation of religious practice might inconvenience or even cause significant difficulties for others. If it wasn’t burdensome, it wouldn’t need protection.
But not all burdens are equal. In prohibiting abortion, the state has a legitimate claim to be protecting human life from violent destruction. America’s theory of legitimate government says that the first human right is the right to life. On it depends all other rights, since only in living can liberty, property, and the pursuit of happiness be possible. Government can have no more fundamental, basic task than protecting the lives of all, but especially the most vulnerable in our society. It could have no more compelling interest than this to override competing claims, including religious ones.
In Dobbs, the majority basically admitted this point. It asserted several times that abortion was unique because it “involved the destruction of a ‘potential life.’” They did so to assure readers that other precedents regarding contraception and marriage were not threatened by overturning Roe and Casey. But the court’s reasoning acted on the implication that abortion was killing and that states had every right, if not every duty, to act accordingly.
Beyond failing as a legal argument, the religious appeal for abortion rights also exposes an ugly truth about the pro-choice movement. It really does see abortion as something sacred, as something to give religious-level devotion to and to make an article of progressive faith. It is more than a culture of death. It is a dogma of death. That dogma, that faith, mimics in distorted fashion traditional religion like a house of mirrors distorts one’s true image. It has its own rituals, evangelists, tracts. But it especially has its own sacrifices — tens of millions of unborn children.
Taking the two points together, the picture becomes clear. Abortion advocates are free to hold killing the unborn as a religious tenet. One can believe even the most grotesque things in a land where we believe in freedom of conscience. However, they can make no claim for a religious exemption to act on this belief. Life, from womb to tomb, is too precious a right.
Adam Carrington is an assistant professor of politics at Hillsdale College.