Why Religious Freedom Can’t Protect Abortion
Religious freedom is America’s first freedom. As such, its exercise ought to be permitted with very few exceptions. One exception to its exercise is that violence ought never to be permitted, or excused on account of someone’s religious practice. Abortion is an egregious act of violence because it directly and intentionally takes the life of the most innocent and vulnerable members of society—children. The government has a compelling interest in protecting children from violence, and so has compelling reason to deny any religious-freedom claims to abortion. When I use the term abortion in this essay, I mean only the direct and intentional killing of an unborn human being, either as a means to an end or as an end in itself. This is morally distinct from medical treatments that end the life of an unborn human being neither directly, nor intentionally, but as a tolerated consequence of a lifesaving act carried out on the mother. This distinction will be further explained later in the essay.
Nearly fifty years after the US Supreme Court’s erroneous decisions in Roe v. Wade and Doe v. Bolton created a constitutionally protected right to abortion, five justices have renewed the question whether the Fourteenth Amendment extends to unborn human life and, while that matter is deliberated, returned to each state the autonomous decision whether, if at all, abortion ought to be permitted.
As debates are forming in the newly inaugurated Dobbs era, one argument originally considered thirty years ago has resurfaced. The argument, which first appeared when the Religious Freedom Restoration Act (RFRA) was under debate, is as follows: a law that restricts access to abortion may violate the free exercise of religion for some people. Michael W. McConnell wrote prophetically in a 1992 essay in First Things that RFRA can be misinterpreted “to allow pro-abortion plaintiffs to claim a free exercise right to abortion if Roe v. Wade is overruled and states enact anti-abortion laws.”
Abortion As Religious Freedom?
Flash forward to the present day, Generation to Generation, Inc. on behalf of Congregation L’Dor Va-Dor filed a formal complaint in June against Florida in anticipation of the state’s law introducing abortion restrictions, which went into effect on July 1, 2022. The law bans nearly all abortions after the fifteenth gestational week. According to the complaint, the state ban limits the free exercise of religion for Jewish women in Florida who wish to have an abortion after the fifteenth gestational week. L’Dor Va-Dor makes a conscience claim that Jewish law (as they understand it) compels them to terminate a pregnancy “if necessary to protect the health, mental or physical well-being of the woman, or for many other reasons not permitted under the Act.” Moreover, L’Dor Va-Dor argues, “The [law] prohibits Jewish women from practicing their faith free of government intrusion and thus violates their privacy rights and religious freedom.”
Dahlia Lithwick and Micah Schwartzman questioned in a recent Slate article that covered the complaint whether the State of Florida is protecting only the free exercise of religion for certain groups, for example, Christians and Orthodox Jews, while dismissing the free exercise of other groups, like L’Dor Va-Dor. Furthermore, Rabbi Jay Michaelson asserted in an opinion piece in Religion News Service that “exemptions must be granted to any Jewish person seeking to practice their religion and obtain an abortion.” He continued, “Jewish law not only permits abortion, when the life of the mother is at stake, it requires it.”
It’s worth noting that according to some Jewish scholars, L’Dor Va-Dor’s views on abortion are unorthodox within Judaism. Rabbi Yaakov Menken argued in Newsweek that positions on abortion like those of L’Dor Va-Dor and Michaelson are “progressive,” relying on a “decontextualize[d]” and “distort[ed]” view of Jewish Law. He continued, “The sanctity of life and the importance of traditional morality both come directly from the Hebrew Bible.” Yes, the mother’s life is sacred, but so too is the child’s life in her womb. Additionally, another Jewish writer, Rabbi Avrohom Gordimer, explained that the Halacha does permit exceptions “to the Torah’s strict ban on abortion,” but those exceptions are precisely that: exceptions, not the rule. Gordimer concluded, “Halacha does not view abortion as a choice that one makes, . . . but rather as a serious prohibition that may be overridden in certain crisis situations, upon the determination by a posek who rules on the case based on the specifics.”
Unnecessary and Unethical Claims
Furthermore, existing laws already make exceptions for abortion when the mother’s life is at stake—the same grounds that Jewish law, according to some, requires abortions. The Charlotte Lozier Institute reported that not a single proposed or enacted law restricting abortion in any state fails to make an exception for preserving the life of the mother. Florida’s law, for example, defines the following exception: “[When] the termination of the pregnancy is necessary to save the pregnant woman’s life or avert a serious risk of substantial and irreversible physical impairment of a major bodily function . . .” Notwithstanding the more than one thousand experts in obstetrics and gynecology who agree that direct abortion is never medically necessary to save a mother’s life, the fact that those states maintain this exception effectively invalidates one of the straw man arguments made by abortion proponents.
Despite the medical exemptions for abortion made in law, direct abortions are never actually medically necessary. If direct abortion is never medically necessary, what does that mean in practice? Is a pregnant woman with uterine cancer forbidden to undergo chemotherapy and radiation? Must a mother with an ectopic pregnancy refuse intervention? No, of course not. Those are the claims of abortion proponents to strike fear in the public. The term “direct” referred to by the experts above is a very important qualifier for abortion. A direct abortion is the direct and intentional killing of an unborn human being, either as a means to an end or as an end in itself.
Consider here some of the most common abortion procedures: the administration of chemicals that halt the living embryo’s growth and expel her from the womb, the curettage that detaches the living embryo from the uterine wall, and the severing and extraction of the living fetus’s body parts. Each procedure directly and intentionally kills an unborn human being. By contrast, an indirect abortion is when an unborn human being dies as an unintended effect of a lifesaving act performed on her mother. The pregnant woman who undergoes chemotherapy and radiation is doing so to treat her uterine cancer. Likewise, the fallopian tissue that is diseased because implantation occurred there is removed before infection sets in or it ruptures. In neither case does the mother intend her child’s death; she rather tolerates it to save her own life when other lifesaving measures would fail. That is the clear distinction between direct and indirect abortion.
Because direct abortion intentionally kills an unborn human being, no right—religious or otherwise—can be invoked to protect it. Religious freedom is unquestionably a fundamental human right. It is inalienable and sacrosanct. Yet, never was it held to be absolute in practice. RFRA is an example of a statute that recognizes and provides a method of identifying the outer limits of the free exercise of religion. RFRA declares: “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” The government, whether federal or state, has a compelling interest to protect human beings from violence, especially those who are innocent and most vulnerable. That interest extends to the unborn, because they too have an equal claim to life, liberty, and the pursuit of happiness.
No religion, or any adherent thereof, has the lawful or moral claim to kill an innocent human being in the name of that faith. To deny the tragedy of abortion and make a rights claim to defend abortion is not religious freedom; rather, doing this uses religion as a license for unconscionable acts. And a just political community and the whole of society ought to categorically reject that license.