Dozens of faith-related groups filed briefs this summer aimed at shaping the Supreme Court’s approach to a major abortion case scheduled for later this year.
That’s unsurprising in light of religion’s prominent role in the abortion debate. What’s striking is the claims some of the groups made about the relationship between past abortion rulings and religious freedom law.
According to some faith-related critics of these past rulings, court decisions like Roe v. Wade, which said the government can’t ban pre-viability abortions, have “haunted” the religious liberty landscape for the past five decades.
By ruling that the Constitution guarantees access to abortions for at least part of a pregnancy, the Supreme Court paved the way toward aggressive political and legal attacks on people of faith who believe life begins at conception, argued the Becket Fund for Religious Liberty in its brief.
“This court’s failed (abortion rights) framework has made ... religious liberty disputes more common, more intense and more divisive than they ought to be,” the brief said.
Some faith-related proponents of abortion rights, on the other hand, argued the opposite: that Roe v. Wade and other abortion rulings have reduced religious conflict.
If these precedents were overturned, government officials would have a harder time respecting the diverse range of religious teachings about when life begins, they said.
“The court’s viability standard helps insulate from the push and pull of ordinary politics these most difficult, divisive theological and philosophical questions. In doing so, it respects a healthy religious pluralism,” argued a brief from Americans United for Separation of Church and State, the American Humanist Association, the Interfaith Alliance Foundation and Bend the Arc: A Jewish Partnership for Justice.
Debating the stakes
Briefs focused on religious freedom represent only a small share of about 125 “friend-of-the-court” documents filed by individuals and groups with abortion-related expertise. However, they’re still significant, because they help show that the justices’ eventual decision in the upcoming case could affect more than abortion access.
The case, Dobbs v. Jackson Women’s Health Organization, centers on a Mississippi law that prohibits nearly all abortions after the 15th week of pregnancy. The Supreme Court has agreed to consider whether such a policy is permissible despite past rulings saying that women have a right to get an abortion up to the point of fetal viability (around 24 weeks).
If the justices say yes — and especially if they go as far as overturning Roe v. Wade — states would have much more power over abortion rights.
Some more conservative religious freedom advocates have said this would be a good thing, since it would give people of faith more opportunities to influence related laws.
“Faith-inspired voices should be heard in the marketplace of ideas. And they should be heard where they count — in the democratic discussion and debate that produces governing law,” said the brief from the Christian Legal Society.
However, others believe that such a development would harm the cause of religious freedom by enabling more states to enshrine faith-based teachings about abortion into secular laws.
If the court gets rid of the viability standard, then lawmakers would necessarily turn to faith to help them develop new legal guardrails, the Americans United brief said.
“Before viability — the biological point at which independent existence outside the womb becomes possible — one’s perspective on abortion necessarily depends at least in part on one’s beliefs about what life is and when it begins. It is thus grounded in irreducible matters of conscience that, for many people, turn on inherently religious considerations,” it said.
Bans on pre-viability abortion trample the religious liberty of those who believe that early term abortions are morally acceptable, according to a brief from the National Council of Jewish Women, Catholics for Choice, Muslim Advocates and more than 40 other faith-based groups. These people of faith also deserve to see their values reflected in abortion laws, the groups said.
“Numerous religions teach that the decision to terminate a pregnancy is a woman’s moral prerogative, and that abortion is morally permissible or even required under certain circumstances,” the brief argued.
Religious opponents of abortion rights don’t dispute that fact. But they do question why the Supreme Court should care.
The Constitution’s religious freedom protections grant every person of faith the right to share and live according to their beliefs, not the right to veto laws inspired by competing teachings, said the brief from the Jewish Coalition for Religious Liberty.
“At first glance, a doctrine that would allow religious adherents to entirely block the state from pursuing goals with which they disagree — extending beyond protecting their own free exercise — might seem appealing to religious liberty advocates. However, such a novel and imperious regime would quickly prove untenable, especially in a large and religiously diverse country,” it said.
The Supreme Court will hear oral arguments in Dobbs v. Jackson Women’s Health Organization on Dec. 1.