On Sept. 18, 1992, the Senate Judiciary Committee and dozens of invited guests gathered to consider, among other things, the link between religious freedom and abortion.
The focus of the hearing was the Religious Freedom Restoration Act, a bill designed to restore religious exercise protections that recently had been severely limited by the Supreme Court.
The act enjoyed broad support from faith groups, politicians and civil rights organizations like the ACLU, as committee member and bill co-sponsor Sen. Ted Kennedy noted in his opening remarks.
“Our bill is strongly supported by an extraordinary coalition of organizations with widely differing views on many other issues. ... They don’t often agree on much, but they do agree on the need to pass the Religious Freedom Restoration Act because religious freedom in America is damaged each day the (Supreme Court’s) decision stands,” he said.
Kennedy wasn’t exaggerating. The bill had hundreds of community leaders behind it and dozens of sponsors in the Senate and House.
There was just one problem: A few very powerful groups thought the Religious Freedom Restoration Act might one day be used to defend abortion rights, and they had successfully halted the bill’s forward momentum. They supported the bill’s goals, but wouldn’t budge until it included abortion-related exemptions.
The coalition behind the bill wanted to avoid carveouts in general and especially abortion-related ones that it felt were unnecessary. At the 1992 hearing, one coalition member called the proposed amendments “superfluous, mischievous and inappropriate.”
Perhaps unsurprisingly, a breakthrough didn’t happen that day, and the two camps never really resolved their disagreements. Instead, groups advocating for changes to the Religious Freedom Restoration Act eventually dropped their resistance for different reasons.
The act passed the House and Senate in 1993 with near-unanimous support and became a lifeline to struggling religious groups and individuals of all stripes. It’s led to some major victories for people of faith, including abortion opponents, like the Catholic nuns who fought the Affordable Care Act’s birth control mandate.
But as the law celebrates its 30th anniversary this fall, just under 18 months after the Supreme Court overturned Roe v. Wade, unresolved tensions between abortion and religious freedom are in the spotlight again. The June 2022 ruling has led to precisely the kind of lawsuits the abortion opponents once feared, including one that will be heard by the Indiana Court of Appeals on Dec. 6.
The concern was that “if Roe v. Wade got overturned, we’d have faith-based groups or individuals raising a free exercise right to an abortion,” said Amanda Tyler, executive director of the Baptist Joint Committee, during the Nov. 16 episode of the “Respecting Religion” podcast. “That’s particularly interesting to us now because that’s exactly what’s happening in some places.”
Abortion and the Religious Freedom Restoration Act
Looking back now, it might seem strange that abortion rights played such a large role in a religious freedom debate in the early 1990s. It’s easy to forget that the anti-abortion movement felt close to victory back then, even though it would be 30 more years before Roe v. Wade was overturned.
The coalition behind the Religious Freedom Restoration Act came together in the summer of 1990, and as they worked to build support for the legislation, a key abortion-related case worked its way through the legal system.
Planned Parenthood v. Casey, which centered on abortion restrictions in Pennsylvania, ended up being argued in front of the Supreme Court as the Religious Freedom Restoration Act was being considered in congressional hearings. Those calling for changes to the act pointed to the case to explain why they cared about what the proposed law would mean for abortion rights.
“They were expecting Roe to be overruled,” said Doug Laycock, a professor of law emeritus at the University of Virginia. And if it was overruled, they expected abortion rights advocates to claim that abortion restrictions violated their religious exercise rights.
Even after the Supreme Court left Roe v. Wade in place in its Casey ruling, groups like the U.S. Conference of Catholic Bishops and the National Right to Life Committee resisted passage of the Religious Freedom Restoration Act. They were still holding out for abortion-related exemptions.
They believed Republican President George H.W. Bush would get reelected and appoint another anti-abortion justice to the Supreme Court sometime during his second term, according to Laycock, who testified in support of the act during that September 1992 judiciary committee hearing.
“If Bush had been reelected, there never would have been a Religious Freedom Restoration Act,” he said.
But Bush lost to President Bill Clinton, which put overruling Roe v. Wade out of reach, at least in the short term. Catholic bishops and other abortion opponents dropped their demand for abortion amendments and, in November 1993, Clinton signed the act into law.
Indiana abortion lawsuit
Before Clinton’s election broke the gridlock, Laycock and others spent months trying to convince those seeking abortion-related carveouts that attempts to claim a right to an abortion under the Religious Freedom Restoration Act would never succeed.
“Critics will tell you that religiously based abortion claims have been made in the past and will be made under this bill, and for that reason you should vote against it. But, Mr. Chairman, they will not be able to cite one case, not one, where such a claim has stood up on appeal,” said Oliver S. Thomas, then the general counsel of the Baptist Joint Committee, during the September 1992 hearing.
As Thomas noted, efforts to use religious freedom to protect abortion rights had been unsuccessful up to that point, and they remained unsuccessful over the past 30 years.
One reason why that’s the case is because few people of faith can argue that their religion requires them to get an abortion, as Laycock told the Deseret News last year.
“It is not enough that your religion permits abortion; it has to be the reason, or at least one main reason, for the abortion” for you to have a chance at succeeding in a religious exercise case, he said.
In the Indiana case that will be heard on Dec. 6, a group of unnamed women, as well as the faith-based organization Hoosier Jews for Choice, argue that the state’s abortion ban, implemented after Roe v. Wade was overruled, interferes with their ability to let their religious beliefs guide their abortion decisions. They say it violates Indiana’s Religious Freedom Restoration Act, a state version of the federal law.
“Their lawsuit specifically highlights the Jewish teaching that a fetus becomes a living person at birth and that Jewish law prioritizes the mother’s life and health,” according to The Associated Press.
In December 2022, Marion County Judge Heather Welch ruled that these faith-based arguments justified putting Indiana’s abortion policy on hold as the case moves through the legal system. Indiana officials appealed her preliminary injunction.
Even if the Indiana case or one like it secures victories in the lower courts, Laycock and others remain convinced that such lawsuits will not ultimately succeed. The same Supreme Court that overturned Roe v. Wade will have no problem saying that the government’s interest in protecting the life of a fetus outweighs a religious exercise claim, they argue.
Still, some abortion opponents are working to update existing religious freedom laws, as the Deseret News previously reported.
Last year, at least one state added an abortion carveout to its state-level Religious Freedom Restoration Act and others considered doing the same.