Roe v. Wade and Religious Liberty: Knocking Down a Straw Man | Opinion

Following the unprecedented leak of the Supreme Court's draft opinion in Dobbs v. Jackson Women's Health Organization, supporters of abortion rights have adopted an unexpected argument. Some now argue that the Supreme Court must reaffirm Roe v. Wade to protect the religious liberty of women whose faith obligates them to obtain abortions. Pro-choice advocates relish this argument because they view it as turning the tables on social conservatives who have traditionally supported robust religious liberty protections.

While the argument may at first sound persuasive—after all, what is good for the goose is good for the gander—on closer inspection, traditional conceptions of religious freedom cannot support maintaining Roe v. Wade.

For years, groups currently arguing that religious liberty requires a universal right to abortion falsely depicted religious freedom as a tool used by religious adherents to impose their faith on others. They smeared religious liberty protections in that fashion in 2015, hoping to undermine support for Indiana's proposed Religious Freedom Restoration Act (RFRA). In reality, RFRA laws like Indiana's are rather modest and serve to promote religious pluralism. Ironically, the same groups that slandered Indiana's religious freedom law are now arguing that no state may pass a law that conflicts with their religious views on abortion.

Contrary to the critics' claims, the purpose of religious liberty protections is not to promote religious law over secular law, but to allow religious minorities to flourish in a majority society that holds different beliefs. They do this by requiring governments to accommodate religious adherents, while simultaneously allowing the majority to adopt laws it believes will benefit the community.

Religiously motivated arguments in favor of upholding Roe do not follow this model. Reaffirming Roe would not grant accommodations to religious objectors. Instead, it would prohibit states from enforcing abortion regulations against believers and nonbelievers alike.

Abortion protest Washington DC
WASHINGTON, DC - MAY 17: A protester carries a sign as they attend the "Jewish Rally for Abortion Justice" rally at Union Square near the U.S. Capitol on May 17, 2022 in Washington, DC. The rally, hosted by the National Council of Jewish Women, is taking place more than two weeks since the leaked draft of the Supreme Court's potential decision to overturn Roe v. Wade. Anna Moneymaker/Getty Images

The case of Wisconsin v. Yoder demonstrates how religious liberty protections actually work. In that case, the Supreme Court excused Amish parents from Wisconsin's high school attendance policies without invalidating the state's requirement that most children attend high school. This approach protected the Amish parents while also honoring the right of the majority to govern itself.

Yoder is not an outlier; courts consistently grant religious accommodations without frustrating the majority's interest in otherwise enforcing its laws. In a 2006 case, the Court allowed a small religious sect in New Mexico to drink an otherwise illegal drug for sacramental purposes, without legalizing the drug for all Americans. Similarly, when the Supreme Court permitted a Muslim prisoner to keep his beard in 2015, it did not strike down his prison's grooming requirement for everyone else.

In most cases, these sorts of limited accommodations entirely satisfy religious Americans. They can practice their faith without frustrating their neighbors' ability to democratically adopt laws of their choosing. This is, after all, how a liberal democracy works—the majority governs, while the rights of minorities are protected. Recent attempts to argue that protecting religious liberty necessitates upholding Roe rely on an entirely different calculus. They attempt to prohibit states from adopting laws that conflict with the doctrines of certain faiths. This is religious domination masquerading as religious tolerance.

These groups have a potentially stronger argument, however. If pro-choice religious groups change course and make the more traditional religious liberty argument—that, in a post-Roe world, they should receive religious exemptions from otherwise valid abortion laws—their position would be more serious (although still tenuous). It is difficult to bring even a traditional religious liberty claim under the Constitution. This is because the Supreme Court currently only grants First Amendment accommodations from laws that target religion. Ironically, this means that pro-choice advocates would likely have to utilize RFRA laws, such as the one they opposed in Indiana, in order to challenge an abortion regulation.

To request that a court grant a religious exemption from an abortion regulation under a RFRA law, a woman would need to show that her religious exercise was burdened. The government would then have to grant an accommodation, unless it could demonstrate that it had a compelling reason for denying one and that it had no alternative method for achieving its goals. This framework explains why a state can ban human sacrifice, child marriage, or honor killings even if someone claims a religious obligation to engage in those behaviors. Given this framework, it is difficult to predict how a court would rule. But that is how the process works.

We are left with a sad irony. Opponents of religious liberty constructed a straw man view so outrageous that they expected no one could support it. Now, they attempt to use their own straw man as the white knight to save Roe, a case that has nothing to do with granting religious accommodations. Fortunately, the thing about straw men is that they are easy to knock down.

Mitchell Rocklin is the President of the Jewish Coalition for Religious Liberty. Howard Slugh is the General Counsel of the Jewish Coalition for Religious Liberty.

The views expressed in this article are the writers' own.