An Indiana trial court made a deeply troubling decision that abortion may be part of the right to religious exercise under Indiana’s Religious Freedom Restoration Act (“RFRA”). The March 5 decision reveals several problems with our current legal system, our understanding of what religion is, and how far we have come from the culture of the American founding era.
The lawsuit was filed by a couple of anonymous plaintiffs and a group called “Hoosier Jews for Choice,” who all allege that the Indiana law — which makes it a crime for doctors in the state to perform abortions in most cases — violates the plaintiffs’ religious exercise rights under the state’s RFRA.
At the outset, there are simply narrative problems left unchallenged by the court. For example, one of the plaintiffs “believes that, at least prior to viability, a fetus is a part of the body of the mother.” This is factually incorrect and is not a religious belief at all. Whether one calls an unborn child a “fetus” or a “zygote” or an “embryo,” it is scientifically not a part of the mother’s body up until some arbitrary point in time, such as “viability,” when it becomes something other than part of the mother’s body. From the moment of conception, the unborn child has DNA distinct from that of its mother. Religion does not entitle people to their own set of facts in this way.
Further, this argument leads to a disturbing slippery slope. There is no rational reason to proclaim that a “pre-viable” baby before a certain age is “a part of the body of the mother” and then becomes its own person separate from the mother at a later stage of pregnancy. This is completely arbitrary. If the court accepts this claim as a legitimate religious belief, I see no good reason why a different “religious” individual could not claim a religious belief that a nursing infant still attached to and dependent on his mother is also “a part of the body of the mother.” Is there a potential religious exercise right to kill a nursing newborn?
If the court accepts the first arbitrary claim, there is not a serious logical distinction that would lead to rejection of the second. Arguments for abortion lead inevitably to arguments for infanticide. Where does it end?
There are also problems related to the definition of religion within this case, problems which have been brewing and escalating for almost a century. For example, one of the plaintiffs “does not believe in a single, theistic god, but believes that there is within the universe a supernatural force or power that connects all humans and is larger than any individual person.”
Under the First Amendment, I think I have argued convincingly that this is simply not a religion. In the founding era, both lawmakers and the common man would have understood religion as “the duty which we owe to our Creator.” Someone who “does not believe in a single, theistic god” but rather in some vague notion of a powerful force in the universe may believe that in good faith, but it is not a religion for purposes of the First Amendment.
But what do we do with the RFRA? Indiana passed this law in 2015. Is the protection of the “exercise of religion” in this statute limited to true religion? Or does it encompass the 20th-century confusion of including all kinds of non-religious humanistic and philosophical belief systems in the definition of religion?
The modern fear of excluding anyone has left “religion” an unclear term that may refer to anything and everything. If lawmakers and courts are not clear about what religion is, we risk what we see here in Indiana: the expansion of “religious freedom” rights being used to protect and promote non-religious (and even evil and anti-religious) beliefs and practices.
This case displays not only a legal but a deep cultural problem. The two anonymous plaintiffs are both under the delusion that they have religious rights that leave them free to have a sexual relationship but not get pregnant. They think they have religious exercise rights that protect their ability to seek to get pregnant if they feel like it but then murder the unborn child if they decide they are high-risk or simply change their mind. One of the plaintiffs further claims she suffers legally cognizable harm (which used to mean actual injury to person or property) because her ability to be physically intimate with her husband is supposedly damaged by her inability to get abortions if she wants to.
This is nonsense. The fear of conceiving a child through sexual intimacy is not a legal harm. Killing an innocent child is not religious exercise, and being prevented from doing so is not denial of any right. This is a disordered desire to escape the natural consequence of marriage and sexual intimacy, which is openness to begetting children. This is an attempt to escape reality.
So how did Indiana fight back against the lawsuit? What were the substantive arguments that killing an unborn child in its mother’s womb is not a legitimate exercise of religion? Sadly, decades of weakening and relativizing of what a religion is meant that there was little point in arguing that vague spiritual notions of bodily autonomy are not a religion. Indiana did offer two substantive arguments that the court rejected: that abortion does not constitute a “sincere religious exercise” and that there is no “substantial burden” on religious exercise caused by the abortion ban.
The court disposed of both arguments quickly. The court accepted that, at least in theory, there may be abortions that are “potentially sought as a religious exercise.” The opinion is short on substance here, but the court is clearly not open to the idea that perhaps the “right” to murder one’s unborn child is not a bona fide religious practice. On the second question, Indiana made an important argument that the law criminalizes the performance of most abortions by doctors; it does not criminalize a woman’s attempt to have an abortion.
But the court had no time for this: If the law does not allow these women to have some means of “following their religious beliefs” and having easy access to abortion, apparently the burden on their so-called exercise of religion is substantial.
But even if the common sense argument that abortion is not religious exercise has failed, surely Indiana should prevail on the “compelling interest” analysis. The government can substantially burden “religious exercise” if there is a compelling government interest. Indiana asserted, correctly, that it has a compelling interest in protecting innocent unborn life from being killed.
While the court expressed doubt that all unborn children in the womb are necessarily “human life,” the court put that aside, denying that Indiana has a compelling interest based on a sobering inconsistency: If Indiana’s goal is to protect unborn human life, why are there exceptions for unborn children conceived by rape and incest? If these exceptions to the “no abortion” law are permitted based on secular circumstances, why not allow exceptions for heterodox “religious” claims?
Indiana’s argument that it has a compelling interest in protecting human life would be more consistent and therefore much stronger if it had enacted a complete abortion ban without exceptions. But by creating exceptions and allowing the murder of innocent unborn children in certain circumstances, the state has undercut its own purported interest in protecting human life.
Where do we go from here? There are clear statutory solutions. States could clarify that RFRAs never protect the “right” to kill a human life, including an unborn one. But such measures require courage and political will that are unlikely to be found in any state legislature. After 49 years of Roe v. Wade, there is very little political appetite for serious restrictions on abortion. States could also clarify what a religion is for purposes of their state RFRA. But again, I am quite pessimistic that, in our relativistic and religiously unorthodox age, such action is likely.
The Indiana attorney general has appealed the decision, and I wish his office well. The president of Indiana Right to Life was quite right when he stated that for “the court to rule that taking the life of an unborn child is an exercise of religious freedom is deeply distressing — and a perversion of the law’s intent. . . . Indiana’s Religious Freedom Restoration Act was never intended to equate taking the life of an unborn child with religious expression in our state.”
Surely nobody passed a robust statute protecting religious freedom for the purpose of ensuring people could use the law to kill their unborn children. But after decades of fighting for expanded religious freedom protections, it is perhaps time to reflect on what that means in our day. Yes, we need to protect religion from the long and often hostile arm of government. But the definitions of religion and religious exercise have been warped and confused for decades, and America’s citizens have become increasingly heterodox and irreligious.
So as the fight for religious freedom continues, advocates and policymakers should take a hard, honest look at exactly what it is we are fighting to protect.
