WASHINGTON (CN) — The downfall of Roe v. Wade would have been unlikely if not for an energized conservative movement that opposes abortion because of a certain religious doctrine. In the post-Roe era, the same terms could also shape the challenges against abortion bans.
Among religious groups, response to the Supreme Court’s ruling last month in Dobbs v. Jackson Women’s Health Organization was mixed. Where the Southern Baptists Convention was celebrating the ruling, the Episcopal Church decried it.
Christian evangelicals have been outspoken in their crusade against abortion. Almost 90% of White evangelicals think life begins at conception and that a fetus becomes a person with rights at that same moment, according to a survey from Pew Research Center. Pew also found that White evangelical Protestants were the most opposed to abortion, with nearly three-quarters of those surveyed showing opposition to abortion in all cases.
Now that Roe has been overturned and the battle for abortion access is focused at the state level, other faith-based groups are looking to make their voices heard in the debate.
“Abortion bans place greater value on the life of the fetus than on the pregnant person, a violation of both Jewish law and tradition and of American religious liberty,” Sheila Katz, CEO of the National Council for Jewish Women, said in a statement. “Now, it seems only certain people are entitled to religious liberty, which renders the entire concept meaningless.”
The seeds of challenges to abortion bans have been planted for years, but now the country is seeing them in action. One progressive synagogue is already testing this issue in Florida, challenging a state law that would ban most abortions after 15 weeks.
“There's certainly a very strong tradition in the Jewish faith that not only allows for abortion but mandates it in certain cases where say the life of the mother is at issue,” Katherine Franke, professor of law and director of the Center for Gender & Sexuality Law at Columbia University, said in a phone call. “Catholics for Choice has been around for a very long time, and they're a group of Catholics who also believe that abortion should be available and not in conflict with the Catholic traditions.”
About three-quarters of Catholics support legal abortion in some cases but think it should be illegal in others, according to Pew. Only 13% of Catholics support making abortion illegal in all cases. About two-thirds of Catholics want to determine the legality of abortions based on how far into a pregnancy a person is.
Americans United for Separation of Church and State — a frequent participant in religious liberty cases before the court — announced it would be bringing litigation against abortion bans on these grounds.
“Religious freedom demands the right to an abortion so people can make their own reproductive decisions according to their own principles,” Rachel Laser, the group's president and CEO, said in a statement. “Abortion bans undermine religious freedom by attempting to impose one religious viewpoint on all of us.”
These challenges will likely be rooted in protections guaranteed by the First Amendment.
“The nice thing about the First Amendment's religious liberty protections is that they're necessarily neutral so they protect right-wing faith believers, and they should protect left-wing people of faith,” Franke said. “It will be interesting to see how judges rule on the rights of people of faith to continue to provide the full range of reproductive health care and facilitate access to the full range of reproductive health care as a matter of their faith.”
Not only are these challenges going to be focused on claims that abortion bans violate the religious liberty protections of people of different faiths, but they could also claim that many bans are motivated by religious beliefs.
“It's very, very common, if not uniform, for the anti-abortion legislation to be motivated by religious beliefs and religious doctrines,” Alex Luchenitser, associate vice president and associate legal director at Americans United for Separation of Church and State, said in a phone call. “Essentially any anti-abortion legislation takes sides on fundamental and deep religious issues, such as when does something become a human life? When does an embryo or a fetus have a soul? … So any anti-abortion legislation inherently is based in religious doctrine.”
Some challenges to abortion bans may look to clauses within state constitutions that prevent the establishment of religion.
“There's a good argument that various state constitutional clauses that prohibit establishments of religious preferences should be construed to also prohibit laws that ban or severely restrict abortions,” Luchenitser said.
While there are still unknowns about how these arguments will play out in the courts, the court handed down two major rulings favoring religious liberty last term. The court has previously aimed to balance the First Amendment’s Free Exercise clause, which allows citizens the right to practice religion with the Establishment clause, which prohibits the government from establishing a religion. Both of the religious liberty cases decided last term, however, shifted the balance in favor of the Free Exercise clause.
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