Do Total Abortion Bans Violate RFRA?

 

    Following the Supreme Court decision in Dobbs v. Jackson Women's Health Organization in 2022, several states around the U.S. mobilized their legislators to pass anti-abortion laws. In this Supreme Court decision, almost fifty years of the precedent established in Roe was overturned and the power to decide on abortion restrictions returned back to the individual state governments. Many critics of the Dobbs decision view the outcome as an "enshrinement of Christian nationalists' beliefs." It is a fair judgment to make as these anti-abortion restrictions are intended to satisfy the pro-life Christian movement. However, we are not here to decide the merits of whether or not this decision was the right one. Instead, we are here to discuss whether there are any potential constitutional violations for anti-abortion restrictions across the U.S. following Dobbs. In a recent case out of Indiana, a group called "Hoosier Jews for Choice" filed a law suit against the Indiana State Government on the grounds that their near-total abortion ban violates the RFRA rights of Jews and other minority religions that do not subscribe to the Christian faith. 

   The Indiana law that is in question and challenged in the following case is termed "Senate Enrolled Act One". It outlines a total abortion ban across the state with only three limited exceptions:

        1. When reasonable medical judgment dictates that performing the abortion is necessary to prevent

             death or a serious risk of substantial/irreversible harm or irreversible impairment of a major bodily

             function, or the "health or life exception". 

        2. When the pregnant person receives a diagnosis of a lethal fetal anomaly.

        3. When the pregnant person is a victim of rape or incest. 

The plaintiffs in this case at large argue that SEA One violates the Religious Freedom Restoration Act in the State of Indiana. RFRA provides protections for religious groups against government actions that can present substantial burdens for a religious group to freely exercise their beliefs. RFRA is an extension of the Establishment Clause as it ensures religious freedoms and a lack of government sponsorship, but the government is allowed to pass legislation that prohibits a religious group's free exercise if [the government] can prove it has a compelling interest to do so and it uses the least restrictive means possible.

    In the case of Individual Members of the Medical Licensing Board of Indiana v. Anonymous Plaintiffs, the constitutionality of total abortion bans is raised by minority religious groups in the State of Indiana. An initial trial court ruled in favor of the plaintiffs by confirming that the group has legal standing to bring this case and it can be certified as a "class-action suit" to include all minority religious groups that value abortions in their religious doctrines. An appeals court similarly ruled in favor of the plaintiffs, citing that the group's "claims are ripe" and that "[the bill] could have a substantial burden on the religious exercises of the plaintiffs". The case is expected to be appealed by the Indiana Attorney General's Office, as AG Todd Rokita stated that"life is still winning in Indiana". 

    This particular case is packed with multiple questions of constitutionality. The intended objection of this post is whether or not abortion bans violate the RFRA rights of religious minorities. The plaintiff group is called "Hoosier Jews for Choice", so in order to discuss the disparities laws like these take place on religious minorities, it is important to first understand their beliefs surrounding abortion practices. The primary distinction to understand where the Jewish faith stands on abortion is an individual one that is dependent on how closely the individual adheres to religious principles. According to the Jewish faith, the Hebrew Bible does not consider a fetus as having the status of a human life. Abortions are allowed in the Jewish community up to before 40 days gestation. If the pregnancy poses a threat to the life of the mother, then abortion is permitted in the Jewish faith with no restrictions. However, it is important to note that the restrictions surrounding abortion differ between the types of Judaism practiced. For example, Orthodox Jews believe differently than Conservative Jews who then believe differently from Reconstruction Jews. If there is one insight to come from this variation of Jewish faith, it is that not all religious faiths believe in the same values or morals. This can therefore be applied across the religious spectrum, and we can then begin to see that it is constitutionally impermissible to allow total abortion bans to remain in effect on the grounds that there are differences in faith. As the national advocacy group "Muslim Advocates" suggests, the U.S. Supreme Court "enshrined the religious doctrine of one religious community into law." Every religion regards life beginning at different points of time and for the law to favor one viewpoint over the other is a direct violate of the First Amendment. If the Establishment Clause were to be truly valued as a mechanism to ensure religious freedoms, then these bans would be overturned to respect views that differ from the predominant Christian faith in the U.S. 

    One of the more applicable examples of precedent that the courts can point to is Burwell v. Hobby Lobby Stores in which the U.S. Supreme Court considered whether or not an HHS mandate requiring employers to provide their employees with reproductive health resources violated their RFRA rights. The Supreme Court ended up ruling in favor of the for-profit corporations since providing reproductive care to employees would substantially burden their religious beliefs. In other words, the Supreme Court set the standard that if an act of government infringes upon one's right to practice their religion freely, then it is a violation of the First Amendment. I think it is clear that when applying this standard near total abortion bans like those in Indiana are unconstitutional and an infringement against minority religion's religious freedoms. There is a sincerely held religious belief in the Jewish faith that the mother's life is to be protected and the same standard of defining when life begins is not the same as what those of the Christian faith believe. By prohibiting these options for citizens that do not identify as Christians is in essence establishing the Christian faith as the sponsored religion by the state. It does not satisfy the requirement for governments to treat all religions equally or be equal to those that do not subscribe to a religious faith. It violates the neutrality requirement that the First Amendment preaches. In addition, there does not appear to be any valid, compelling state interest that Indiana could argue for such strict abortion restrictions as it is required to show under RFRA. There are other less restrictive means that the government can impose in order to satisfy their agenda without denying these rights. Since these near total abortion bans do not treat all religious sects equally, it would be a clear violation of the Establishment Clause. 

Sources: 

1. Muslim Advocates

2. Jewish Faith Experience - from Brandeis University

3. Indiana Capitol Chronicle

4. Fox News 59