Abortion – A Matter of Religious Liberty?

Religious leaders in America – including some Christians and Jews – are suing red states in defense of abortion access. Claiming the right to terminate a pregnancy as a matter of religious liberty may seem like a unique approach, but it’s far from new. When does life begin? When does a human being become a person? When is it allowed – perhaps even required – to take a life? These are the questions that arise in the battle of beliefs where life and liberty collide in the US legal system.

Abortion and Religious Liberty

Politico calls it the “sleeper legal strategy that could topple abortion bans.” Religious leaders who oppose abortion bans began filing religious liberty lawsuits against restrictive states as soon as the trigger laws began taking effect after the fall of Roe v. Wade, but the argument has existed for many years. At present, there are around a dozen or so challenges before the courts.

A group including Jewish and Muslim abortion access advocates enjoyed some success in suing to block Indiana’s near-total abortion ban. An Indiana judge agreed that the ban violated the 2015 Religious Freedom Restoration Act, signed into law by Mike Pence, who was governor at the time. The Judge later granted class action status, meaning that, should the suit prove ultimately successful, the ruling could apply to anyone else in the state whose religion supports legal abortion access.

Representatives from Reform Judaism, Buddhism, the Episcopal Church, the United Church of Christ, and the Unitarian Universalist Church sued the state of Florida to overturn the 15-week abortion ban – or, failing that, to win religious exemptions. Three Jewish women sued Kentucky, claiming the ban violates their belief that life only begins when a baby takes its first breath. They say the law prevents them from trying to get pregnant by in-vitro fertilization. “To have someone else’s religious belief that an embryo is a human being imposed on me in a way that’s so personal, that prevents me from growing my family, is just rude and un-American,” the lead plaintiff said in an interview.

The Satanic Temple has challenged the abortion bans in Texas, Idaho, and Indiana in federal court, arguing that practicing abortion is, in fact, a religious ritual for them.

While the Satanic suit is perhaps the hardest case to take seriously, it does serve to illustrate the point of the conflict by raising the specter of human sacrifice. Yes, we have the right to bodily autonomy – but what about when it isn’t just our bodies? “As Justice Ruth Bader Ginsburg explained in one Free Exercise case, the right to swing your arm ends where the other man’s nose begins,” explained Denise Harle, senior counsel for Alliance Defending Freedom. “Even if you have religious freedom, there is a line at which you are doing actual deadly harm and destroying human life, so it’s appropriate to limit what can be done in the name of religion.”

Separating Church and State – Easier Said Than Done

The ancient Ammonite god Molech was considered quite vengeful and violent, and his worshipers often burned their own children alive in sacrifice to him to redirect his wrath. The Maya and the Mexica, among other early American cultures, believed that human sacrifice nourished the gods. Without it, the sun would cease to rise, and the world would end. Thankfully, their deities either changed diets or starved long ago, as there exists no religious liberty for those obligated by their beliefs to commit felony murder.

When does a couple of cells become a human life? According to biology, at the moment of fertilization. From a secular, scientific standpoint, that’s not really up for debate. A 2021 study found that, while the general population in America was split on whether “life begins at fertilization” is a “philosophical or religious belief” (45%) or a “biological and scientific fact” (46%), there’s far less division in the scientific community. 80% of people asked agreed that biologists are the group most qualified to answer the question of when life begins, and of the 5,577 experts from 1,058 academic institutions around the world who were polled, 5,337 – or 96% – affirmed the fertilization view. If we strip away the religious and political considerations, modern science does tell us that a brand-new zygote is just as much a human being as a 30-year-old adult.

But what of personhood? Science can’t answer that question. To the conservative Christian, the zygote is a person. To the Orthodox Jew, the unborn baby is something more like a “potential person,” which means that Jewish law protects the fetus, but would allow – in some cases, even require – an abortion to save the mother’s life up to the point of birth. Once the head is out and it’s possible that the baby could take its first breath, the option to choose one life over the other vanishes. Now keep in mind that all states that ban abortions include medical emergency exceptions to save the mother’s life.

Other, more “progressive” groups of Jews and Christians may believe differently. Other religions entirely may have different definitions and milestones for personhood. So how do we square the right to life with the right to liberty in these cases – and how can anyone be expected to remove entirely their religious considerations from the discussion without defaulting to the biological definition of life?

Anti-abortion conservatives came together to protect the sanctity of life, to defend the right to life of those who cannot speak for themselves – and many did so quite openly citing their own spiritual beliefs. The religious liberty cases looking to overturn or at least poke a few holes in abortion bans are, of course, also based on religious beliefs. Separating law from belief is much easier said than done. Indeed, one could argue even the Founders failed to do so. Why do we protect life or liberty to begin with?

The Bill of Rights protects the rights mentioned in the Declaration of Independence, but why do those rights – life, liberty, and the pursuit of happiness – exist? “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights …”

So much for the separation of church and state.