Flash-back to March 2015. At the time, Mike Pence was the Governor of Indiana. And the Hoosier State enacted a version of the Religious Freedom Restoration Act. This move was highly controversial. Progressive groups feared this bill would provide a license to discriminate in the name of religion. I wrote an essay in National Review explaining that the state RFRA was modeled after the venerable federal standard.
Seven years later, that same RFRA which progressives excoriated, is now being used to stop post-Dobbs abortion laws. And a superior court in Marion County has enjoined the law based on the state RFRA.
Readers of this blog will likely be familiar with some of my writings on religion and abortion (see here, here, here, and here). Indeed, there are two law review articles that engage my views at some length. (I have some quibbles with how the former article characterized my article, and have been in touch with the authors; I think the latter article treats my work fairly.)
There is much to write about the trial court’s ruling. Here, I will focus on five primary issues.
First, the court makes a categorical error, and asserts that there is only one view on Jewish law with regard to abortion. For example, the court said “In order to protect the woman, Jewish law recognizes that there are circumstances in which abortion should occur and is mandated even if there is not a physical health risk that is likely to cause death or the substantial and irreversible physical impairment to a woman’s major bodily function.” And the court said, “Judaism allows for and requires that an abortion be provided if the pregnancy threatens the woman’s mental health, for instance if the pregnancy would aggravate psychological problems or cause such problems.” To support these claims, the court cited declarations from a few rabbis. But these rabbis do not, and indeed cannot, speak to what Jewish law “mandates” or “requires.” A court cannot state, as a matter of fact, what “Jewish law” obligates. (And query whether making these absolute statements amounts to an establishment of what the Jewish faith requires?). These sorts of statements are extremely problematic. I made this point in June:
There is no Jewish equivalent of a Pope. We often speak of “Orthodox,” “Conservative,” and “Reform” Jews, but even within these categories, there is no official or standardized set of teachings. Every Congregation, indeed, every Rabbi, may follow the teachings in different fashions. Moreover, every Jew can look to faith in his own fashion. And there is no obligation to be consistent. A Jew could hold one opinion in the morning, and then change his mind over lunch, and go back to the original position after dinner. The old saw, Two Jews, Three Opinions, is apt.
What’s paradoxical is that the court recognized that another faith, Islam, has different perspectives on the abortion issue. No one spiritual leader can speak for al Muslims. The court wrote:
Although, as in any religion, there are different Islamic schools and views, some Muslim scholars take the position that the fetus does not possess a soul until 120 days after conception.
There are many different schools of thought within Judaism on abortion. The declarations from the rabbis do not speak for all Jews. My colleagues Howard Slugh and Tal Fortgang explain a different Jewish perspective on abortion.
Second, in any event, the specific contours of the Jewish faith are not dispositive for this case. Indeed, Anonymous Plaintiff 2 does “not belong to a specific religious denomination.” Rather, her “personal religious and spiritual beliefs that guide her moral and ethical practice and life.” What are those beliefs? “She 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.” Moreover, she has a “spiritual obligation to determine whether to remain pregnant.” Anonymous Plaintiff 2 claims that her “religious beliefs are sincerely held.”
RFRA defines the “exercise of religion” as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” If we assume the beliefs of this anonymous plaintiff are in fact sincerely held, I predict that a future ground of dispute is whether her system of beliefs are religious at all, or rather are based on something other than “religion.” Calling something “religious” does not necessarily make it “religious.” Justice Scalia’s concern in Smith that “each conscience [can be] a law unto itself” would ring true. Given that we are defining a term in a statute, and not in the Constitution, it would be useful to know how the phrase “system of religious belief” was understood when the statute was enacted, and in prior caselaw.
Third, the trial court found that the state lacks a compelling interest to prohibit abortion in this context. Specifically, the court ruled that “the question of when life begins is a theological one not a factual question for this Court.” In other words, the Court cannot accept the state’s contention that there is a compelling interest to protect fetal life from conception, because that is a religious and not legal question. Dobbs was able to avoid this question, but at that moment, I realized that RFRA would force the court to grapple with defining the compelling interest.
Right here is the trial court’s most vulnerable point. I don’t expect this part of the ruling to survive on appeal. States can be afforded some latitude to define compelling interests, especially concerning the police power. And the Supreme Court is no doubt toiling with these issues now: Students for Fair Admission and 303 Creative may have to tackle the compelling interest issue. (I address that issue in an amicus brief for 303 Creative.) Justice Scalia in Smith objected to Sherbert due to the difficulty of defining a compelling interest. (Somewhere, Justice Barrett is wiping sweat off her brow for not overruling Smith in Fulton.)
By contrast, the analysis of “least restrictive means” is trickier, since there are exceptions for rape and incest, but not for religious exercise. Do those exceptions, in light of Fulton and the most-favored nation approach, undermine the state’s compelling interest?
Fourth, if we take these arguments to their logical conclusion, then RFRA would provide greater protections than Roe and Casey. A person’s sincerely-held religious belief, however defined, may require an abortion through the ninth month. Indeed, any burden–even if not undue–would violate those rights. For example, requirements to obtain a sonogram, which were upheld under the Casey regime, would violate a woman’s free exercise. Who needed substantive due process when RFRA was here all along?
Fifth, I am not certain about the scope of the court’s remedy. Usually, RFRA exemptions are granted to named plaintiffs, who articular specific objections to a government practice. And the injunction here seems limited to the named plaintiffs. One of the groups, Hoosier Jews for Choice, presumably would probably accept as a member any Jewish woman who seeks to obtain an abortion. (It’s not clear if every member of that organization needs to share the same religious beliefs, or if non-Jews could join?) How would other Indianans avail themselves of this ruling? Could a person in urgent need of an abortion suddenly find their faith, and profess a sincerely held belief? A class was not yet certified. And, as I wrote in May, certifying such a religious class would be difficult, as individual beliefs are so personal. And proving sincerity based on class representatives cannot work.
I wrote about this issue before Dobbs was decided because I recognized it would have legs. Those who historically have favored a broad reading of RFRA, and seek to overrule Smith, need to contend with these arguments. Doing so will not be pleasant, as the barrage of responses to my posts illustrate. Abortion and religion are the third and fourth rails in our polity. (I lost count of how many times I was called an anti-semite.) Going forward, it is not enough for states to rely on the “compelling interest” prong. I think there needs to be a more careful discussion of “least restrictive means,” and whether there is in fact a “substantial burden” of a religious exercise.