In Roe v. Wade,REF the Supreme Court held that the word “liberty” in the Fourteenth Amendment’s Due Process Clause includes a “right of privacy” that is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”REF This constitutional assertion was “[c]ontroversial from the moment it was released.”REF Within months, some of America’s leading constitutional scholars, most of whom personally favored abortion rights, became its harshest critics. Professor John Hart Ely, for example, called it a “very bad decision…because it is…not constitutional law and gives almost no sense of an obligation to try to be.”REF

The Supreme Court struggled to maintain what it had created as more than two dozen abortion cases landed on its docket, changing the description of the right it had created and revising the rules for implementing that right. While the Court reaffirmed Roe itself in 1983,REF it retreated to reaffirming Roe’s “general principles” in 1986REF and could reaffirm only its “essence” in 1992.REF

Three decades later, in Dobbs v. Jackson Women’s Health Organization,REF the Supreme Court overruled Roe and Planned Parenthood v. Casey,REF holding that “the Constitution does not confer a right to abortion” and that “the authority to regulate abortion must be returned to the people and their elected representatives.”REF The Court said that Roe had been “egregiously wrong and deeply damaging” and that the Roe Court had “usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people…. Together, Roe and Casey represent an error that cannot be allowed to stand.”REF

As abortion advocates shifted their legal attack on pro-life laws to state courts,REF which they hope will be a more hospitable venue, they revived the argument that these laws violate the right to freely exercise one’s religion. They argue that having an abortion qualifies as an exercise of religion if it is generally consistent with one’s beliefs or conscience. Laws prohibiting abortion substantially burden that religious exercise, they claim, and, therefore, are unconstitutional under the appropriate legal standard.

Some say this might be the “sleeper legal strategy that could topple abortion bans.”REF These challenges have been brought primarily under state laws that mirror the federal Religious Freedom Restoration Act (RFRA), which, in turn, mirrors the Supreme Court’s traditional interpretation and application of the First Amendment’s Free Exercise Clause. This Legal Memorandum evaluates the religious exercise argument against pro-life laws in that context.

Abortion and the First Amendment

Principles. The First Amendment provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”REF The historical understanding of the Free Exercise Clause provides several principles that guide this analysis.

First, the Free Exercise Clause protects both belief and conduct. The First Amendment’s drafters replaced the phrase “rights of conscience” from early versions with “the free exercise [of religion]”REF in the final, ratified text. Doing so made clear that the clause “protects religiously motivated conduct as well as belief.”REF

Second, the Free Exercise Clause does not extend to “claims of conscience based on something other than religion.”REF Indeed, the Supreme Court has unanimously held that “‘[o]nly beliefs rooted in religion are protected by the Free Exercise Clause…. Purely secular views do not suffice.’”REF In a series of speeches in the fall of 2015, Senator Orrin Hatch (R–UT) explained the origin, nature, and significance of religious freedom in America. He started with the “first principles”REF that led America’s Founders to view religious exercise as both a fundamental and inalienable right and to give it “special protection.”REF No decision, Hatch explained, “is more fundamental to human existence than the decision we make regarding our relationship to the Divine.”

As a result, “[n]o act of government can be more intrusive or more invasive of individual autonomy and free will than the act of compelling a person to violate his or her sincerely chosen religious beliefs.”REF This is why, James Madison argued in his “Memorial and Remonstrance Against Religious Assessments,” that religious exercise is “precedent, both in order of time and in degree of obligation, to the claims of Civil Society.”REF

The third principle is especially important for this analysis. To constitute an exercise of religion, conduct, or refraining from conduct,REF must be caused by, or be the product of, religious belief. Oliver Thomas, the General Counsel of the Baptist Joint Committee on Public Affairs and chairman of the grassroots Coalition for the Free Exercise of Religion, made this point during the Senate Judiciary Committee’s September 1992 hearing on RFRA. To be an exercise of religion, he explained, “[c]onduct must be caused by religion; it must be the reason for the conduct.”REF The degree of causation can range from compulsionREF to affirmative motivation or direction, but conduct that is not actually caused by religious belief is not an exercise of religion and, therefore, not protected by the Free Exercise Clause.

Strict Scrutiny. The Supreme Court saw very few Free Exercise Clause cases until the 1940s, when religious adherents began challenging laws that were facially religion-neutral but which nonetheless negatively impacted religious exercise. The principles noted above crystallized into an approach to Free Exercise Clause challenges that had two elements. First, it focused on the “character of the right”REF to exercise religion, acknowledging with the Founders that this right is in “a preferred position.”REF

Second, the Court examined the effect of government action on this right rather than the form such government action might take. The Court, for example, rejected the distinction between generally applicable laws and those that single out or target religious exercise.REF A license tax, the Court held, “certainly does not acquire constitutional validity because it classifies the privileges protected by the First Amendment along with the wares and merchandise of hucksters and peddlers and treats them all alike. Such equality of treatment does not save the ordinance.”REF

This view of the character of the right to exercise religion and the ways that government can actually burden it led to application of a rigorous legal standard that is often called strict scrutiny.REF Only the “gravest abuses, endangering paramount interests,” the Supreme Court held, “give occasion for permissible limitation” of religious exercise.REF In practice, government can justify an “inroad on religious liberty [only] by showing that it is the least restrictive means of achieving some compelling state interest.”REF

Abortion Advocates’ Religious Exercise Argument

Abortion advocates began making constitutional arguments against pro-life laws in the 1960s, including the suggestion that they violate the Free Exercise Clause. The goal of this argument is to subject laws prohibiting abortion to strict scrutiny by treating having an abortion as an exercise of religion. Writing in 1968, for example, Professor Roy Lucas suggested that prohibiting abortion may interfere with a woman’s right to act on her belief regarding whether a fetus can “be equated in value with a human being.”REF Three scholars developed the religious exercise argument further four years later, asserting that pro-life laws violate the First Amendment by burdening “individuals who wish to [obtain an abortion] in a manner consistent with their religious beliefs.”REF

In Webster v. Reproductive Health Services,REF which challenged a Missouri pro-life law, 36 religious groups filed an amicus curiae brief arguing that “each woman should be free to consult with her religious convictions…without government coercion or constraint when exercising religious and personal conscience in making a decision whether to terminate her pregnancy.”REF This assertion is misleading on its face. Government cannot coerce or constrain anyone from consulting his or her convictions, religious or otherwise, about anything. What abortion advocates really mean is that a woman should be free, after any consultation she may conduct, to actually do whatever she decides to do. This is, however, no different than the argument the Supreme Court accepted in Roe—and rejected in Dobbs—that the Constitution protects a right to abortion. There is nothing distinctively religious about it.

Abortion advocates seek to eliminate two of the Supreme Court’s Free Exercise Clause principles: the requirement that belief be religious rather than secular and that it be the cause of conduct deemed to be an exercise of religion. Ignoring those principles, abortion advocates assert that having an abortion is an exercise of religion if it is generally “undertaken with moral responsibility”REF or results from a decision that is “conscientious”REF or made “on the basis of conscience.”REF Should that argument succeed, and the burden shift to the government, abortion advocates then challenge the assertion that a law prohibiting abortion is the least restrictive means of furthering the compelling governmental interest in protecting human life in the womb. This argument is incompatible with either the historical understanding of the Free Exercise Clause or RFRA.

Abortion and Religious Beliefs. The Supreme Court has long held that, to constitute an exercise of religion under the First Amendment, conduct must be, to some degree, caused by religious belief. In a memo dated June 11, 1992,REF the Congressional Research Service concluded that, while not “limited to any particular verbal formula in describing what constitutes a religious exercise for First Amendment purposes,”REF the Supreme Court had “frequently [found] the religious practice in question to have been compelled or commanded by religious belief.”REF The memo cited many precedents, including those finding that the government had violated the Free Exercise Clause.

• In Sherbert v. Verner,REF the Court held that denying unemployment benefits to a Seventh-Day Adventist who was fired for not working on her Sabbath violated the Free Exercise Clause by “forc[ing] her to choose between following the precepts of her religion and forfeiting benefits…and abandoning one of the precepts of her religion in order to accept work.”REF
• In Thomas v. Review Board,REF the Court held that denying unemployment benefits to a Jehovah’s Witness fired for refusing to participate in the production of armaments or war materials violated the Free Exercise Clause. In this case, which involved “conduct proscribed by a religious faith,” the government put “substantial pressure on an adherent to modify his behavior and to violate his beliefs.”REF
• In Hobbie v. Unemployment Appeals Commission,REF the Supreme Court found a Free Exercise Clause violation in denying unemployment benefits to a Seventh-Day Adventist who was fired after refusing to work on Saturday. Citing Sherbert and Thomas, the Court held that the state “may not force an employee ‘to choose between following the precepts of her religion and forfeiting benefits…and abandoning one of the precepts of her religion in order to accept work.’”REF

The memo also cited precedents in which the Supreme Court upheld government action against a Free Exercise Clause challenge.

• In Braunfeld v. Brown,REF the Supreme Court held that a law requiring businesses to close on Sunday did not violate the Free Exercise Clause even though it restricted business activities of Orthodox Jewish merchants whose faith also “requires the closing of their places of business” on Saturday.REF
• In United States v. Lee,REF the Supreme Court held that imposition of Social Security taxes on an Old Order Amish employer did not violate the Free Exercise Clause even though participation in the Social Security system was “forbidden by the Amish faith.”REF
• In Goldman v. Weinberger,REF the Supreme Court held that a military dress code did not violate the Free Exercise Code even though it effectively prevented a rabbi from wearing a yarmulke that was “required by his religious faith.”REF
• In O’Lone v. Estate of Shabazz,REF the Supreme Court held that prison regulations did not violate the Free Exercise Clause even though they prevented Muslim inmates from attending a religious service that is “commanded by the Koran.”REF

The Supreme Court directly addressed this caused by-versus-consistent with issue in the abortion context in 1980. In Harris v. McRae,REF the plaintiff raised several constitutional claims, including violation of the Free Exercise Clause, against the Hyde Amendment, which prohibits the use of federal funds to pay for most abortions.REF She claimed that it violated the freedom of women to decide whether to have an abortion “in accordance with the teaching of their religion and/or the dictates of their conscience.”REF In other words, she wanted the protection of the Free Exercise Clause without any necessary connection to religious beliefs at all. The Supreme Court rejected this argument, dismissing the Free Exercise Clause claim because the plaintiff had not “alleged, much less proved, that she sought an abortion under compulsion of religious belief.”REF

Employment Division v. Smith

This was the state of the Supreme Court’s Free Exercise Clause jurisprudence in 1990. To constitute an exercise of religion, conduct had to be caused, that is, compelled or at least affirmatively motivated or directed, by sincerely held religious beliefs. Government action burdening that religious exercise, whether generally applicable or targeted at religion, had to meet the demands of strict scrutiny.

The Supreme Court dramatically changed this approach in Employment Division v. Smith.REF A private drug rehabilitation organization fired two employees for ingesting peyote during Native American Church ceremonies. The state denied their application for unemployment benefits, deeming their religious use of the drug to be work-related “misconduct.” They sued in state court, alleging that this action violated their First Amendment right to exercise religion. The Oregon Supreme Court agreed, and the case went to the U.S. Supreme Court.

The parties in Smith disagreed about the application of strict scrutiny, but neither had questioned, let alone briefed or argued, whether strict scrutiny should remain the standard in Free Exercise Clause cases.REF It took everyone by surprise, therefore, when the Supreme Court, in a majority opinion by Justice Antonin Scalia, embraced the distinction it had previously rejected between government action that is “specifically directed at…religious practice”REF and action that is “generally applicable.”REF

Going forward, the Court held, strict scrutiny would apply only in the small fraction of Free Exercise Clause cases in which the government overtly targets religious exercise or that involve “the Free Exercise Clause in conjunction with other constitutional protections.”REF In all cases in which burdening the exercise of religion is “the incidental effect of a generally applicable and otherwise valid provision,” however, the “First Amendment has not been offended.”REF

By placing form over substance, Smith guaranteed that the vast majority of government interference with religious practice, no matter how severe, would never violate the First Amendment.REF In a concurring opinion, Justice Sandra Day O’Connor, who would also have sided with the government but by following the Court’s established jurisprudence, observed:

The First Amendment, however, does not distinguish between laws that are generally applicable and laws that target particular religious practices. Indeed, few States would be so naive as to enact a law directly prohibiting or burdening a religious practice as such. Our free exercise cases have all concerned generally applicable laws that had the effect of significantly burdening a religious practice.REF

Smith’s procedural and substantive problems have been extensively documentedREF and, while agreeing with the result in a 2021 case, Fulton v. City of Philadelphia, Justice Samuel Alito presented a comprehensive case for overruling it.REF Significantly, Smith shares two of Roe v. Wade’s serious errors. First, each decision announced a profound constitutional change without attempting to interpret the provision in question.REF Second, the conclusion in each case was instead motivated by what the Court considered a desirable result. In Roe, the Court created a right to abortion to avoid the “detriment” for women from prohibiting abortion.REF In Smith, the Court restricted the First Amendment’s protection for religious exercise to avoid “courting anarchy” and “open[ing] the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.”REF

Aside from whether such speculation is a valid basis for interpreting and applying the Constitution, Smith’s prediction was particularly ill-founded. The Supreme Court had been applying strict scrutiny to all Free Exercise Clause claims for decades without any jurisprudential anarchy. In fact, although strict scrutiny appears to be a highly protective standard, courts rarely found that the government had crossed the constitutional line. In a 1988 review, for example, then-Professor John Noonan found that federal appeals courts ruled for the government in Free Exercise Clause cases 90 percent of the time.REF That record cannot be called “anarchy” under any definition of that term.

In Smith, Scalia acknowledged that “leaving accommodation [of religious exercise] to the political process will place at a relative disadvantage those religious practices that are not widely engaged in.”REF Professor Michael McConnell has put it more bluntly: “The Court in Smith delivered free exercise rights into the hands of Congress and of every state legislature, city council, and administrative agency in the land. Every lawmaking body is now free to forbid religious exercise with formally neutral rules.”REF

Holding that “the Free Exercise Clause of the First Amendment does not prohibit governments from burdening religious practices through generally applicable laws”REF was, according to McConnell, “a sweeping disaster for religious liberty.”REF Only two years after Smith, a Congressional Research Service report described its already grim impact: “In only one instance subsequent to Smith has a court found the government regulation in question to be a religiously neutral law of general applicability but nonetheless held it to violate the free exercise clause.”REF

Abortion and the Religious Freedom Restoration Act

President Bill Clinton signed RFRA into law on November 16, 1993, following its unanimous passage in the House and 97–3 approval in the Senate. The following review of RFRA’s legislative development shows that Congress took deliberate steps to ensure that it would be a “statutory version of the Free Exercise Clause.”REF Like the Free Exercise Clause had before Smith, RFRA requires that, to constitute an exercise of religion, conduct must be caused by religious belief. RFRA’s supporters and critics agreed that this includes conduct that is compelled, as well as affirmatively motivated or directed, by religious belief.

101st Congress (1989–1990). Representative Stephen Solarz (D–NY) introduced H.R. 5377 on July 26, 1990, just three months after Smith. It would allow the government to “restrict any person’s free exercise of religion” only if “application of the restriction to the person is essential to further a compelling government interest; and is the least restrictive means of furthering that compelling government interest.”REF It would apply to all federal and state government restrictions enacted before or after the bill became law.REF

The parallel between RFRA and the Supreme Court’s pre-Smith Free Exercise Clause jurisprudence was immediately apparent and grew more explicit as the legislative process continued. Neither this bill nor its Senate counterpart, S. 3254, which was introduced by then-Senator Joseph Biden (D–DE), defined “exercise of religion.” They did, however, provide that “[s]tanding to assert a claim or defense…shall be governed by the general rules of standing under article III of the Constitution.”REF Those rules included the Supreme Court’s holding in Harris that standing for a religious exercise challenge to a pro-life law requires religious compulsion. No one raised the abortion issue during the September 27, 1990, hearing on the bill before the House Judiciary Subcommittee on Civil and Constitutional Rights.REF

In January 1991, the National Right to Life Committee (NRLC) and the United States Catholic ConferenceREF began asserting that abortion advocates’ Free Exercise Clause argument in Webster could also apply to RFRA. “The argument of the pro-abortion partisans,” wrote the NRLC general counsel, “does not require that a woman’s religion compel her to have an abortion. Rather, her religion need only compel her to make a conscientious decision.”REF RFRA, he argued, “would restore to viability a free exercise claim against abortion legislation which is currently effectively precluded by the Smith decision.”REF

Three of the nation’s most prominent religious liberty scholars pushed back. In a letter dated February 21, 1991, Professors Michael McConnell and Douglas Laycock, joined by Dean Edward Gaffney, explained that RFRA would restore the Supreme Court’s pre-Smith understanding that, to constitute an exercise of religion, conduct must be caused by religious belief. In their view, this included conduct that is “motivated by religious belief”REF but excluded “any conduct that one’s religion deems permissible” or that is merely “consistent with religious belief.”REF

Representative Solarz agreed. Religious motivation and compulsion are different degrees of causation, while being “merely consistent with, or not proscribed [by] one’s religion”REF abandons any causal connection altogether.REF The Free Exercise Clause required that conduct be caused by religious belief before Smith, and RFRA would do so after.

102nd Congress (1991–1992). Solarz re-introduced RFRA as H.R. 2797 on June 26, 1991. It provided: “Government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person is essential to further a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.”REF While not defining an “exercise of religion,” the bill added as a statement of purpose that it would “restor[e] the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder and to guarantee its application in all cases where free exercise of religion is burdened.”REF

Sherbert and Yoder were the primary Free Exercise Clause precedents when the Supreme Court held in Harris that standing to assert a Free Exercise Clause claim against a pro-life law requires a showing of religious compulsion.REF Citing Sherbert and Yoder, therefore, reinforced the retained statutory language that “[s]tanding to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.” This understanding of RFRA’s scope and application received additional support after Solarz introduced the new language.

• In the first of two analyses, the Congressional Research Service concluded that “the free exercise clause operates to protect a person who performs an act required by his religion to be performed or who declines to perform an act because his religion forbids the doing of that act.”REF
• In November 1991, 10 national pro-life organizationsREF issued a letter stating that “[b]ased upon our own independent analysis, we do not believe that this legislation could be used to secure a broad, new right to abortion.”REF
• On April 30, 1992, leaders of national pro-life organizationsREF joined an analysisREF concluding that RFRA “tracks the language of the free exercise clause and the Supreme Court’s traditional interpretations of that provision.”REF The argument that RFRA would make pro-life laws harder to defend than under the Free Exercise Clause, the analysis concluded, “suggests that the right to life and the right to freely exercise religion are mutually exclusive. They are not.”REF

103rd Congress (1993–1994). Then-Representative Charles Schumer (D–NY) introduced H.R. 1308, the bill that would become law later that year, on March 11, 1993. It added “substantial” to “burden” and retained provisions about restoring the Supreme Court’s traditional application of strict scrutiny, Article III standing principles, and the focus on addressing religious exercise burdens “to the person.” The House Judiciary Committee approved the bill without change, noting in its report the Congressional Research Service’s conclusion that RFRA could not be used to overturn pro-life laws.REF “To be absolutely clear,” the report said, “the bill does not expand, contract, or alter the ability of a claimant to obtain relief in a manner consistent with free exercise jurisprudence, including Supreme Court jurisprudence, under the compelling governmental interest test prior to Smith.”REF

The report also included a section of additional views by seven pro-life Judiciary Committee Members, including Representative Henry Hyde (R–IL).REF They acknowledged that their earlier concern that RFRA might make religious exercise challenges to pro-life laws easier has “been resolved either through explicit statutory language or has been addressed in the Committee report.”REF Similarly, during the brief House floor debate, Hyde repeated that his concerns about RFRA’s impact on abortion-related claims “have been resolved either through explicit statutory changes or through committee report language.”REF

Senator Edward Kennedy (D–MA) introduced S. 578 on March 11, 1993, with the same language as its House counterpart. The Senate Judiciary Committee approved the bill and its report, issued on July 27, 1993, included language similar to the House report regarding RFRA having no impact on abortion-related cases.REF

Personal vs. Systemic Beliefs. Understanding which conduct constitutes an exercise of religion under RFRA requires taking account of one additional change to its language. Following RFRA’s enactment, lower courts began insisting that, to constitute an exercise of religion, conduct must be motivated by a “central tenet of a person’s religious belief”REF or the dogma of an established religious body. Congress unanimously enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 1997,REF which defines an exercise of religion as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief”REF and applied that definition to RFRA.

This definition mirrored Supreme Court precedents that rejected this limitation. In Thomas v. Review Board,REF a Jehovah’s Witness worked at a foundry and machine plant in Indiana and was transferred to a department that made turrets for military tanks. Asserting that the principles of his religion did not allow him to work on producing weapons and unable to identify another job at the plant that would accommodate his religious beliefs, he quit and applied for unemployment benefits. After a hearing, despite finding that “claimant did quit due to his religious convictions,” the state agency denied the application. The Indiana Court of Appeals reversed, and the Supreme Court of Indiana vacated that decision, describing the plaintiff as having “quit work voluntarily for personal reasons.”REF

The U.S. Supreme Court unanimously reversed, holding that while the Free Exercise Clause protects only “beliefs rooted in religion,”REF courts may not impose additional criteria. “[R]eligious beliefs,” the Court held, need not be “acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”REF The Indiana Supreme Court had concluded that the plaintiff’s beliefs were “philosophical” rather than “religious” because his substantive explanation of those beliefs was less than precise and that other Jehovah’s Witnesses working at the plant did not have the same objection. Writing for the majority, however, Chief Justice Warren Burger explained that “the guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect.”REF It is enough that the plaintiff had “an honest conviction that such work was forbidden by his religion.”REF

In Frazee v. Illinois Dept. of Employment Security,REF the plaintiff refused a temporary retail position because it would require him to work on Sunday. Frazee said he was “a Christian” but was not a member of an established religious sect or church and did not claim that his refusal to work stemmed from a “‘tenet, belief or teaching of an established religious body.’”REF The state agency denied his application for unemployment benefits because his refusal of work was not “based upon some tenets or dogma…of some church, sect, or denomination.”REF Refusal based solely on “an individual’s personal belief is personal and noncompelling and does not render the work unsuitable.”REF The Illinois Court of Appeals agreed, distinguishing that case from Sherbert or Thomas v. Review Board. The U.S. Supreme Court reversed and rejected “the notion that to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization.”REF

Rather than eliminate the need for a causal relationship between religious belief and conduct,REF therefore, RLUIPA simply clarified that the belief causing the conduct in question need not be drawn from a formal body of religious tenets or be “central” to either personal belief or external dogma. Religious belief, however, must still be the cause of the conduct. Like the Free Exercise Clause had, RFRA requires an honest conviction that an action is required, or at least affirmatively motivated or directed, by one’s religious beliefs.

Even if this were not already clear from the text and history of both the Free Exercise Clause and RFRA, requiring this causal connection is especially appropriate in the abortion context. Abortion intentionally ends the life of a human being.REF In Dobbs, the Supreme Court described “an unbroken tradition,” extending back more than seven centuries, “of prohibiting abortion on pain of criminal punishment.”REF Even when creating a right to abortion in Roe v. Wade, the Supreme Court still emphasized that the presence of a second human being limited that right in important ways. Abortion, the Court has acknowledged, is a “unique act”REF that is “inherently different” than the conduct at the heart of other privacy rights.REF In fact, this difference is so significant that the Court in Roe questioned whether other privacy precedents were even relevant in the abortion context.REF The taking of another human being’s life, therefore, warrants something more than a vague consistency with personal belief or a “conscientious decision” to be protected as an exercise of the fundamental right to practice religion.

RFRA Supporters’ Arguments

Abortion was the most challenging issue disrupting an otherwise smooth legislative process and threatening the virtually unanimous consensus behind RFRA. House pro-life leaders, including Representative Hyde, were concerned that, even with revised language, RFRA would provide an independent statutory basis for abortion if the Supreme Court overruled Roe v. Wade.REF RFRA supporters, including many pro-life organizations, made several arguments against exempting abortion cases from strict scrutiny under RFRA.

First Argument. RFRA advocates argued that RFRA was already abortion-neutral, as the Free Exercise Clause had been. It required applying strict scrutiny to substantial burdens on religious exercise but left application of that standard to the courts in deciding individual cases.

Second Argument. Having an abortion would have to be caused by a woman’s religious beliefs to constitute an exercise of religion. Despite Supreme Court precedents like those marshalled by the Congressional Research Service,REF however, Representative Hyde insisted that being “motivated” by religious belief could mean nothing than someone saying “my religion nudges me” toward abortion or “it is compatible with my religion to have an abortion.”REF Neither he nor other pro-life RFRA critics, however, disputed that, as the Supreme Court would later put it, RFRA “adopts a statutory rule comparable to the constitutional rule rejected in Smith.”REF Nor did they argue that the Supreme Court had ever found conduct to be an exercise of religion that was merely consistent with, rather than compelled or motivated by, religious beliefs or that was merely the result of “moral judgment.”

Later in the hearing, Professor Laycock echoed the position that he, Professor McConnell, and Dean Gaffney had expressed in their February 1991 letter. Under RFRA, Laycock argued, a woman would have to show that having an abortion was “compelled by or at least motivated by her religion.”REF The key word “motivated,” Laycock testified, means “because of her religion. It is not enough to say permitted by her religion. It is not enough to say abortion is consistent with her religion. Religion has to be the reason for her abortion.”REF In contrast, abortion advocates argue that the decision to have an abortion need only be “informed by religious beliefs.”REF

Third Argument. Even if religious compulsion or motivation could be shown, and the burden shifted to the government, a state would assert that prohibiting abortion is the least restrictive means of furthering its compelling interest in protecting innocent human life in the womb. In its second RFRA analysis, issued in April 1992, the Congressional Research Service concluded that religious exercise claims against pro-life laws would likely failREF and could be defeated by states “legislat[ing] abortion restrictions on the express or implied rationale that they have a compelling interest in protecting fetal life.”REF

Some abortion advocates argue that, to meet the demands of strict scrutiny, government can further this compelling interest only by prohibiting every abortion, in every circumstance, from the start of pregnancy. Providing for any exceptions, either during a portion of pregnancy or in specific circumstances, would also make the government’s interest less than compelling.REF These advocates, however, mischaracterize the government’s compelling interest. These laws seek to prevent the death by abortion of individual human beings in the womb, and furthering this interest requires prohibiting abortion in individual cases.

The fact that a statute applies to many—but not all—abortions does not diminish the compelling nature of the government’s interest regarding those to whom it does apply. In the abortion context, applying that restriction “to the person”REF results in prohibiting abortions that meet the statute’s criteria. By acknowledging that the presence of “the developing young in the human uterus” makes abortion a “unique act,”REF and by overruling Roe, the Supreme Court removed any constitutional obstacle to a state legislature asserting a compelling interest in protecting the life of as many individual human beings in the womb as a particular statute covers.

Professor Josh Blackman and two colleagues, each associated with the Jewish Coalition for Religious Liberty, note that both federal and state courts have upheld laws that included exceptions against a Free Exercise Clause challenge.REF They also argue that if exceptions in a law prohibiting abortion “prevent it from being the least restrictive means to further a state’s compelling interest, then another critical set of statutes would be on the judicial chopping block,”REF such as laws prohibiting murder.

Other Supreme Court Free Exercise Clause precedents support this conclusion. In Tandon v. NewsomREF and Fulton v. City of Philadelphia, for example, the Supreme Court observed that regulations being challenged under the Free Exercise Clause (California’s COVID-19 lockdown rules in Tandon and Philadelphia’s foster care anti-discrimination policy in Fulton) included many secular exceptions but no religious parallels. In both cases, this differential treatment triggered, rather than defeated, strict scrutiny because, under Smith, the regulations were not generally applicable, “c[oming] into play well before the strict scrutiny analysis…even began.”REF Under RFRA, “the mere existence of exceptions,” writes Blackman and colleagues, “is neither necessary nor sufficient to render an abortion ban unlawful.”REF

Other abortion advocates argue that exceptions make a law prohibiting abortion less than “generally applicable” and, therefore, subject to strict scrutiny under Smith.REF This argument simply misreads the plain text of that decision. In Smith, Scalia equated “generally applicable” with “religion-neutral,”REF using those phrases interchangeably. He contrasted laws that are “specifically directed at…religious practice”REF with those that are “generally applicable.”REF Simply put, “generally” in this context does not mean “universally.”

In addition, some abortion advocates insist that “[w]hen life begins is a theological determination” that legislatures are not allowed to make.REF This question obviously can have theological or philosophical dimensions but is not inherently or unavoidably religious as, for example, the question “Is Jesus Christ the Son of God?” would be. Legislatures can obviously make the factually correct determination that the life of an individual member of the human species begins at conception for purposes of laws prohibiting the unjustified termination of that individual’s life.

Fourth Argument. An exception appearing in the text of every law prohibiting abortion covers the only circumstance—a threat to the mother’s life—in which religious beliefs might compel or require an abortion. Many witnesses in the House RFRA hearing, including those insisting that an abortion-neutralizing amendment was still necessary, made this point.REF Representative Chris Smith (R–NJ), another House pro-life leader, acknowledged that “the chance of any State legislature enacting a law that does not contain a life-of-the-mother exception is absolutely nil.”REF Similarly, the NRLC’s general counsel conceded that “it is highly unlikely that any protective abortion statute would be enacted without an exception to preserve the life of the mother, so that religions requiring life saving abortions would have their concerns met even with an abortion-neutral RFRA.”REF

Fifth Argument. Applying strict scrutiny to some free exercise claims but not others would undermine religious freedom rather than strengthen it. Courts applying strict scrutiny in Free Exercise Clause cases may have frequently favored the government,REF but they did so after actually balancing the right to exercise religion against the government’s asserted justification for burdening that right. They did not categorically exclude any religious exercise claims from constitutional protection. Strict scrutiny is consonant with the Founders’ view of religious freedom as fundamental and inalienable; applying that standard selectively necessarily degrades the nature and significance of religious freedom itself.

Sixth Argument. Applying strict scrutiny selectively would have made RFRA’s passage impossible. In congressional hearings on RFRA, House MembersREF and SenatorsREF repeatedly noted the ideological breadth of the grassroots Coalition for the Free Exercise of Religion. Organizations in that coalition opposed each other on many specific issues, including abortion. Opening the door to exemptions or carve-outs for some religious exercises would inevitably bring demands that others also receive special treatment.

The only way to preserve coalition unity and ensure passage of RFRA was to make it clear that it would restore the Supreme Court’s pre-Smith approach, requiring strict scrutiny in all religious exercise cases and leaving application of that standard to the courts. Professor Laycock explained it this way in the Senate Judiciary Committee’s RFRA hearing: “Limiting the bill to enactment of the standard is a principled solution to the practical problem of disagreement over particular claims.”REF

Following the plan to mirror the Supreme Court’s pre-Smith jurisprudence,REF the Senate rejected attempts to amend RFRA to exempt any category of cases, even those involving issues far less controversial than abortion. Responding to a group of state legislators and prison administrators, for example, Senator Harry Reid (D–NV) offered an amendment to exempt from RFRA’s application religious exercise claims in the prison context. During the floor debate, Senator Hatch, RFRA’s primary Republican sponsor and a strong supporter of law enforcement, argued that exempting any category of cases “sets a dangerous precedent.”REF The Senate rejected the Reid Amendment by a vote of 41–58.REF

As signed into law, RFRA applied to “all Federal and State law, and the implementation of that law…unless such law explicitly excludes such application by reference to this Act.”REF This universal application has invited descriptions of RFRA as a “super statute.”REF In a letter on behalf of the Coalition for the Free Exercise of Religion dated October 20, 1993, less than one week before Congress passed RFRA, its chairman urged passage without any exemptions.REF Similarly, a group of state attorneys general signed a letter dated October 19, 1993, opposing the Reid Amendment and urging “passage of the Religious Freedom Restoration Act…without amendment.”REF

Recent evidence confirms this judgment, showing that political objectives or priorities can displace a professed commitment to religious freedom. No legislation exempted itself from RFRA for more than two decades. Since 2015, however, several far-reaching bills intended to effect dramatic cultural change have attempted to do so. The Equality Act,REF the Do No Harm Act,REF and the Women’s Health Protection ActREF would exempt from RFRA statutes such as the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act, and the Violence Against Women Act. In other words, the pre-Smith record of the government winning 90 percent of religious exercise cases was not enough. Excluding RFRA’s application altogether would mean that, in the vast policy areas covered by such statutes, the government need not consider religious freedom at all.

Today, more than a dozen national organizations listed on the letterhead of the Coalition for the Free Exercise of Religion in 1993 have endorsed one or more of these bills.REF In addition, nine current SenatorsREF and 17 current House Members who were serving in Congress in 1993 and supported RFRA’s passage have co-sponsored or voted for at least one of them. In other words, they have now endorsed in one form or another what they strongly opposed in 1993.

Amending RFRA to exempt cases challenging pro-life laws, therefore, would not only have been unnecessary, but would have immediately fractured the coalition behind it, split the bill’s bipartisan congressional support, and drawn many other demands for exemptions and carve-outs.REF The goal of universal support for the basic principle that religious exercise is a fundamental and inalienable right, therefore, was served by ensuring that RFRA itself would not favor or oppose any particular religious practice. Exempting abortion-related cases, especially when challenges would be so speculative and unlikely to succeed, RFRA advocates argued, could not justify depriving all Americans of any real legal protection for virtually any religious practice.

Seventh Argument. Finally, many RFRA supporters argued that consistent application of strict scrutiny would actually advance pro-life objectives. Christian Action Council president Thomas Glessner, for example, noted a trend toward overriding the religious convictions of health care workers and requiring them to participate in abortions. “The Smith decision,” he wrote pro-life leaders in March 1991, “endangers this freedom while RFRA would restore needed protection for this type of religious conviction which is so crucial to our cause.”REF

The same debate over the possible impact of RFRA on challenges to pro-life laws occurred during the September 18, 1992, Senate Judiciary Committee hearing on S. 2969, which Senator Kennedy had introduced two months earlier. As he had in the House hearing, Oliver Thomas argued that the “RFRA protects conduct only when religion is the primary cause or reason for the conduct.”REF Professor Laycock, who helped draft RFRA, explained how amendments creating exemptions or carve-outs from strict scrutiny would “violate the principle of across-the-board neutrality toward all faiths and all Government claims.”REF A “free-exercise right to abortion was rejected in Harris v. McRae,” he argued, and if the Supreme Court overruled Roe v. Wade, “preserving unborn life will be a compelling interest and a compelling interest is a complete defense to any claim under [RFRA].”REF

Senator Hatch asked whether RFRA could provide a basis for challenging pro-life laws if the Supreme Court “overrules Roe v. Wade on the basis that a woman’s interest in terminating her pregnancy is simply a liberty interest rather than a fundamental right.”REF Laycock explained that “the compelling interest in saving the life of the unborn” would satisfy any standard necessary for the Court to uphold pro-life laws against a religious exercise challenge.REF Thomas agreed, adding this advice for state legislators: “All a State legislature would have to do is, in its findings, find that the protection of fetal life, in their opinion, is compelling.”REF

State Religious Freedom Restoration Acts

As signed into law in 1993, RFRA applied to action by “government,” which it defined comprehensively.REF The House and Senate committee reports on RFRA said that Congress had authority to enact it under Section 5 of the Fourteenth Amendment, which provides: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Supporters asserted that “this article” includes the Free Exercise Clause, which the Supreme Court had incorporated into the Fourteenth Amendment’s Due Process Clause.REF They also argued that RFRA would “enforce” the Free Exercise Clause by restoring, by statute, the interpretation that the Supreme Court had established prior to Smith.

The Supreme Court disagreed. In City of Boerne v. Flores,REF a Catholic diocese alleged that denial of its application to renovate and expand its sanctuary violated RFRA. Writing for the Supreme Court’s majority, Justice Anthony Kennedy explained that, rather than merely enforcing the Fourteenth Amendment, RFRA went further and actually “decree[d] its substance.”REF Legislation that “alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is.”REF In other words, the Free Exercise Clause means what the Supreme Court currently says it means; altering that interpretation, even by returning to the Court’s previous rendering, amounts to altering the Free Exercise Clause itself. Boerne, therefore, firmly established that “states and localities are no longer bound by RFRA.”

Provisions. Since Boerne, more than two dozen states have adopted statutory provisions similar to the federal RFRAREF or provide similar protection for religious exercise through judicial interpretation of existing laws.REF Just as the federal RFRA mirrors the Supreme Court’s pre-Smith Free Exercise Clause jurisprudence, these state laws parallel the federal RFRA.REF They require that government actions imposing substantial burdens,REF burdens,REF or restrictionsREF on religious exercise meet the strict scrutiny standard. They express this standard in terms similar to the federal RFRA, requiring that government action be “in furtherance of,”REF or “essential to furthering,”REF a compelling governmental interest.

Some state RFRAs make the connection to the federal statute even more obvious by explicitly affirming the intent to “restore the compelling interest test as set forth in Sherbert…and Yoder”REF and providing that they should be “interpreted consistent with [the federal RFRA], federal case law, and federal jurisprudence.”REF They also parallel the Free Exercise Clause and the federal RFRA in the understanding that conduct constitutes an exercise of religion if it is caused by religious belief. Some define the exercise of religion as conduct that is “motivated”REF or “substantially motivated”REF by religious beliefs. None of these state RFRAs even remotely suggest that they protect conduct that is merely associated with conscience or not prohibited by one’s personal beliefs.

Prior to Smith, the NRLC’s general counsel argued that the Free Exercise Clause would provide “no protection for abortion” should the Supreme Court overrule Roe.REF The final House and Senate committee reports made clear that, as a “statutory version of the Free Exercise Clause,”REF RFRA “would not provide a basis for standing in situations where standing to bring a free exercise claim is absent.”REF RFRA incorporated the Supreme Court’s pre-Smith view of standing, religious exercise, and substantial burden.REF State RFRAs do the same.

Abortion Advocates’ Arguments. Abortion advocates seek to eliminate any requirement that having an abortion is caused by religious belief because, they admit, most women cannot establish that connection.REF In one example offered by Professor Elizabeth Sepper, for example, a woman who obtained an abortion said she “had to put my strong faith from my childhood behind” and, instead, “make sacrifices…no matter how bad it hurts” for her other children.REF If exercising religion includes putting religious beliefs entirely aside, the concept of religious exercise has no meaning at all.

Similarly, in a recent article in the Stanford Law Review, Ari Berman asserts that Jewish plaintiffs have “a strong argument that they are exempted from an abortion ban.” The article, however, simply assumes that plaintiffs have standing,REF even while conceding that the “theoretical basis for exceptions…may not necessarily succeed.”REF Strangely, while acknowledging that the U.S. Supreme Court, in Harris, required religious compulsion for standing, the article claims that “standing is by no means insurmountable” without such a showing, citing only a single state appeals court decision as judicial support for that dubious proposition.

Berman conflates the process leading to the decision to have an abortion with actually having one. Simply considering one’s own beliefs and conscience in the decision-making process, she argues, is enough to turn the action of effectuating that decision into an exercise of religion protected by a RFRA. This is why she advises would-be plaintiffs in religious exercise challenges to “articulate their religious exercise as the ability to conduct a pregnancy consistent with one’s religious beliefs to more persuasively assert that [an abortion ban] substantially burdens them.”REF In this view, Berman argues, plaintiffs may argue that “religious exercise [includes]…a choice…motivated by religion.”REF The notion of “conducting a pregnancy,” she asserts, wraps everything from the initial decision to pursue pregnancy and becoming pregnant to terminating that pregnancy in the mantle of religious exercise.

Pro-life laws, however, regulate conduct, not decision-making. Abortion bans prohibit actually having an abortion, not the process of deciding whether to seek one. Berman notes that many states have incorporated the federal RFRA's definition of religious exerciseREF and cites statutes from Arkansas,REF Illinois,REF Missouri,REF and New Mexico.REF Each statute defines religious exercise as an "action" or "act" and says nothing about choices or decisions.

Challenging pro-life laws as violating the right to the exercise of religion requires radically redefining what constitutes an exercise of religion. Berman’s concession that a plaintiff who is not pregnant “faces more challenges in establishing [that] an abortion ban substantially burdens them”REF is an understatement. Asserting a “broader definition,” she argues, means arguing that an abortion ban “burdens their religious exercise” by forbidding them “from engaging with all the religious considerations of a pregnancy.”REF Such a ban, the argument goes, “eliminat[es] the complex religious considerations that factor into deciding to become pregnant” or seek an abortion.REF An abortion ban’s “limited exceptions,” Berman argues, “do not align with the full panoply of religious considerations in seeking an abortion.”REF

Free Exercise Challenges to Pro-Life Laws

By overruling Roe and Casey and disclaiming any right to abortion under the U.S. Constitution, the Supreme Court eliminated the argument abortion advocates had been using for decades to challenge state pro-life laws. And the Court’s decision in Boerne removed the federal RFRA as a possible statutory alternative. Having evaluated abortion advocates’ religious exercise argument in light of the Free Exercise Clause’s historical understanding of RFRA’s development, below is an analysis of some of the lawsuits challenging state pro-life laws under state RFRAs.

Sobel v. Cameron. Kentucky’s RFRA, adopted in 2013, provides:

Government shall not substantially burden a person’s freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest.REF

In 2019, Kentucky enacted legislation prohibiting abortions unless “necessary in reasonable medical judgment to prevent the death or substantial risk of death due to a physical condition, or to prevent the serious, permanent impairment of a life sustaining organ of a pregnant woman.”REF

Three Jewish women filed suit,REF alleging that the abortion ban violated the Kentucky RFRA. Each of these plaintiffs already had one or more children and none claimed to be pregnant or that she intended to become pregnant in the future. Instead, the plaintiffs argued in their complaint that, if one were to become pregnant, the Kentucky abortion ban might not allow an abortion that, consistent with her religious beliefs or conscience, she might seek.

The plaintiffs undermined their own argument. They acknowledged, consistent with Kentucky Court of Appeals precedent,REF that the Kentucky RFRA is “equivalent”REF to the federal RFRA, a “‘codification…of the strict scrutiny test,’” and that “cases interpreting [the federal] RFRA are instructive in interpreting the [Kentucky] RFRA.”REF These cases would include the Supreme Court’s holding in Harris that standing to challenge an abortion prohibition on religious exercise grounds requires showing religious compulsion.

The plaintiffs in Sobel could not meet this standing threshold. They did not assert that they had been, or in the future would be, denied an abortion that would have been compelled or substantially motivated by Jewish law or beliefs. Instead, their complaint merely suggested a decision to have an abortion might be generally consistent with various aspects of Jewish law.

Jewish law, for example, defines life as beginning at birthREF and asserts that “when life begins for a human being” is “a religious and philosophical question.”REF The plaintiffs, however, made no attempt to show how this observation precludes a legislature from prohibiting abortion for purely secular reasons. Nor did they assert that a court may consider only the religious or philosophical dimensions of this question, ignoring all other considerations such as the biological fact that each individual human being’s life begins at conception.

The plaintiffs’ complaint is replete with claims that the Kentucky abortion ban “violates the religious freedoms of Jewish birth givers,”REF that their “religious beliefs have been infringed,”REF and that the abortion ban “has substantially burdened Plaintiffs’ freedom of religion.”REF The complaint, however, never identifies the religious exercise or freedom that the government had burdened or how any violation, infringement, or burden on that right had actually occurred.

Anonymous Plaintiffs 1–5 v. Medical Licensing Board of Indiana. Indiana enacted its RFRA in 2015 and also prohibits abortion “in all instances”REF except under specific circumstances.REF The plaintiffs in this class action are an organization, Hoosier Jews for Choice, claiming associational standing to assert the rights of its members, and five individual women. Three of the women are Jewish, one is Muslim, and one has undefined spiritual beliefs.

The Indiana Court of Appeals held that “Hoosier Jews for Choice has associational standing to raise its members’ RFRA challenges.”REF The Indiana Supreme Court, however, has never actually recognized associational standing but has only “[a]ssum[ed] without deciding” in one case that it is available.REF Associational standing, “an off-shoot of third-party standing,”REF allows an organization to bring a suit on behalf of members who “‘would otherwise have standing to sue in their own right.’”REF As the appeals court put it, Indiana challenged “only the standing of Hoosier Jews for Choice, not of its membership.”REF The court characterized this as there being “no disagreement”REF over the issue, assuming associational standing without further examining whether any of Hoosier Jews for Choice’s members would actually have had standing in their own right.

As noted, however, an organization lacks associational standing if its members lack individual standing. The court, therefore, should have ensured that Hoosier Jews for Choice members had the requisite standing because, as the court itself acknowledged, “[t]he standing requirement imposes a limit on the court’s jurisdiction.”REF To have standing under Indiana law, a plaintiff must show that she “‘has sustained or was in immediate danger of sustaining’ a demonstrable injury”REF that is “personal” and “direct.”REF This includes actions brought under Indiana’s RFRA.REF

Neither the individual plaintiffs, nor any members of Hoosier Jews for Choice, claimed that she had ever been denied an abortion; in fact, none claimed to be pregnant or that she planned to become pregnant in the future. They could not, therefore, claim that Indiana had attempted, or threatened, to enforce the statute they were challenging against them. Instead, they made the hypothetical allegation that the statute prohibits abortion in circumstances that, should any become pregnant, might lead them to seek an abortion “consistent with [their] religious beliefs.”REF

As the plaintiffs had in Sobel, the plaintiffs in this case focused entirely on their understanding of Jewish law which, they claimed, “recognizes that abortions may occur…under circumstances not allowed by…Indiana law.”REF Similarly, according to the complaint, Islam considers that an abortion can be “proper and appropriate…for any reason” within 40 days of conception and “authorize[s] or direct[s]” women to obtain an abortion under certain circumstances.REF Another plaintiff believed that a “universal consciousness”REF or “supernatural force”REF endows individuals with “bodily autonomy”REF to decide whether to have an abortion.REF

The plaintiffs, therefore, did not even claim that they faced an actual or imminent threat of injury from the statute. They could not, because Indiana had never attempted, or threatened, to enforce against them the statute they challenged. Nor did the plaintiffs argue that, if they did become pregnant in the future, an abortion they might seek would be caused or motivated by their religious beliefs. No plaintiff, therefore, established standing by showing that she “‘has sustained or was in immediate danger of sustaining’ a demonstrable injury”REF that is “personal” and “direct.”REF Instead, the gravamen of their complaint is that women should generally be free to obtain an abortion that they believe is consistent with their religious beliefs or conscience. This is a policy argument rather than a legal one.

Hafner v. State of Florida. Florida enacted its RFRA in 1998. It includes the central elements of the federal RFRA: Government may not “substantially burden” a person’s religious exercise unless applying that burden “to the person” is the “least restrictive means” of furthering a “compelling governmental interest.” The Florida Supreme Court has acknowledged that this statute is “modeled after the federal RFRA.”REF

In 2022, Governor Ron DeSantis signed into law legislation prohibiting abortion after 15 weeks of pregnancy except when “necessary to save the pregnant woman’s life or avert a serious risk of substantial and irreversible impairment of a bodily function of the pregnant woman.”REF Reverend Laurinda Hafner, a United Church of Christ pastor, challenged this law, but her standing was even farther from meeting the necessary standard than the plaintiffs in Sobel or Anonymous Plaintiffs 1–5. Like those plaintiffs, Hafner did not claim to be pregnant or that she might, at some unspecified future time, become pregnant and seek an abortion that Florida law does not allow. Rather, she claimed generally that the law prohibits abortion in situations in which it would be “consistent with the beliefs of [her] denomination.”REF The first count in her complaint, filed on August 1, 2022, alleged that this violated the state RFRA because it “prohibit[s] the practice of the [United Church of Christ] ideals related to abortion.”REF

These ideals include congregants’ “right to dignity and self-determination”REF and the “freedom to make their own decisions concerning issues related to pregnancy and abortion procedures.”REF These are not religious beliefs, but the very “claims of conscience based on something other than religion”REF that the Supreme Court has held do not make resulting conduct an exercise of religion. “‘Only beliefs rooted in religion are protected by the Free Exercise Clause…. Purely secular views do not suffice.”REF

Based on her status as a pastor who offers counseling on issues such as abortion, Hafner also tried to establish standing by linking two unrelated Florida statutes. The Florida abortion statute prohibits any person from “actively participat[ing] in an abortion.REF A separate statuteREF provides that whoever “aids, abets, counsels…or otherwise procures” a criminal offense is a “principal in the first degree” in that offense. Hafner insisted that “counseling to obtain an abortion” that would violate Florida law would, therefore, itself be a crime and, therefore, the potential for prosecuting her for providing such counseling gave her standing to challenge the statute.

Hafner, however, made no attempt to show that “counsels” in the criminal principal statute includes the kind of pastoral counseling that she provides or that counseling regarding abortion amounts to “actively participat[ing]” in an abortion. Even more importantly, Hafner failed to note that the principal criminal statute requires not only that an individual aid, abet, or counsel that a crime be committed, but that “such offense is committed or is attempted to be committed.”REF Hafner did not even suggest that anyone she had ever counseled to seek an abortion disallowed by Florida law had ever sought or actually obtained one.

Hafner also mischaracterized the Florida RFRA. She claimed, for example, that the Florida RFRA “requires the state to accommodate religious believers and institutions from Florida state laws that substantially burden their religious belief [or] speech.”REF Neither the federal nor any state RFRA, however, mentions belief or speech, but uniformly prohibits burdens on the “exercise of religion” that do not meet the requirements of strict scrutiny. This is more than splitting a semantic hair. It means that Hafner failed to concretely allege, let alone establish, any violation of the Florida RFRA.

On March 3, 2023, the trial court denied Hafner’s motion for a temporary injunction against Florida’s abortion ban. Judge Michael Hanzman acknowledged the Florida Attorney General’s assertion that “no member of the clergy has ever been prosecuted (or threatened with prosecution) for counseling a congregant on the decision of whether to have an abortion” in the nearly 70 years since its enactment.REF The court concluded that Hafner lacked standing to challenge the abortion lawREF and rejected her argument that “such a theoretical prosecution would be viable.”REF

The court concluded: “It does not require an authoritative disquisition, a string citation of precedent, or a ‘study of acute and powerful intellect’…to discern that a member of the clergy, who does no more than offer counsel and support to a congregant on the decision of whether to abort a pregnancy, is not an ‘active participant’ in an abortion that their congregant may decide to have after thoughtful deliberation.”REF On May 16, 2023, the Florida District Court of Appeal dismissed Hafner’s appeal.

Generation to Generation, Inc. v. Florida. Two organizations and a rabbi challenged the same 15-week Florida abortion ban nine days later, filing a complaint with many passages that repeated the Hafner arguments verbatim. The complaint alleged that “Judaism would expect…the abortion decision” to be made by considering various factors.REF The Florida law violates the state RFRA, the plaintiffs allege, because the right to freely exercise religion “includes the right of women and girls to choose to exercise autonomy over [their] reproductive system and to choose abortion even after 15 weeks under circumstances not permitted under the Act, all free of government interference.”REF

Other Cases. Following a similar pattern, none of the plaintiffs in other challenges to pro-life laws under state RFRAs alleges that she had been denied an abortion caused by her religious beliefs. In Jane Liberty v. Norman Bangerter, for example, the plaintiff asserted that she sought an abortion because “I would simply not be able to get my degree” and would have “too little to devote to a newborn.” She placed these considerations in the vague context of “my religious faith,” explaining that having an abortion under these circumstances would be “consistent with my faith.”REF Such generally secular beliefs, however, could just as easily impress upon an individual the need to consider the financial, educational, or familial impact of having another child. In fact, the concerns expressed by the plaintiff in Jane Liberty sound very much like the “detriment” that the Supreme Court in Roe v. Wade speculated would result from prohibiting abortion.REF

One abortion advocate writes that the “core concept” in this religious exercise argument “is the affirmation of [women’s] moral agency and right to make the decision that promotes their health, well-being, and safety free from government interference.”REF Nothing in that description, including the word “moral,” is distinctively religious or distinguishes this from the argument that prevailed in Roe v. Wade that the Fourteenth Amendment’s Due Process Clause protects a right to abortion. The First and Fourteenth Amendments are not simply interchangeable vehicles for achieving political objectives such as freely available abortion.

Conclusion

Abortion advocates seek to make abortion as available as possible. Before the Supreme Court in 1973 created a constitutional right to abortion—and since the Court in 2022 held that no such right exists—they have tried to persuade state legislatures to eliminate abortion restrictions or to affirmatively protect abortion access. Their litigation strategy today includes challenging state pro-life laws under state constitutions and statutes such as state RFRAs.

The argument that pro-life laws violate the right to exercise one’s religion conflicts with the historical understanding of the Free Exercise Clause of the U.S. Constitution as well as the federal RFRA and its state counterparts. While the exercise of religion includes both belief and conduct, the beliefs must be religious in nature and the conduct must be caused by such religious beliefs. Only then must government action burdening that religious exercise meet the requirements of strict scrutiny.

Abortion advocates’ religious exercise argument fails on all counts. It would dilute religious beliefs to no more than generic conscience, eliminate any causal connection between those beliefs and having an abortion, and attempt to challenge pro-life laws without the proper legal standing. Although cloaked in the language of religious exercise, this argument is no more than a fundamentally political objection to pro-life laws. Properly understood, pro-life laws are in harmony with religious freedom.

Thomas Jipping is a Senior Legal Fellow in the Edwin J. Meese III Center for Legal and Judicial Studies at The Heritage Foundation.