Religious Freedom Claims Could Provide New Path to Protect Abortion Rights

A novel state court litigation strategy may pave the way for some limited access to abortion care in states where abortion is otherwise banned: in a handful of states — Indiana, Kentucky, Missouri, Utah, and Wyoming — attorneys representing religious individuals and groups are arguing that bans on abortion violate state religious freedom guarantees.

These lawsuits may provide some hope for those who want to claw back a measure of reproductive freedom in the wake of the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, which eliminated the federal constitutional right to abortion. But the cases have so far had mixed results, and plaintiffs face steep obstacles as the cases work their way through the state courts.

Some cases involve religious individuals who claim that their religious exercise is infringed by the state’s abortion ban. For example, in Kentucky, three Jewish women claimed that they were religiously obligated to procreate but were afraid to do so because of the state’s near-total abortion ban. Two of the women were concerned about the impact of the ban on their ability to use in vitro fertilization, or IVF. The third feared she would suffer complications and be unable to access care to protect her health. Because they were hampered in their religiously motivated desire to procreate, they alleged that Kentucky’s abortion ban violated their rights under Kentucky’s Religious Freedom Restoration Act, which subjects laws substantially burdening a person’s religious freedom to the most rigorous form of judicial review. They also argued that the ban violated the Kentucky Constitution’s separation of church and state because it favored certain Christian viewpoints on when life begins. This summer, the Kentucky trial court ruled against the plaintiffs, finding that they lacked standing to challenge the abortion ban because they were neither pregnant nor undergoing IVF at the time suit was filed. The plaintiffs have appealed.

By contrast, in nearby Indiana, a court of appeals upheld the lower court’s preliminary injunction blocking Indiana’s near-total abortion ban from being applied against the plaintiffs, who were individual practitioners of Islam, Judaism, Unitarian Universalism, and nonsectarian spiritual beliefs, as well as the membership organization Hoosier Jews for Choice. The court agreed that Indiana’s ban substantially burdened the plaintiffs’ religious exercise because it forbade abortions even where the plaintiffs may be religiously or spiritually motivated to seek them, such as when the woman’s own health is at risk. Moreover, the abortion ban’s numerous exclusions — such as for rape, incest, and embryos created for IVF — fatally undermined the state’s claim that it had a compelling interest in each potential life from fertilization onward. While abortion-rights advocates can celebrate a significant victory in this first post-Dobbs religious freedom challenge to reach an appellate court, they will undoubtedly want to watch what happens next, as the state has already asked the Indiana Supreme Court to take up the case.

In Missouri, a trial court rejected religious freedom arguments against a strict abortion ban and related restrictions, this time brought by clergy members rather than individual religious believers. Taking a slightly different tack from the Indiana and Kentucky cases, the religious leaders in Missouri argued solely based on the state constitution’s anti-establishment provisions. The plaintiffs pointed to the overtly Christian remarks of lawmakers who passed Missouri’s abortion restrictions, as well as explicit legislative language finding that life begins at conception and that “Almighty God is the author of life,” as evidence that the laws imposed a specific, sectarian set of religious beliefs on all Missourians. Rejecting out of hand plaintiffs’ evidence of legislative motive and then relying heavily on federal precedents holding that abortion restrictions merely reflect “traditionalist” rather than religious beliefs, the trial court granted judgment against the clergy members. The clergy members have appealed.

Finally, lawsuits challenging abortion bans in Utah and Wyoming have also raised religious freedom claims under those states’ constitutions, among other claims. No substantive rulings on the religious freedom claims have yet been issued in those cases.

Relying on conservative courts’ increasing sympathy toward religious freedom claims, the challengers in these lawsuits are likely betting that what’s good for the goose is good for the gander. Indeed, many states that have abortion bans — like Kentucky and Indiana — also have strong statutory protections for religious freedom. But these lawsuits are nonetheless fraught with challenges. For example, in 1980’s Harris v. McRae, the U.S. Supreme Court appeared to apply stringent standards for free exercise challenges to abortion restrictions, implying the individual plaintiffs must be pregnant or expecting to be pregnant in order to have standing. Although these newer, post-Dobbs suits are brought under state constitutions and state statutes, the state courts have largely followed federal law on standing when it comes to reproductive rights cases, which leaves these claims vulnerable. And while standing is traditionally more relaxed for claims regarding separation of church and state, conservative courts are not as sympathetic to those claims. Indeed, in Harris, the Supreme Court also rejected an Establishment Clause challenge to an abortion restriction, relying on logic similar to the Missouri court’s.

It remains to be seen whether the challengers will find a way to prevail over these procedural obstacles. Perhaps in the future, religiously motivated abortion providers will assert their own rights to provide abortions to patients in need, short-circuiting the problems of speculative injury and limited relief that plague would-be abortion patients as plaintiffs. Or perhaps these state courts will utilize the leeway granted to them by our federalist system to interpret their state constitutions independently of the federal Constitution, with respect to standing as well as religious freedom.

Jessie Hill is the Judge Ben C. Green Professor of Law and director of the Reproductive Rights Law Initiative at Case Western Reserve University.

Suggested Citation: Jessie Hill, Religious Freedom Claims Could Provide New Path to Protect Abortion Rights, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Sept. 18, 2024), https://statecourtreport.org/our-work/analysis-opinion/religious-freedom-claims-could-provide-new-path-protect-abortion-rights.