Following my online analysis of the Supreme Courts opinion overruling Roe v. Wade, Dobbs v. Jackson Womens Health, I heard from folks who were unperturbed by the fact that Dobbs is based on a religious belieflife begins at conceptionrather than a legal foundation. One man politely chastised me for my views and suggested that I need to be saved by Christ. When I responded that I am in fact a Christian who disagrees with his beliefs, he told me that, There is no such thing as TWO true Christianities. Another conversant urged me to take the spiritual approach, which would lead me to truly understand Dobbs and the bans on abortion.
Here was my response: With all the due respect required by the tolerance necessary to our democracy, I do not share your beliefs. Indeed, my faith rejects them. The Constitution is not supposed to be interpreted through one religious viewpoint. Here is irrefutable original intent: the Framers rejected a theocracy in favor of a democratic republic.
I tell these stories to highlight the danger the forces behind the theologically-driven Dobbs opinion are to our pluralist democracy and religious diversity. Most Americans have been gas-lit by the religious right to cower from declaring our own beliefs. At the same time, their fellow believers have been persuaded that constitutional rights should rest on their religious beliefs. Their persistent labeling of their beliefs as religious and everyone elses as secular has led millions of Americans to think that this has been a culture war between true believers and religious outsiders. Thats a lie. Its never been a culture warits a religious war. Tragically, only the right has understood that. Until now.
In fact, those who disagree with the religious right on abortion are also religious, whether explicitly or simply as part of the persons religious worldview. They just dont believe what the pro-life believers and a majority of the Justices do. Its time for the majority of Americans to insist that their beliefs and religious worldviews be recognized in the courts on the abortion issue, and others as well.
In a rich irony, the pathway for pregnant girls and women to obtain an abortion in the abortion ban states is through the statutes that have been central to the religious rights religious war against civil rights: the Religious Freedom Restoration Acts (RFRAs). There is a federal RFRA that applies to federal law and Washington, DC, and there are 24 RFRAs in the states. I am no fan of the RFRAs, as explained in my book, God vs. the Gavel: The Perils of Extreme Religious Liberty, but I will leave those arguments aside to focus on how they can be turned into a weapon for the girls and women whose rights to bodily autonomy have been summarily dissolved by the Supreme Court.
The Court majority has made a severe miscalculation by believing what its hearing in its own echo chamber: a goal of complete elimination of abortion in every state is legitimate and possible and their religious beliefs are appropriately at the center of that universe. But that scheme is directly in opposition to millions of believers. A world without a choice on abortion is a world in violation of the free exercise of millions of believers.
The RFRA advocates have made it as broad as possible, which will enable the pregnant to argue in RFRA cases on the basis of their broad religious worldview. Why? Because the beliefs that trigger RFRA protection need not be central to a faith tradition. According to the federal RFRA, which is the model for all the others: RFRA applies to all sincerely held religious beliefs, whether or not central to, or mandated by, a particular religious organization or tradition. You read that right: RFRA protects tangential beliefs that are part of a religious worldview, not beliefs cataloged in anyones Bible, Koran, or Torah. Those invoking these extreme religious liberty statutes in the public health and the land use context have not bothered to tether their beliefs to anything concrete or historically provable. Its simply what they believe now.
Heres the irony: the abortion ban states map onto the RFRA states pretty neatly. While the numbers are in some flux, right now my research indicates that there are 16 states where a pregnant girl or woman would have the weapon of a RFRA to obtain an abortion against a ban. The following map shows the states where there is a RFRA and those states where there are partial or full abortion bans or likely bans. The stripes show the states that have both a RFRA and a ban. Note the overlap!
The RFRAs hand a believer a weapon: a private right of action to invalidate a law that burdens their faith. When it comes to abortion, there are a variety of beliefs by denomination, as the Pew Research Center documented here and here. But, of course, the First Amendment is not limited to the beliefs of organized religions. Each of us has an absolute right to believe whatever we choose and to invoke religious liberty based on our individual beliefs.
Here is the RFRA roadmap: First, the believer must prove that a law imposes a substantial burden and sometimes just a burden on their faith. Once they succeed, the burden of proof shifts to the government to show that the law under attack serves a compelling interest in the least restrictive means for that believer. Here is how the arguments break down:
Proving substantial burden. There was a time when the believer was required to actually prove a substantial burden on their faith. Incidental burdens did not justify invoking religious liberty protections. Thats still true for the First Amendment, but not for RFRA. The Supreme Court in the RFRA case, Burwell v. Hobby Lobby Stores, watered down the substantial burden requirement, and that is persuasive authority for the state RFRAs. So it shouldnt be difficult to prove that an abortion ban or partial ban substantially burdens a belief in obtaining abortion medical care.
What Is a Compelling Interest. To defend an abortion ban, the state must show that banning abortion serves a compelling interest. It will be interesting to see how the states do this. Will they argue that the ban serves a compelling interest, because life begins at conception? A court cannot take their religious assertions as fact. If states were to pursue that path, they would be arguing that the governments beliefs can overcome their citizens beliefs. By definition, they would be arguing that their compelling interest is to establish a theocracy.
Can the state show that there is a compelling interest that serves the economy? No way, because banning abortion costs the state billions in economic losses as women are removed from the workforce while they carry compelled pregnancies, are medically disabled, or die. It also results in a dramatic decrease in future thriving for girls when they are forced to carry a fetus, including negative impacts on health, education, and livelihood. Will the states argue they have a compelling interest in letting a woman die and be permanently disabled? Or for a girl to carry a pregnancy imposed on her by her incestuous father? I kind of feel sorry for the state attorneys general trying to defend these laws.
What would be the least restrictive means. This is the element that offers opportunities for imagination. Lets say the abortion ban criminalizes abortion; a fine is a lot less restrictive than criminalization. But thats not the least restrictive means for the girl or woman who believes in the protection of a mothers health or life through abortion medical treatment. The least restrictive is to invalidate the ban and permit her to obtain the medical treatment she believes is required as a matter of her religious worldview. Think about how some have argued against vaccine mandates using the federal RFRAthey say that their faith protects their right to bodily autonomy against vaccines and, therefore, the government may not enforce the mandate against them. The least restrictive means for them is to block the mandate. Similarly, the ban on abortion medical procedures violates many womens faith that they should not die from pregnancy, or a parents faith that their daughter should not be forced to give birth to a rapists child, or a girls religious conviction that God put her on earth to achieve greatness in her chosen field of study and not to carry an unplanned pregnancy to term. Those beliefs are not secular; they are grounded in their religious worldviews and, therefore, must be accommodated through RFRA.
Attorneys fees. Practically speaking, attorneys fees are the most important element in these cases. Like the federal RFRA, the state RFRAs (except for Kentucky and Tennessee), provide for attorneys fees to the prevailing party. That incentivizes lawyers to take these cases, even pro bono. The prospect of attorneys fees at the end is sufficient for many a lawyer to get started.
I expect lawyers in the abortion RFRA cases may follow the pattern set by the attorneys who represent believers in other RFRA and RLUIPA (the federal law that provides the same high standard for religious landowners) cases: When such a lawsuit is filed, the government is under threat of having to pay attorneys fees on both sides, so there are strong incentives to settle and get rid of the case. While the RFRA formula normally requires the party to prevail to obtain fees, most settlements include attorneys fees even if the plaintiff wasnt going to win. In short, the claimant in a RFRA suit need not prevail to get attorneys fees; they often just need to file. That will attract attorneys and make it possible for claimants to vindicate their rights under the RFRA without paying.
One last note: We havent seen anti-abortion believers filing RFRA lawsuits against abortion choice laws. Thats because abortion choice laws do not burden their faith. They dont force them to undergo an abortion. They can still choose to die or be permanently disabled if they have an at-risk pregnancy or to carry a fetus to term that will die upon birth. Their free exercise is accommodated by choice and the bans.
For everyone else, abortion bans deny their free exercise rights to choose abortion under their own religious lights. To be precise: only abortion choice accommodates all religious believers.
Continued here:
- Information Overload - November 8th, 2009 [November 8th, 2009]
- Same-Sex Marriage Gains - Iowa, DC and Vermont - November 8th, 2009 [November 8th, 2009]
- Obama and the Muslim World - November 8th, 2009 [November 8th, 2009]
- Nordyke - Incorporation of the Second Amendment to Apply to the States - November 8th, 2009 [November 8th, 2009]
- Obama's First 100 Days - Reclaiming the Constitution* - November 8th, 2009 [November 8th, 2009]
- Education Reform - November 8th, 2009 [November 8th, 2009]
- Legalize (and Tax) Vice - November 8th, 2009 [November 8th, 2009]
- Obama World vs. Cheney World - November 8th, 2009 [November 8th, 2009]
- National Rifle Association v. Chicago (McDonald v. Chicago) Oral Arguments* - November 8th, 2009 [November 8th, 2009]
- Reconciling Liberty and Progressive Government - November 8th, 2009 [November 8th, 2009]
- Obama in the Middle East - A Respectful, Rational Voice - November 8th, 2009 [November 8th, 2009]
- Second Amendment Incorporation Update - Seventh Circuit Decision - November 8th, 2009 [November 8th, 2009]
- Strong versus Weak Judging - November 8th, 2009 [November 8th, 2009]
- Drawing the Line on the Obama Administration's National Security Practices - November 8th, 2009 [November 8th, 2009]
- Supreme Court Amicus Brief in McDonald v. Chicago - November 8th, 2009 [November 8th, 2009]
- McDonald v. Chicago Amicus Brief - Volokh Conspiracy Link - November 8th, 2009 [November 8th, 2009]
- Healthcare Reform - Voices of Reason from Senators Wyden & Bennett - November 8th, 2009 [November 8th, 2009]
- Time to Legalize Drugs - Sensible WaPo Article - November 8th, 2009 [November 8th, 2009]
- Article in William & Mary Bill of Rights Journal: Rescuing the Fourteenth Amendment Privileges or Immunities Clause - November 8th, 2009 [November 8th, 2009]
- Just Do It - Obama Needs Backbone for Meaningful Healthcare Reform, a la FDR - November 8th, 2009 [November 8th, 2009]
- Nordyke v. King Rehearing - November 8th, 2009 [November 8th, 2009]
- Huge News - Supreme Court Grants Certiorari in McDonald v. Chicago re: Privileges or Immunities - November 8th, 2009 [November 8th, 2009]
- Obama Needs to Take Stands on Principle - November 8th, 2009 [November 8th, 2009]
- Kudos to Harry Reid for Including Public Option in Proposed Health Care Bill - November 8th, 2009 [November 8th, 2009]
- Free Radicals - Individual Efforts Can Change the World - November 8th, 2009 [November 8th, 2009]
- - November 8th, 2009 [November 8th, 2009]
- Destroy the Filibuster - December 13th, 2009 [December 13th, 2009]
- McDonald v. Chicago - Petitioner's Brief - December 13th, 2009 [December 13th, 2009]
- Something on Which We Can All Agree - Less Government in Criminal Justice - December 13th, 2009 [December 13th, 2009]
- Obama Approach to Governing; Afghanistan Policy - December 13th, 2009 [December 13th, 2009]
- McDonald v. Chicago - Law Professors' Amicus Brief - December 15th, 2009 [December 15th, 2009]
- Senate Passes Health Care Insurance Reform - Reflections - December 25th, 2009 [December 25th, 2009]
- "Radicals In Their Own TIme" - Introduction & Selected Excerpts - January 1st, 2010 [January 1st, 2010]
- Terrific WaPo Farewell Column by Ellen Goodman - January 2nd, 2010 [January 2nd, 2010]
- Same-Sex Marriage Case in California - January 20th, 2010 [January 20th, 2010]
- Health Care; Corporate Speech Case - January 23rd, 2010 [January 23rd, 2010]
- McDonald v. Chicago - Essay in Cardozo Law Review de novo Online Journal - January 29th, 2010 [January 29th, 2010]
- Another Response to Citizens United: Remove Supreme Court Appellate Jurisdiction - February 11th, 2010 [February 11th, 2010]
- Olympics Idealism - March 1st, 2010 [March 1st, 2010]
- Framers Believed in Virtuous (ie, Humane) Government - March 21st, 2010 [March 21st, 2010]
- McDonald v. Chicago - Yesterday's Oral Argument - March 22nd, 2010 [March 22nd, 2010]
- Radicals in Their Own Time: Four Hundred Years of Struggle for Liberty and Equal Justice in America - May 21st, 2010 [May 21st, 2010]
- McDonald v. Chicago decision - October 11th, 2010 [October 11th, 2010]
- OpEd on McDonald v Chicago Case - June/July 2010 - October 11th, 2010 [October 11th, 2010]
- New Blog Format - October 11th, 2010 [October 11th, 2010]
- New Book - Radicals in Their Own Time - February 14th, 2011 [February 14th, 2011]
- Liberty Property Trust Hosts First Quarter 2012 Results Conference Call - March 31st, 2012 [March 31st, 2012]
- Liberty Property Trust Announces First Quarter 2012 Results - April 25th, 2012 [April 25th, 2012]
- Liberty Energy Announces Creation of Advisory Board and Appointment of Its First Member - April 25th, 2012 [April 25th, 2012]
- Liberty Tire Recycling, Keep Atlanta Beautiful and City of Atlanta Tire Commission Join Forces for Large-Scale Tire ... - April 25th, 2012 [April 25th, 2012]
- Liberty Bowl set for afternoon kick New Year's Eve - April 25th, 2012 [April 25th, 2012]
- Liberty Bowl Announces Date and Time - April 25th, 2012 [April 25th, 2012]
- Liberty ship sinking remembered - April 25th, 2012 [April 25th, 2012]
- Liberty Union searching for girls basketball coach - April 25th, 2012 [April 25th, 2012]
- How to Do a Liberty - Video - April 30th, 2012 [April 30th, 2012]
- Review: The "Liberty I" Ultra Compact Compound Bow vs. "Razor Edge" and "Slingbow" - Video - April 30th, 2012 [April 30th, 2012]
- Heavy Rain in Liberty City: Episode 1 (Grand Theft Auto IV Machinima) - Video - April 30th, 2012 [April 30th, 2012]
- Jordan Page "Liberty" (Acoustic Version) - Video - April 30th, 2012 [April 30th, 2012]
- StarCraft II: Wings of Liberty - Cinematic Trailer - Video - April 30th, 2012 [April 30th, 2012]
- China 9 Liberty 37 - Video - April 30th, 2012 [April 30th, 2012]
- Liberty`s Kids: #05 "Midnight Ride" (1/2) - Video - April 30th, 2012 [April 30th, 2012]
- Madness - The Liberty of Norton Folgate Live - Video - April 30th, 2012 [April 30th, 2012]
- I Pledge to Join Young Americans for Liberty - Video - April 30th, 2012 [April 30th, 2012]
- Steve Vai - Liberty - Video - April 30th, 2012 [April 30th, 2012]
- North Liberty fire chief: Email blasting staff was meant to motivate - May 4th, 2012 [May 4th, 2012]
- FCC dismisses Liberty Media request for control of SiriusXM - May 5th, 2012 [May 5th, 2012]
- Liberty FCC Request to Control Sirius XM Radio Rejected - May 5th, 2012 [May 5th, 2012]
- FCC rejects Liberty Media bid for Sirius XM control - May 7th, 2012 [May 7th, 2012]
- Liberty Rocket Targets 2015 - May 10th, 2012 [May 10th, 2012]
- Liberty boosts SiriusXM stake above 45% - May 10th, 2012 [May 10th, 2012]
- One Liberty Properties, Inc. Reports First Quarter 2012 Results - May 10th, 2012 [May 10th, 2012]
- Liberty to boost stake in Sirius XM to 45 pct - May 10th, 2012 [May 10th, 2012]
- ATK Announces Complete Liberty System to Provide Commercial Crew Access - May 10th, 2012 [May 10th, 2012]
- Penn Liberty Wealth Advisors Expands - May 10th, 2012 [May 10th, 2012]
- Romney Woos Evangelicals at Liberty University - May 13th, 2012 [May 13th, 2012]
- Liberty opener moved to MSG due to hockey game - May 13th, 2012 [May 13th, 2012]
- Romney Defends Marriage and Faith in Liberty University Speech - May 13th, 2012 [May 13th, 2012]
- Romney Speaks At Anti-Gay Liberty University Alongside Baptist Billionaire - May 13th, 2012 [May 13th, 2012]
- Liberty Center girls, Archbold boys reign - May 13th, 2012 [May 13th, 2012]
- Romney Courts Christian Conservatives at Liberty U - May 13th, 2012 [May 13th, 2012]