The Indiana Supreme Court is considering a lawsuit that asks whether the state’s near-total abortion ban infringes on residents’ religious freedom, reviving a legal theory that conservative legal scholars say the U.S. Supreme Court rejected more than four decades ago.
At the center of the case is a familiar constitutional argument: that a woman’s decision to terminate a pregnancy can count as an “exercise of religion” when it aligns with her moral or theological convictions. Writing at The Daily Wire, Thomas Jipping, a senior legal fellow at Advancing American Freedom, argues the claim misreads both the First Amendment and the federal Religious Freedom Restoration Act (RFRA), and that it should fail on multiple grounds.
The Legal Backstory
The First Amendment protects the free exercise of religion, and the Supreme Court has long held that the government must show a “compelling” interest before interfering with that right. Jipping traces the abortion-as-religion theory back to 1972, when, he writes, a group of law professors proposed that a woman exercises religion when she obtains an abortion permitted by her beliefs. Under that logic, because protecting life in the womb is not a “compelling” governmental purpose, pro-life laws would violate the First Amendment.
That framework shifted in 1990, according to Jipping, when the Supreme Court held that the compelling-interest standard applies only when government deliberately undermines religious practice — a circumstance he describes as rare. Congress responded by passing RFRA, which restored the stricter standard for religious exercise claims, and many states, including Indiana, adopted their own versions.
During the congressional debate over RFRA, Jipping notes, some pro-life groups warned that abortion-rights advocates might resurface the religious-exercise argument, this time citing RFRA rather than the Constitution. Leading First Amendment scholars countered that for an action to qualify as religious exercise, it must actually stem from religious belief — not merely be consistent with it or left unprohibited by it.
He points to the Supreme Court’s 1980 decision upholding the Hyde Amendment, which bars federal funding for most abortions, as the clearest statement of that principle. In that case, the Court said a decision must be compelled by religious belief, not simply compatible with it, to be considered an exercise of religion.
Three Hurdles for the Indiana Plaintiffs
The Indiana lawsuit faces what Jipping frames as three distinct obstacles. The first, which the state Supreme Court explored during oral argument on September 10, is standing. To bring a case, a plaintiff must have suffered an actual or imminent legal injury traceable to the defendant and redressable by a court. According to Jipping, none of the plaintiffs is pregnant, none intends to become pregnant, and none has ever been denied an abortion. Indiana, he adds, has never attempted to enforce the law being challenged — leaving the plaintiffs with only a hypothetical claim about an abortion they might someday seek.
The second hurdle echoes the 1980 Hyde decision. Jipping argues the plaintiffs’ position rests on the claim that a future abortion would be “consistent” with their religious beliefs — precisely the standard the Supreme Court said was insufficient. He asks readers to consider how many decisions their own moral or religious convictions do not explicitly forbid, and then how many laws of any kind could be disregarded on the theory that one’s beliefs permit what the law prohibits.
The third hurdle, should the plaintiffs clear the first two, is whether the state has a compelling interest in protecting life in the womb. Jipping contends that it plainly does, writing that abortion is “homicide committed earlier, and by different methods,” and that relabeling the procedure cannot change that fact. He poses the question directly: “If protecting human beings from being killed isn’t a compelling government purpose, what is?”
A Broader Push
Jipping situates the Indiana litigation within what he describes as a broader effort to dismantle pro-life laws through religious-freedom claims. Abortion-rights advocates, he writes, had no need for the argument while the Supreme Court recognized a constitutional right to abortion, but have revived it now that the Court has said no such right exists. In his assessment, the theory is no more persuasive today than when it was previously offered and rejected.
The Indiana Supreme Court has not yet issued a ruling in the case. Its decision could shape how far state religious-freedom protections extend when they collide with abortion restrictions — a question likely to draw attention well beyond Indiana’s borders as similar challenges proceed in other states.
Source: www.dailywire.com — https://www.dailywire.com/news/abortion-is-not-a-religious-exercise