Considering Abortion Restrictions Through the Lens of Religious Freedom

david a. carrillo
California Constitution Center Executive Director David A. Carrillo

An article by two scholars affiliated with our California Constitution Center (CCC) has just been published as the lead piece in a special Boston University Law Review Online issue collecting work presented at the Advancing Pregnant Persons’ Right To Life Symposium earlier this year. 

The Free Exercise Right to Life,” by CCC Executive Director David A. Carrillo, center senior research fellow Allison Macbeth, and Daniel Bogard, explores the impact of the U.S. Constitution’s Free Exercise Clause on abortion access in the aftermath of the U. S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and put abortion rights issues in the hands of state legislatures. Bogard is a Senior Rabbinic Fellow of the Shalom Hartman Institute and adjunct faculty at Eden Theological Seminary.

The February 2024 symposium gathered scholars from the legal, medical, and religious fields to consider ways to promote and protect reproductive justice through advancing the pregnant persons’ right to life. It was hosted by the law review, the Boston University School of Law Program on Reproductive Justice, the Northeastern Law Center for Health Policy and Law, and the Center for Reproductive Rights.

Even after Dobbs, elements of the Constitution remain in play, Carrillo, Macbeth, and Bogard argue, particularly the First Amendment’s Establishment Clause — which bars the government from making any law  “respecting an establishment of religion” — and free exercise clause, which protects the right to practice one’s religion as one pleases. 

Restrictions on abortion trigger the question of free exercise rights because some religions have doctrines that can require their followers to choose the pregnant person’s life over an unborn life, they write, using Modern American Judaism as their prime example. Because Jewish law dictates that the existing life of the pregnant person must take precedence over the potential life of the fetus, “many rabbis insist that there are times when abortion is not just permitted in Judaism but required by Jewish law,” the article argues. “Thus, laws limiting access to abortion services abridge the religious liberty of American Jews.”

In addition, if a law restricting abortion is intended to codify a Christian value, that conflicts with the free establishment clause by imposing one religion’s views on adherents to all other faiths and preventing members of religious minorities from freely practicing their beliefs. Similarly, the right to free exercise of religion can require states to allow abortion or contraception access to those with a sincerely held belief that their religion requires it. 

“In the aftermath of Dobbs, it appeared that no federal constitutional abortion questions remained and that states were left alone to legislate about abortion rights,” Carrillo, Macbeth, and Bogard write. “But free exercise rights are a previously dormant spark that can reignite the federal constitution’s role in abortion, at least where a person’s sincere religious beliefs (like those long held in American Judaism) compel it.”