Abortion and the Free Exercise of Christianity

 by Sherry F. Colb

At times, it must seem to many Court-watchers that abortion is its own body of law, separate from the other areas in which the nine Justices issue opinions. And this term, the Court will be hearing an abortion case, Dobbs v. Jackson Women's Health Organization, a case presenting the question whether banning abortion starting at fifteen weeks violates the Constitution. But for this Court, its view of abortion is very much linked to its view of a whole other body of law, the Free Exercise of Religion in the First Amendment to the Constitution. I have an article coming out in the North Carolina Civil Rights Law Review in the Spring that explores the Court's thinking in the realm of religious liberty. But here, I will offer a brief description of my theory and then apply it to abortion and show that it fully explains where the Court is heading on the right to choose.

We have seen two major religion cases recently that confront the collision between one person's exercise of his religion and another person's freedom to be part of a same sex couple. One was Masterpiece Cakeshop v. Colorado Civil Rights Commission (MC), and the other was Fulton v. Philadelphia. To oversimplify the two cases, the religious parties in each of them felt bound by their religion (Christianity) to refuse service otherwise available to same-sex couples either getting married or seeking to foster children. In MC, the baker refused to bake a wedding cake for a same-sex couple, citing religion. In Fulton, a Catholic social service agency contracting with the city refused to sign an agreement with Philadelphia to refrain from discriminating against same-sex couples in reviewing couples seeking to foster children. Philadelphia, in turn, told the Catholic social service agency that its contract with the city for evaluating potential foster parents would terminate.

The Court did not reach the merits in MC but instead condemned the Colorado Civil Rights Commission for harshly condemning reliance on religion as an excuse for doing evil things. Such talk, which included a reference to the Holocaust, supposedly showed animus toward religion. In Fulton, the Court said that because the contract that the Catholic social service organization refused to sign included a discretionary exception to its anti-discrimination provision, its failure to exempt a religious objector constituted anti-religion discrimination. The upshot was that (a) a baker's refusing service to same-sex couples seeking a wedding cake must not be condemned as invidious bigotry without violating the Free Exercise Clause, and (b) an entity contracting with a city to engage in a municipal function--choosing qualified foster parents--has a religious entitlement to selectively disqualify all same-sex married couples, so long as the government retains discretion to grant exemptions from anti-discrimination provisions. In plain English, if your religion disfavors homosexuality, then you are entitled as a matter of religion freedom to discriminate against same-sex couples.

Consider what this entitlement means. If your religion says that homosexuality is wrong, then not only must you not engage in homosexuality (as a matter of your religious commitments, not as a matter of American law). But you must penalize through nonassociation anyone who does engage in homosexuality. If people want to celebrate a wedding, and you make wedding cakes, you must make wedding cakes only for opposite-sex couples. If a same-sex couple walks into your shop and says they are marrying, you have to refuse them service. You must, in other words, shun people who conduct their lives in ways that conflict with your religious obligations. I do not know whether Christianity really requires people to shun marrying couples of the same sex, but prior to MC, I had not heard of this requirement. My understanding of Christianity and food was that Jesus counseled his followers to feed the hungry and notably did not investigate whether the hungry were sinners or saints.

The Fulton ruling is more alarming because it did reach the merits and because the Court made it clear that it accepted on faith (pun intended) the claim that Catholicism required a charitable organization seeking foster parents to shun all same-sex couples looking to foster children and refuse to evaluate those couple's qualifications. The charity was, of course, doing a job that the government ordinarily does, but that did not prevent it from insisting on its right to shun the gay people. The charity and the Court viewed discrimination against same-sex married couples here as a religious entitlement of Catholics, one that could not lead to the government terminating its contract without violating the First Amendment.

To summarize the nature of the right recognized here, it is a right to practice one's own religion by punishing other people who do not practice that religion, a right that one can wield in the marketkplace as well as exercising the privilege of performing government functions like reviewing foster parent aplications.

How is this approach related to abortion? If we think about abortion, we immediately notice that some people observe religions that prohibit them from terminating a pregnancy, while other people are either secular or observe religions that do not prohibit abortion. If your religion prohibits abortion, then in the olden days, you would be able to invoke this religious prohibition if the government tried to force you either to have an abortion or to perform one. But the new Free Exercise Clause on Steroids would require you to shun other people who do not share your religious commitment to taking every initated pregnancy to term.

One way to shun such people is to try to stop them from terminating their pregnancies by punishing them for doing so or by punishing other people for helping them do so. SB8, the extremist, theocratic Texas law, enables people whose own religions prohibit abortion to punish anyone who does anything to assist a pregnant person in terminating a pregnancy. To many people, me included, the Texas law is outrageous, for reasons I have outlined here, here, and here. But for someone who thinks the right to exercise your religion encompasses the right to force your religion on others by punishing them for transgressing your religion, SB8 could not be more sensible. It protects the religious freedom of the people whose religions prohibit abortion, part of whose religious freedom consists in effectively keeping other people from freeing themselves of unwanted pregnancies, including those resulting from rape or incest.

If you have been following along, you may be thinking that the religious freedom to essentially compel others to abide by your religion is not sustainable. Sometimes religions conflict. What if your religion requires you to terminate your pregnancy because it is causing you a clinical depression, and your religion insists on prioritizing your mental health over the pregnancy? Can you compel me, someone whose religion prohibits abortion, to obey your religion? Would that mean that you can sue me for failing to subsidize your abortion even as I sue your boyfriend for driving you to a clinic? The Supreme Court's new Free Exercise Right only works if there is a particular religious faith that it has in mind when it supports the shunning of dissenters. And that religion is Christianity. The Court has already made its commitment to this "Free Exercise of Christianity" right clear--even to the extent of forcing the government to disriminate against same-sex couples seeking to foster a child. And (the version of) Christianity (the Court has in mind) takes a position on abortion as well.

If the prospect of the Court issuing opinions protecting the right of Christians to punish non-Christians for apostasy, secularism, and adherence to minority religions does not alarm you, consider the following. There was a time, not that long ago, when people invoked Christianity to defend private discrimination as well as public segregation, and courts would do so as well. The phrase "Free Exercise of religion" contains the word "free" and may thus distract you from what is really going on. The harm principle says that my liberty to swing my fist ends at your nose. The new and improved Free Exercise Clause, by contrast, says that if I am an observant Christian, I am free to swing my fist even when it hits you in the face. Indeed, your efforts to stop me from punching you in the face will run right into my religious freedom. For anyone who is not (the right kind of) Christian, anyone who does not share in the religious commitments of Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, it may be time to purchase that helmet you have been eyeing at Dick's Sporting Goods.