Abortion Lawsuits Based on Claims of Religious Freedom – Baptist News Global

Expect a proliferation of cases of religious freedom for abortion access as the issue of reproductive rights moves into the states, predicts Holly Hollman, general counsel and associate executive director of Baptist Joint Committee for Religious Liberty.

While legal claims that abortion is protected under the free movement clause of the U.S. Constitution are nothing new, “they will now have more urgency and I think more attention will be paid to arguments about abortion that in certain circumstances (including) would religious motivations of women seeking abortions,” Hollman said in a recent episode of BJC’s “Respecting Religion” podcast.

But Amanda Tyler, podcast co-host and BJC executive director, added that such lawsuits have little chance of success if they make it to the U.S. Supreme Court, which overturned Roe v. Wade in June.

Amanda Tyler

Holly Holman

The same judges who voted to lift constitutional protections for abortion are unlikely to rule in favor of a challenge that goes against that decision, she said. “We don’t really feel a great chance of success.”

Even the Supreme Court’s respect for religious freedom cases involving wedding vendors and government-contracted social service providers probably wouldn’t spell success for faith-based abortion cases that precede them, Hollman said.

“I think the easiest way to think about it is that a court that has just taken this bold step to overthrow Roe v. Wade after all these years is unlikely to turn around and immediately find a right to religious freedom for the same matter. ”

With abortion bans trickling down to numerous states and some of the strictest already enacted in Oklahoma and Texas, Hollman and Tyler acknowledged it was difficult to discuss anything with Dobbs v. Jackson Women’s Health Organization, the case that ended federal protection.

“The decision in Dobbs and the issues in general about access to abortion, contraception and health care for women are all very important, including what many would say is a religious interest for women especially, but also for others about theological and political spectrum. Holman said.

Tyler said the ramifications of the ruling are very personal to many, including herself. “It really has lasting and potentially devastating effects on people’s lives. For me, the realization that a right I’ve had all my life as a woman—I was born five years after Roe—whether I had to exercise that right or not, has gone with the decision of five unelected judges. And that realization in itself is devastating for me.”

Hollman said she expects such concerns to bubble up in the national discourse. “There will be more conversations in general. People will be concerned about the impact of the Dobbs decision on their own medical care. And I think we need to talk more about this with each other and with our legislators, with our families. I think that will lead people to investigate the role of religion.”

“There is not one religious position on abortion.”

None of this should be surprising, given the variety of religious expressions and views on abortion that permeate the nation, Tyler said. “One thing we will see in a post-Roe world is more religious voices and more varied religious voices and views on this controversial and deeply personal issue. There is not one religious position on abortion.”

People are also divided within religious traditions, Tyler said, citing research showing that 56% of Roman Catholics believe in legalized abortion, despite their church’s leading role in opposing the practice.

“Within the Christian tradition, there is tremendous diversity among Christians” about abortion, Tyler said. “Even among Protestant traditions, we have so many different denominations and perspectives on things. Even within the Baptist tradition, we have tremendous diversity.”

Denominations can also change over time. Tyler noted that the Southern Baptist Convention welcomed the 1973 ruling that upheld Roe v. Wade and then celebrated its demise in 2022.

“So within 50 years the convention’s stance did…180. It may be tempting to say that Catholics believe ‘X’, Southern Baptists believe ‘Y’, Unitarians believe ‘Z’. There’s more nuance in all of these views for each individual religious person,” she explained.

Hollman said she expects to see more lawsuits in which those voices argue for a right to religious freedom over abortion.

Hollman said she expects to see more lawsuits in which those voices argue for a right to religious freedom over abortion. Some will even say that their faith forces them to seek the procedure.

“Religion is a strong motivation for people when making decisions about their reproductive lives, about access to abortion, and that makes sense as these are decisions about the size of their family, how they can care for their children,” she said. “Then others would argue that it is so personal and private that it is this area of ​​conscience in which the state has no interest.”

Plaintiffs in those cases would have to prove that government policies, such as abortion bans, tax their free exercise of religion, Hollman said.

Another legal route for those seeking access to abortion is to file claims that measures restricting access to abortion violate the constitution’s ban on government establishment of religion, Tyler said.

The approach would seek to prove that the policy was being conducted by officials with religious motives. But that will be an uphill battle since Kennedy v. Bremerton, a June case in which the Supreme Court paved the way for government-sanctioned prayer, eliminating the Lemon test, she added.

“One of the claims of the Lemon test was that a law wouldn’t make it through the constitution if it didn’t have a secular purpose. We no longer have that test, so the question is how would these laws be evaluated?’”

Hollman agreed that those filing religious freedom cases for abortion access should consider the new reality of government-approved religion.

“There is the assumption that the government will not do that under the settlement clause. But as you know, those standards are now in the air. We are in the midst of a transition as to what the ‘no settlement’ standards are under the Constitution.”

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