Free Exercise of Abortion

Abstract

For too long, religion has been assumed to be in opposition to abortion. Abortions consistent with, motivated by, and compelled from religion have been erased from legal and political discourse. Since the fall of Roe v. Wade, free exercise claims against abortion bans have begun to correct course. Women and faith leaders in several states have filed suit, asserting their religious convictions in favor of abortion. They give form to the reality—as progressive theologians have long argued—that to have a child can be a sacred choice, but not to have a child can also be a sacred choice. And they center women’s conscientious decisions for the first time in many decades. In law and religion circles, the predominant response has been skepticism. As claims for reproductive freedom have appeared, erstwhile supporters of expansive exemptions propose to raise the bar. They increase standards for religiosity, sow doubts about women’s sincerity, and argue for lightening the government’s burden. Constitutionally illicit stereotypes about women’s (in)capacity for moral agency, trustworthiness, and altruism seep into religious liberty arguments. These attacks on the free exercise of religious convictions about abortion implicitly—and sometimes expressly—advance religious preferentialism. They invite and expect the courts to reject pro-abortion religious claims even as they urge courts to treat anti-abortion convictions as sacrosanct. The consequence would be to exile some categories of religious people from religious liberty protections, while Christian conservatives gain systematic favor

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This paper was published in Brigham Young University Law School.

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