Preserving Reproductive Rights: The Power of Religious Freedom in the Fight Against Abortion Bans

Written by L4GG’s 2023 Summer Intern, Veronica Dickstein

In the wake of recent disheartening SCOTUS decisions and the erosion of reproductive rights in many U.S. states, it can be difficult to also see the positive developments in reproductive rights happening nationwide. Yet, across the country, attorneys and advocates are using creative strategies to protect bodily autonomy in a post-Dobbs America.

One such strategy centers around freedom of religion, an ideal central to the fabric of our country and our constitution. White nationalist movements have used religion to control and restrict, but this legal initiative shows that religion does not have to be used in such a poisonous, distorted way.

In Florida, Kentucky, Missouri, and Indiana, pro-choice advocates are arguing that abortion bans restrict religious freedom and are, therefore, unconstitutional. Some cases with this argument focus on their respective states’ constitutions’ enshrined right to freely practice religion. Meanwhile, some focus on their state’s Religious Freedom Restoration Acts, acts modeled off the 1993 federal act of the same name that aimed to strengthen religious freedom protections. 

Let’s go through some of the cases that use this religion-oriented strategy:

  • In Florida, plaintiffs are declaring the Reducing Fetal and Infant Mortality Act (a 15-week abortion ban) unconstitutional in Generation to Generation v. State of Florida. In this ongoing case, plaintiffs argue that because Jewish law states that “abortion is required if necessary to protect the health, mental or physical, or well-being of the woman,” which this act does not allow, the act is therefore unconstitutional because it violates the plaintiffs’ freedom of religion. Using Judaism in these cases is a common thread, due to its assertions that anything can be justified to save a life; Judaism also lacks any evidence that a fetus would be considered a life in the same way as a human baby, or a pregnant person for that matter.

  • In the same vein, in Kentucky, plaintiffs in the ongoing Sobel v. Cameron are filing suit against Kentucky Attorney General Daniel Cameron and Jefferson County Attorney General Thomas Wine. This case draws on Kentucky’s Religious Freedom Restoration Act, which states that “no preference shall ever be given by law to any religious sect, society or denomination; nor to any particular creed, mode of worship or system of ecclesiastical polity.” Plaintiffs argue that because the bill declares that life begins at conception, an ideology that conflicts with Jewish religious beliefs, this bill violates their religious freedom. They also claimed that, consequently, this bill gave preferential treatment to those with Christian beliefs and was, therefore, discriminatory.

  • In Rev. Blackmon v. Missouri, plaintiffs are challenging the constitutionality of Missouri’s abortion ban due to its undeniably religious character; Missouri’s abortion ban was described by state legislators in explicitly religious terms. Missouri Representative Adam Schnelting said when discussing the ban: “I know of no greater way of affirming the natural rights of man than to declare that they are a gift from our Creator that neither man nor government can abridge.” Plaintiffs in this case claim that because of this, the ban is a violation of the separation of church and state, something clearly protected in Missouri’s constitution. They also argue, similarly to plaintiffs in the Florida and Kentucky cases, that this ban forces all Missouri residents to adhere to a definition of life only held by some—mostly those part of specific sects of Christianity. The 13 plaintiffs, all religious clergy members belonging to different Christian sects, Unitarian Universalism, and Judaism, do not share those religious beliefs. This case is ongoing, with important implications outside of the reproductive rights arena. How can we call ourselves a democracy, not a theocracy, when we enact legislation in the name of the Judeo-Christian creator?

  • As mentioned in L4GG’s 7/07/23 Repro Digest, Anonymous Plaintiffs, Hoosier Jews for Choice v. Medical Licensing Board of Indiana argues that Indiana’s abortion ban violates the religious freedom rights of the Jewish, Muslim, and spiritual plaintiffs. It therefore violates Indiana’s Religious Freedom Restoration Act; the plaintiffs’ respective religions do not hold the beliefs that life begins at conception or that a fetus is entitled to the rights of a human baby. Like other cases, this one also argues that Indiana’s constitutional clause prohibiting the state from preferentially treating any one religion is violated by the state's extreme abortion bans. This case is especially important because the plaintiffs were granted a preliminary injunction by Indiana state trial court in December 2022, meaning that while litigation continues, the abortion can cannot be enforced against the plaintiffs. The state has appealed this injunction. Americans United along with other organizations is continuing to advocate as to why the injunction should hold and the ban should not be enforced—not just for the plaintiffs, but for all Indiana residents. Although there is no clear outcome for this case right now, it demonstrates that courts even in states usually hostile towards reproductive rights and bodily autonomy may respond to a religious-freedom oriented argument to mitigate abortion bans.

Using religion to combat abortion bans is ingenious because it has so often been used to create them. This irony is compounded in the cases that use their states’ Religious Freedom Restoration Acts, which have been used to combat laws that aimed to fight discrimination and require insurance companies to cover contraceptives. 

Contrary to the recent abortion bans that often, whether explicitly or implicitly, use Christianity as an excuse for suffocating legislation, religion in America is not monolithic. To think so is both naïve and discriminatory. It is dangerous. These cases serve as beacons of hope in tough times for reproductive rights in America, using religious diversity to protect and progress and working to maintain our democracy.


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