Free Exercise of Abortion

61 Pages Posted: 30 Aug 2023 Last revised: 28 Dec 2023

See all articles by Elizabeth Sepper

Elizabeth Sepper

University of Texas at Austin - School of Law

Date Written: August 28, 2023

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.

Keywords: abortion, free exercise, religious liberty, reproductive rights, RFRA, state constitutions

Suggested Citation

Sepper, Elizabeth, Free Exercise of Abortion (August 28, 2023). Brigham Young University Law Review, Vol. 49, 2023, U of Texas Law, Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=4553079 or http://dx.doi.org/10.2139/ssrn.4553079

Elizabeth Sepper (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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