Monday, May 23, 2022

Free Exercise Arguments for the Right to Abortion

Olivia Roat, Free-Exercise Arguments for the Right to Abortion: Reimagining the Relationship Between Religion and Reproductive Rights, 29 U.C.L.A. Women's Law J. (2022) 

The popular narrative of the relationship between religion and reproductive rights equates religious belief with opposition to abortion and the exercise of conscience with refraining from the provision of abortion care. The presumption that faith inevitably conflicts with support for reproductive rights is a chapter in a larger story—created and reinforced both legally and culturally —that links religious liberty to conservative views about sex, sexuality, and reproduction.

This Article demonstrates that this typical abortion tale, while well-worn, is one-sided. It traces the history of the claim that restrictions on abortion violate either the Free Exercise Clause or the Religious Freedom Restoration Act (RFRA). This claim asserts that laws that explicitly ban or curtail access to abortion burden pregnant people’s ability to make reproductive decisions that are guided by their sincerely held religious beliefs or burden healthcare providers’ ability to provide abortion care as dictated by their religious beliefs. This Article argues that recovering this lost history reveals a dual erasure: erasure of the fact that faith motivates or even requires people to provide or obtain abortions and erasure of the decades-long legal claim, present from the outset of the first sustained effort to challenge the constitutionality of laws criminalizing abortion in the late 1960s, that protecting the right to abortion is actually more consistent with religious-liberty principles than restricting it. There is a rich tradition of the clergy, the women’s movement, and religious organizations fusing free-exercise arguments with arguments about economic justice, dignity, and pregnant people’s ability to make choices about their lives and families.

The historic and normative groundwork laid in this Article illuminates what are now largely invisible concerns with curtailing not only abortion access but also reproductive healthcare access broadly and creates a more holistic, complete account of what it means to protect religious freedom in the reproductive-rights context.

Abortion, Constitutional, Reproductive Rights, Theory | Permalink


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