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Richard Schragger & Micah Schwartzman, Religious Freedom and Abortion, __ Iowa L. Rev. __ (forthcoming 2023), availible at SSRN.

Since Dobbs came down, I have given many talks and talked with many journalists about abortion law, and the one topic that always arises is religion. People are aware that the Roberts Court has been deeply solicitous toward religious claimants seeking exemptions from various laws—almost always religious conservatives who refuse to provide services to LGBTQ people, obey COVID restrictions, or provide health plans that cover contraception. People often ask about the prospect of using these expansive protections to secure exemptions from abortion bans for people motivated by religious commitments to seek or provide abortions. Sometimes they ask about using the Establishment Clause to argue that abortion bans are religiously motivated and endorse a religious doctrine many Americans don’t share. People asking these questions are generally optimistic. Sometimes, that optimism is coupled with a certain satisfaction that the Court has painted itself into a corner: the Justices may have expanded protections for religious people in cases involving conservative Christians, but surely, they are now compeled to extend those protections to religious liberals as well.

Richard Schragger’s and Micah Schwartzman’s new article, Religious Freedom and Abortion, provides sharp and insightful analysis of these questions. The article examines recent establishment and free exercise decisions and shows that, in many cases, religious liberals who do not subscribe to conservative Christian conceptions of when life begins or who have religious motivations for seeking or providing abortions should prevail under the Court’s new doctrines. But, the article argues, to think such claimants will prevail is to misunderstand the politics of the Roberts Court’s First Amendment jurisprudence—and the fact that it’s politics all the way down.

On the establishment side, Schragger and Schwartzman discuss instances in which lawmakers enacting anti-abortion legislation have violated obligations of religious neutrality by making arguments explicitly biased against people whose religious commitments lead them to support abortion rights. In equal protection and free exercise cases, the Court uses a totality of the circumstances approach to detect animus or illicit purpose underlying facially neutral laws. Schragger and Schwartzman argue there’s no reason the same test shouldn’t apply under the Establishment Clause, and that some anti-abortion legislation ought to be in trouble under this test—particularly given the comments the Court counted as evidence of religious bias in Masterpiece Cakeshop.

Establishment-based challenges to abortion restrictions appear even stronger under reasoning endorsed by Justice Alito and three other Justices in a recent case involving Yeshiva University. In that case, Alito argued that an antidiscrimination law that compelled the University to recognize an LGBT student group “impos[ed] its own mandatory interpretation of scripture” and required Yeshiva to “make a ‘statement’ in support of an interpretation of Torah with which the University disagrees.” On this understanding, Schragger and Schwartzman observe, “[a]n abortion ban might ‘impose its own mandatory interpretation of scripture,’ and, in prohibiting ‘conduct that aids and abets the performance or inducement of abortion,’ it might also be described as requiring religious organizations, and their clergy, to speak in a manner consistent with an interpretation of the Bible with which they disagree.”

These claims have little chance of succeeding at the Court. There’s an outside possibility the Court will dispose of the religious neutrality requirement altogether and simply permit religiously motivated abortion bans. Some academics are pushing the radical theory that preventing religious people from using law to impose their religious views on others violates free exercise, and some Justices could adopt that outlook. But, Schragger and Schwartzman argue, it’s more likely the Court will “avoid[] the total abandonment of a secular purpose requirement while rarely, if ever, enforcing it”—even in cases where anti-abortion lawmakers clearly fail to satisfy “the obligation of religious neutrality” as the Roberts Court has defined that concept in free exercise cases.

One might think free exercise provides a more plausible route to victory for religious liberals because expanding free exercise rights has been a key priority of the Roberts Court. Smith—which held that free exercise does not require exemptions from neutral and general applicable laws—may still be good law, but the Court has substantially limited or declined to apply it in recent cases. Religious conservatives seeking exemptions from facially neutral laws prevailed in Burwell, Masterpiece Cakeshop, and Fulton, and the Court dramatically expanded free exercise protections in a series of COVID decisions holding that public health regulations limiting social gatherings, including for religious worship, were not “generally applicable” and thus triggered strict scrutiny under the Free Exercise Clause. As the Court explained in Tandon, “government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.”

The victors in these cases were conservative Christians. But, in principle, the Court’s new approach to free exercise should also yield victories for religious liberals. The legislative histories of some abortion restrictions reveal comments at least as hostile to religious liberals as the comments in Masterpiece Cakeshop were toward religious conservatives. And all abortion bans ought to be in serious trouble under Tandon’s single secular exception approach because they all contain exceptions—at a minimum to preserve the pregnant person’s life, sometimes also for rape and incest, fetal abnormality, and the pregnant person’s health. The Court made it clear in Tandon that the question of whether “activities are comparable . . . must be judged against the asserted government interest that justifies the regulation.” In the case of abortion, the government’s interest is in protecting the fetus, and religious exemptions present the same threat to the fetus as secular exemptions. Indeed, in a case involving public health regulations, the Sixth Circuit explicitly held that the government cannot favor “life-sustaining” activities over “soul-sustaining” activities that pose similar risks.

This doctrine should provide a solid foundation for arguments for religious exemptions from abortion bans. But Schragger and Schwartzman are rightly confident the Court will not apply its new free exercise jurisprudence in a consistent manner. Their article examines various unprincipled ways the Court could decline to protect religious liberals. The most radical approach, advocated by some scholars, would be to hold that religious liberals (often the focus here is on liberal Jews) are not entitled to free exercise protections because, unlike religious conservatives, they are not actually obligated to obey religious law.

But the Court does not need to break so radically with tradition. Another way to pick and choose who gets protection would be to revive Smith. Indeed, Schragger and Schwartzman speculate the Justices may have decided to limit and intermittently ignore Smith, rather than clearly overrule it, in anticipation of free exercise challenges to abortion bans. If the Court were to overrule Smith, Schragger and Schwartzman show there are additional (inconsistent and deeply unprincipled) ways to play around with the concept of compelling interest to deny religious people exemptions from abortion bans.

The doctrinal analysis in this article is smart, cogent, and helpful. But the thing I like best about this article is that it provides a particularly good model of how to do legal scholarship when confronted with a deeply politicized Court intent on implementing a partisan agenda. The article is neither naïve nor despondent. It does not pretend the Court will implement its new doctrines and interpretive methodologies consistently, and that the expansion of free exercise exemptions will actually provide religious liberals with a means of winning abortion rights from these Justices. Yet the article is not simply critical or cynical. Relief may not come from this Court, but, Schragger and Schwartzman argue, there may be greater scope for religious freedom arguments on behalf of religious liberals under state constitutions. And just because they’re skeptical of religious liberals’ prospects of securing abortion rights under the First Amendment by persuading the Justices to apply the law evenhandedly doesn’t mean they’ve given up on any possibility of change. They have shown that the Court is engaged in a political project. Politics is the best, and perhaps the only, way to counteract that project.

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Cite as: Cary C. Franklin, Religious Liberty for Some, JOTWELL (January 30, 2023) (reviewing Richard Schragger & Micah Schwartzman, Religious Freedom and Abortion, __ Iowa L. Rev. __ (forthcoming 2023), availible at SSRN), https://conlaw.jotwell.com/politics-all-the-way-down/.