The demise of Roe v. Wade has raised a host of religious liberty questions that were submerged prior to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. One question is whether state abortion bans are subject to challenge under the Establishment Clause, and state analogs, on the grounds that the government is forbidden from imposing religiously motivated laws. Another question is whether abortion restrictions violate the free exercise rights of people who are religiously motivated to seek, provide, or facilitate abortion services.
We evaluate these claims by way of making a more sustained argument about the current politics of church-state relations under the Roberts Court. First, we argue that abortion bans should be vulnerable to Establishment and Free Exercise challenges under doctrinal standards adopted in recent cases, which have closely scrutinized laws burdening religiously motivated conduct. Second, despite the justices’ expansive approach to religious freedom, we nevertheless predict that the Supreme Court will deny exemptions in the abortion context. It will do so not only because of the justices’ political inclinations, but also because the doctrine is sufficiently malleable to allow rejecting certain kinds of religious liberty claims while accepting others. Third, we argue that this selective application the Court’s religious liberty jurisprudence vindicates a long-standing critique of judicially mandated free exercise exemptions, namely, that such exemptions too easily permit judges to pick and choose among religious claims.
The Court’s recent innovations in free exercise doctrine will invariably favor certain religious believers over others, raising a broader question about whether it is possible for liberal and progressive believers to vindicate their claims to religious freedom. In the abortion context, those who demand exemptions to advance their belief that life begins at conception will receive them, while those who demand exemptions to protect their belief that life begins later, or that health and life of pregnant individuals are of paramount importance, will not. In this way, free exercise exemption doctrine serves as an instrument of religious preferentialism.