A recent court case about religious liberty helps to show the moral case for a right to abortion.
Abortion bans often have exceptions for rape, incest and lethal fetal defects. These exceptions presuppose that in some cases, the suffering of pregnant women matters enough to outweigh whatever rights a fetus may have. In its recent rulings on religious liberty, the Supreme Court has said that states can’t treat religious reasons any worse than comparable secular reasons for wanting legal exceptions to broadly applicable laws.
An Indiana court has therefore held — correctly, I’ll argue — that abortion must therefore be permitted for religious reasons. As the exceptions proliferate, in each case because of certain burdens on pregnant women, they highlight that any unwanted pregnancy generally involves comparable burdens.
The U.S. has often modified its laws to accommodate religious minorities. Quakers were exempted from the military draft; Catholics were allowed to use sacramental wine during Prohibition. In a similar spirit, Indiana’s Religious Freedom Restoration Act provides that the state “may substantially burden a person’s exercise of religion only if [it] demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
The Supreme Court also requires religious exemptions, but uses a different formulation: such exemptions are presumptively available “under the Free Exercise Clause, whenever [the laws] treat any comparable secular activity more favorably than religious exercise.” The court explained that “whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue.”
After Roe v. Wade was overturned, Indiana enacted a law criminalizing almost all abortions. The law permits abortions to save the........