In December, an Indiana judge declared recent state legislation restricting access to abortion unenforceable, on the grounds that it violates the religious freedom of Jews, Muslims, and others who believe that abortion is obligatory in certain cases. (In the Jewish case, even the strictest interpretations of halakhah agree that a pregnancy must be terminated if it poses a threat to the life of the mother.) The decision, rooted in Indiana’s Religious Freedom Restoration Act (RFRA) doesn’t merely grant religious exemptions from the abortion law in specific cases, but effectively strikes it down. Tal Fortgang and Howard Slugh comment:
Under the RFRA, once a plaintiff has shown that a law burdens her sincere religious practice, the state can still win if it can show that it is advancing a compelling interest in the manner least restrictive of religious liberty. But in this case, the judge denied the state’s claim that it was advancing the compelling interest of protecting fetal life because “the plaintiffs do not share the state’s belief that life begins at fertilization or that abortion constitutes the intentional taking of a human life.” Having already found that plaintiffs and the state do not see eye to eye, the judge simply handed the plaintiffs a brass ring. Once the religious objectors proved their initial case, it became a fait accompli that the government could not prevail. The state would not be permitted to enforce laws that the court determined were based on principles the religious objectors did not share.
Making no attempt to balance state power and individual rights, [the court] struck down a democratically enacted law on the grounds that it violated an unprecedented definition of religious liberty. It gave the state no real opportunity to prove that it had a sufficiently important need to burden religious exercise, much less that it had tailored its regulatory scheme carefully. Plaintiffs seeking religious vetoes over state laws, rather than compromises or carve-outs, similarly signal their shallow view of the relationship between democracy and religion.
Allowed to stand, this ruling would have ghastly consequences for religious liberty. States would have to choose between religious liberty laws and every other law they would enforce, nearly all of which burden someone’s conscience and limit behaviors some people consider obligatory. Faced with such a choice, states will have to give up protecting religious liberty altogether. What appears to be a victory for religious liberty—a court’s granting a religious claim great weight—is really just the opposite.