Theorizing the Interdependence of the Right to Abortion and Religious Pluralism

• In Event: Philosophy and Current Public Issues

Abstract

When 6 Supreme Court Justices in the Dobbs decision overturned a 50-year-old fundamental right to terminate a pregnancy before viability, they created an urgency to grapple with the question: Does democracy require religious pluralism or can it thrive when half the states become Christian theocracies? I take up the challenge of theorizing the interdependence of abortion rights and religious pluralism, defined as protecting individual moral choices from the state dictating one morality. I turn to literatures on abortion jurisprudence, feminist theory, reproductive justice, the politics of religious liberty, and the history of abortion politics. My aim is to find a potentiality in this moment for strengthening both abortion rights and religious pluralism.
My argument is that the assertion of a right to abortion based on a new politics of religious exemptions is one way to provoke the national conversation we need to have on reproducing bodies, religious pluralism, and democracy. I narrow the meaning of religious freedom to the legal notion of religious exemption. Included in laws, it allows an individual, an institution, or a private company to claim that because a secular law violates their morality, they can disobey it. I pick this focus because the Supreme Court has legitimized expanding their use by conservative Christians, and I assume that it would be very provocative for supporters of abortion to claim religious exemptions.
To provoke the conversation that we need to have, I call for the creation of a new politics of expansive religious exemptions that allows pregnant women/persons and their supporters and healthcare providers to claim the exemption in red states that ban or severely curtail the right to abortion. From a feminist perspective, this new politics would shift the national narrative from the conflict within reproducing bodies between the fetus and the woman/person carrying the fetus to the woman/person's moral authority to exercise their moral agency to make decisions about their reproductive health. The former narrative justifies Christian theocracy; the latter reframing reclaims a commitment to religious pluralism. In this way, the creation of a new politics of religious exemptions to protect the right to abortion would challenge the country to debate the merits of Christian theocracy versus religious pluralism.
I begin by analyzing an unacknowledged significance of overturning Roe and Casey: The Dobbs decision also overturned religious pluralism. For the purposes of this paper, I limit a notion of religious pluralism to the question of when life begins, because that is the central moral question in abortion jurisprudence. In Roe and Casey, the Supreme Court established that there is no agreement on this question. Therefore, both decisions declared that the Constitution will remain neutral. After Dobbs, the Constitution is no longer neutral. It now protects state theocracies. To demonstrate the Court's evolution, I will analyze how the Dobbs decision blew up the compromise of Casey, which altered Roe in order to create a coexistence between religious liberty and the right to abortion up to viability.
To legitimize my turn to religious freedom to defend the right to abortion, I will analyze the forgotten history of how religious freedom arguments were made before and after Roe. Justice Stevens, in particular, strongly declared that the antiabortion position was theocratic. Also feminist lawyers utilized First Amendment arguments before the Supreme Court to overturn the Hyde Amendment, which cut off federal funds for abortions sought by low income women. While the Supreme Court has never upheld a First Amendment defense of the right to abortion, organizations continue to submit briefs making the case.
Since my argument turns on using religious exemptions to reestablish Constitutional grounding for the right to abortion, I present the evolution of this concept and how it has been used to block reproductive services for pregnant women/persons. I examine this concept through Supreme Court decisions and federal and state religious freedom restoration acts. I also utilize the example of the Southern Baptists who argue that they are a persecuted minority and therefore they require religious exemptions from secular laws on abortion. Finally, I point to evidence that conservative Christians know a religious exemption could be used to protect a woman/person seeking an abortion.
Finally, I develop the feminist implications of imbedding the right to abortion within religious pluralism. I utilize the intersectional concept of reproductive justice to theorize a notion of women's moral authority and a notion of women's moral agency. Both put the woman/person in charge. The first emphasizes lived experiences with combining paid and unpaid work with social reproduction; the second ties equal rights to the capacity to exercise one's conscience in matters of reproduction.

Author

• Wendy Sarvasy, California State University, East Bay