The Supreme Court’s decision last summer in Dobbs v. Jackson Women’s Health Organization that “the Constitution does not confer a right to abortion” did not stop the attacks on legal protection for the unborn. Going forward, most challenges will make familiar arguments but shift the venue from federal to state courts. Abortion lawyers are also launching less conventional attacks, including that pro-life laws violate the right, under state constitutions or statutes, to freely exercise religion.
Last year, for example, a Jewish congregation in Florida and clergy from other religious bodies challenged Florida’s ban on abortion after 15 weeks of pregnancy. Jewish congregations in Ohio challenged that state’s ban on abortions after a fetal heartbeat can be detected. And several Jewish women challenged Kentucky’s near-total ban on abortion. In each of these cases, the argument is that the law prohibits abortions that the plaintiffs’ religion allows.
A similar suit in Indiana, brought by the American Civil Liberties Union (ACLU) on behalf of such clients as Hoosier Jews for Choice, asserts that the Jewish faith actually requires an abortion under certain circumstances. The plaintiffs claim that Indiana’s ban on almost all abortions violates its Religious Freedom Restoration Act (RFRA), which prohibits the government from “substantially burden[ing] a person’s exercise of religion” unless it is the “least restrictive means” of furthering a “compelling governmental interest.” Indiana’s law is modeled on the federal RFRA, enacted in 1993 — and its legal standard, known as “strict scrutiny,” is the toughest in any area of law.
Congress overwhelmingly passed RFRA, and President Bill Clinton signed it into law in reaction to
