Free Exercise and Abortion

Marco Lloyd: Hello everyone and welcome to this Federalist Society virtual event. My name is Marco Lloyd and I'm an assistant Director of Practice Groups with the Federalist Society. Today we're excited to host a FedSoc forum webinar. I'm the Free Exercise of Religion and Abortion featuring Erin Hawley, Michael Helfand, Jesse Hill, and Sherif Girgis. Our moderator today is Dr. Michael Moreland. Dr. Moreland is a university professor of law and religion and director of the Cullen Center for Law, religion and Public Policy at Villanova University. In the interest of time, I'll not read his full list of accomplishments, but we'd like to learn more about Dr. Moreland and all of today's speakers. Their full bios can be viewed on our website, fedsoc.org. If you have a question at any point in today's program, please enter into the Q&A function at the bottom of your zoom window and we'll do our best to answer as many as we can. Finally, I'll note that as always, the Federalist Society takes no position on particular legal or public policy issues and all expressions of opinion are those of the speakers. With that Professor Moreland, thank you for joining us today and the floor is yours.

Michael Moreland: Thank you, Marco, and thanks to the Federalist Society for sponsoring this webinar on this timely issue of Free Exercise and abortion. In the wake of the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization in 2022, Pro-Choice advocates have argued that restrictions on abortion violate freedom of religion in some circumstances. A recent decision by the Indiana Court of Appeals academic articles and media stories have taken up these religious Free Exercise challenges to abortion laws. This panel will explore the constitutional and statutory grounds for these claims in different faith traditions, pro-life responses to them, and the implications of these claims for religious liberty and for the post-ops legal status of abortion. As Marco mentioned, in the interest of time, I won't give long introductions to our very distinguished panelists. You can see their full bios on the webpage for this webinar. I'll introduce them in alphabetical order and then we will start an initial round of questions that will take us through at least roughly the first half of the hour or so, and then we'll have some time for the panelists to engage with each other.

And then about 15 minutes at the end for questions and answers from you, the audience, which you are welcome to submit through the q and a function at the bottom of the zoom window. I'll remind you again at around one 15 or so, but you're welcome to submit questions throughout the webinar as we go to introduce our panelists today, Sherif Girgis is Associate Professor of Law at the University of Notre Dame Law School. Erin Hawley is Senior Counsel and Vice President of the Center for Life and Regulatory Practice at Alliance Defending Freedom. Michael is the Brendan Mann Foundation Chair in Law and Religion and co-director of the New Bar Institute for Law, religion and Ethics at Pepperdine Caruso School of Law. Jesse Hill is the Ben C. Green professor of law and the Associate Dean for Research and Faculty Development at Case Western Reserve University School of Law. So I thought we would begin with you, Jesse. Many people on the webinar and who will listen later are probably familiar with these claims, but a lot of people probably aren't and are maybe wondering what is the interplay between religious Free Exercise and restrictions on abortion. So maybe you could kick us off by saying a little bit about the nature of these claims, their basis in either constitutional or statutory law and why you find these claims plausible.

Jesse Hill: Sure, thank you. I'd be happy to. So yeah, there's currently litigation sort of post-Dobbs that has been brought in a handful of states by individuals who claim that those states abortion bans violate their religious freedom. The main states in which there's three main states in which the litigation has been really active, Indiana, Kentucky and Missouri. There are also claims that are part of broader lawsuits in Wyoming and Utah, and there were a couple of cases in Florida that were later voluntarily dismissed. But in the states where the litigation is active, all of those states have bans on abortion from conception forward with very limited exceptions for certain circumstances, and I'll say more about that in a minute. But the plaintiffs in these cases are, as I mentioned, largely individuals, some religious groups, some religious leaders. Most of the plaintiffs are Jewish, some also belong to Protestant groups, and their argument is that the state abortion law bans abortion and circumstances in which they are compelled religiously to seek an abortion.

Well, that's one set of arguments. So the main one, so in other words that for example, they may be compelled to seek abortions to protect their health when their health is at risk or in cases of severe fetal anomalies where they're incompatible with life after birth for the fetuses have these anomalies that perhaps that they are religiously compelled to seek an abortion, but that there is no exception for them under the state law. There's also the Kentucky case has taken a slightly different turn that the plaintiffs claim that they are religiously compelled their Jewish plaintiffs that say they're religiously compelled to procreate or to try to procreate, and they claim that this state abortion ban actually inhibits them from using in vitro fertilization to accomplish that and that that's the only way that they can procreate. These claims are made under, again, under state constitutions, but basically under and state law.

So state constitutional equivalent of the federal Free Exercise Clause as well as the state equivalent of the establishment clause. And then some are also made under state equivalents of the state versions of the Federal Religious Freedom Restoration Act or RFRA. These cases have been a bit of a mixed bag in terms of outcomes, and I also don't want to sort of dig too deeply into the sort of ins and outs of the various cases. I just want to take a few minutes to give the big picture of , you know, what do these claims look like and how do they proceed generally? And also not just talking about the litigation that's currently pending, but also what have scholars sort of said, what kinds of arguments have they said could be made because this is all still in motion. There are lots of ongoing developments in this area. So I want to spend the rest of my time just talking sort of generally about what religious freedom claims challenging abortion bans look like.

And I'll just note I said in passing, there are also Establishment Clause type claims. I'm not going to talk about those right now because that's not as much the focus of this webinar, but we could certainly come back to it if folks want to. So under the federal Free Exercise Clause, the Supreme Court has held that if a law is neutral and generally applicable, plaintiffs are not entitled to a religious exemption from that law for religiously motivated conduct. However, what constitutes a neutral and generally applicable law in the Supreme Court's doctrine has kind of gotten narrower, narrower over recent years such that at this point, essentially the rule is if a law makes almost any exceptions for secular conduct, that equivalent religious conduct, religiously motivated conduct must be also exempted from the law unless the government can satisfy strict scrutiny. In other words, unless it can show that the law that it's trying to enforce advances a compelling government interest by the least restrictive means available under the Religious Freedom Restoration Act and state equivalent of this, the analysis is more or less the same in terms of strict scrutiny, except that the only showing the plaintiff has to make initially is that the state law substantially burdens their religious exercise.

And then if it does, strict scrutiny applies. So basically the outline of the claim is again that the state abortion bans violate an individual's religious exercise. And I'll note, as I said before, in some cases the claim has been that plaintiffs are religiously compelled to seek abortion in certain circumstances where it would not be permitted under state law. However, that is not the only kind of claim you can make. Plaintiffs can also make a claim that they are religiously motivated to seek an abortion or that they are religiously compelled or motivated to provide an abortion. So we haven't seen provider claims being brought by religiously motivated providers, but that is something we may see in the future. But also I just want to be very clear that there is nothing in Free Exercise doctrine or in RFRA, and actually there is specific language in RFRA that says that the religious exercise that the plaintiff is engaging in does not have to be compelled by or central to the plaintiff's religion.

So it then becomes a question of whether this is a religious exercise at all. I think seeking an abortion religious exercise is again, very broadly understood in general under the case law. It certainly includes conduct, conduct that extends well beyond worship and things that look like religious rites and rituals. Certainly if refusing to participate in abortion, avoiding vaccination and so on, is a religious exercise seeking an abortion. Providing an abortion can also qualify as a religious exercise if it is religiously motivated or compelled conduct. And then finally, and I'm already almost out of my time, so I'll just say the question then becomes whether these statutes can meet strict scrutiny often, and this also goes to the question of whether they are neutral or generally applicable. Every state abortion ban at least has an exception for abortions that are necessary to save the life of the patient.

Many of them also have other exceptions that include the health of the patient but may be more or less narrow. Some like Indiana's include exceptions for rape and incest in certain circumstances. Virtually every state that has an abortion ban I think also allows for the destruction of embryos that have been produced in the context of in vitro fertilization. Many of them, most of them also accept ectopic pregnancies and some accept lethal fetal anomalies. So if the state's claim is that it has a compelling interest in life from conception forward or that it designates personhood as beginning at conception and that it has a compelling interest in the life of that person, the claim for folks who are challenging these bands is that the wide variety of exceptions, or at least the existence of even one or more of these exceptions, very much undermines the idea that the state cannot then turn around and also, or that the state has a compelling interest in life from conception forward and that it cannot exempt religious individuals if it can exempt individuals in these other circumstances. So didn't really touch on least restrictive means. We can do that if we want, but I will stop there so that I don't speak too much longer.

Michael Moreland: Thank you, Jesse, very much. I'll turn now to Erin Hawley to offer a response and perhaps continue filling out for us how these kinds of claims brought against abortion restrictions map onto the contemporary Free Exercise jurisprudence involving both RFRA as a statutory matter and also constitutional First Amendment Free Exercise doctrine. Erin?

Erin Hawley: Sure. Thank you so much and thanks to FedSoc so for having us to discuss this really timely topic. And the first thing I would like to note is that this is not something that is entirely new. I sort of come at this as being a novel new argument that's being raised post Dobbs. And it is certainly true that this sort of litigation and these sorts of First Amendment claims have been brought to a head by Dobbs. But in 1968, for example, professor Roy Lucas argued this is detailed in a recent heritage memo that prohibiting abortion may interfere with a woman's right to act on her belief that fetus is equated with a human being. So in other words, the professor argued that because of a belief that fetus is not necessarily a human being, that per committing abortion would interfere with a woman's right to choose abortion.

In addition, in Harris v. McGray, the plaintiffs there raised a host of claims in challenging the Hyde Amendment. One of those was a Free Exercise challenge. So the playing field is not exactly new, but it certainly has changed as Professor Hill noted as the Supreme Court has been increasingly protective of religious liberty. So to continue the conversation, respond a bit and to dive more deeply into each of the claims that plaintiffs have raised here. 

The first thing I wanted to note is sort of a threshold issue is that as in every case, article three standing must be satisfied. This I suspect, will prove a hurdle to many plaintiffs who are seeking to challenge abortion laws based on what they say are their religious beliefs. In the Indiana case, for example, you had plaintiffs who vaguely gestured to the idea that they might like to have children someday but couldn't, couldn't engage in relationships because they were worried that they might have a condition that would threaten their health at some point in the future, and that the state law would prohibit them from having an abortion, even if that abortion was consistent with or compelled by their religious beliefs. So needless to say, that is a long chain of circumstances to find injury. So I think that will be a threshold hurdle for a number of these claims, but putting to one side standing for one instant, wanted to talk a little bit about Free Exercise, a little bit about RFRA, and then finally a little bit about this Establishment Clause claim. And the Establishment Clause claim is actually getting a lot of attention, especially in the academic literature, and I suspect the reason for that is that an establishment clause claim would not just be an exception from a state's law, but would in fact invalidate it. 

So if the purpose of these challenges is to invalidate state laws protecting life, then the establishment clause accomplishes that purpose much better than does a Free Exercise challenge. So to start with a Free Exercise challenge, professor Hill mentioned these, this is the bulk of cases that have been brought under challenging state pro-life laws. Of course, we know to sort of take a way step back, we know that the First Amendment prohibits laws respecting religion in Sherbert v. Verner. The court had a test that said, when an individual confronts a state or local law that forces them to forego a religious observance, then the burden has been placed on their religion and that is subject to strict scrutiny. Smith, of course, made that test much more difficult. What Smith said is that a law that is general and neutrally applicable does not violate religious liberty. So that left sort of two lines of challenge open to religious adherence. One of those was to show hostility. So if you think of the case in which the locality had targeted particular methods of slaughter based on religious beliefs, or if you think of cases like Masterpiece Case Shop in which the state of Colorado had targeted Jack Phillips, those are the sort of religious hostility or targeting claims that survive Smith.

In addition, as Professor Hill mentioned, the Supreme Court has broadened or maybe I should say narrowed the generally applicable a part of Smith in the case known as Fulton, the adoption case that the court determined that where a state law or local law has exceptions that permit arbitrary or discretionary enforcement, then those provisions cannot be seen as neutral and generally applicable and thus are subject to strict scrutiny. Again, as Professor Hill mentioned, this is one of the claims made by plaintiffs in these sorts of cases, they cite exceptions, everything from life of the mother to rape to incest, even going on to IVF and say, because the laws accept these sorts of things, they're not neutrally and generally applicable and thus strict scrutiny applies. But of course, even under the Smith test or the Tandon test, which says that secular activity cannot be prioritized or treated more favorably than religious activity, you still need to meet the compelling interest test.

My colleague here is going to speak more about that compelling interest test, but suffice it to say that even if a law is determined to be generally, excuse me, not generally applicable, they have a big hurdle with showing both a compelling interest in protection of life. In particular looking at the Tandon case, what the court said was that when a comparable secular activity is treated more favorably, but trigger structured scrutiny, again, that gets us right into what Professor J is going to talk about. But in my opinion, this strict scrutiny test is one of the bulwarks against these sorts of claims providing broad exemptions. Another sort of, I guess to walk through some of the things that states might say in response to Free Exercise claims first, and I think importantly is that Free Exercise is not a religious veto. Instead, it's just an exemption as we talked about, it's not going to knock down a state's law. Second under United States v. Seeger.

There must be a sincere religious belief. Third, even if the religious belief is sincere, it needs to be compelled by religion. And then all of this means that even if the law is going to not be neutral and generally applicable because one second, I will jump right back in. I will turn it over to our moderator and then I'll finish up in a bit. Thank you, Professor Moreland.

Michael Moreland: Sure. No, thank you Erin. We'll come back to you in a moment. I will now turn it over to Michael Helfand to continue the conversation about the application of various religious Free Exercise frameworks to this context, and in particular, maybe to say something about how different religious traditions understand these kinds of claims and the strength of them

Michael Helfand: Pleasure to be here with you this afternoon. So my goal for today, in thinking about what exactly to present, I thought I might focus, especially given Professor Hill's note that nearly all of these cases in some way or another, implicate either Jewish law or Jewish values. I thought maybe instead of doing a deep dive into the doctrine, the legal doctrine, I'd provide, oh, well, maybe a different kind of legal doctrine. I do my best to try to explain exactly how it is. Jewish law gets somebody to the point where they see themselves as religiously obligated to have an abortion. In many of these cases, I think people are either skeptical or dubious of the claims. Some people even sometimes describe it as the tip of the spear, a political move in order to push back against Dobbs. And as Ms. Hawley mentioned just a couple of moments ago, the reality is these kinds of claims have been out there for quite some time and particular with respect to Jewish law.

So I'm going to try to take our listeners through our viewers through a couple of thousand years worth of Jewish law, and we're going to play it like name that tune. I can do 2000 years of Jewish law in four propositions. That's going to be my goal today. It's going to be adequate, everything I say can be contested and described as wrong, but in the main, I think hopefully you'll get an accurate or authentic description of how Jewish law operates in this area. And for each of the four propositions, I'm actually going to cite a source, a Jewish law source, to give you a sense from the inside of exactly how Jewish law thinks about abortion. Unless we want to go back to, should I keep on going?

Michael Moreland: No, go ahead. Go ahead and finish. Yeah.

Michael Helfand: Okay. Sounds like a plan. Love it. Okay, so proposition number one, the dominant view within Jewish law is that killing a fetus is not murder, okay? And each of these propositions are going to build on each other. Now, if I were trying to explain to you the origin or source of this, so one of the most well-known sources of this view is our two verses from Exodus. I hope not too many people feel like they're going back to Bible. Okay, whatever it might be, you're in for something you didn't expect today, listeners. So Exodus Chapter 21, verses 22 through 23, I'm going to do the translation. If anybody would like to send a request for the original Hebrew, I'm happy to help with that as well. “When men fight and one of them pushes a pregnant woman and a miscarriage results, but no other, and this is going to be the keyword damage ensues, the one responsible shall be fined according as the woman's husband may exact from him the payment to be based on a reckoning or evaluation.”

And then the next verse. “But if other damage ensues, the penalty shall be life for a life” within the Jewish tradition. The damage that ensues. The word in Hebrew is sown, at least since the third century, has probably been translated as referring to the death of the mother. And so here's kind of how you reconstruct the two verses. As a result, if the woman is hit, there is a miscarriage, but nothing happens. There is no damage, nothing happens to the mother. The result is a financial penalty. If, however, and this is the second verse, if there is some sort of damage or some sort of damage ensues, i.e., the mother is killed, then it is “a life for a life.” And hopefully you can see how this works. The implication that it is only if the mother died that it is a life for a life means that if only the fetus is miscarried, no life has been destroyed.

Jewish law, based on this, does not view the fetus as a life. Hopefully that word for everybody is proposition number one. The dominant view within Jewish law is that killing a fetus is not murder. Okay? Proposition number two, Jewish law only authorizes abortion when the mother's wellbeing is at stake. Okay? And here I'm going to give you a second century text. This is a mishnah, which is the kind of kernel or basis for the Talmud. And here's how this mishnah. The second century text reads a woman who was having trouble giving birth, they cut up the fetus inside her and take it out limb by limb because her life comes before its life. If most of it, the fetus had come out already, they do not touch it because we do not push off one life for another life. And hopefully you see again what is happening over here

Here it appears what you're getting described is a late stage abortion again in the second century, text a late stage abortion and note that it's only considered that you don't push off one life for another once the fetus has emerged, IE, if the fetus still has not emerged yet, it is not called at least by this text, by implication. It is not yet called a life. And as a result, what you have, the description is at that point, if the woman, the mother is having trouble giving birth, that's the language for those who are Hebrew enthusiasts. If the mother is having trouble, it sounds like physical trouble giving birth, then you are authorized. That's at least what the text sounds like. You are authorized in order to protect the wellbeing of the mother to go through with an abortion. Even what like a late stage abortion.

Okay, we're halfway home proposition number three. This is where things I think get surprising. For those who don't have a familiarity with Jewish law, the authorization to abort a fetus out of concern for the mother's wellbeing typically generates an obligation to abort the fetus. I think this is what people find particularly surprising that in many circumstances it's not just that you can abort, but that you ought to under Jewish law, Jewish law might even say must or are required to abort. And to do this one, I've selected for you a 13th century text. This is Maimonides, and here's how Maimonides formulates the issue. It is a negative commandment that one should not protect the life of a road da, a pursuer. What's a pursuer? Imagine somebody chasing somebody with a gun. They're threatening that person, that person is pursuing somebody in order to kill them.

And so Maimonides notes, it's a negative commandment that you should not protect that person's life because they're chasing somebody else with a gun, so to speak. For this reason, this is what Maimonide says. The sage ruled that in the case of a pregnant woman in a dangerous labor, it is permissible to dismember the fetus in her womb, whether with a drug or by hand because it is like a pursuer pursuing her to kill her. However, once his head has emerged, one may not touch him as we do not set aside one, he uses the word nefesh or sole one soul for another soul, and this is the natural way of the world. So note what we have over here. The fetus is conceptualized by mammon as somebody chasing, endangering the life of the mother, and as a result, it would violate a negative commandment to say, no, no, no, we want to protect the fetus because the fetus is viewed as a pursuer and therefore because the abortion in the circumstance would be to protect the wellbeing of the mother, again, he's describing it as physical wellbeing.

You would be violating a negative commandment under Jewish law to protect the fetus because of its status as a pursuer. Okay, proposition number four, this is it. And I think this is the part where you really begin to see how Jewish law generates all of these different kinds of permutations of potential conflicts with abortion restrictions. The dominant view under Jewish law, certainly probably in theory and certainly in practice, is that the category of wellbeing of the mother encompasses not just physical risk to the mother, but also non-physical risk to her wellbeing. And this is an issue that's come up in many different contexts. The most famous context in Jewish law is with respect to children who have sacs, fetuses that have sacs, and whether or not this has been a question, this is a disease where the child will inevitably die quite soon after birth.

And the Tay-Sachs disease has carried a much higher percentage within the Jewish population. So Jewish law authorities over the years have been asked whether or not you can abort a baby that has T sacs because of the potential of mental harm to the mother. That's been the big debate. Some have said Rabbi Mosha Feinstein, one of the great Jewish law dec decides in the United States in the 20th century. His view was, no, no, no. Even under such circumstances, you may not abort, but the dominant view one expressed by Rabbi Aliza Denberg Jewish Law Authority in Israel, who also has had a lot of influence in Israeli hospitals. His view was actually under such circumstances that constitutes wellbeing of the mother within the formulation of Jewish law, and therefore all the Jewish law rules would apply if you're piecing together propositions 1, 2, 3, and four, and you haven't quite fallen asleep on me yet, what you have ultimately is you can see pretty clearly what a Jewish law, religious liberty claim might look like.

You might be dealing with someone who discovers, I don't know, late in a pregnancy, but they're carrying a baby that has taste acts, for example, and that the potential harm to the mother to carry the baby that will inevitably die is so significant that a Jewish law decis would say, no, no, no. This is someone who giving birth is going to cause some sort of harm and therefore falls within the wellbeing of the mother, is a threat to the wellbeing of the mother. 

The mother therefore not only can abort the fetus, but you might even get someone rendering the view that they ought or must abort the fetus under such circumstances. And if you're in a jurisdiction that had a abortion restriction that prohibited late term abortions and had other exceptions, both as Ms. Olley and Professor Hill have already mentioned, you might get a religious liberty claim that looks something like a tandem claim or like a Fulton claim where there are other exceptions. Here you have a religious requirement in order to have the abortion. And as r result, you might see you might have what certainly looks like your kind of garden variety of religious liberty argument. I say one last thing about this, it's not surprising given that Jewish law has had this view for quite some time, Jewish law, American Jewish organizations and institutions have been making these claims about religious liberty with respect to abortion for quite some time. They, they've been showing up in amicus briefs before the Supreme Court at a minimum since the late eighties. There's been a little bit of a switch or a flip flop back in the day. It was more, I would say, theologically conservative groups that pushed these religious liberty claims. They've now been taken up, I would say more so by progressive American progressive Jewish organizations. But their logic and their inner workings are largely the same. The Jewish law sources that all these organizations quote look nearly identical. And I suspect as a result, given how long and how far back the lineage of these Jewish law views go, we'll continue to see these sorts of conflicts going forward.

Michael Moreland: Thank you, Michael. Erin, I know you were cut short before, so if you wanted to just conclude with a minute or two to wrap up what you were saying and then I'll turn to Sherif Girgis.

Erin Hawley: Absolutely. Thank you. I think my three-year-old asserted her first Free Exercise right to apple juice. My apologies. So the only thing I'll say before turning it over is that with respect to these claims that Professor Heflin laid out, you do have the question of whether even if there is a Free Exercise, right, asserted whether it meets the compelling interest highest. And so states have rightfully asserted the life of the child as a compelling interest that would work to uphold whatever that statutory pro-life provision is. The second thing I'll mention, and I already alluded to this, is that those sorts of plans would only be as applied to a particular woman or perhaps if you're thinking about a class action, maybe a church. But even that might be a stretch, and I think that's why we're seeing more of these establishment clause claims, at least in the literature. But the problem with the establishment clause claims is that the argument goes that these pro-life laws are based on Christian morals, and that is an affront to the establishment clause. Of course, a lot of our law is based on moral of one variety or another. The court has rejected the limit test, which says there must be a primary purpose for a primary secular motivating purpose. So I don't think those establishment clause claims are going to get off the ground, but that is an effort to make a sort of more broad brush challenge to these laws.

Michael Moreland: Thank you very much, Sherif. Girgis. Last but not least, I was wondering if you could respond to the other things that people have said, but in particular as beginning with Professor Hill's presentation and carrying on, there's been a really kind of fine grained issue here about how the strict scrutiny framework applies comparator secular exceptions and so forth. And so if you could perhaps say something about that against the background of this issue.

Sherif Girgis: Sure. So first I want to say thanks for including me. This is a great panel and I'm super excited to be part of it. I do think if the procedural hurdles are cleared, and I agree with Erin that the procedural hurdles are significant if they're cleared, I do think there will be some cases where strict scrutiny is triggered because the claim will be sincere, the burden will be substantial. Actually I don't think it has to involve the claim of a religious duty, but Michael has shown that that could be cleared anyway. And so strict scrutiny will be applied, which means the state has to show that the application of the law to the religious plaintiff is the narrowly tailored means of serving a compelling interest. And the argument that they can't do that has rested entirely on the fact that all of these laws make some exceptions.

All of them make exceptions for the life of the mother. Some of them make exceptions for serious bodily injury to the mother for lethal fetal abnormalities for cases of rape and incest, maybe for very early abortion and for IVF. So the question is, if you've made all those exceptions, can you really insist on applying it to the religious claimant or don't you have to flunk strict scrutiny? The main argument then is really about under inclusiveness, the idea that you're not pursuing your stated interest at all costs. And there are lots of cases saying inclusiveness is a problem under strict scrutiny, but I don't think it's always fatal. And in fact, there are cases explicitly saying it's not always fatal. There's a case called Williams u Lee where the chief justice had an opinion expressly upholding a law that he admitted was under inclusive, under strict scrutiny and string citing half a dozen other cases that had done the same.

I actually think that has to be right, because otherwise there'd be no, you couldn't clear strict scrutiny even for your homicide laws because all homicide laws make some exceptions for self-defense, et cetera. And so then we'd be stuck saying, you have a religious liberty, right, to honor killings and child sacrifice if an Aztec moves into town. And that can't be right even as a hypothetical matter. So what's going on? Well, I think what the case law suggests is that under inclusiveness is a red flag, but it's not itself fatal because the question is whether it points to or causes a deeper problem that does doom you under strict scrutiny. So I'm going to go through four or five potential deeper problems and say why I think in most cases, at least they won't be present in these cases, but we can talk about outlier hypos.

So first it could be that the existence of exceptions proves that your interest, that the interest that you state is just pretext. That was the case in Kumi where a city ordinance had banned the ritual slaughter of chickens officially for health and aesthetic reasons. And the court said, those aren't really your reasons because if they were, you wouldn't only ban it when it's used in a ritual. And that limitation showed that what you were really motivated by was hostility to the Santeria minority religion in your community. I don't think anybody could suggest that there's such a gross under inclusiveness here that we can only imagine religious animus motivated the laws. To have a like that, you'd have to imagine a case where, for example, a state went from banning no abortions at all to banning to allowing abortions only on Saturday so that the Jewish plaintiffs couldn't make it because they're the only ones who can't get an abortion because that's their, we've got nothing like that here.

But the second possible thing is that even if your asserted interest is sincere, if your law is so potted with exception that it doesn't really advance that interest, you're going to flunk strict scrutiny. We're not going to accept a burden on religion or speech or another right for the sake of no real benefit. And that was the case in a case called Smith versus Daily Mail, where the court said that if you're saying that we need to protect the privacy of juvenile defendants by barring print media from publishing their names, well by allowing electronic media to publish their names, you're so undermining your interest that your law is not really going to achieve privacy for those defendants. So you're going to flunk strict scrutiny for that reason. Again, I don't think that's going to be an issue here because laws that ban that punish abortions, there's no question that they're going to in fact reduce the incidence of abortions, or at least that's something that's going to be taken for granted in this setting.

So it's not that the law doesn't advance its goal at all. A third possibility is even if the interest you state is sincere and your law really does advance it, the existence of exceptions proves that there are less restrictive means, which is another way to flunk strip scrutiny. And that was a case in tandem, the Covid era case involving a regulation where California had put restrictions on social gatherings, but it allowed, it had barred certain religious social gatherings while allowing certain secular gatherings as long as they observed certain precautions like wearing masks. And the court said, that's no good under strict scrutiny because there is a less restrictive means, which is allowing the religious gatherings to use the same precautions that you are allowing secular gatherings to use. Now there's a sentence, sorry, just to finish that thought. I don't think there's anything like that.

In this case, nobody doubts that a law that permitted more abortions would undermine the state's interest in protecting fetal lives. So there's no less restrictive means any further exception would further undermine the state goal. There is a sentence in tandem that I think is misread in a lot of these arguments. So there's a sentence that says, California needs to show that the social gatherings that are secular are less risky than the religious gatherings in order to satisfy strict scrutiny in this case. And so a lot of people take that and say, well, in this case, you can't really suggest that secular abortion abortion stop for secular reasons are less harmful to your asserted interest in fetal life than religiously sought abortion, and therefore you flunk strict scrutiny. But I don't think that's right. I think it's very clear from the paragraph in tandem where that sentence appears that it's saying that in that case the California had to show that the religious gatherings were riskier only because that was relevant to least restrictive means inquiry.

Whereas here, no one doubts that a less restrictive law would undermine the state's interest to some degree. Okay, so the final possibility, even if your interest is sincere, even if your law really does advance it, even if any less restrictive law would advance it less, maybe the very existence of the exception shows that your interest is not really compelling at a first pass. It looks like Dobbs undermines this objection because Dobbs says that states are free to decide if and when the prenatal life gets any or all of the rights of personhood including the right to live. So if the state is allowed to think that the prenatal life is a person with the right to live, it's surely allowed to think that protecting that life is a compelling interest. But then the argument could be, well, even if in principle you're allowed to think that you particular state Indiana or what have you, don't really think that the interest in fetal life is compelling as proven by your exceptions, if you thought it was compelling, you wouldn't have any exceptions.

And here I don't think that that's supported by the case law either. I think what the case law suggests is that in those cases, you at least have to show that there's some qualitative difference between the exceptions you're allowing and the exceptions you're denying to rebut the inference that you must not really think fetal life is compelling. And in this case, I think in most cases that I've come across, I think the state will be able to do that. It'll be able to say, look, there's an interest in a procedures need to save them mother's life or health because that's a very serious in fact, compelling interest of its own. Preventing the peculiar kind of qualitatively different kind of psychological trauma as the state might see it in carrying a pregnancy to term after rape or incest is a similarly serious interest. They might say that their own public interest and fuel life is less at stake when it comes to, for example, when it comes to forcing somebody to keep embryos on ice in the IVF context, and then they can say, look, it would undermine another compelling interest.

In fact, it would undermine a constitutional right to compel people to implant embryos that are currently on ice. And there might be serious enforcement issues or something in trying to prospectively prevent people from creating embryos that they don't intend to implant since the main remedy would be to try to implant them, which you can't do without violating people's rights. So they might in this kind of way, suggest that the exceptions that exist are categorically different involving either less harm to the state's interest in one or two of the cases, but in most cases involve there would be a significant new qualitatively different harm in regulating those cases that isn't present when they regulate the religiously motivated abortions. And I think under the doctrine, that would be sufficient to clear strict scrutiny to show that the space interest is sincere, it's actually advanced by these laws, any less restrictive law would advance them less, and the existence of the exceptions are adequately explained so that you can't infer from those exceptions that the state's interest isn't compelling or it doesn't think it's compelling.

Michael Moreland: Thank you very much. So we have about 15 or so minutes left. Again, invite people to submit questions through the Q&A function at the bottom of your zoom window. But for now, I thought for a few minutes at least have some time for the panelists to respond to each other. And particularly Jesse, you had the burden of going first. So now I invite you to say anything you'd like in response to some of the arguments that have been made on the other side from your own position.

Jesse Hill: Thank you. Yeah, I mean I have lots and lots of thoughts, but I think I'll try to just put a couple of them out there. I mean, I think just responding a bit to Sherif, I think it's a very interesting take. I think it's not supported by the Free Exercise case law at all. So I mean I think there are or not by the current state of Free Exercise case law, I mean there may be strict scrutiny applications in the context of other doctrines like free speech and so on that do not follow quite as strict an approach to strict scrutiny. I don't think you're going to find very many cases that are Free Exercise cases. I mean Tandem, I'll come back to, I don't think that I'm would be willing to give the least restrictive means ground on these abortion restrictions. But I will say I think if even one exception is enough to undermine the sort of neutrality, general applicability, even like a hypothetical single hypothetical exception, like the existence of the possibility of exceptions as in Fulton, I think it also raises questions about abortion bans and the compellingness of the interest behind them. I think I, on the least restrictive means question, I'll just say I think that this is the kind of thing, and again, we're talking about strict scrutiny land, so it really matters very much what the facts are and what the exact nature of the challenge is. But I think that there very well may be questions about whether denying an exemption, for example, to drawing on some of Michael's comments, a Jewish pregnant woman who is claiming severe she needs an abortion due to severe mental health distress or severe physical conditions, but that is not entitled to an exemption under a state abortion ban.

Whether that really the state can really claim that it is advancing its interest in life at that point by the narrowest means possible. I think flat out abortion bans do not necessarily reduce the number of abortions, for example. I don't think that we can take that for granted. That has not been the evidence actually, and that they do not necessarily ban maternal or infant health for that, or that states with severe extreme abortion bans actually have higher rates of infant and maternal mortality than states without them. So again, there are questions about whether the state is always advancing an interest in life when it is imposing a ban like that by the least restrictive means possible.

Michael Moreland: Erin, I guess I'll come back to you as well see if you have any thoughts or reactions to others' comments.

Erin Hawley: Sure. I think I would like to echo what Professor Giris said about the exceptions can't swallow the narrow tailing rule or absolutely mean that it's not met otherwise. Sherif mentioned you wouldn't be able to have murder laws because of course there are self-defense exceptions, and just the fact of an exception doesn't mean that that law would fail strict scrutiny if you had some sort of religious claim like an honor killing or different sorts of religious practices we've seen during the medieval period. So I think that that can't be the state of the law or else we would have to have a sort of fundamental reworking of basic laws that we take for granted. I think when you're talking also about the interest of the state in life perhaps, and certainly there are ways that states could advance those interests more fulsome by providing more support to women both in pregnancy and beyond. But the reality is that with an abortion, a child's life is taken. And so I think that that is a compelling state interest.

Michael Moreland: Michael, excuse me. I'll transition maybe here to some questions from the audience and particular, there's one for you. For Professor Helfand. Is there any specific Torah citation that implies or states mosaic law requires an abortion to prevent a nonphysical risk to the wellbeing of the mother?

Michael Helfand: I really hate having to prove a negative, and the word Torah is an ambiguous term, I think used in different ways by different folks, but let's just say that if you're looking for a biblical, you're not going to find it. It is a view that certainly has, that is, I would say, of more recent vintage, and as a result, it's an interpretation and expansion of the having mother's wellbeing, having difficulty giving birth. And I would describe it as an attempt to argue from the underlying principle if the principle is wellbeing. As over time we've learned more about non-physical wellbeing. Jewish law authorities have used the underlying logic of the older text to expand the category, but there's nothing there from the second century, third century. And when I say nothing, I'm sure somebody is going to put in the chat something, but nothing comes to mind right now that expanded the category to nonphysical wellbeing. I would say early on in the Jewish legal tradition.

Michael Moreland: We have a question following on Sherif’s  presentation. How does Professor Girgis argument about least restrictive means? Hold up in the 49 states that allow the destruction of fertilized embryos in the IVF process. If the state claims as Indiana does that its compelling interest, attaches it fertilization, is the claim that the state has a compelling interest in promoting fertility that is sufficient to justify killing unborn children? Or is it the professor’s 's view that a fertilized embryo is not a human life, or is the claim that an exempt from the abortion ban for destruction of fertilized embryos in the IBS process is least restrictive means? And there's some other parts to the question, but basically it's about the exception for destruction of fertilized embryos.

Sherif Girgis: Good. Yeah, so I want to say something about that first very briefly to Professor Hill. I agree that the Free Exercise doctrine has been very aggressive. I think it's been aggressive on the trigger for strict scrutiny and the sort of existence of a single hypothetical exemption and so on reflects that. I think even in the most maximalist opinions, like an opinion by Justice Gorsuch in a vaccine mandate case, I think of dissent from denial where he has a very low bar for triggering strict scrutiny. He allows that the compelling interest inquiry might cut in favor of the state in that case, allowing medical exemptions for abortion from vaccine mandates, but not religious ones. But okay, but on the IVF question, I love the question because I used to think this was the knockdown argument against the state, and the first time I talked about this, I said, I don't really see how the states could respond.

And I was so excited. This shows my intellectual spaciousness and I'm not totally predictable. You can't box me in. And then somebody pressed me on exactly what kinds of regulations I have in mind that the states should be making of IVF that are no qualitatively different from the religious exemptions and actually ran into some trouble. So it's less about whether, and by the way, part of the question is what I think of the fertilized egg, the embryo, et cetera. I don't mean anything of what I'm saying to reflect my policy views. I don't like some of these laws for a number of reasons, some of the exceptions that are drawn and some of the lines that are drawn. I used to think the IVF line was motivated mainly by basically politicians not wanting to upset their extremely rich constituents who want to use IVF and that this is okay, alright. But the local proximate concern I had was that there's kind of practical and enforcement practical obstacles to enforcing or to having a meaningfully enforceable law on these fronts. And I might be proven wrong, but just to give you an example, the state might say, look, there's a difference. 

Our interest is different in preventing the termination of a life that's already on route to development to the next stage versus forcing people to keep an embryo on ice indefinitely.

And then you could say, well, they could compel the implantation, but compelling the implantation would definitely be unconstitutional requirement for people to undergo a medical procedure without consent. You could say, well, we're going to ban prospectively the selection of embryos because people only select in order to discard the ones they don't like. And this is partly an empirical question out. If it turns out that most of the selection happens, not because people don't like, but because they're trying to figure out which embryos are most viable and most likely to survive a pregnancy in order to increase the chance that the process works, then that might cut differently. So the question is not does the embryo somehow count for less or can the state plausibly say it counts for less when it's outside the womb versus in the womb? It's more of what's the regulation that we're imagining that's relatively on all fours with the regulation of the religiously motivated abortion that the states are failing to do on the IVF front. And it could turn out there is such a thing. But that's the thing that I was thinking was less obvious than I initially thought.

Jesse Hill: So can I just say, I mean Louisiana has a law that you cannot destroy the embryos. You have to hold them or see that they're implanted. And most people who have IVF in my understanding is that folks who have IVF in Louisiana have their embryos shipped out of state, but a state can have a law, right? And I'm not sure, as a matter of fact, Italy for a long time I think had exactly that law as well. I don't think though that enforceability issues are generally understood to be an exception to or a response to an otherwise failing strict scrutiny analysis. So I mean something that can counteract strict scrutiny in that circumstance, that would be my understanding. But

Sherif Girgis: That's really helpful. And I agree on the Louisiana thing. I was thinking that's not about enforceability in that case, other states might say we have a different interest in keeping an embryo and definitely on ice where 99% of them will never be able to advance to the next stage of development on the one hand versus preventing the termination of a prenatal life that is basically already in the process of maturing to the next stage and has some prospect, some meaningful prospect of growing into maturity. Again, I'm not saying that reflects my moral or policy views, I'm just thinking that's a qualitative difference that a state could reasonably see. And the enforcement concern I have one, the forced implantation is not just like it'll be hard to do ability or something like that where I agree with you that wouldn't suffice or pre-exercise, but that it would actually undermine another compelling interest if not a constitutional right against forced medical treatments.

Michael Moreland: Let me see if we have a time for one more question, at least from the audience. Is there a world in which the Supreme Court revives Smith in these cases, if so, would there be a principle ground with which it can reconcile this with more recent for exercise doctrine, I assume referring to tandem and Fulton cases like that without the appearance of having a Smith for thee, but not for me approach. If anyone wants to tackle that, go ahead.

Erin Hawley: Sure, sure. So if I'm understanding the question right, it's whether the Supreme Court could sort of revive Smith in a context in which the opponents of Smith lose by finding a right to a Free Exercise right to abortion. So if I'm understanding that correctly, I think that overruling Smith would be consistent with both Tandon and Fulton. Fulton of course, dramatically narrowed the scope of laws that are considered neutral and generally applicable that the same for tandem. So I think that the overruling of Smith would be consistent with those cases, whether the court would do that. I don't think it's consistent with how the court has looked at the compelling interest test in other cases. So I would think not, but it is an interesting question.

Michael Moreland: Anyone else want to respond to that? If not, we're almost at our time, but I thought I would give everyone just a minute or less than a minute. So go too far over the hour just with any concluding thoughts. So perhaps I'll go in the reverse order from which we started. So start with you Professor Girgis, if you have any brief concluding thoughts.

Sherif Girgis: No, I've talked too much. I've really enjoyed this and I really appreciated the comments. Yeah,

Michael Moreland: Michael Helfand, anything to add?

Michael Helfand: I'm still trying to get the professor to tell me if he thinks paternal order was wrongly decided and I didn't get my question in, so I seed my time to him to answer the question.

Sherif Girgis: Good. So I think there's two ways of reading Fraternal Order of Police. I won't explain it for people because it's less than a minute, less than 45 seconds. Now, one way is to read it as saying actually what the differential policies show is that there was a less restrictive means. Another way of reading it is a saying, and I think that's totally consistent with what I've been saying. A more complicated part would suggest, actually no, the problem was just the mere existence of the secular exception show they were devaluing religion and that devaluing itself is per se unconstitutional. I think the only way to avoid making that entail that every law with exception is a violation of Free Exercise, is to say that in that case the interest in making the secular exception but not the religious one was not weighty enough. Now, I don't know if that doctrinally, that means the exception has to serve a compelling interest or it just has to serve a really serious or non-trivial interest. And Alito, in that opinion, thought that the health interest asserted was trivial. But I think those are the only charitable readings if my old boss's opinion and that if we read it as saying something more per se, it would be clearly inconsistent with the thrust of the board stock.

Michael Moreland: Erin Hawley, any concluding thoughts briefly?

Jesse Hill: None from me.

Michael Moreland: Okay. Jesse, anything from you?

Jesse Hill: I'll also cede my time. Thanks.

Michael Moreland: Great. Well, I want to thank the panelists very much for this spirited and diverse discussion raising a lot of different issues from different perspectives about this issue of Free Exercise and abortion. We touched only very briefly on the establishment clause issues that a couple people mentioned, so maybe we'll do another webinar on that sometime. I want to thank Marco Lloyd and Nathan Kaczmarek, the Federalist Society for their good work, helping to organize this. And again, once more. Thanks so much to the panelists for so generously sharing some time this afternoon with us on this important topic. And with that, we are adjourned.