How allowing abortion for secular reasons means allowing it for religious reasons

(RNS) — Last week, the Indiana Court of Appeals underscored the power of the First Amendment to enable women to get abortions. Upholding an injunction issued by the trial judge in a case brought by a number of non-Christians, a three-judge panel of the court decided unanimously that since Indiana permits abortions for certain secular reasons, it will likely have to permit them on free exercise grounds.

Here’s how that works.

Thanks to a law that went into effect last August, Indiana prohibits abortions except to save the pregnant person’s life; to prevent serious risk to the pregnant person’s physical health; if the fetus is not expected to survive the pregnancy; and if the pregnancy is a result of rape and/or incest. It also exempts in vitro fertilization from its scope, despite the possibility that the procedure might result in the destruction of what the state considers human life.

As limited as these exceptions are, “all are based on the interests of the mother outweighing the interests of the zygote, embryo, or fetus,” wrote Judge Leanna K. Weissmann for the court. These secular exceptions run afoul of the state’s 2015 Religious Freedom Restoration Act, which requires the government to demonstrate a compelling interest if it is to substantially burden a person’s exercise of religion.

That’s because excluding religious grounds for abortion, as the state wants, would be “underinclusive,” according to the way the U.S. Supreme Court now understands the “compelling interest” test in RFRA cases. “Underinclusive” is the term of art employed by Samuel Alito in Holt v. Hobbs (2015), wherein the court unanimously decided that if prisoners can grow short beards for dermatological reasons, they must be allowed to do so based on their sincere religious beliefs — in that case, a Muslim’s belief that he must be bearded.

The Indiana appeals court had no trouble determining that the plaintiffs are sincere in their religious (or, in one case, conscience) convictions that they are entitled to an abortion. Religious traditions weigh differently the interests of the mother versus the interests of the embryo.

Or as Judge L. Mark Bailey put it bluntly in a short concurrence:

Legislators, an overwhelming majority of whom have not experienced childbirth, nevertheless dictate that virtually all pregnancies in this State must proceed to birth notwithstanding the onerous burden upon women and girls. They have done so not based upon science or viability but upon a blanket assertion that they are the protectors of “life” from the moment of conception. In my view, this is an adoption of a religious viewpoint held by some, but certainly not all, Hoosiers. The least that can be expected is that the remaining Hoosiers of child bearing ability will be given the opportunity to act in accordance with their own consciences and religious creeds.

It remains to be seen, of course, whether the Court of Appeals’ position prevails at trial — and if it does, whether a religious right to abortion that meets the RFRA “inclusiveness” test is ultimately recognized by the Supreme Court. Should that be the case, the only recourse for legislators bent on doing away with the right would be to enact a law prohibiting abortions without exception and probably regulating IVF out of existence as well.

Don’t bet on them doing it.