Fears of a prochoice loophole stall a religious freedom bill and divide conservative allies.
Religion and abortion, two of politics’ thorniest issues, appear headed on a collision course in Congress’s consideration of the Religious Freedom Restoration Act (RFRA). And the legislative battle developing over the bill is splintering traditional coalitions and forging unlikely new ones.
When the U.S. Supreme Court handed down its Oregon Employment Division v. Smith ruling on April 17, 1990, a diverse coalition of religious groups vowed to overturn legislatively the decision, which they believed had “gutted” the free exercise of religion (CT, July 16, 1990, p. 48). That ruling allowed states to subordinate the religious-freedom claims of individuals to the states’ legislative purposes without showing a compelling state interest in interfering with the religious practice. In Oregon, this meant that native-American ceremonial use of peyote could be subordinated to the state’s rule against employee drug use. RFRA is meant to restore legislatively the strict “compelling interest” test government must pass before infringing on free exercise of religion. It was introduced late last year, but Congress did not have time to consider the bill before its session ended.
The coalition had planned to get an early jump on RFRA when the one-hundred-second session of Congress opened in January, but those hopes were dashed when opposition arose from two powerful quarters: the U.S. Catholic Conference and the National Right to Life Committee (NRLC). Those groups argue that the bill, sponsored by Rep. Stephen Solarz (D-N.Y.), would create a new “loophole” for challenges to abortion restrictions. At press time, the complexity of the ensuing debate had stalled reintroduction of RFRA.
Religious groups agree that some remedy is needed to restore religious liberties lost under the Smith decision. Of deepest concern is Justice Antonin Scalia’s surprise assertion that states need not show “compelling governmental interest”—a concern of the strongest legal weight—when interfering with religious practices that may conflict with “reasonable” state law.
This, says Baptist Joint Committee (BJC) general counsel Oliver Thomas, has left “no protection” for churches who wish to practice their religious beliefs without government interference. “We are losing cases right now” based on the Smith decision, he adds.
A Proabortion Effect?
Doug Johnson, legislative director of the NRLC, contends that RFRA “creates a new statutory basis for proabortion litigation.” At the heart of his concern is the fact that prochoice activists for years have attempted to make free exercise of religion claims to abortion rights. The Religious Coalition for Abortion Rights (RCAR) has long maintained that religious-liberty rights and “reproductive rights” are inseparable. The U.S. Catholic Conference (USCC) shares the NRLC’S concerns and also wants specific guarantees against other potential challenges to churches. Clearly, though, the biggest stumbling block is the abortion issue.
Johnson argues that if RFRA passes, “any law restricting abortion would have to survive the compelling interest test” because women would challenge the laws based on free-exercise claims. He fears this would put things back to the days when the Court was striking down all abortion restrictions.
The NRLC’S Johnson says his group is willing to support RFRA if an “abortion-neutral” amendment is added: “Nothing in this act shall be construed to grant, secure, or guarantee any right to abortion, access to abortion services, or funding of abortion.”
But supporters of RFRA, including those who are staunchly prolife, oppose the amendment, saying it is too volatile politically to pass and will kill the bill if attached. They also say the amendment is not really “abortion neutral,” because it would prohibit persons from even making the argument that an abortion is their religious right.
“Legally, the free-exercise clause protects even the most bizarre religious beliefs as far as making a claim,” says Forest Montgomery, general counsel for the National Association of Evangelicals (NAE), who supports RFRA as is.
Johnson believes such a position is “tantamount to saying that abortion has to be put on the same footing with respect to free-exercise claims as baptism or Holy Communion.”
Other RFRA supporters say the arguments are moot because women still have a right to abortion under Roe v. Wade. And even if Roe were overturned, they say, the same Supreme Court that denied abortion under right-to-privacy claims would be unlikely to find a new right to abortion under the free exercise of religion.
“The possibilities of an abortion-rights interpretation of the proposed Act are sufficiently remote, and the concrete advantages of the Act sufficiently high, that those who support both religious freedom and the prolife cause should support this legislation,” writes noted constitutional law professors Michael McConnell, Edward Gaffney, and Douglas Laycock in an analysis of RFRA.
However, the NRLC and the USCC remain unconvinced. “We don’t think this is a remote possibility,” Johnson says. “They just need to win one or two cases, and then it is all over.” Johnson also disagrees that the issue is moot until Roe is overturned. He points out that the Court could overturn Roe without establishing a compelling governmental interest to protect the unborn.
Splinters In The Ranks
The debate has already fractured RFRA’s original coalition. Rep. Henry Hyde (R-Ill.), a key sponsor of last year’s bill, has dropped his support due to the abortion concerns. Even the prolife Christian Action Council (CAC) and Concerned Women for America, who are not convinced by the abortion concerns, have backed away.
“It creates somewhat of a political problem to have the Religious Coalition for Abortion Rights endorsing a bill we would support as well,” says CAC president Tom Glessner. Glessner does not support the NRLC amendment, but he hopes a committee report or language for the congressional record can address the abortion concern and save RFRA. “If you don’t have religious freedom, you will have no prolife movement,” he says.
The NAE, BJC, and the Christian Legal Society remain in the RFRA coalition, which also includes RCAR and the American Civil Liberties Union. But many evangelicals, including original RFRA cosponsor Rep. Paul Henry (R-Mich.) and the Southern Baptist Christian Life Commission, have yet to take a firm position.
