When he argued for overturning Roe v. Wade before the Supreme Court, Mississippi’s Solicitor General Scott Stewart declared:
"Nowhere else does this court recognize a right to end human life."
Mostly true, with the glaring exception of the death penalty, which recognizes the government's right to end a human life.
But with respect to abortion, Justice Sonia Sotomayor told Stewart his declaration raises even deeper questions:
"When you say this is the only right that takes away from the state the ability to protect a life, that's a religious view, isn't it? Cause it assumes that a fetus is life at ... when? ... When do you suggest we begin that life?"
Today, On Point: Can Americans practice free exercise of religion, if one religious view dominates access to abortion?
Elizabeth Reiner Platt, director of the law, rights and religion project at Columbia University Law School. (@lizrplatt)
Rabba Sara Hurwitz, dean of Yeshivat Maharat, the first institution to ordain Orthodox women as clergy.
Safiya Ravat, co-founder of the Suhbah Institute, an Islamic counseling center in Houston, TX.
Rachel Laser, president and CEO of Americans United for the Separation of Church and State.
Transcript: Highlights From Our Conversation On When Life Begins, The Law And The Future Of Roe V. Wade
MEGHNA CHAKRABARTI: Anti-abortion activists and lawmakers have paid [strenuous attention] to not putting religious language in legislation or law. I mean, in a sense, is the entire conversation we're having, could it potentially be moot already?
ELIZABETH REINER PLATT: Well, I think there are two ways to look at the issue. One is this church-state separation issue in which Rachel rightly pointed out that there is a tough road ahead in making those claims. Because of the lack of explicitly religious language, among other reasons.
Although I will say that there is a law being debated today in Louisiana that does explicitly reference God. So I wonder, as we see more overreach and perhaps overconfidence in the anti-abortion movement, those claims could be reinvigorated. But the other side of the coin is the religious liberty right of individuals.
And in that sense, saying that a particular law that is written in extremely neutral term and doesn't reference religion at all, nevertheless violates my own religious practices, could be a second avenue.
CHAKRABARTI: Well, I want to play another moment from oral argument in Dobbs. Because, again, this question of religious liberty, in fact, did come up in certain ways. Here is Justice Samuel Alito prompting or questioning Mississippi Solicitor General Scott Stewart.
SAMUEL ALITO [Archival Tape]: Are there secular philosophers and bioethicists who take the position that the rights of personhood begin at conception or at some point other than viability?
SCOTT STEWART: I believe so. I mean, I think there's a wide array of people of kind of all different views and of no faith views who would reasonably have that view, your honor. It's not tied to a religious view, and I don't think ... otherwise this court's jurisprudence would, on this issue, would run right into some of its religious exercise jurisprudence.
CHAKRABARTI: So Elizabeth Platt, there's Scott Stewart saying explicitly it isn't tied to a religious view.
PLATT: Well, unfortunately, there is some case law that suggests, most notably a case called Harris v. McRae in 1980, that did uphold the Hyde Amendment, which prohibited federal funding for abortion. And what the court said in response to a church state separation argument was that, you know, merely because a statute happens to coincide with tenets of some religions, that doesn't make it inherently religious.
And that's why I think some of the more interesting questions have to do with individuals, the many individuals who say, you know, regardless of whether you want to kind of believe in this fig leaf, that these are non-religious laws, even if you do see them as neutral, they nevertheless are infringing on my religious liberty, right, to help others access abortion, to make reproductive decisions based on my own faith beliefs, my own moral values, or even to provide abortion.
There's a long and really rich history of abortion providers articulating their work in religious terms as a ministry, or a mitzvah or doing the Lord's work. So I don't think this whole conversation hinges merely on being able to prove that these laws are inherently religious.
CHAKRABARTI: Okay. So that seems to be a critical distinction there. Perhaps the focus shouldn't be so much on what the states or in this case, the Supreme Court is saying, whether implicitly or explicitly regarding one religious definition of life, but the impact that it's going to have on Americans of many different religions. Rabba Sara Hurwitz, do you want to respond to that?
SARA HURWITZ: I agree. I'm an immigrant and I came from South Africa and we left apartheid South Africa to come to America because of its religious freedom and ability to practice and be how we dreamed. And I think that the idea that I would impose my religious beliefs on somebody else or vice versa doesn't sit well with me. I think that there's such a diversity of belief systems within religion and without religion, that imposing that view, doesn't seem to make sense. To me, it's not the definition of the American right of freedom.
CHAKRABARTI: Can you tell me a little bit more about your South African experience and how that plays into how you view your life as an American now?
HURWITZ: Yeah. I mean, we left when I was 12 and it was 1989. Right before Mandela was released. We didn't know that that was imminent at the time. But my parents took us out of a country where they felt like the future for my family was limited and that they didn't believe the country's lack of equity and intolerance for all people. And wanted to take us to a world and a place where there was multiple opportunities and diversity as a way of being and acceptance of all people.
CHAKRABARTI: Now, we've got a minute left with you. And I wanted to ask you what you thought about what Rachel Laser said a little bit earlier, in that tape we played. Because she was concerned that the Dobbs case, she called it the canary in the coal mine about religion in American democracy. And as a Jewish leader yourself, I'm wondering what you think about that.
HURWITZ: I think it underscores what I was saying before. ... I'm an orthodox rabbi and that is controversial in the Orthodox movement. But because there is law on my side. and because I live in a place where the country doesn't really care exactly how I practice, then I can be and do what I want. But if those rights were taken away, and I think that the writing is on the wall with the way the legal system is thinking about abortion, I am worried.
CHAKRABARTI: Elizabeth, I wonder if we could just take a step back here for a moment, still focused on basically individuals' health and religion, but outside the realm of abortion.
Because I was trying to think to myself what does case law say, or precedent or how we might look at it about a parent's right to freely use his or her own religion and religious values to determine the health care that they want for their child? Or a doctor's right to use their own religious values on who they would treat and who they wouldn't.
Because if we're talking about how overturning Roe v. Wade might have an impact on an individual's religious freedom, certainly there are other places in the world of health that we could look for examples.
PLATT: Oh, absolutely. Especially over the past few years, we've really seen an explosion in the individual right of religious practitioners to act on their faith, even when they're extremely important health and child welfare interests on the other side. So if you look at that combination of Supreme Court case law and state religious exercise laws, you know, we've seen in the wake of the COVID pandemic, enormously broad rights of religious people to gather.
Even in the face of a global pandemic, that certainly implicates issues of life and health. There are state laws that create religious exemptions from immunization laws, and even give some parents the right to practice faith healing. So essentially creating exemptions from medical neglect laws for children.
And so, you know, I think we do have this system where the right to act on one's religious faith is extraordinarily broad. And, you know, I think it would be hard for courts to get out from under this precedent that they've set in the context of someone making an incredibly important decision about their life and welfare.
CHAKRABARTI: I mean, I'm thinking of cases where parents, for example, their religious beliefs mandate them to deny any, for example, modern medical care for their child. And there have been cases that end up in court where perhaps a child's life is in danger. And what, it's the hospital system that sues the parents so that the hospital can gain the right to give the child treatment. Am I misremembering that kind of case?
PLATT: Yeah, there are those cases and they play out in various ways. And as you mentioned, there's also a very broad right for health care providers to deny services based on their own personal religious beliefs. So we actually just issued a whole report called the Southern Hospitals Report that provides a host of examples of hospital systems that withhold care to pregnant women because of extreme anti-abortion regulations.
And it impacts not just, you know, kind of what we think of as abortion care. But care for patients with cancer, with kidney disease, with mental health concerns. And many examples of patients facing a miscarriage who are unable to get the care they need because of the religiously motivated policies. And I'll say that we even found examples of hospitals where decisions about abortion are made by panels that include faith leaders as members. And these are hospitals that aren't serving a particular faith population but the general public.
CHAKRABARTI: Now, what's so interesting about this is that, I mean, you've observed in your scholarship a report that I believe you coauthored last year. That says the Supreme Court has already shown that it takes a view of the Constitution that, in your words, it ranks fundamental rights, that religious liberty is now given top tier protection. Tell me more about that.
PLATT: Yeah, I think that's right. So we examined hundreds of cases that played out over the course of the pandemic. And we found that there was this sense of absolute crisis and emergency, that the court treated cases involving fairly minimal, you know, restrictions on gathering for worship. Particularly, there's a case called Tandon v. Newsom, where all in-home gatherings, whether religious or secular, were subject to a cap of how many families could gather in order to try to curb the spread of the virus.
And the court treated this as an absolute crisis, that people were not allowed to gather in home for Bible worship. And at the same time, they seemed utterly unconcerned with the rights of people stuck in crowded prisons during the pandemic, with states that used the pandemic as an opportunity to completely limit the right to abortion, with the cases brought regarding making sure people had access to vote. So I think that what we saw over the past couple of years really put in stark contrast, as you said, this ranking of fundamental rights. You know, with religion at the top. And now it seems as if with abortion cut out as not a fundamental right at all.
CHAKRABARTI: But to be clear, though, the COVID example is an interesting one, because here we have states who said during the most intense parts of the pandemic, that in order to protect life, in order to stop the spread of a deadly disease, to protect life. The state put restrictions on individuals, that is what happened. But the Supreme Court responded by saying an individual's right to practice their religious belief was more important than the state's right to protect life.
PLATT: That's right.
CHAKRABARTI: So then how is that different when it comes to abortion? I should be asking this question to the justices. I get it. But you're my proxy here, right?
PLATT: I think there are a couple ways. I recognize that while one of the most important, you know, rules of religious liberty is religious neutrality and creating the same rules for everyone and not picking and choosing to protect just those religious communities that you like. That said, you know, I think we've seen that this Supreme Court has has applied different tests and different standards to different communities.
So, for example, in the Masterpiece Cakeshop case, we saw that they did an extremely searching review of the record in order to find that Jack, the baker, who refused to bake a cake for a same sex couple, was the actually the victim of illicit religious discrimination. A couple weeks later, they declined to even consider evidence of religious animus in the Muslim ban case.
So I approach the Supreme Court with caution. That said, I think a couple of things to keep in mind is that these cases might not be Supreme Court cases. Most cases are heard in states, and we might well see more of a state-based approach here. And the other thing I'll say is that the Supreme Court is not forever. So I think arguments in favor of religious liberty rights to support abortion are actually quite long.
There is a long history of these claims. They've never been fully litigated. So that's why we don't have a lot of case law on them. But the cases that are made today might not become law tomorrow, but they might plant a seed to really get people thinking about religious liberty rights in a new way down the line.
CHAKRABARTI: Point taken. But, you know, I'm seeing here, though, that you're trying to also make a deeper point about this sort of prioritization ... of rights enumerated in the Constitution, even though the Constitution doesn't necessarily say one is actually more important than the other.
But I mean ... you've written about this, that essentially you see an unprecedented hierarchy of constitutional rights with the free exercise of religion at the top, but not all religion. I mean, let's just drive right at it. It's the free exercise of conservative Christianity that you see is at the top of this hierarchy that the Supreme Court is creating.
PLATT: Absolutely. Absolutely. And I think you can see, I mean, just looking at the range of ways that they've protected really across a range of doctrines, conservative Christian claimants, whether that be, you know, the cake bakers, the crisis pregnancy centers.
And now I think in this session the court is very likely to rule in favor of a public high school football coach who is claiming a free exercise right not just to pray after games, but specifically to pray in the middle of the football field surrounded by students at a public school. So absolutely, I think that's really the through line.
CHAKRABARTI: But as you said, as we've explored, for the vast majority of the rulings and the laws that we're talking about here, the explicit religious language doesn't appear in the language of the rulings or the laws that might change. But so far, that's the exception. So therefore, you know, if there are Americans out there who believe that restricting abortion access is an impingement on their free exercise of religion, then what recourse do they have?
PLATT: Well, they wouldn't have to show that the law is religiously motivated. They could just say that the law is infringing on their religious practice. And I think this could show up in a lot of ways. I think it could be an individual who says that they have religious objections to bringing a child into the world, that they are not emotionally or physically or financially prepared to care for.
I think we could see claims by faith leaders and faith motivated people bringing a religious exercise right to provide resources and information to people seeking abortion care. Or again, claims by providers saying it's actually against my religion to turn people away in their moment of need when I have the training and the resources to provide this care.
CHAKRABARTI: So I do wonder what you think the state of religious liberty for all Americans is in the country right now.
PLATT: I think it's that threat. I do. I think we are absolutely seeing a rise of Christian nationalism. And there are people who have, you know, documented these ideas very well. But what gives me hope is that I think we're also seeing a really incredible response. This idea of a religious right to abortion is not something that lawyers made up in the past couple of weeks.
A whole host of religious denominations from reform and Jewish conservative rabbinical associations, the United Church of Christ, Unitarians, evangelical Lutherans, Presbyterians. They've all issued statements. Some, you know, decades past, articulating the right to abortion as a religious liberty right. And I think, you know, as we're kind of seeing the writing on the wall, we are going to see, I think, an outpouring of a faith motivated activism on this issue.
This program aired on May 16, 2022.