Religious freedom arguments underpin wave of challenges to abortion bans

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For years, conservative Christians have used the principle of religious freedom to prevail in legal battles. Now abortion rights supporters are employing that argument to challenge one of the right’s most prized accomplishments: state bans on abortion.

Mikayla, who asked to be identified by her first name, takes mifepristone, the first pill in a two-drug regimen to end a pregnancy, at a hotel in Albuquerque, N.M., March 1, 2023. Mikayla drove from Texas to a hotel in Albuquerque to use the first telemedicine abortion service operated by a religion, one of many recent efforts to use religious freedom arguments to uphold abortion rights.

Aaron Kemper, a lawyer representing three Jewish women who are suing to overturn Kentucky’s abortion ban, said he studied and emulated federal and state religious liberty cases that conservatives won.Although most lawsuits have not yet yielded court rulings, there are signs the arguments may have some legal traction.

“The court has concluded that the plaintiffs’ religious exercise is being substantially burdened, that they are suffering irreparable harm,” Welch wrote in blocking the ban for plaintiffs with religious objections. Decades ago, some anti-abortion groups warned that religious freedom arguments might be used to bolster abortion rights. When Congress considered what became the 1993 Religious Freedom Restoration Act, the National Right to Life Committee and the U.S. Catholic Conference raised that concern.

“We believe God is the source of all life and has caused us to share in the work of creation,” said one plaintiff, the Rev. Dr. Laurie Hafner, senior pastor of Coral Gables Congregational United Church of Christ. “The privileges and responsibilities of being part of co-creating,” she said, mean “women have the ability and wherewithal to make the decision that’s right for them.”

Sarah Baron, a mother of two and a board member of a Louisville synagogue, in Louisville, Ky., June 19, 2023. “The Torah teaches us that the fetus does not have the same personhood status as the mother until its first breath,” she said. Within Judaism, there are differing views, with some Orthodox Jews supporting only very limited circumstances for abortion. But Kemper, the Kentucky plaintiffs’ lawyer, said rabbis from every large Kentucky synagogue have supported the lawsuit.

“They are saying, ‘OK, courts, if you’re going to favor the religious right, we’re going to show you a faith whose rights are being violated,’” she added. One patient, Mikayla, 28, who asked to be identified by her first name to protect her privacy, drove from Texas to an Albuquerque, New Mexico, airport hotel to use the service and allowed The New York Times to observe. During video medical consultations, a nurse practitioner and patient care coordinator discussed effects like cramping and bleeding and urged her to call their 24-hour nurse hotline with questions or concerns.

Source: Law Daily Report (


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