Some progressive and moderate religious groups feel they have been made invisible by religious conservatives’ claim on the idea of religious freedom. The United Church of Christ, which traces its roots back to the Congregational churches of New England, frequently finds itself explaining to surprised outsiders and newcomers that it supports women’s right to abortion, according to Sandy Sorenson, the director of the UCC’s Justice and Witness Ministries office in Washington D.C. “When you say ‘religious liberty’ nowadays, people think that it means it includes the right to discriminate against people who engage in activities I oppose on a moral basis, or even people’s ways of being that I object to,” Sorenson said. “That’s a huge problem.” The UCC is one of over 25 member organizations in the Religious Coalition for Reproductive Choice, a group that includes Jewish, Catholic, Methodist, Episcopal, and other religious groups advocating for access to abortion.
But the notion of religious freedom may have become so politically charged that progressive groups are reluctant to invoke it. According to Borgmann, a “very big shift” would be needed for the mainstream reproductive-rights movement to begin using arguments linked to freedom of religion. “I think it’s probably a combination of it being such a big paradigm shift and a fear of alienating people who aren’t motivated by religion,” she said. “The problem when you’re trying to be really inclusive is that religion can seem very exclusionary or off-putting.” Heather Kimmel, an attorney for the United Church of Christ, agreed. “At this point it’s primarily an intellectual exercise to see what would happen,” she said.
Legally, though, abortion rights based on the First Amendment, rather than the Fourteenth, might be on more solid footing, argue scholars like Wenz. For example: In a concurring and dissenting opinion in the case Webster v. Reproductive Health Services, Supreme Court Justice John Paul Stevens wrote that a Missouri law restricting the use of state funds for abortions violated the Establishment Clause. The law did not violate the clause because it coincided with certain religious viewpoints, he argued, but because there was no “secular purpose” for the law’s assertions.
On the other hand, nine years earlier in Harris v. McRae, a divided Supreme Court ruled in part that the Hyde Amendment, which restricts government funding of abortion services, does not violate the Establishment Clause of the First Amendment just because the law “may coincide with the religious tenets of the Roman Catholic Church.”
It’s likely, though, that there won’t be many chances to test this theory, particularly in upcoming cases. Pro-choice groups seem loath to use religious-freedom arguments for abortion rights—and today’s left-leaning judges may be equally unenthusiastic. The First Amendment case for abortion rights is a “non-starter,” said Linda Greenhouse, who covered the Supreme Court as a journalist for 30 years and is now a senior research scholar at Yale Law School. “It's an argument that judges just don't want to hear.”