The U.S. Constitution and its state counterparts have protected the “free exercise” of religion from the very beginning. Legislatures, local and state, have been prohibiting abortion for just as long. No one thought these two goals were incompatible. But few are more creative than a lawyer or judge with a political agenda, like Judge Christina Klineman, who sits on the Marion County, Ind., Superior Court, and who recently ruled that Indiana’s law prohibiting most abortions violates its law protecting religious freedom. She easily earns our Dishonorable Judicial Conduct Award for March.
In 2015, Indiana enacted a law called the Religious Freedom Restoration Act (RFRA) to protect religious freedom. Government actions that interfere with religious practices must meet a high standard called strict scrutiny: they must be the “least restrictive means” of achieving a “compelling” government purpose. Seven years later, Indiana enacted a law allowing abortion only in narrow circumstances, such as a “lethal fetal anomaly” diagnosis or in the first 10 weeks of a pregnancy resulting from rape or incest.
An organization called Hoosier Jews for Choice and several women challenged this pro-life law, claiming that it violates RFRA. This group might have been created just to file this lawsuit; its website doesn’t say who runs it, who works there, who funds it, or even who sits on its board. Anyway, concretely describing the legal spaghetti these plaintiffs are throwing at the judicial wall is no easy task. Here goes.
None of these plaintiffs claimed that having an abortion is itself a religious exercise. None of the women was pregnant or had ever been denied an abortion. Instead, the “exercise of religion” that they say the pro-life law burdens is the possibility that they might want to have an abortion, at some unknown time and in some unknown situation, which would be consistent with their personal beliefs. The Hoosier Jews for Choice website says that believing in a “human right to bodily autonomy” and being free to act on that belief is an exercise of religion.
Klineman bought this strange theory but never answered the most critical question: what’s the difference between generally saying that a particular law doesn’t allow me to do what I might want to do and specifically claiming that this law violates my right to practice my religion?
This strange theory is not new. The Supreme Court rejected it in Harris v. McRae (1980) when it upheld the Hyde Amendment, which prohibits using federal funds to pay for abortions. The plaintiffs in that case claimed it violated the freedom of women to have an abortion “in accordance with the… dictates of their conscience.” This is exactly the same fallacious argument made in Klineman’s courtroom.
Congress heard the same argument a decade later when it debated the federal RFRA law. Professor Douglas Laycock, one of the nation’s leading religious liberty scholars, explained that an abortion is only an “exercise of religion” when it occurs “because of… religion. It is not enough to say abortion is consistent with… religion.” And it certainly doesn’t include a hypothetical abortion that someone might consider having at some unknown time in the future.
But Judge Lineman wasn’t finished with her bizarre “analysis.” The second step in a RFRA case is determining whether the government had a “compelling” reason for the law that burdens religious practice. This should have been an easy call for Klineman. The Declaration of Independence identifies life as an inalienable right, and the Constitution requires due process before the government deprives a person of life.
Klineman, however, decided that the government does not have a compelling reason to prohibit taking any person’s life unless it prohibits taking every person’s life. No exceptions. Since the Indiana law allows abortion in a few, very rare situations, Klineman said, it could not claim a compelling interest in protecting any human beings in the womb.
Apply Klineman’s “logic” to other laws prohibiting homicide. The Jewish Coalition for Religious Liberty filed an amicus brief during this litigation, noting that laws prohibiting murder have “far more exceptions” than does Indiana’s abortion law. But under Klineman’s whacky theory, the state could not prohibit killing anyone in any circumstance unless it prohibited killing anyone in all circumstances. Which would mean that if states, for instance, allow self-defense against a possible murder charge, then the law outlawing murder is “unconstitutional.”
None of this makes either common or legal sense. This is nothing more than politics dressed up as religious freedom. Lawyers make politically-motivated legal arguments all the time, but judges are supposed to recognize the attempt and follow the law. Klineman didn’t, earning her our latest Dishonorable Judicial Conduct Award.
The culture doesn’t take a day off—and neither do we.
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