In response to the passage on February 24th of an outright ban on abortion from the South Dakota legislature, an Internet based church, The Church of Reality, has issued an edict that the ban violates the Religious Freedom Restoration Act and the church’s exercise of its religion.
The edict states:
Pursuant to the Religious Freedom Restoration Act and consistent with the Supreme Court decision upholding the right to religious freedom, I Marc Perkel, as the highest authority of Church of Reality law do hereby declare and decree by edict the following:
1. That the Church of Reality finds that the South Dakota Abortion Ban is repulsive, unethical, and immoral.
2. That it infringes upon our freedom of religion under the First Amendment and places a substantial burden on our sincerely held religious belief in the right of women to choose to have abortions.
3. That the law criminalizes abortion providers from providing abortions services cutting off our female member’s ability to legally obtain an abortion.
4. That it is our position that the State of South Dakota has no compelling government interest in prohibiting abortions and therefore the rights of Realists to get Abortions in South Dakota take precedent over South Dakota law.
We therefore demand that the State of South Dakota make provisions in their law enforcement system to allow members of the Church of Reality to legally obtain abortions and to provide doctors and other health care professionals immunity from prosecution for providing abortion services to Realists.
South Dakota Aborting Law Infringes on Religious Freedom of Realists
I loved the idea of using a law like the Religious Freedom Restoration Act (1993)( aka RFRA) against laws that are passed mainly to legalize someone’s religious agenda.
Something, however smelled fishy.
I remembered during the news this past week about a US Supreme Court ruling that set aside a ban on the religious use of hoasca, a hallucinogenic tea used by a small Brazilian-based church known as Uniao Do Vegetal, that the RFRA was ruled unconstitutional when applied to the states in 1997. See Religious Freedom Restoration Acts
A rehashed version of RFRA called the Religious Land Use and Institutionalized Persons Act. (RLUIPA) (2000) only addresses land use laws and the religious practices of prisoners.
A simple idea would be to challenge the abortion ban based on the 1st Amendment’s free exercise clause.
However a court case from 1990, Employment Division v. Smith, the Supreme Court held:
Although states have the power to accommodate otherwise illegal acts done in pursuit of religious beliefs, they are not required to do so.
Employment Division v. Smith
Justice Scalia, writing for the majority, observed that the Court has never held that an individual’s religious beliefs excuse that individual from compliance with an otherwise valid law prohibiting conduct that the government is free to regulate. Allowing exceptions to every state law or regulation affecting religion “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.” Smith, 494 U.S. at 890.
We saw a bit of that during the Judge Roy Moore 10 Commandments case when the Judge claimed that he could ignore a Federal court order to remove the Decalogue because he answered to a higher law (God).
The Smith decision basically says that a law doesn’t violate the 1st Amendment just because it conflicts with one’s religious beliefs as long as the intent of the law wasn’t to burden religious practices.
Applying that test to an abortion ban would be a very tough road unless those who introduced the law were stupid enough to say they were doing it for religious reasons. (Possible but not probable)
A much better constitutional argument against a state abortion ban would be to say it violates the 13th Amendment which protects people from involuntary servitude:
The term “involuntary servitude” is plain and simple. A person cannot be made to perform services for another person against his or her will. Neither Roe v. Wade nor any subsequent Supreme Court opinion has defined the bearing of a child to be something other than a form of labor. Indeed, childbirth is described medically as “labor” and no woman who has been through it would dispute that description. Thus, it is plain and obvious that any law that forces a woman to go through the labor of nurturing a fetus involuntarily is a violation of the 13th Amendment.
The Survival Of The Fetus: Why the 13th Amendment restricts the government’s power to make laws against abortion.
But that kind of argument is off topic for this blog.
I did contact the author of the edict on the Church of Reality’s site and he agreed that he can’t use the Religious Freedom Restoration Act against South Dakota’s ban.