00 First Filter

An Indiana trial court made a deeply troubling decision that abortion may be part of the right to religious exercise under Indiana’s Religious Freedom Restoration Act (“RFRA”). The March 5 decision reveals several problems with our current legal system, our understanding of what religion is, and how far we have come from the culture of the American founding era.

The lawsuit was filed by a couple of anonymous plaintiffs and a group called “Hoosier Jews for Choice,” who all allege that the Indiana law — which makes it a crime for doctors in the state to perform abortions in most cases — violates the plaintiffs’ religious exercise rights under the state’s RFRA.

At the outset, there are simply narrative problems left unchallenged by the court. For example, one of the plaintiffs “believes that, at least prior to viability, a fetus is a part of the body of the mother.” This is factually incorrect and is not a religious belief at all. Whether one calls an unborn child a “fetus” or a “zygote” or an “embryo,” it is scientifically not a part of the mother’s body up until some arbitrary point in time, such as “viability,” when it becomes something other than part of the mother’s body. From the moment of conception, the unborn child has DNA distinct from that of its mother. Religion does not entitle people to their own set of facts in this way.

Further, this argument leads to a disturbing slippery slope. There is no rational reason to proclaim that a “pre-viable” baby before a certain age is “a part of the body of the mother” and then becomes its own person separate from the mother at a later stage of pregnancy. This is completely arbitrary. If the court accepts this claim as a legitimate religious belief, I see no good reason why a different “religious” individual could not claim a religious belief that a nursing infant still attached to and dependent on his mother is also “a part of the body of the mother.” Is there a potential religious exercise right to kill a nursing newborn?