The Religious Exception to Abortion Bans: A Litigation Guide to State RFRAs

After Dobbs, religion, commonly seen as an argument against abortion, has been used to argue for the right to choose. In July 2022, a synagogue sued Florida, asserting that its ban on abortion after fifteen weeks violated Article 1, Section 3 of the Florida Constitution, which prohibits the penalization of free expression of religion. In September 2022, the ACLU argued that the state's abortion ban violated Indiana's Religious Freedom Restoration Act. And in October 2022, three Jewish women sued the state of Kentucky, alleging that its abortion ban violated the Kentucky Religious Freedom Restoration Act. This Note provides a guide to the merits and challenges of the argument that an abortion ban violates a state Religious Freedom Restoration Act (RFRA). Although this Note focuses on how Jewish plaintiffs can raise such claims, the arguments outlined could be raised by individuals of multiple faiths. This Note contributes to a growing debate about religious arguments for the right to an abortion. And it is the first paper to outline how religious freedom claims to obtaining an abortion might fare under state RFRAs. The approach to RFRA outlined in this paper lays the groundwork for a rights-advancing framework of religious exercise.