Document Type
Article
Publication Date
2024
Abstract
The substantive due process right to abortion is gone. But other parts of the Constitution may also protect women’s right to control their bodies and live as equals in the United States. This Essay addresses what role the two religion clauses may play in advancing reproductive autonomy. Because religion and reproduction are intertwined, the religion clauses may provide some measure of constitutional protection.
The Establishment Clause bars the government from imposing religion onto those who do not share it. It also forbids the government from taking sides in theological disputes. Early abortion bans not only favor one religious belief on the contested question of when life begins, but codify that belief into law. Imposing onto all Americans the religious perspective that life begins at conception should violate the Establishment Clause.
The Free Exercise Clause prevents the government from burdening people’s exercise of religion. Its protections extend to requiring religious liberty exemptions from laws that prevent religious observance. In fact, the Supreme Court has greatly expanded the availability of religious exemptions. Consequently, women whose religion counsels abortions in situations forbidden by abortion bans should be entitled to an exemption.
Recommended Citation
Caroline Mala Corbin, Religious Clause Challenges to Early Abortion Bans, 104 Boston U. L. Rev. Online 37 (2024).
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Civil Rights and Discrimination Commons, Constitutional Law Commons, Family Law Commons, First Amendment Commons, Health Law and Policy Commons, Human Rights Law Commons, Religion Law Commons