Recent Supreme Court Rulings Undermine Religious Freedoms in America

ING Interfaith Speakers Bureau

July 5, 2022

Two recent Supreme Court decisions undermine the First Amendment and religious freedom in the United States. The first was Dobbs v. Jackson Women’s Health Organization which overturned Roe v. Wade and the second was Kennedy v. Bremerton School District which allows for prayer by educators in public schools. 

Abortion Ruling and Religious Freedoms

On the first issue, regardless of where we stand on abortion, the SCOTUS ruling repudiating the right to abortion contravenes constitutional religious freedoms when states begin to criminalize women for having abortions or doctors for performing them. This is a serious matter for all those concerned—as all Americans should be—with the survival of the United States as a pluralistic democracy.

In 1973, the Supreme Court, responding to a Texas woman’s suit against a state law outlawing abortion except to save a woman’s life, ruled that the Constitution generally granted pregnant women a right to seek an abortion, basing this claim on a right to privacy—that is, a right to freedom from government interference in a private matter—derived from the Fourteenth Amendment. This ruling immediately invalidated state laws prohibiting abortion and was a bulwark of constitutional law on the topic for 50 years, reaffirmed several times by the Court. Given the repeated reaffirmation of Roe v. Wade and the Court’s principle of stare decisis—standing by positions previously taken by the Court—it was thought by many to be unassailable.

The recent Supreme Court ruling, however, reversed the Roe v. Wade decision, leaving states free to severely restrict or to deny outright women’s right to abortion. This ruling came in response to a suit against a recently enacted Mississippi law prohibiting abortion after 15 weeks. Thus, although this ruling did not in and of itself prohibit abortions, it did immediately permit states to ban abortions and allow existing laws banning or criminalizing abortion that had been in abeyance while Roe was in effect to come into force.

Diverse Views on Abortion Among US Religious Groups

This recent Supreme Court ruling and the concomitant commencement or coming into force of abortion prohibitions in half of the United States are thus an enactment into civil law of a particular position on abortion that is in fact a minority view among both civil and religious groups in this country:

• US mainstream Protestant churches have been generally supportive of abortion rights, at least under certain circumstances. The Episcopal Church, for instance, while rejecting abortion for birth control, is on record opposing government restrictions on abortion access. The Evangelical Lutheran Church in America states that “abortion prior to viability [of a fetus] should not be prohibited by law or by lack of public funding.” The United Church of Christ held a special Zoom worship service expressing “disbelief, sorrow, and resolve” in response to the Supreme Court ruling.
• The positions taken by church bodies generally accord with the views of their membership; a recent Pew poll shows that 79% of Episcopalians, 65% of Lutherans and Presbyterians, 58% of United Methodists, and 72% of members of the United Church of Christ believe that abortion should be legal in all or most circumstances.
• As already noted, evangelical Protestants have by no means been monolithic in their views on abortion. For instance, in 1971 the Southern Baptist Convention, while stating that “society has a responsibility to affirm through the laws of the state a high view of the sanctity of human life, including fetal life,” called for “legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.” Only with the increasing politicization of evangelical Christianity over the subsequent decades did Southern Baptists and other evangelicals become firm in their opposition to abortion.
• While official teaching of the Catholic Church has consistently maintained that abortion is always morally unacceptable, some Catholic scholars as well as 56% of US Catholics in a recent survey differ from the teaching by favoring keeping abortion legal in all or most circumstances.
• Pew researchers also found “one commonality across these [Christian] groups is that sizable numbers in all of them see the issue of abortion in shades on gray.” In a poll they found that 72% of White Evangelicals, 78% of White Protestants, 67% of Black Protestants, and 76% of Catholics say that abortion should be legal in some circumstances and illegal in others.

In non-Christian religions, views on abortion and on the beginning of human life are even more varied. Jewish views on abortion range from very permissive to restrictive, allowing abortion only to save a mother’s life. In contemporary Judaism, the Reform, Reconstructionist, and Conservative movements are more permissive and the Orthodox more restrictive. The Reform, Reconstructionist, and Conservative movements have repeatedly come out in support of abortion access. In general, Jewish tradition does not view the unborn fetus as a human person, considering the fetus to be “mere water” until the fortieth day of gestation. Thus, abortion is generally not equated with murder. It is therefore not surprising that 88% of US Jews support abortion rights. Indeed, a wide range of leading Jewish organizations, encompassing the vast majority of Jewish Americans, have condemned the Court’s ruling as violating Jewish law that prioritizes the health and safety of the mother, including the National Council of Jewish Women, the Reform Movement, the Conservative Movement Rabbinical Assembly, Reconstructing Judaism, Jewish Council for Public Affairs, and the American Jewish Committee. 

Muslim views are similarly varied with the major difference focused on the question of when life begins or when a fetus becomes a human being. The mainstream perspective of many Islamic scholars is based on the view that human life does not begin until 120 days after conception, which is when ensoulment takes place based on prophetic sayings and Quranic descriptions of the different stages of the development of a fetus. A minority position based on a prophetic saying views the beginning of life at 40 days after conception or 54 gestational days. The most conservative minority position is that life begins at conception and that abortion is a type of infanticide which is clearly forbidden in the Quran. However, no historical opinion exists that states that aborting an unborn fetus is morally equivalent to killing a human being. Based on these different limits, scholars agree that abortion is permitted to save a mother’s life. Additionally, scholars argue that abortion is allowed in the cases of rape and extreme fetal deformity, or for other serious reasons. According to a recent poll by the Institute for Social Policy and Understanding (ISPU), the majority of Muslim Americans (56%) believe that abortion should be legal in all (25%) or most cases (32%), on par with the 56% of Catholics, while a minority of Muslims (42%) believe that abortion should be illegal in all (16%) or most cases (26%).

While classical Hindu texts condemn abortion except in cases of fetal abnormalities or danger to a woman’s life, 68% of US Hindus favor abortion rights, basing themselves on the right of individual choice that is also part of Hindu tradition, and law in India, with its Hindu majority, generally permits abortion.

Buddhist views on abortion are quite varied. While some classical Buddhist texts teach that human life begins at conception and view abortion negatively, other texts view abortion more leniently, and 82% of US Buddhists hold that abortion should be legal in most or all cases.

It is thus clear that the anti-abortion legislation passed or about to be passed in most states, and the Supreme Court ruling designed to allow these measures to come into effect, force on most Americans a religiously based position on abortion that is not aligned with their personal beliefs. Women who do not share conservative views on abortion that many states are now permitted to enforce as law will be forced to carry their pregnancies to term. The harmful effect of this on women’s freedom, health, and even lives should be obvious, and the effects will be all the greater among poor women and women of color, who may be unable to afford traveling from a state that prohibits abortion to one that does not. Similarly, many are more likely to find themselves in situations where finding adequate childcare and meeting a child’s needs may be virtually impossible. The legislatures that are criminalizing abortion should consider these inequitable outcomes and provide additional services for poor mothers and children in need.

Prayer in Public Schools Ruling and Religious Freedoms

The second recent ruling by the Supreme Court has received less attention but is equally concerning because it relates to the religious freedom and rights of students and their parents in public schools. In Kennedy v. Bremerton School District, the Supreme Court ruled that a Washington State school district violated a coach’s rights when they suspended him and then didn’t renew his contract because he disregarded school district officials’ instruction to stop publicly praying on the football field following games. He claims that the district had violated his First Amendment rights to freedom of speech and freedom of religion, and that those freedoms entail that he had the right to pray on the field after the game was finished. The lower courts disagreed, but the Supreme Court ruled 6-3 in his favor. This case appears to upend decades of adherence to three major facets of a test that has been applied to similar cases: the first is that a government action should have a secular purpose; the second is that an action should not appear to support a particular religion; and the third is that an action cannot be a form of religious coercion. By apparently overturning decades of precedent requiring that government employees not publicly perform actions that could reasonably be construed as government endorsement of a particular religion, this decision leaves many wondering how far the Court’s new approach to these questions will go. Can a teacher now pray in the classroom, inviting students to join if they wish, leaving those who wish not to participate to wonder whether there would be any consequence for not participating? Religious minorities are also left to wonder whether the Court would also extend the right of public prayer to a government employee or contractor who is a member of a minority religion. While expanding religious freedom can be seen as a good thing, this decision raises concerns because it seems to ignore the reasons why our legal precedents would have prohibited the kind of public prayer at issue here: in the context of government employees, the line between the employee’s public religious conduct and the appearance of government support or endorsement of one religion over others can be very blurry. 

Both of these cases highlight the fragility of the constitutional provision of religious liberty. The First Amendment gives a twofold definition of how religious freedom is guaranteed: 1) “Congress shall make no law respecting an establishment of religion” 2) “or prohibiting the free exercise thereof.” The first clause is understood to mean that government must be strictly neutral in matters of religion and refrain from privileging one religion over another, or religion over non-religion. The second provides that Americans are free to practice the religion they profess any way they please, subject only to the needs of public safety and the common good. For us at Islamic Networks Group (ING) and the Interfaith Speakers Bureau (IFSB) we believe that both of these recent SCOTUS rulings can lead to even further erosion of religious liberties and freedom that would impact millions of Americans. We recognize that within the IFSB and the diverse religious communities, there is a great range of views on these and many other questions. Yet, this has not hindered our willingness to enter into dialogue about these concerns. Our IFSB offers a model for bringing people of diverse perspectives together to promote mutual understanding and peace on these and other questions of religious liberty and freedom.

ING offers panels to schools, colleges, universities, and other institutions from our Interfaith Speakers Bureau (IFSB) with Buddhist, Christian, Hindu, Jewish, and Muslim American speakers. To schedule an IFSB panel on Shared Values Among Faiths, Women and Religion, Separation of Church and State, and other topics, visit our website here.