The logical conclusion of the current trend toward religious exemptions

There may be a strange, implied loophole in the Alabama anti-abortion law – that abortions can be performed … if the doctor is Jewish or Muslim.

Here’s the logic.  We are in a moment of history when the courts are leaning in the direction of providing religious exemptions to secular laws.  This was the thrust of the Sisters of the Poor case, when a group of nuns said that they should be exempt from the Affordable Care Act’s requirement for contraception coverage.  They argued that that violated their religious beliefs so they shouldn’t have to participate.  The “Bakers of Conscience” have made a similar argument – that they should be allowed to avoid making a cake for a same-sex wedding without being prosecuted under anti-discrimination laws – because their beliefs are grounded in religion.

The drafters of the Alabama law were at least partly motivated by their faith. “When God creates the miracle of life inside a woman’s womb, it is not our place as human beings to extinguish that life,” said Clyde Chambliss, a sponsor of the bill.

So the question becomes: does the law infringe on the religious beliefs of the woman or the doctor?

Though there are many interpretations in the Jewish tradition, the most common is that life begins at birth, not conception. Reform Rabbis have decreed that abortion is permitted if there is a “strong preponderance of medical opinion that the child will be born imperfect physically, and even mentally.” If you’re a Jewish woman, you could argue that this law forces you to abide by a different definition of life (with roots in Catholicism). 

If you’re a Jewish doctor, who has sworn the Hippocratic oath – to perform medically appropriate procedures without discrimination – then it may be your religious belief that you have a duty to provide a Biblically-sanctioned abortion.  By blocking you from offering that service, the law is forcing you to violate your Hippocratic oath and the guidance from your religion.

The same might be true for Muslim doctors or women. According to many interpretations of the Quran and the Hadiths, life begins around the fourth month. So Muslim women and doctors could claim that their religious freedoms have been constrained by being prevented from having an abortion within that time period.

I happen to think the Alabama abortion law does not violate the separation of church and state, as some liberals have argued. People should be allowed to have religious motivations as well as secular ones for why they support a public policy.  But the Alabama law does have some religious implications, including the question of what kinds of religious exemptions would be appropriate.

Now, I have to say: I don’t actually think what I’ve proposed would be a good system. We don’t want to enter a world where most laws can be avoided through religious freedom claims.

True, religious exemptions have been around since the founding.  Quakers were allowed to avoid military service, for instance. And it’s an important part of why our religious freedom has become robust.

In recent years, however, the pendulum has swung in the direction of allowing even more exemptions than ever, perhaps too frequently. The Catholic Archdiocese of Milwaukee claimed that the Religious Freedom Restoration Act and the First Amendment protected it from liability claims by the victims of pedophile priests.  In Lancaster County, Pennsylvania, a group of nuns sued a federal agency attempting to put a natural gas pipeline through their property, arguing that the move violated their religious freedom because “God calls humans to treasure land as a gift of beauty and sustenance.”   Timothy Anderson in 2015 claimed that his arrest for selling heroin violated his religious freedom because he had distributed the drug to “the sick, lost, blind, lame, deaf and dead members of God’s Kingdom.” The court rejected the claim on the grounds that the heroin recipients didn’t realize they were partaking because of their religion. In Williamsburg, Brooklyn the large number of  ultra-orthodox Jews are getting religious exemptions from the measles vaccine helped to cause the outbreak of the disease.

In fact, I offered this scenario as much to call attention to the problems with exemption-mania as I did to genuinely poke loopholes in the Alabama law.

But if we’re being consistent, this this exemption-oriented approach should be applied equally, including for anti-abortion laws.  If bakers can avoid gay weddings, then Jewish doctors should be able to avoid the Alabama abortion law.

Steven Waldman is author of SACRED LIBERTY: America’s Long, Bloody and Ongoing Struggle for Religious Freedom.