In Dobbs v. Jackson Women’s Health Organization (2022), the U.S. Supreme Court abandoned its mistaken rulings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), affirming that American political communities are constitutionally permitted to regulate abortion. Soon after Dobbs, Indiana enacted Senate Enrolled Act No. 1 (what we call the “abortion law”), which prohibits abortion except when a pregnancy seriously endangers a mother’s health or life, a pregnancy is the result of rape or incest, or the unborn child has a “lethal . . . anomaly.”
Several claimants challenged the abortion law as a violation of Indiana’s Religious Freedom Restoration Act. They argued, in other words, that because the abortion law imposes a substantial burden on their religious exercise, rooted in the sincerely held religious belief that abortions are sometimes not only permissible but required, they are entitled to an exemption from the law. A number of legal commentators have advanced similar arguments. And in the spring of 2024, an Indiana appeals court agreed, for the most part, with the challengers’ claims. While acknowledging that the federal and state constitutions permit Indiana to regulate abortion, the court concluded that the challengers were likely to succeed with their claim that the state cannot justify enforcing the abortion law in cases where such enforcement burdens religious exercise.
The court of appeals was wrong, though, and Indiana’s supreme court should reject its reasoning (as we have argued in an amicus brief). Indiana, quite appropriately, protects the fundamental right to religious freedom. That right, however, does not entitle the claimants to an exemption from the state’s duly enacted and constitutionally permissible abortion law.
Under Indiana’s Religious Freedom Restoration Act—modeled on the federal religious-liberty statute—a person who shows that government rule or action “substantially burden[s]” his “exercise of religion” is entitled to an exemption unless the government establishes that enforcement is the “least restrictive means” of furthering a “compelling governmental interest.” The lower courts accepted, and we assume as well, that the abortion law could, in at least some cases, burden persons’ religious exercise. In the view of the Indiana challengers, and of the lower Indiana courts, that burden is unjustified under the Religious Freedom Restoration Act. Why? Because the existence of some exceptions in the abortion law (for example, in cases where continuing the pregnancy endangers a mother’s life) shows that applying it to religious claimants is not essential to advancing a compelling interest. In technical legal terms, so the argument goes, the application of the abortion law to the challengers fails “strict scrutiny.”
But, as we will explain, absurd results would follow from this argument. For starters, it should be clear that Indiana’s abortion law—and other states’ laws regulating abortion—advances a “compelling” government interest. As the Indiana Supreme Court put it in another case, “it is a traditional exercise of the States’ police powers to protect the health and safety of their citizens.” The U.S. Supreme Court has recognized the same principle. Indeed, perhaps there is no higher compelling interest than saving a human life. And the Supreme Court made clear in Dobbs that states can determine that human physical life begins at conception, a determination that Indiana has made under its abortion law. It should be a straightforward matter of deductive reasoning that Indiana may thus assert a compelling interest in the protection of prenatal human lives.
Next, Indiana’s law clearly advances that compelling interest. It does what it is designed and permitted to do. After all, it prohibits nearly all abortions. True, it does not govern the disposition of embryos outside the womb or preclude abortions when the mother’s life or health is at risk or in case of rape, incest, or a lethal fetal anomaly. Still, “abortion” is otherwise prohibited “in all instances.” This prohibition covers nearly all abortions that would otherwise be performed, so it saves some human lives.
Enforcement of the abortion law, without exemptions for religious objectors, is “the least restrictive means” for promoting the government’s interest. The claimants do not contest this. The law prohibits only “abortion,” and it defines “abortion” as “the termination of human pregnancy with an intention other than to produce a live birth or to remove a dead fetus.” Protecting each individual life is a compelling interest, and every abortion that Indiana prevents necessarily advances this interest. It is hard to imagine a tighter link between regulation and state interest. It is obvious that a less restrictive law—with even a single added exception—would advance the interest less.
Unsurprisingly, then, those seeking religious exemptions from the abortion law did not (as litigants usually do in “strict scrutiny” cases) identify any less burdensome alternative enforcement that would advance the state’s interest just as well. Nor did the challengers, or the lower courts, point to any application of the abortion law that does not advance that interest.
How could they? Any religion-based exemption would, by definition, undermine the government’s interest in saving prenatal human lives. The religious-freedom accommodation that the challengers seek is, necessarily and directly, in conflict with the government’s compelling interest. In another Indiana case, when a mother claimed a religious right to beat her child, the least restrictive method—and, indeed, the only method—for the state to vindicate its compelling interest in preventing child abuse was to deny the requested accommodation. The same is true in the abortion context. Since the interest in saving prenatal lives is compelling, the law advances it, and any less restrictive law would advance it less, Indiana’s law satisfies strict scrutiny.
Indiana’s court of appeals—like the commentators who have pressed religious-liberty arguments against the enforcement of abortion regulations—insisted that the law is not the least restrictive means just because it has a few closely drawn exceptions. But the question a court must ask under the “least restrictive means” analysis is whether the accommodation requested would undermine the state’s interest. And in this case, any accommodation would.
The cases cited by the Indiana appellate court only reinforce this contrast. In Holt v. Hobbs (2015), for example, an Arkansas prison forbade an inmate to grow a half-inch beard for religious reasons. But the prison’s allowance of beards for health reasons suggested the state interest in ensuring prison security “could be achieved by narrower ordinances that burdened religion to a far lesser degree.” In that case, exemptions for secular conduct revealed that the state’s goal could be achieved in less restrictive ways. Sometimes the same point is proven not simply by a law’s exceptions, but by a state’s lighter regulations of some types of conduct compared with the desired religious conduct. That was the crux of Tandon v. Newsom (2021), where the Supreme Court expressed concern about the double standards at work in the regulation of social gatherings during the Covid-19 pandemic. The regulations’ under-inclusiveness mattered, and ultimately required an exemption for religious gatherings, only because it pointed to a less restrictive way of accomplishing the government’s goals. California’s allowance of larger secular gatherings—if they observed certain precautions—suggested a less restrictive approach to religious groups, namely letting them “gather in larger numbers while using [the same] precautions.”
The situation with abortion regulations is entirely different. Here, it is not a matter of assessing risks and designing precautions. Here, it is just a fact that any accommodation will undermine the government’s asserted—and, after Dobbs, constitutionally permissible—aim. Here, there is no way to protect a prenatal human life other than to prohibit a requested religious accommodation that, by its very design, would end that life. That the abortion law has some exceptions, unrelated to religious exercise, is irrelevant. Neither Holt nor Tandon—the rulings most heavily relied on by academics favoring the appeals court’s decision—provides support for the notion that abortion laws tend to flunk the “least restrictive means” inquiry.
Nor do the exceptions prove that Indiana’s interest in saving prenatal lives is not compelling. Each is easily explained as a way to prevent a weighty harm that a religious carve-out would not prevent. As the U.S. Supreme Court has stressed, even in cases applying “strict scrutiny,” it has “upheld laws . . . that could conceivably have restricted even greater amounts of [protected conduct] in service of their stated interests” when the state could adequately explain why the existing exceptions were not similarly situated to the requested accommodations.
In Holder v. Humanitarian Law Project (2010), for example, the Supreme Court rejected a free-speech challenge to a law that prohibited “training” and “expert advice or assistance” to terrorist groups, even though that law included exceptions for “independent advocacy” or provision of “religious materials” to those terrorist groups. The challengers in that case argued that these exemptions demonstrated a lack of even-handedness and were fatal to the law under “strict scrutiny.” The Court disagreed, and explained that “the Government, when seeking to prevent imminent harms . . . is not required to conclusively link all the pieces in the puzzle before we grant weight to its empirical conclusions.” Further, the Court noted that the legislature was protecting other weighty concerns with these exceptions and that it should not replace the legislature’s “careful balancing” of “competing interests” with the Court’s own judgment.
In the same way, Indiana’s exceptions to the abortion law are not comparable with the requested religious accommodations: existing exceptions were meant to protect weighty interests that would not equally compel a religious exemption. For instance, protecting access to medically indicated procedures advances Indiana’s weighty interests in maternal life and health. Indiana could well have determined that pregnancies resulting from rape or incest implicate other serious policy concerns; that such pregnancies could bring acute psychological pain; that ending them might be excused, by analogy to the duress defense; or that juries might thus refuse to convict in such cases, and that limited enforcement resources are therefore better spent elsewhere.
The abortion law does not bar in vitro fertilization, but this fact does not compel a religious exemption. Indiana could easily have concluded that some aspects of IVF do less harm to its interest in protecting prenatal life or that regulating IVF would raise knotty enforcement questions best addressed separately. The state could conclude that, say, terminating the lives of embryos, and ending their development toward birth and maturity, is not the same as thawing frozen embryos that were never going to be implanted, and also that requiring the implantation of all embryos created during IVF would implicate constitutional rights against forced medical treatments and interventions.
The Indiana court did not engage these important considerations and distinctions. Instead, its basis for denying that the abortion law’s exceptions could be adequately explained was the mere fact that Indiana was willing to make them. This circular reasoning, if followed, would mean that no laws with exceptions can ever survive strict scrutiny. No doubt the existence of a secular exemption will certainly trigger strict scrutiny. But exemptions are not automatically fatal to strict scrutiny where they do not provide evidence that the government has less restrictive means of protecting the religious right (and accomplishing its compelling interest to boot). The existing exemptions provide no such evidence of less restrictive means. Even setting that argument aside, the exemptions are not comparable.
It is worth noting that the challengers’ argument (and the lower courts’ rulings) lead to absurd results. All laws, after all, need limits. For example, as Eugene Volokh has observed in another context, “even . . . bans on intentional homicide have exceptions—execution of a lawful sentence, killing in war, police killing of a dangerous fleeing felon, killing in self-defense or in defense of another, and disconnecting life-sustaining equipment at a patient’s request.” Criminals can also receive an insanity defense for an otherwise wrongful killing. A per se rule that secular exceptions require religious exemptions would mean that, for instance, religiously motivated killing—honor killing, stoning, exorcisms, child sacrifice—must be permitted because of these exceptions. Yet no court has ever held that religious accommodations are warranted from a homicide law.
Similarly, if the law let a doctor perform an osteotomy (that is, a procedure that requires the breaking of a bone to reshape or realign a bone), a per se rule triggering accommodations based on secular exemptions would mean that a parent could seek a religious accommodation to break a child’s bones for religious reasons. For that matter, the general common-law defense of “necessity” would trigger religious exemptions from all criminal laws. After all, that defense effectively gives each criminal law at least one exception; by the lower court’s logic, a religious exemption would then be required. That cannot be right—which is why no court, prior to this case, has ever said as much.
The right to religious freedom is a foundational human right. However, it does not guarantee, and never has required, exemptions for religious believers from any and all important regulations. Under the U.S. Constitution, legislatures are permitted to regulate abortion, to define human life as beginning at conception, and to assert and pursue their compelling interest in protecting such life. That such regulation might burden the sincere religious objections of some does not entitle them to damage that interest. Denying a religious exemption from the abortion law would satisfy strict scrutiny under Indiana law.
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