Carla Graff
85 Geo. Wash. L. Rev. 954
Religion is a common theme in the abortion dialogue. Much of the religious
rhetoric focuses on religious objections to abortion, but there is another
side of this discourse. Abortion is not only a political issue or constitutional
right, it is a religious obligation: explicitly mandated by some texts, grounded
in doctrine related to health, or a conscience and moral choice. The Supreme
Court has consistently protected the right to therapeutic abortions for the life
and health of the mother. Yet the most recent Supreme Court decision that
addressed this issue, Gonzales v. Carhart, signaled that exceptions for abortions
when the life and health of the mother are at risk may not be as essential
as once contemplated to maintain a law’s constitutionality. In the face of the
changing political landscape of abortion laws, what then can a religious woman
do when she faces serious health complications as a result of her
pregnancy?
A combination of free exercise and self-defense rights as a hybrid claim
can provide salience to her right to a health exception. Together, the religious
obligation to have an abortion when her life and health are at risk and a woman’s
constitutional right to self-defense, provide a claim that is subject to
strict scrutiny review. In the face of strict review, states must provide pregnant
women with religious exemptions for health exceptions to protect their constitutional
rights.
