B. Jessie Hill (Case Western Reserve University School of Law) has posted The Reemergence of Religious Freedom Arguments in Abortion Rights Litigation (26 Houston Journal of Health Law & Policy 101 (2026)) on SSRN. Here is the abstract:
Since Dobbs v. Jackson Women’s Health Organization, religious freedom arguments for abortion rights have gained renewed traction in both legal scholarship and litigation. This Article situates that reemergence in historical context, tracing how such arguments—despite deep roots predating Roe v. Wade—became largely submerged during the decades between Roe and Dobbs, as both doctrinal developments and strategic advocacy choices pushed abortion-rights litigation toward a medicalized privacy framework instead. The Article then examines the doctrinal and political forces driving the post-Dobbs revival of religious freedom claims on both sides of the abortion debate, in which abortion-rights advocates are increasingly invoking religious-liberty protections against near-total bans and abortion opponents face legal vulnerabilities. Drawing on recent state constitutional litigation raising religious freedom arguments to challenge abortion bans, this Article assesses the promise and peril these claims present for each side going forward. It concludes that religious freedom arguments offer substantially more promise than risk for abortion-rights advocates, while posing meaningful dangers for abortion opponents. It therefore argues that it is time for abortion-rights supporters to reclaim a religious-freedom narrative that has too long been ceded to the anti-abortion side of the debate.
Highly Recommended!
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