•  
  •  
 

UC Law Constitutional Quarterly

Io Jones

Abstract

The fallout of the Dobbs v. Jackson Women’s Health Organization decision has included two seemingly distinct but critically related dynamics. First, religiously motivated plaintiffs are filing lawsuits challenging abortion bans on free exercise grounds. These lawsuits argue, in accordance with current free exercise doctrine, that a state’s compelling interest in protecting “fetal life” is undermined by secular exceptions to abortion bans. Second, state lawmakers have been forced to confirm that their state abortion bans do not apply to in vitro fertilization (IVF), a fertility treatment that regularly requires the discarding of embryos. This confluence of factors raises a critical question for religiously motivated litigants seeking to challenge abortion bans on free exercise grounds: can IVF be treated as a “secular exception” that puts pressure on states to grant religious exemptions to permit abortion?

This Article advances a novel argument: litigants can advance a stronger free exercise challenge to abortion bans by explicitly pointing out the discrepancy between how state law treats abortion and the discarding of embryos through IVF—referred to here as the “IVF exception.” In light of a high-profile February 2024 IVF decision in Alabama and pending religious freedom challenges to abortion bans in Indiana and South Carolina, this Article provides a timely and novel strategy for practitioners. The Indiana Court of Appeals considered the “IVF exception” in an April 2024 ruling and a January 2025 provider lawsuit raised the issue, too, but little academic scholarship comments on the topic. This Article provides a critical contribution to free exercise scholarship as the lawsuits challenging abortion bans on religious freedom grounds move through state courts across the country.

Download

Share

COinS