Scrutinizing Judicial Scrutiny

By Ken Burrows

In 2023 the Colorado General Assembly passed a bill (SB 190) that sought to ban what is called “abortion reversal” treatment, describing it as an unproven and unsafe medical procedure. The state’s board of medicine agreed it constitutes “unprofessional conduct.”

“Abortion reversal” refers to a scenario in which a pregnant patient has begun a medication abortion by taking the first abortion drug (mifepristone) but then decides not to complete the abortion with the second drug (misoprostol). At that point giving the patient the “reversal” drug progesterone may save the pregnancy. It also poses risks, such as documented cases of bleeding that required emergency intervention. Abortion reversal treatment is very often provided by religiously affiliated pregnancy centers.

One of those centers, Englewood-based Bella Health and Wellness, sought and won a preliminary injunction against enforcing SB 190. Bella Health claimed the law burdened their religious exercise because their Catholic faith compels them to assist patients who seek to reverse an abortion. U.S. District Court Judge Daniel Domenico granted the injunction, saying the legislature “was aware that the burden of this prohibition would primarily fall on religious adherents.” In the judge’s view, this triggered strict scrutiny of the law’s impact on free exercise of religion.

“Strict scrutiny” is the highest standard of judicial review under U.S. constitutional law. It is invoked when a law infringes upon a fundamental constitutional right. Under strict scrutiny a challenged law is considered presumptively invalid unless the government can demonstrate that the law or regulation is necessary. In short, in this case, Bella Health was presumed to prevail over SB 190 because, in Judge Domenico’s eyes, the law infringed on the clinic’s constitutional right to exercise its religious belief. He apparently saw no government necessity for the law that would allow such infringement.

But how consistently is strict scrutiny applied? The Constitution’s Establishment Clause bestows on all of us a constitutional right to not be legally obligated, or constrained, by religious beliefs. This was, in fact, a fundamental principle embraced by the Constitution’s framers. So is strict scrutiny triggered by laws that impose religious anti-abortion beliefs onto the citizenry?

When Alabama Governor Kay Ivey signed her state’s anti-abortion bill, she said the legislation reflected “Alabamians’ deeply held belief that every life is a sacred gift from God.” Missouri’s anti-abortion bill literally states in the legislation’s text that its abortion restrictions were made in the name of “Almighty God.” The bill’s sponsor, Rep. Nick Schroer, said, “As a Catholic I do believe life begins at conception [and] that is built into our legislative findings.” The religious basis for these bills is undeniable. A similar dynamic exists throughout the country with the multitude of anti-abortion bills that have been passed.

To paraphrase Judge Domenico, legislators who are passing these strict anti-abortion bills are aware that the burden of their prohibitions primarily falls on all of us who do not share their religious beliefs. These religion-driven laws thus infringe on everyone’s constitutional right to not be subject to religious beliefs. Government cannot demonstrate these laws are necessary for a bona fide public (i.e., secular) purpose because government is not constitutionally permitted to base such a necessity on religious belief. Strict scrutiny of this constitutional violation should apply here. Using Judge Domenico’s rationale, religiously based anti-abortion laws should be deemed presumptively invalid.

No greater mischief can be created than to merge the power of religion with the power of government.

--- Lowell P. Weicker, Jr.