by Paul Bloomfield
The decision guaranteeing abortion rights in the United States, found in Roe v. Wade (1973), was based on a right to privacy, which the court found to be primarily protected by the Fourteenth amendment's "concept of personal liberty and restrictions upon state action" and the Ninth amendment's "reservation of rights to the people". While it is not discussed at any length, the First amendment is cited in relation to the freedom of speech, most substantially as subsidiary foundation for the right to privacy, established by Stanley v. Georgia (1969). Religion played no role in Roe v. Wade, though it has arguably played a direct role in Planned Parenthood v. Casey (1992). There, the majority's decision plainly states, "The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society." One might naturally read this as an expression of "religious liberty" and an implication of the non-establishment clause of the first Amendment of the Constitution, stating that "Congress shall make no law respecting an establishment of religion".
Despite this, "religious liberty" has come to the fore most forcefully in recent years as a contrary banner under which some religiously minded people insist that the First amendment's protection against laws "prohibiting the free exercise" of religion secures the right to refuse various services to homosexuals and to deny homosexual couples the right to marry. The free exercise clause is invoked in the Supreme Court case Burwell v. Hobby Lobby (2014), in a decision finding that corporations need not pay for employees' contraception. It is worth noting that Neil Gorsuch, the current nomination to the Supreme Court, was an author of the appellate decision that was upheld in Burwell. But as important as the "free exercise" clause is, it must be balanced against the "non-establishment" clause, which precedes it in the document as the first clause in the amendment.
