How Will the RLS Rankings Change After Dobbs?

The inaugural Religious Liberty in the States (RLS) index ranks the fifty states for how well they protect religious liberty in 2022. Of course, the legal landscape in each state will change with time, which is why we’ve designed the Index to be updated each year and reflect changes in specific statutes, account for adjustments in jurisdiction (such as a shift of authority from federal to state), and add new items as they prove relevant and feasible.

One area that we are already watching closely is how the states are reacting to the recent Supreme Court (SCOTUS) decision in Dobbs v. Jackson (2022) which shifted to the states the authority to decide whether (or in what situations) abortion is legal.

How the RLS Currently Measures Abortion Issues

It is important to note that the legality of abortion or its limitations does not directly affect the Index, nor is it likely to in the future. Because RLS is a measure of how much space states allow for the free exercise of religion, the legality of abortion itself will only become an issue for RLS if states codify abortion rights in law with the expressed intent of providing a right to abortion for religious purposes. There are no states that have made abortion a legal right for those with religious beliefs that require it. And, thus far, the majority of religious persons arguing for abortion rights from that perspective are drawing on a general religious concern for justice, not that abortion is religious exercise.

Currently, where RLS is concerned with anything health-care related, it is concerned only with the rights of health-care practitioners to refuse participation in procedures that go against their religious beliefs. Therefore, RLS does not need to take a stand on whether the procedure itself should be legal, but only whether religious people have the freedom to choose how they participate or even abstain from participation altogether.

On December 31, 2021, when we measured the various safeguards, abortion was legal in all states due to the standing SCOTUS decision in Roe v. Wade. While state laws about the legality of abortion varied, federal law superseded state law. Consequently, any state that did not have an explicit protection for religious providers, individuals, private hospitals, and public hospitals, and that did not explicitly preclude penalties for refusal (e.g. civil and criminal liability and consequences from the states) in the right to refuse participation in abortion failed to safeguard its citizens in this domain. If a protection did exist within a state, it received a score of 1; if it did not exist, the score was 0.

Learn more about how the scoring for the Index works here.

How Will the RLS Rankings Change After Dobbs?

The Dobbs decision will have implications for the 2023 RLS index and beyond. Primarily, we will consider whether or not abortion is legal in any case in the state. In any state where abortion is legal in some or all cases, the Index will discern whether it grants a specific right to refuse participation. So, if the letter of a state’s law allows any abortion and its refusal rights remain constant, its score on the 2023 index will not change from that in 2022. Take as examples the following four diverse scenarios:

• State allows abortion in limited cases and grants no right to refusal. Score 0
• State allows abortion in limited cases and codifies a right to refusal. Score 1
• State allows abortion in many-all cases and grants no right to refusal. Score 0
• State allows abortion in many-all cases and codifies a right to refusal. Score 1

There is only one scenario in which a state’s score may change—that is if a state does not allow abortion in any circumstance and also does not grant a right of refusal. If it is not legal in any case, then a state will not need to provide a specific safeguard for a person to have a right to refuse participation. This is what we call a “missing” right to refusal. Such a state would score a 0 in the 2022 Index because federal law making abortion legal superseded state law and if the state does not specifically protect the right to refuse, then under federal law it was not protecting religious liberty in this area, which meant its score was 0. However, with the change in federal law, the state now bans abortion and no longer needs a specific safeguard in order to protect religious liberty, so its score would change to a 1.

It is important to notice that the scores do not reflect the legality of abortion in a state. What does impact the score in a state will be if it requires an explicit safeguard to protect religious liberty and, if so, whether it provides that safeguard.

The Flexibility and Longevity of RLS

How RLS will adapt to Dobbs is a very timely question, but this example is not going to be a unique situation over time. This one legal change demonstrates that as the legislative landscape continues to evolve, RLS can grow and adapt to reflect the reality of religious liberty in the states.

Interested in learning more about how RLS 2022 works? See our methodology page or download the full report for more information.