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.
One might wonder at the relevance of the non-establishment clause to the issue of abortion, as the most prevalent arguments against abortion rights do not seem to proceed through religious language. But consider a piece of legislation twice introduced by Rep. Duncan Hunter and co-sponsored by senators including Mike Pence, now the Vice President, and Dr. Tom Price, the current Secretary for Health and Human Services. The 2007 bill is called the "Right to Life Act" and it would, in effect, outlaw all abortions.
The text of the bill is quite short, it reads in full:
To implement equal protection for the right to life of each born and preborn human person, and pursuant to the duty and authority of the Congress, including Congress' power under article I, section 8, to make necessary and proper laws, and Congress' power under section 5 of the 14th article of amendment to the Constitution of the United States, the Congress hereby declares that the right to life guaranteed by the Constitution is vested in each human being.
Most important are the definitions that follow:
The terms "human person" and "human being" include each and every member of the species homo sapiens at all stages of life, including, but not limited to, the moment of fertilization, cloning, or other moment at which an individual member of the human species comes into being.
Similar bills have introduced in 2013 by Sen. Rand Paul (S. 583) and in 2015 by Rep. Alex Mooney (H.R. 1091) both called "The Life at Conception Act".
Key for us is figuring out the justification for the idea that "the moment of fertilization" is the temporal point at which a human person "comes into being". Let's leave aside ectopic pregnancies and the fact that a viable pregnancy only begins when the fertilized ovum becomes implanted in the wall of the uterus. Consider the eight-celled zygote (see photo at the top): The real question is how anyone (perhaps most especially a surgeon like Secretary Price) could possibly think that this undifferentiated clump of cells ought to count as a "person" with the exact same rights as you and I?
We must first quickly reject the idea that it is because the zygote's cells have unique human DNA: a hair on your head has unique DNA but that does not make it a person. More than that is needed. And let's not get stuck on thinking that the question boils down to "when human life begins". No one denies that zygotes are alive and are something other than or less than human. Rather the question is when a person comes into being. There are two other possible reasons for taking zygotes to be people.
The first is the old "slippery-slope" argument beginning with the idea that we do not want to sanction the killing of people and that there is no sharp line at which point a developing fetus becomes a person. So, to play it safe, we back up the time during which abortion is proscribed until the first moment, thus assuring that we never sanction the killing of a person.
The logic, however, is invalid here: the lack of a sharp line between night and day, because of dawn and twilight, does not keep us from knowing that it is night at midnight and day at noon. We know the difference between an acorn and an oak tree, a caterpillar and a butterfly, even if there are no sharp lines between them.
There is obviously a difference between becoming a person and being a person. And even if there is no sharp line between them, we can certainly distinguish the before and the after: the zygote pictured above is not a person with rights, while a 36-week old fetus, viable outside the womb, is a person and should receive all the rights thereof. We can tell the difference between a zygote and a person like we can tell the difference between night and day, or an egg and a chick.
There is only one other conceivable reason for thinking that zygotes are people. And this is to think that it is the presence of an immortal soul which makes a person come into existence: the moment of fertilization marks when a person is created because this is when God miraculously endows the fertilized ovum with an immortal soul. A particular theistic belief, an element of a parochial religious creed involving the miraculous sanctity of life and the existence of immortal souls, is the likely motive behind the "Right to Life Act".
Evidence for this, at least coming from Vice President Pence, can be found in his recent speech at the pro-life "March for Life", soon after President Trump's inauguration. Along with a quote directly from the New Testament, he said, "we are, all of us, endowed by our Creator with certain unalienable rights", and "Enshrined on the walls of the Jefferson Memorial are the words of our third president, who admonished us, so long ago, to remember that God gave us life and gave us liberty." Secretary Price has echoed similar thoughts, for he has not only praised those who defend "the sanctity of life" but he has repeated that claim that our "liberty and freedom" comes not from "government, Washington, or the Constitution" but from "God almighty", and that as "our founding document says… all men are created equal" (emphasis in original): Secretary Price has, in the past, praised at length "the Christian foundation of our land", even though the Constitution includes no mention of the word "God".1
There is certainly nothing wrong with the private belief that life is miraculous or even supernatural, nor even privately believing that civil liberties are somehow God-given. But it would be unconstitutional for public officials to take their private beliefs and intentionally mold public law to fit them.
For again, we return to the Constitution's "non-establishment" clause. People are free to adopt the religious beliefs of their choosing, but first and foremost is that no particular religious creed is to be enshrined as law.
If we accept the liberty of religious belief, then Congress must not base social policies on a particular creed, including policies regarding abortion.
Imagine some possible future wherein a charismatic religious leader becomes so influential that a majority of Americans accepted his creed, part of which emphasizes the sanctity of blood and the sacrilegious nature of medical blood transfusions. Now, imagine that majority wished to make a law banning blood transfusions. Obviously, keeping the minority who do not accept this creed from getting blood transfusions would be a tyranny of the majority, flouting the minority's constitutionally guaranteed liberties.
The legal proscription of abortion based on the belief in immortal souls constitutes the establishment of a State religion. The commitment to the freedom to choose religious beliefs commits one to a pro-choice view on abortion to the very degree that the opposing pro-life view is based upon a particular religious creed. One can either accept the Establishment clause of the first Amendment or a religiously backed, pro-life view on abortion. On pain of hypocrisy, one cannot accept both.
In the same decision from Casey quoted above, Justice Kennedy also wrote that, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." This thought was quoted and affirmed by the majority in their decision for Lawrence v Kansas (2003). Laws justified solely upon particular theological beliefs are unconstitutional, un-American, and contrary to the spirit of religious liberty.
There may be good arguments against the existence of abortion rights or for limiting reproductive rights in general. But if there are such arguments, they will not be based upon the idea that fertilized ova or zygotes have a right to life because they have God-given immortal souls. Faith in such miracles ought not to shape the laws of the United States of America. Arguing against reproductive civil rights as an expression of one's religious faith, while pledging fidelity to our Constitution, is arguing in bad faith indeed.
1 For the full text of Pence's speech, http://www.abc15.com/news/national/full-text-vice-president-mike-pence-right- for-life-speech. The first quotes from Price are from a speech given at the Concerned Women for America's March for Life, Jan. 2012 at https://www.youtube.com/watch?v=EeTHu56i7s0. Price's praise for America's "Christian foundation" is in his speech at Johnson Ferry Baptist Church American Celebration, July 2016 at https://www.youtube.com/watch?v=BohjMzC1554.
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Paul Bloomfield is Professor of Philosophy at the University of Connecticut (Storrs) and the author of Moral Reality (Oxford University Press, 2001) and The Virtues of Happiness (Oxford University Press, 2014).