In the decades since 1973, abortion law has morphed into a First Amendment issue. Decisive arguments turn on the Establishment Clause.
It didn’t start out that way. In Roe v. Wade, the Court found no consensus about the beginning of life, and decided to punt: “When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”
Later defenses of Roe reject theological criticisms because they are theological. When the Court reaffirmed Roe in Thornburgh v. American College of Obstetricians and Gynecologists (1986), Justin Stevens argued in a concurring opinion that because belief in a fetus’s personhood rests on a “theological argument,” it is outside the Court’s competence: “I believe our jurisdiction is limited to the evaluation of secular state interests.”
In a dissent from the Court’s support for Missouri’s restrictions on state funding of abortions (Webster v. Reproductive Health Services, 1989), Stevens returned to the Establishment Clause. The preamble to the Missouri statute reported the legislature’s findings that “the life of each human being begins at conception” and that therefore “unborn children have protectable interests in life, health and well-being.” For Stevens, this amounted to an unconstitutional establishment of religion. Without “the theological concept of ensoulment,” Stevens claimed, “a State has no greater secular interest in protecting the potential life of an embryo that is still ‘seed’ than in protecting the potential life of a sperm or an unfertilized ovum.”
More recent challenges to restrictions on abortion—like the Satanic Temple’s suit against the state of Missouri—have also appealed to the First Amendment.
It’s not a surprising development. Even advocates of abortion rights recognize that privacy is a thin reed. As Peter Wenz put it in Abortion Rights as Religious Freedom, the claim that the Court is keeping the government out of our bedrooms is a transparent ruse: Contraceptives may be used in the bedroom, but they aren’t sold there; abortions take place in clinics and hospitals. A “privacy” right elastic enough to cover economic transactions and medical procedures can cover anything and so means nothing.
Defending abortion as a First Amendment right is a shrewd political move. It disassembles the conservative triad linking religious freedom to the pro-life and pro-family agenda. In the hands of abortion advocates, religious freedom becomes a solvent of pro-life and pro-marriage laws. Every conservative victory on the religious freedom front becomes a potential threat to the pro-life and pro-marriage cause.
A clever strategy, and one that raises today’s debates about the future of Roe to a fever pitch. If abortion is a First Amendment issue, the coming battle over Judge Kavanaugh’s confirmation isn’t just about the future of abortion rights. What’s at stake is the core of American freedom, which Justice Kennedy famously defined as liberty “to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Overturning Roe would imply that American law recognizes a shared concept of the mystery of human life. People on the pro-choice side feel that their entire way of life is under assault, because it is.
Pro-lifers might be tempted to wrench the debate back to safer ground, on the plausible supposition that the privacy arguments of Roe present a softer political and legal target. They might be tempted to object that the personhood of the fetus isn’t a theological issue in the first place.
Those strategies are, I think, mistaken. Pro-life Americans should take their cues from Benedict XVI’s critique of the secular European Constitution and his insistence that European law should acknowledge its roots in Christianity.
Benedict’s case is partly historical. The European Constitution treats the secular Enlightenment as the dominant tradition. It permits Christianity to be practiced but reduces it to a secondary, epiphenomenal level of European civilization. That is a massive act of cultural amnesia. The European Constitution tries to build Europe by scrapping the foundations of Europe.
As a practical matter, Benedict argued, a strictly secular constitution is dangerous. It will provoke clashes with the Church. Europe is afraid of religious fanaticisms, but Benedict counters that reason produces its own fanaticisms (Communism, Fascism, Nazism). Reason needs to be moderated by faith, and faith by reason. European law can be true and just only if it publicly acknowledges the crucial role that faith plays in public life.
As Benedict’s examples of secular fanaticism indicate, secular law has a totalitarian tilt. Dogmatic secularism has turned much of Europe into a union of undemocratic nationless states, regimes that, in the name of freedom and tolerance, suppress religious traditions of the very people they govern.
Mutatis mutandis, Benedict’s arguments apply to the United States. There was a time when even the Supreme Court recognized America as a “Christian nation.” For the first two centuries, the Establishment Clause didn’t require courts to ignore America’s dominant religious traditions. The issue is whether American law will be allowed to reflect America or continue to drift, unmoored from everything prior to 1963.
With Roe under scrutiny, we have an opportunity to end the slaughter of unborn babies. And in the process, we have an opportunity to replant, and re-evangelize, American law.
Peter J. Leithart is President of Theopolis Institute.