The leaked draft of Judge Samuel Alito’s opinion in Dobbs v. Jackson Women’s Health Organization, which has sent shockwaves across the United States, says a majority of Supreme Court justices will likely overturn the constitutional right to abortion granted in Roe v. Wade. Using unusually harsh language, Alito said “Roe and Planned Parenthood v. Casey must be overturned” due to the decisions’ “abuse of judicial authority”.
“Roe was terribly wrong from the start,” Alito wrote, and his “reasoning was exceptionally weak.”
He also asserted that neither abortion nor privacy are mentioned in the text of the Constitution, nor should they be considered “deeply rooted in the history or traditions of the Nation” for be worthy of protection.
As a professor of constitutional law who has taught reproductive rights for more than 20 years, I argue that Alito’s legal reasoning leaves out several established constitutional principles that are also not mentioned in the text – such as separation powers and executive privilege – as well as rights that conservatives hold dear such as the right to marry and parental rights.
Alito’s assertion that the right to abortion “was entirely unknown in American law” until Roe is unfounded. Historically, abortion was not completely illegal, even in puritanical New England. The first restrictions on abortion were enacted in the United States in the 1820s.
Even then, they generally prohibited abortions only after “acceleration,” the early equivalency of fetal viability – the ability to survive outside the mother’s womb. Alito’s legal justifications aside, the legal debate over abortion is as much a religious dispute as it is a constitutional one.
Most anti-abortion rallies have signs and banners with religious warnings such as “pray for life” and “pray to end abortion.”
Today, the strong opposition of the Catholic Church to abortion and contraception is well known. However, in an interesting recent book, “Abortion in Early Modern Italy,” historian John Christopoulos argues that prior to 1588 the Catholic Church’s position on abortion was more ambiguous. Previously, the church did not necessarily oppose abortion before accelerating, but that year changed its position with a papal statement that stated that the human soul is created at the time of conception. , known as “ensoulment”, and that all abortions were murders. .
In 1968, the National Conference of Catholic Bishops founded the National Organization for the Right to Life to coordinate the activities of state groups opposed to abortion. In 1973, following Roe, the organization constituted itself as the National Right to Life Committee, severing formal ties with the Catholic Church in order to attract conservative Protestants.
In addition to Catholic groups such as Priests for Life, opposition to abortion is led by other conservative groups with Protestant membership, including the Faith and Freedom Coalition and the Family Research Council.
More militant anti-abortion groups such as Operation Rescue and Operation Save America also declare their opposition on religious grounds. According to an OSA official, “Satan wants to kill innocent babies, demean marriage, and distort the image of God.”
In reality, the American religious community is divided on the issue of abortion. According to the Pew Research Center, about three-quarters of white evangelical Protestants — 77% — say abortion should be illegal in all or most cases, while 63% of white Protestants who are not evangelicals say the Abortion should be legal in all or most cases. . Interestingly, lay Catholic attitudes are more evenly split – 55% support legal abortion in all or most cases, while 43% say it should be illegal in all or most cases.
As philosopher Peter Wenz argued in his book “Abortion Rights as Religious Freedom”, a person’s opinion on whether a pre-viable fetus is a person is a religious decision. Restrictions on abortion interfere with this right to religious freedom.
Several liberal denominations agree. A 1981 United Church of Christ resolution states that “every woman should have the freedom to choose to follow her personal and religious beliefs regarding the completion or termination of a pregnancy.” And according to the National Council of Jewish Women, Jewish law does not recognize a fetus as a person, but rather teaches that abortion is permitted and even required when a woman’s health is at risk.
Yet for conservative Christians who believe that life or the soul begins at conception, there can be no compromise on the issue of abortion. And the issue of abortion has long been a priority among conservatives in a way not shared by liberals. This helps explain much of the resistance of the anti-abortion movement. Fifty years of case law support the right to abortion. But the moral certainty of anti-abortion activists on the issue is so strong that in their eyes even this half-century of precedent seems destined to crumble.
After all, they reason, legal rules and principles are rarely absolute. For them, religious certainty about the wrongfulness of abortion provides an answer that the law lacks.