Abortion and the Constitution

This piece ran in newspapers at the end of June, 2022.


The Constitution doesn’t say anything about abortion. But the Constitution does say that, when it comes to the religious views of American citizens, each person has the right to live in accordance with their religion (“freedom of religion”) and that the power of the state will not be used to force any particular religious view upon the whole of society (the “establishment clause”).

It is fairly easy to see that the division of the American people over the issue is a religious difference of belief.

  • The religious basis of the anti-abortion movement was clearly shown with all the Christian/Biblical references in the signs demonstrators were carrying on the Supreme Court steps.
  • And the basic disagreement is on a fundamental, spiritual/metaphysical question about when a fertilized egg should be considered a human baby entitled to the rights with which all humans have been “endowed by their Creator.”

The disagreement is not about whether it is OK to “kill babies.” Rather, the disagreement concerns when in its development such an organism should be considered a “baby.” It is not surprising that the question of when something in utero should be seen as a human being is answered in different ways by different people, just as it is never surprising that humankind has a variety of religions. (Pro-choice people want just as much to protect “babies’” as those on the other side.)

America’s founders knew a lot about religious differences, having seen how Europe was embroiled in religious wars for generations. With the First amendment clauses regarding religion – not only “freedom of religion” but “the establishment clause” that tells the government to stay neutral between religious points of view — the founders, to prevent religious disagreements tearing America apart, gave us a Constitution that says Americans must tolerate other Americans making their own religious choices, even choices we abhor.

(That’s what some of America’s bishops seem not to recognize: that someone holding public office might follow their religious beliefs in their own lives, and never choose abortion, but – having sworn an oath to defend the Constitution – feel obliged to maintain, as public officials, that the government should not bring its power to bear on Americans who hold different beliefs.)

It has been a half century that Americans have struggled intensely over the abortion issue. That conflict has inflicted political damage on the nation, because the conflict has absorbed so much energy, and generated so much bitterness, that Americans have been disabled from achieving some of the many purposes that great majorities of Americans share.

What would be best, therefore, would be to come to some kind of settlement that would best serve the nation, and that would settle things enough to enable Americans to move ahead.

These are the possible settlements of the issue.

1) The religious views of one group of Americans could be imposed upon the whole society. This satisfies some very strong passions of people who think that abortion is murder, and who want to protect “innocent life.” But it does so – in violation of the Establishment clause — by using the power of the state to enforce a particular religious view on the whole of society. (This is particularly problematic when the religious view that’s being imposed is that of a minority.)

(About two-thirds of Americans do not want Roe v. Wade overturned. And when it comes to the 84-page draft opinion by Alito — which may or may not be the Court’s final word — the religious position being imposed is opposed by more than 90% of Americans.)


2) All Americans could be given the freedom to make their own decision on this religious matter, as “freedom of religion” would require. This is a pro-choice position – keeping the government out – but the “pro-life” side does get what the Constitution has promised everyone, which is the freedom to live their own lives in accordance with their own religious beliefs.

(3) Or the settlement could be some kind of blending of individual choice but with some rules that set boundaries on “the right to choose,” like differentiations between different stages of pregnancy.)

Given that America needs a way of coming to terms and moving on, and that no settlement will please everyone, the question is: Which is more American,

  • a settlement that lets every American act in accordance with their own deep beliefs, though some will regard the choices of others as terribly wrong; or
  • one that imposes on all the religious judgments of some (and a minority at that)?

Overturning Roe will perpetuate the kind of conflict our founders sought to avoid. (And actively inflame that conflict, if the Court’s decision follows Alito’s draft – reading as it does like a fiat from an American theocracy, simply dismissive of “the unbelievers.”)

If one wanted to degrade America, there would be no better strategy than to keep Americans so bitterly embattled with each other that they cannot come together to accomplish good things for the nation.

However one regards abortion, one should shun and reject a political force consistently foments conflict between groups of Americans. (Even, as we’ve seen, over a legitimate election.)

Peace and cooperation are the tools of the Good. Constant conflict does the work of Evil.

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