Now that the Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization has terminated a woman’s constitutionally protected right to abortion, it seems more clear than ever that the campaign to overturn Roe v. Wade, motivated by religious fervor and political expediency, has dangerously mixed religion and government. At the same time that women have lost ground in their right to access this specific form of medical care, we have witnessed the further erosion of our democracy.
Intentionally or not, the opposition to abortion rights has generated an attack on the First Amendment principle of separation of church and state. And their victory in Dobbs has further emboldened anti-democracy forces that would make this a Christian nation.
Consider: In his 1980 campaign for president, Ronald Reagan sought and won the support of religious conservatives when the Republican Party platform declared it the party’s mission to infiltrate the judiciary at all levels with judges who would “support the sanctity of human life” – phrasing that appealed to anti-abortionists’ belief that the unborn had a right to live regardless of the mother-to-be’s wishes. The Federalist Society, created in 1982 specifically to help fulfill that mission, vetted and groomed all six of the current justices picked by GOP presidents. All are Catholic, and they form the Court’s conservative Christian majority that supported the 6-3 decision in Dobbs.
In its aftermath, at least 12 states have banned all or almost all abortions from conception , implying that the just-conceived embryo holds the same right to life as a breathing, feeling, and thinking person – a belief long-held by the Catholic Church and some but not all its adherents. Inspired by the ruling, many Americans, including a number of elected officials and candidates for office, are now openly touting their desire for a church-led government rather than keeping the church separate from government.
Given the broader issues involved, the abortion debate needs to be refocused and reframed.
The Science of Personhood
The language of science, often as precisely tuned as any legalese, relies on two terms to describe the stages of development inside the womb. The fertilized egg is called an embryo. Embryonic life ends sometime around the eighth week and the fetal life begins. The fetus then develops over a period of months. Traditionally viewed, once it leaves the womb and takes its first breath, it is a live person.
For 50 years, the abortion debate has centered on the science of viability and its use as the marker of when personhood begins. Viability, however, is a contentious marker. The science of viability changes over time and only supports the potential for survival. It says nothing about the fetus achieving personhood.
For lack of any better determinant, the law under Roe relied on a scientific consensus around viability, the point at which the fetus is likely to survive outside the mother-to-be’s womb.
In 1981, when the Senate took up a proposed bill that would explicitly extend rights to the unborn, Leon Rosenberg, a leading human geneticist, testified that there was no scientific evidence that personhood starts at conception. His statement starkly contrasted with the testimony of seven other doctors in what many considered a hearing “stacked” to favor a ban on abortion. Rosenberg, who died this year, insisted during his testimony that the majority of scientists agreed with him and those who claimed otherwise had fallen prey to “personal biases”.
“Don’t ask science and medicine to help justify” a ban on abortion, he said. “Ask your conscience, your minister, your priest, your rabbi, or even your God, because it is in their domain that this matter resides.”
Forty years later, there has been little change to that perspective, according to Rick Weiss, the 2005 winner of the Victor Cohn Prize for Excellence in Medical Science Reporting who currently directs the nonprofit SciLine, a free service that connects journalists with scientists to foster more evidence-based reporting. He said the consensus view among experts he has interviewed is that “the question of personhood is not actually a science question in the end but a question of values and ethics.”
Conflating Personhood with Viability
The Roe decision found a constitutional right to abortion, holding that a woman could choose to have an abortion until the fetus was viable, which at the time was estimated to be between 24 and 28 weeks after conception. With its decision, the Court inadvertently attached the idea of personhood to the concept of viability.
Writing for the 6-3 majority, Justice Harry Blackmun said, “The word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” Yet, by establishing viability as the marker of life, the Court conferred a right of personhood to the fetus – the right to life – that the science of viability did not and still does not support. In doing so, Roe opened the door to other unsupported claims of when personhood begins.
The 6-3 majority opinion in Dobbs, which overturned Roe in June, repeatedly referred to the “unborn human being”, thus adopting a language of fetal personhood. The implications of such language are that fetuses should be granted rights and protections under the law, now at potentially much earlier stages of pregnancy. By linking personhood to such specific stages of pregnancy, the argument for banning abortion gains a veil of scientific authority despite the actual scientific view on the matter.
Immediately following the ruling, Georgia activated a 2019 law that granted fetuses the rights of personhood. The law was not allowed to go into effect while Roe stood. The Georgia law holds that after six weeks, when a “fetal heartbeat” (a false marker in itself) is detected, the fetus is a person. The law allows the carrier of the fetus to claim it as a dependent and receive a $3,000 tax deduction and also entitles the mother-to-be to collect child support.
Twelve other states now have fetal heartbeat laws that ban abortion in most if not all cases.
The First Amendment at Risk
For most of human history, human life, i.e., personhood, has generally been considered to begin at birth. We record the start of life at the hour and minute of the day we emerge from the womb, and celebrate our lives on that day’s anniversary. The science of pregnancy and birth, as practiced through the centuries by midwives, doulas, general practitioners, and gynecologists, has long told us that there is life inside the mother’s belly, but only in more recent times has a right-to-life been attributed to the fetus.There is plenty of evidence, and in recent years, proof that we can learn much about that developing life, including the likelihood that the fetus can survive outside the womb at a particular moment and with the proper technology. But never has science equated that life in the womb with personhood. That is the realm of religious faith and philosophical belief.
And it is from that realm that recent and overt attacks on our Constitution are being made. Just days after the Dobbs decision, Lauren Boebert, a Republican congresswoman from Colorado, told congregants at a church in her home state that she was tired of the separation of church and state.
“The church is supposed to direct the government. The government is not supposed to direct the church.” According to the Denver Post, her remarks were greeted with applause.
Often characterized in the media as a far-right extremist, Boebert is not some wacko on the fringe of the Republican Party but a voice that now represents the party’s mainstream. She denies the validity of the 2020 presidential election, an issue openly embraced or supported with silence by most Republicans in Congress, and her comments on church and government join a rising chorus of Christian nationalism within the party. She is favored to win re-election in November.
It has long been acknowledged by political observers that the Religious Right is the Republican Party’s largest voting bloc. The Pew Research Center confirmed in 2021 that the largest group in the GOP coalition is composed mostly of White Christians who “want Christianity to be more prominent in public life”. Pew notes that most also support the claim that the 2020 election was stolen. This is the party’s base.
Evidence of their success can be found in recent Supreme Court decisions, including Dobbs. Justice Sonia Sotomayor testified to the erosion of law that protects our freedom of religion in her dissent in another of the Court’s most important cases this year, Carson v. Makin. The majority in that case, decided just weeks before Dobbs, said Maine could not exclude religious schools from a state tuition program. Sotomayor stated in her dissent that the Court had reached its conclusions while ignoring decades of precedent, a criticism also leveled at Dobbs. She further accused the Court of now requiring in some circumstances that States “subsidize religious indoctrination with taxpayer dollars”.
The opening statement in her dissent was unequivocal: “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.”
Protecting Religious Freedoms
Several organizations have as their primary mission the protection of religious freedoms and separation of church and state. These include
Interfaith Alliance was founded in 1994 to counter the rise of the Religious Right as a dominant voice in American politics. Its website currently warns that Christian Nationalism is on the ballot in the 2022 midterms and urges supporters of religious freedom to turn out to vote “in support of an inclusive vision of religious freedom”.
Americans United for Separation of Church and State
Americans United bring together people of faith and atheists from different backgrounds and walks of life to support the separation of church and state. In an article it published one year before the Dobbs decision, it predicted “onslaught” by Christian Nationalists if and when Roe was overturned.
Author: George Linzer, with contributions from Zoe McGuirk
Contributing Editor: David Hawkings
Published on October 22, 2022
Feature image: George Linzer, adapted from a photo by Aiden Frazier on Unsplash
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