To suggest that religion alone provides the source for addressing life’s beginnings is false.
To suggest that religion alone provides the source for addressing life’s beginnings is false.
H ow do we as a body politic know when human life begins? And, where is it appropriate for the law to look in making that determination?
Justice Sonia Sotomayor brought this issue to the fore last week during oral arguments in Dobbs v. Jackson Women’s Health. In a contentious session that lasted nearly two hours, the justices and advocates focused mostly on whether the U.S. Supreme Court should overturn Roe v. Wade and Planned Parenthood v. Casey, the Court’s two landmark decisions on abortion. The issue of defining human life, one avoided by these cases, arose in an exchange between Justice Sotomayor and Mississippi solicitor general Scott Stewart, who was defending his state’s ban on abortions after 15 weeks’ gestation.
In his opening remarks, Stewart claimed that the abortion cases were the only instances in which “this court recognize[d] a right to end a human life.” Justice Sotomayor pushed Stewart on this, asking how his point involved “anything but a religious view.” In so asking, Sotomayor sought to delegitimize Mississippi’s stated interest in protecting unborn life. Religious claims, she assumed, had no place in the public sphere and amount to establishing a religion — thus, running afoul of the First Amendment’s establishment clause. In this view, then, the Court ought to strike down any law with such religious foundations.
The question of when life begins is certainly one that various religions have answers to. Psalm 139, says of God, “you knit me together in my mother’s womb.” The Didache, a very early Christian text, condemns abortion in clear and overt terms.
That one cannot assert a political claim based on religious faith is deeply debatable. Indeed, for much of our history, this country regularly invoked religious arguments as part of debates over justice and public policy. The Founders and subsequent generations overwhelmingly saw no conflict with these appeals and the religion clauses of the First Amendment.
But to say that religion alone provides the source for addressing life’s beginnings is false. Patently so. One might consider the claim from a biological standpoint, which affirms that unborn children do possesses human DNA as well as qualities of being animate. Sotomayor herself mentioned that when life begins “has been hotly debated by philosophers since the beginning of time.” Philosophy, while it certainly interacts with theology, considers itself a form of inquiry distinct from religion. One can approach this topic also from sociology, psychology, and other disciplines across the wide span of accumulated and still-growing human knowledge.
Even explicit appeals to God do not necessarily involve purely religious reasoning. The Declaration of Independence, for example, grounds its political claims in “the Laws of Nature and of Nature’s God.” This formulation distinguished God as known by revealed religion, such as the Christian Bible, from God as known through nature by the perception of human reason.
Thus, Sotomayor’s question was both false in its accusation and dubious in its implications. Her line of argument also sought to perpetuate a problem that will plague the Court until the justices change their approach.
Roe and Casey did take a pass at defining when human life began. Roe did so explicitly, Casey by mostly avoiding the matter. But that question gets to the essence of the abortion debate. The liberty of a woman over her own body is the right asserted by those opposing the Mississippi law and abortion restrictions in general. No one would gainsay this point if it regarded a woman’s choice, say, in hairstyle or medical treatment for a disease. The question of whether she possesses liberty on this question hinges on the status of the unborn child. Throughout our history, Americans have refused to define the exercise of one person’s rights as actions that would hurt the rights of others. One cannot say that the Second Amendment protects a right to murder. The right to property doesn’t allow one to instill a landfill overflowing with toxic waste near a playground.
So, if the unborn child is human, then the calculus regarding women’s liberty is decidedly different from the alternative case. This point extends to rights in general. What good is a right undefined? And what is more essential to a fundamental right to life than figuring out when life actually begins? The Supreme Court has been willing to define liberty on myriad issues, including abortion cases. If, as Casey opened, “liberty finds no refuge in a jurisprudence of doubt,” then neither does life find refuge in a jurisprudence of avoidance. Given our commitment to the natural right to life — something that is as unalienable as liberty — this legal status is unacceptable.
The Court should, at least, pass off the entire decision on abortion. It should, again at least, allow states to define life and act on those definitions. It has done so on questions about the end of life, for instance. While ultimately incomplete, that would be a decided improvement in protecting the right to life for all — as well as clarify the liberty claims that interact with that right. In so doing, though, the Court must understand that such laws as Mississippi’s are not some covert attempt to establish a religion. They are overt attempts to protect human life.