Paul D Simmons. Journal of Church & State. Volume 32, Issue 3. Summer 1990.
Rabbi Shira Stern was undergoing an abortion in her fifth month of pregnancy. Along with her husband, Rabbi Donald Weber, she had decided to terminate the pregnancy rather than give birth to a baby that would die of Tay Sachs within two years.
While she lay recuperating in her hospital bed, she heard a portion of then-President Ronald Reagan’s speech to the Convention of Religious Broadcasters. He attacked abortion as this nation’s greatest social evil, promising to overturn Roe v. Wade, and declaring that the killing of unborn babies had to stop.
Tom Braden is a syndicated columnist. He bared his soul in a mind-wrenching article addressed to Jesse Helms, senator from North Carolina, architect of the Senate version of the Human Life Amendment. Braden’s daughter had been kidnapped, tied, and gagged by five men who took her blindfolded to an apartment where she was repeatedly beaten and raped. She was found dazed and in shock. Days later, it was discovered that she was pregnant. She decided, with the full support of her family, to abort. Braden assured Helms, the U.S. Senate, the Moral Majority, and all others in the anti-abortion movement that they would do the same again—even if a human life amendment should be passed outlawing abortion.
Joseph Scheidler, a Roman Catholic, and Randall Terry, a Protestant minister, are activists in the anti-choice movement. They are leaders in the effort to shut down abortion clinics, engaging in sit-ins and pray-ins, linking arms to block entrances, shouting at and often pleading strongly with clinic patrons not to kill their unborn babies. The confrontations are often acrimonious and injurious women seeking abortions have lost shanks of hair, wound up with bruises on arms from being jostled in the crowd and restrained by the demonstrators, and felt humiliated by what they regard as verbal abuse.
These stories illustrate three important things about the abortion debate in America. The first is the emotional intensity and strong commitment of those who support and those who oppose the legal availability and moral acceptability of abortion. Whether in the rhetoric of politicians, the polemics of preachers, the demagoguery of demonstrators, the deliberations of a desperate couple, or the agonies of distressed parents, powerful emotions are generated and strong feelings are expressed.
Second, ultimate or ground-of-meaning beliefs undergird the actions taken and arguments made by each person or group. Emotions as well as actions are tied to strongly-held beliefs—one’s fundamental convictions. Beliefs about human personhood, freedom and moral responsibility in procreative choice, the nature of religious faith, and the relation of divine providence to natural processes provide the theological framework for what is regarded as a moral response to abortion.
Third, the legal and moral dimensions of the abortion question involve the compelling nature of religious belief and deal with the way public policy is to be fashioned in a pluralistic society. At stake are First Amendment prohibitions of the establishment of religion and assurances of the free exercise of religion. Roe v. Wade alluded to but finally skirted these questions, preferring to invoke the right of privacy as sufficiently broad to encompass decisions about pregnancy termination. More recently, the Webster v. Reproductive Health Services case refused to deal with the Preamble clause dealing with “fetal personhood,” arguing that this is an entirely separate issue.
But the issue begs for attention. The extensive political involvement of various religious groups on both sides of the issue demonstrates the crucial nature of abortion as an issue of faith. The profound differences in perspective between the groups point to the possibility for serious cleavages within and among the ranks of religious organizations. The bitter acrimony and accusations show the potential for even further loss of civility in the public debate and are threats to social stability. The battle has taken on a level of hostility with shades of medieval religious wars. In short, the abortion issue is testing the public’s understanding of and commitment to religious liberty.
Both establishment and free exercise issues are at stake in the debate over public policy and the legal availability of abortion. These can be seen in efforts to define the protections that pertain to the woman as citizen, the definition of personhood that might be attributed to gestating life, the constraints that might be imposed upon women seeking abortions, and the latitude permitted religious groups who seek social power through political processes.
The Establishment Question: Definitions of Fetal Personhood
Whether and/or in what sense gestating life should be defined as a person for purposes of constitutional protections is the foundational question of the debate. Whether it is truly the central issue or not may be debatable since other motives and wider agendas are certainly involved. But it is arguably the key issue at stake in fashioning public policy.
Those who seek to ban or severely limit elective abortions argue (1) that the fetus (zygote) is a person or human being, and (2) that abortion is murder and thus should be legally prohibited. Pope Pius XII stated it strongly: “Innocent human life, in whatever condition it is found, is withdrawn, from the very first moment of its existence, from any direct deliberate attack.” Similar statements can be found in the writings of Protestant Fundamentalists.
Those who insist upon making abortion legally available focus upon the woman as the moral agent whose rights are uniquely at stake. Gestating life will be seen in terms of its value to the woman, the couple or society itself, and not in terms of obvious or intrinsic personhood. Certainly it is not a person in the same sense as the woman.
Both groups agree on the basic biological facts of gestating life, including the various stages of development from zygote, to blastocyst, embryo, and fetus. They also agree that there is a biological basis for human personality. One cannot be a person with bios. They also agree that a fetus should be regarded as a person in the latter stages of pregnancy when development is sufficient to establish basic independence from the woman.
What they disagree about is the intrinsic value of the entity in the earlier stages of pregnancy. The debate is over the biological minimum necessary for speaking of the fetus as person. Anti-choice groups adopt what Daniel Callahan calls a genetic definition of personhood; a person is their genetic code.
They thus focus on conception as an objective point at which “uniqueness” is established. Pro-choice groups operate with a more complex and sophisticated definition of person. The fetus may reasonably be regarded as person once sufficient physiological development has taken place to distinguish it as an individual being, separable, and independent from the woman. This is a developmental definition that focuses on sufficient body and brain maturation that a fetus is “formed” and is more obviously comparable to a newborn.
It is reasonably obvious that more is involved in the debate than the biology of embryonic life. Arguments reveal (1) attitudes toward the morality of fertility control, (2) the place of woman in church and society, and (3) the place of moral values as the controlling factor in whether or not to abort. For instance, there are many people who believe that the fetus is a person from conception, but abortion should be legally available. There are others who believe that the fetus is not a person on any objective grounds but abortion is unthinkable on moral grounds except in extreme circumstances.
Both groups marshal! an impressive array of arguments based in tradition, religious doctrines, appeals to family values, human rights, and biblical teachings. The critical point for public policy is the appropriate way to adjudicate between competing, if not irreconcilable, theologies of human personhood. At stake are religious attitudes both toward fetal life and the woman.
The Preamble of the Missouri law (at issue in Webster v. Reproductive Health Services) states that “the life of each human being begins at conception” and that “[u]nborn children have protectable interests in life, health and well-being.” It further requires that state laws be so construed as to provide maximum protection to “the unborn child at every stage of development.”
One would think that such language would provoke careful scrutiny on the part of the High Court, since it seems obviously to endorse and embrace one religious perspective and make it normative for all citizens. Those whose religious groups do not subscribe to such statements were highly offended that the United States Supreme Court allowed the language to stand.
Chief Justice William H. Rehnquist wrote for the majority that the Court need not pass on First Amendment rights that might be at stake in the Missouri law. The Court held this to be an irrelevant appendage, since it “does not by its terms regulate abortions or any other aspect of appellees’ medical practice.” Missouri’s Attorney General William Webster had said that it is no more than “an abstract, philosophical statement of the legislature.”
The Preamble as Presupposition
Far from being an innocuous bit of emotional rhetoric, the Preamble actually states the presupposition or foundational assumption upon which the law is based. Blackmun noted that the Solicitor General had admitted that such statements place “a burden of uncertain scope on the performance of abortion by supplying a general principle that would fill in whatever interstices may be present in existing abortion precedents.”
Without the “conceptus-as-person” rationale, the law would be impotent since no ground is given upon which the fetus might be protected as subject of the law and as citizen of the state. Reknquist’s own bias is found in his comments that the Founding Fathers did not envision protecting the right to put our offspring to death. The fact that he could refer to abortion in the same sense that one might deal with infanticide, shows the religious or metaphysical belief to which he is committed.
The Fetus as Person
The question for public policy, of course, is what definition of fetal personhood is appropriate in and for a pluralistic society. To be sure, any legal definition will more nearly approximate one religious opinion than another. The question is whether the definition is reasonable or logically and philosophically problematic. There are some “religious” definitions far more consistent with reason and amenable to a pluralistic society than others. John Rawls has argued that any rationale “must be supported by ordinary observation and modes of thought … which are generally recognized as correct.” Abstract metaphysical speculation or faulty logic will not stand the tests of democratic rule.
The test of reason. To a majority of Americans, it is illogical if not ludicrous to speak of a fertilized egg as a person. The fatal fallacy of the genetic definition of personhood is its radical reductionism—a terribly complex entity (person) is reduced to a genetic code. No one can deny that there is a continuum from fertilization to birth, maturity, and adulthood, but not every stage on that continuum has the same value or constitutes the same entity. A fertilized hen egg, for instance, given the proper environment and time for incubation, will become a chicken. However, few people are confused about the entity they are eating when eggs are served for breakfast. An egg even a fertilized egg—is still an egg and not a chicken.
Potentialities are important but they are not actualities. A zygote is a cluster of cells that may develop into the being we refer to as a person. But fertilized eggs are hardly complex enough or physiologically developed enough to qualify as a human being. A person has capacities of reflective choice, relational responses, social experience, moral perception, and self awareness. Both zygotes and persons have “life,” and both are “human,” since they belong to homo sapiens. But a zygote hardly embodies the qualities that pertain to personhood. A great deal more complex development and growth are necessary before the biological basics for personhood are acquired.
Part of the genius of Roe v. Wade was the distinction in value that should be recognized and protected at law at the stage of viability. Prior to viability, a fetus simply does not have sufficient biological development to speak meaningfully of it as an independent, sentient being deserving and requiring the full protection of the law. Viability, by definition, deals with that stage of gestation at which the fetus has a developed neo-cortex and physiological maturation sufficient to survive outside the womb. Biological maturation is correlated with personal identity that can be recognized and accepted by reasonable people. It violates no group’s religious teachings nor any premise of logic to provide legal protections for a viable fetus.
Reasons in Experience and Faith. There are two grounds upon which one might seriously refer to the conceptus as a person. The first is because of specific religious teachings. Roman Catholic dogma has held—since 1869, following Mendellian genetics—that one should be regarded as a person (and given full moral and legal protection) from the moment of conception. Numerous Baptists, other Protestants, and some Jews join them in that belief. It is an opinion worthy of respect and protection as a religious doctrine. Being able to believe, teach, and follow such doctrines is fully consistent with First Amendment protections for freedom of religion. No group should be forced to abandon a doctrinal position that is important to their tradition and religious understandings, whether it is the notion of Immaculate Conception or believer’s baptism by immersion.
A second reason a conceptus might be regarded as a person is the human phenomenon of symbiotic bonding between mother (parents) and fetus. Those who want a child and plan a family may welcome the news that they “have a baby on the way.” That happy news evokes responses to the conceptus as if it were a person. This might be called anticipatory or attributed personhood. By talking to the fetus, stroking the bulging womb, and celebrating the pregnancy, preparation is made to welcome a child into the circle of the family. It is not yet a person, but it is already regarded as—it is named and accepted as—a person. That is as it should be during a pregnancy in which a child is wanted.
It is vital to recognize the all-important distinction between actual and attributed or anticipatory personhood. Relating to the developing fetus as person is a basic human phenomenon during pregnancy. Subjective emotions are not the same as objective realities, however, and confusing the two substitutes metaphysical speculation for qualities of maternal and paternal relationships to a developing conceptus. Such a substitute judgment violates basic logic and leads to the imposition of the most problematic of all belief systems upon all groups, most of whom oppose the notion on grounds of logic and/or religion. Preferences and personal commitments are one thing; camouflaging sectarian beliefs as law within a pluralistic society is quite another.
The Free Exercise Question: Individual Liberties
The second major question follows from the first: Are the legal constraints upon a woman needing or seeking an abortion consistent with the First Amendment protection of the free exercise of religion? The Webster case poses the issue dramatically.
Under the rubric of the permissibility of states to “make a value judgment favoring childbirth over abortion” the Court allows states to impose various barriers and impediments to the woman’s desire to terminate an unwanted pregnancy. Public funds may not be used, nor may public facilities and/or personnel be associated with providing or counseling an abortion.
According to Webster, strongly negative, even judgmental attitudes against abortion may be institutionalized by the state while providing “lures” such as public funding to encourage childbirth. Even the procedures allowed for “informing” the woman about gestational events and fetal development may seem more like harassments to those women who have already considered all the relevant data, weighed the values at stake, and reached a conscientious decision. Certainly they are humiliating and judgmental impositions when imposed by persons whose belief systems are incompatible with or unsympathetic to those of the woman. In effect, the Court is saying that abortions may not be prohibited by law (thus bowing to Roe) but women considering abortions may be harassed and intimidated.
The Court’s logic that such procedures “permissibly furthers” the state’s interest in protecting potential life seems to reveal the unstated premise that a zygote is a constitutionally protected person. The convoluted logic involved is thus entirely predictable. The more severe the hindrance the more effectively the state’s interest would be protected, as Justice Harry A. Blackmun noted.
The law simply cannot dance on a tightrope. If the woman is person/citizen with procreative rights based on religious convictions that are to be protected under the Constitution, such interventions seem to be imperialistic hindrances contrary to free exercise. In a free and democratic society, individual liberties are to be enhanced, not restricted without justifiable cause. However, the Rehnquist Court gave approval for certain restrictions without so much as acknowledging the need to deal with the rights of women to fertility choice.
The scenario produced is both tragic and shocking. The woman contemplating an abortion may be treated like a moral leper in an unsympathetic and hostile environment. Religious demagogues, elected officials, and health care professionals are thus given license to insult, harass, ostracize, and refuse treatment to women needing medical services.
All this is made possible by the Court’s adoption and imposition of a “value judgment” (as it benignly says) “that childbirth is preferable to abortion.” One’s immediate response is to question “for whom?” Certainly, it is not for the woman seeking relief from a problem pregnancy. It is even arguable that encouraging every pregnancy to come to term may be threatening to the well-being of the state and society. Social disintegration is one of the negative but entirely predictable outcomes of unlimited population growth. Even so, no reasons were given to support the idea that childbirth is preferable in the Missouri law nor were any required by the Webster decision.
The state is here portrayed as moral agent, able to impose its will upon the woman but without having to provide reasons as justification. “Value judgment” is a term loaded with theological and philosophical freight. It has enormous personal implications for the woman. “Childbirth” is another way of saying “motherhood” with its attendant roles of child-bearing and child-rearing. It is not a simple act; it is a life-changing event. Pregnancy and childbirth have ceased being viewed as options by the Court; they may now be impositions. Admitting that “value judgments” are at stake demonstrates precisely the contention of appellees that the conflict is basically religious in nature.
The life plan of the woman may not include motherhood—OR at least not at this stage of life or under circumstances that are threatening to her. To allow value judgments that give childbirth priority, one life plan is being enhanced while a personally chosen life plan is being devalued and hindered. The right of the woman to “life, liberty and the pursuit of happiness” is severely curtailed by the systemic imposition of a value contrary to those based upon her own personal interests.
Value decisions reflect ground-of-meaning beliefs around which persons define themselves as moral agents. When the value system of one person collides with that of another, the test is whether respect and protection or condemnation and intolerance are to dominate. In a pluralistic society that prides itself on the enhancement of personal liberties and religious toleration, one would think public policy would favor actions and attitudes that do not violate the conscientious belief systems of the individual.
The net result of the Webster decision is grave injustice and unfairness to the woman. As John Rawls says, the “main requirements of a just society are that the fundamental liberties of the person and liberty of conscience and freedom of thought be protected and that the political process as a whole be a just procedure.” Any constraint against conscience requires a clear and convincing case that doing so protects the public order.
Rawls’ point is twofold: (1) metaphysical opinion is acceptable as religious belief but it is anathema as civil law, and (2) the standard of reason or common sense makes it possible to make adjustments in the pursuit of justice in a democratic society. When public policy is based on sectarian dogma or matters of religious faith, the unjust suppression of liberty is inevitable.
Rawls’ analysis, written in 1971, could have been fashioned for the Court’s decision in Webster. It is precisely the imposition of a dogma-based religious value that allows the Court to engage in the problematic logic that hindrances do not constitute denials of liberty. That may be true theoretically but it is contradicted practically; it is a vicious Catch-22 for women. It is little wonder that the Philadelphia Daily News charged that the Court had engaged in “some of the most specious reasoning in the annals of making the law fit the desired conclusion.”
Furthermore, the task of government is to assure equal protection for all citizens. As Webster works out, however, those who experience no burdensome pregnancy have far more liberty than those women, who, by accident, tragedy, misfortune, or social circumstance, need an abortion. And, those who conscientiously believe that a zygote is a person and thus it would be murder to abort, are able easily to believe that their liberties are not being infringed. The picture is totally different, however, for women whose consciences are violated and whose very being cries out for relief from a burdensome and odious doctrine that constrains them from acting consistent with their consciences and religious beliefs.
One of the great values of the Roe decision was that no woman was coerced to act in ways contrary to her religious scruples and moral value system. For those who believe strongly that zygotes are persons, there is no coercion to terminate a pregnancy even under the most problematic circumstances. On the other hand, those women whose religious and moral belief systems permit abortion under certain circumstances were respected and protected. It belongs to the woman to decide based upon her religious beliefs. Religious groups are also free to teach their followers whatever doctrinal formulations of personhood they believe consistent with their commitments to tradition and theology. Without ever saying so, Roe v. Wade was an exercise in protecting religious liberty.
Webster, on the other hand, contradicts a basic commitment to constitutional liberties assured U.S. citizens. The task of government is to enhance liberties, not diminish them, especially when such limitations are based on speculative theology and abstract metaphysics. The law needs a concrete reference in human life—not an interest in abstract or theoretical matters. That is one meaning behind the concern to divide the realms of legitimate interests between government and church in the First Amendment. Religious thought often involves metaphysical speculation. The transcendent does not lend itself to concretion. But law is to be based on facts available to ordinary people and open to rational scrutiny. The test of reason is vital.
It is instructive, for instance, to take literally the Court’s permission to regard a conceptus as a human being with “all the rights, privileges and immunities available to other persons, citizens and residents of this state.” Is the jailing of a pregnant woman, the jailing also of an innocent person (a fetus)? Is a zygote entitled to welfare benefits or food-stamp allowances? Should Social Security benefits actually come due nine months sooner than we thought? The implications for social programs are staggering, of course. Such reductio ad absurdum arguments show the absurdity of logic at work in the Court’s decision.
Furthermore, if the decision is to comply with previous Court guidelines about establishment decisions, some secular reason must be provided as justification for severely limiting the woman’s decision regarding procreative choice. There is considerable difference, for instance, in legislating against abortion in order to protect the health and well-being of the woman (as noted in Roe v. Wade about nineteenth-century restrictions) and legislating against abortion on the belief that a fertilized ovum is a human being. One builds upon the morality of protecting citizens from harmful medical practices; the other imposes religious dogmas as a constraint upon citizen actions regarding procreation.
Or, the Court might have given some “social value” rationale to undergird the secular purposes to be served by protecting zygotes. Pat Robertson, for instance, gave such reasons during his campaign for the Republican presidential nomination. Referring to West Germany and its NATO military commitments, Robertson argued that abortions ought to be outlawed in order to assure manpower for the military and workers for industry. He apparently believes that women should be drafted for mothers much as men have been drafted for military service. The story evokes memories of Adolph Hitler and Josef Stalin who outlawed abortion as a complement to their military and nationalistic goals.
Lacking a discussion of secular interests that override those of the woman, the conclusion seems unavoidable that the Court is permitting the imposition of arbitrary hindrances based upon a religious value judgment. It bypasses interest in citizen rights and engages in speculative metaphysics. In the abortion debate, the undisputed and real person is the woman. She is citizen- person—who should be fully protected under the law and assured that her liberties are to be enhanced and not curtailed without sufficient justification. The Court waffled on this fundamental, common-sense, and self-evident matter. In effect, it turned a blind eye to the woman and elevated the interests of “the unborn.” She became “invisible woman;” the zygote became citizen and person for all intents and purposes of the law.
The Court as Guardian
A further disturbing dimension of the Webster decision is the Court’s refusal of its role as guardian of religious liberty rights. As one branch of the U.S. tripartite system of government, the Supreme Court serves to define the limits of legislative and executive powers through political processes. The Court is protector of those “inalienable rights” that are not to be subject to popular vote, modification by majority rule or the imposition of law. The Founding Framers of the Bill of Rights recognized and feared the tyranny of the majority and set about to protect the rights of the few against the power of the many. Might—even in the form of majority vote—does not make right under the Constitution. As Justice Blackmun reminded the Court:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the Courts. One’s right to life, liberty, and property … may not be submitted to vote; they depend on the outcome of no election.
By this reading Rehnquist’s snide comment that the Founding Fathers would not approve our killing our offspring should be turned on its head. What is unbelievable to imagine is that they would have tolerated the notion that government might interfere in such enormously private decisions. They feared precisely the type of government encroachment into matters of conscience that is involved in the regulation of procreative choice. Few liberties are more basic to one’s life and fortune than those involved in choices about fertility.
In refusing to affirm First Amendment guarantees at stake in the abortion debate, the Court rejected its role as keeper of constitutional law. There seems a cowardly cynicism at work in arguing that the abortion issue should be dealt with by the various states. Justice Antonin Scalia stated the position strongly. For him, Roe v. Wade should be overturned. The Court’s dealing with the abortion issue is
needlessly to prolong this Court’s self-awarded sovereignty over a field where it has little proper business since the answers to most of the cruel questions posed are political and not juridical—a sovereignty which therefore quite properly, but to the great damage of the Court, makes it the object of the sort of organized public pressure that political institutions in a democracy ought to receive.
Scalia’s proposal is to make the abortion question a states’ rights issue instead of setting a nationwide standard under a single constitution. It can reasonably be predicted that the confusion and anarchy that existed among the various states prior to 1973 will return. That attitude sends a frightening message to those minorities who have depended upon the Court to protect them against the tyranny of majorities who are unsympathetic with or ignorant of the legitimate interests of such groups.
That threat was compounded by the insulting comfort offered by the decision that its treatment of women’s rights “holds true the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not.” Justice Blackmun rightly called this “unadulterated nonsense,” arguing that the abortion decision “must fall within that limited sphere of individual autonomy that lies beyond the will or the power of any transient majority.”
The Court (certainly Scalia) has capitulated to two dangerous and odious ideas. The first is the notion that all issues might be submitted to a vote and that the various states might impose vastly different social arrangements regarding liberties and their constraints The second is the notion that sectarian doctrine is not inimical to public policy.
The organized and widespread attacks against the Court during the past two decades plus the overt efforts of the Reagan administration to politicize the Court seems to have taken its toll. The Rehnquist Court seems to have lost its constitutional mandate as guardian of constitutional rights. It has been politicized—perhaps inextricably and irretrievably so. The plurality seems willing to impose religious ideology and personal moral judgments upon all Americans thus denying the commitment to religious pluralism that was evident in Roe v. Wade.
If the opinion of this Court prevails, the civility that is generally maintained between and among the various religious groups will be severely damaged. Angry and acrimonious confrontations in the civil arena will be based on religious opinions strongly and irreconcilably held. The Court has undermined one of the most effective deterrents to a loss of civility among religious disputants.
Justice would have been served had religious liberty been strongly affirmed. The Court had a grand opportunity to outline the nature of the abortion debate as one involving commitments to ground-of-meaning beliefs, and conscientious action based upon a religious frame of reference. The impotence of the state to define fetal personhood or impose criminal sanctions for abortion should be affirmed as the limits of political solutions to this (religious) matter. That seems a necessary corollary to the constitutional prohibition of the state’s role in doctrinal disputes.
The myth of democracy is always in tension with the myth of religious liberty, of course. Democratic processes seem to place everything at the disposal of “majority rules,” based upon an idea of “one person, one vote.” Religious liberty, on the other hand, requires that the law value and protect the integrity and conscience of the individual. In the court of faith, conscience is a majority of one.
The Protection of Conscience
Protecting the rights associated with faith commitments is a matter both of legal and ultimate concerns. Being able to act consistent with, and not be compelled at law to act contrary to, one’s beliefs is a matter that goes to the core of one’s being. It is a matter not simply of thought or weakly held opinion; it is a matter of belief that is so profound and thoroughgoing as to be rooted in ultimate reality. One’s personal life is oriented around such principles of faith or belief. Whether the person is theistic or not is beside the point. One’s conscience the life and integrity of one’s interior or essential being—is at stake.
The power and inferiority of conscientious belief was the principle behind the Court’s notion of “the right to privacy,” which prevailed in Griswold v. Connecticut as a species of liberty guaranteed by Due Process. As Blackmun noted, this undergirded decisions safeguarding procreative rights. Few decisions are “more basic to individual dignity and autonomy” than that “certain private sphere of individual liberty, that the Constitution reserves from the intrusive reach of government than the right to make the uniquely personal, intimate, and self-defining decision whether to end a pregnancy.” The general principle, he said, is the “moral fact that a person belongs to himself and not others nor to society as a whole.”
Respect for and protecting the sanctity of conscientious belief are related to the Protestant doctrines of soul competence and liberty of conscience. The special relationship of the person to God, the capacities for spiritual and moral decision-making and the sanctity of religious belief are here brought together.
Conscience is the name given the governing principles of life to which a person is ultimately committed. The totality of the self and thus the integrity of personhood is involved in following the moral dictates of conscience. The depths of one’s own being and the ground-of-meaning of one’s own existence are expressed in the struggles of conscience. Biblically speaking, conscience is the arena of the human spirit’s struggle with the moral claims made by the will of God. It is here that one obeys or disobeys God’s commands.
The violation of conscience is therefore of ultimate concern on religious grounds. To override or disobey conscience is to do violence to the transcendent dimensions of human existence. The liberty of conscience thus establishes an important constraint on public policy. The claims of conscience establish the outer limits of state authority and the coercive intrusion or imposition of other religious authorities. The individual cannot surrender the claims of conscience to the state any more than the state can claim to be able to set the limits to which conscience must be obeyed.
The theological (religious) basis for restricting the power of Congress to prohibit the free exercise of religion is found in the notion of freedom of conscience or soul liberty. Congress is not to impose alien and odious doctrines upon people who do not share that particular theological or dogmatic opinion. Belief is not to be prescribed by authorities external to the self nor is acting upon one’s religious convictions to be subject to punishment by the state.
The Vision of Religious Liberty
Religious liberty has never been a majority point of view in this country, however. It arose among the powerless but outspoken whose rights were being abridged by religious and political powers that did not share their vision of the rights and integrity of conscience. Its vision has been kept alive among those of the free church tradition, Jews, and other minorities. But religious freedom is a fragile possession—never fully secured and always in jeopardy. It has been protected by the First Amendment, an informed Supreme Court and judicial system, a friendly and supportive Congress and executive branch of government, and the mutual agreements of the various religious denominations of America.
There are disturbing signs that the atmosphere of support for First Amendment rights is seriously eroding. New alliances have emerged that threaten the guarantees at the heart of religious liberty. Ironically, a great deal is heard about freedom of religion. As it works out, however, what is sought is the freedom to impose sectarian opinion upon all Americans. Richard John Neuhaus puts it bluntly when he calls for “political doctrine and practice” that do not “exclude religion and religiously-grounded values from the conduct of public business.”
Puritan theocrats are very much alive in the New Christian Right. And proponents of a church-over-state [such as the Roman Catholic hierarchy] approach to religion and politics have achieved new and extraordinary political power. Both of these groups have long been known for their impatience with the First Amendment. They chafe under its constraints, committed as they are to imposing their own brand of religion and morality upon us all. It is not by accident that those in the religious coalition working to ban abortion are also those most hostile to religious liberty.
Religious liberty has three dimensions. Freedom of religion means that government is not to coerce people of faith to conform to regulations in doctrine, morals, or polity not of their church’s own making. Freedom for religion assures that religious groups and individuals may participate openly and without hindrance in the political process, holding office, and even criticizing policies and practices of government. The New Right coalition accepts these two tenets and works actively to assert political leverage.
The problem arises with the third tenet: freedom from religion, which limits the imposition of religious doctrines or morality upon those who do not share them. Even atheists have rights of conscience in a free and pluralistic society. Government is to constrain the tyranny of religious groups who attempt to consolidate power against others.
The Secular Purpose Test
The test for legislative solutions to complex moral issues has been that statutes are to have “a secular purpose.” But the New Right is committed to declaring America a Christian nation. The very notion of a secular state is anathema to them. They are not squeamish about efforts to legislate remedies to social problems based on sectarian doctrine, as the quote from Neuhaus shows so clearly. More recently, Archbishop Roger Mahony of Los Angeles declared that “Catholic officeholders … have a positive moral obligation … to work for an America in which the abortion liberty has been repealed.”
In making such a declaration, Archbishop Mahony is glossing over the fundamentally important distinctions between personal religious opinions and their imposition through law, which Catholics like Geraldine Ferraro, Mario Cuomo, John Kennedy, and Justice William Brennan see as a constitutional requirement for public officials. As Nancy Evans wrote, “In urging Catholic legislators to make public policy according to the political position of the church, Archbishop Mahony clearly violates the principle of religious freedom upon which the U.S. was founded—the very liberty, in fact, which has enabled the Catholic church itself to flourish in this country.”
The abortion decision may become the occasion for setting the stage for the abolition of the wall of separation between church and state and that at the behest of powerful religious groups in America. Even many Southern Baptists—traditional champions of religious liberty—have joined that crusade. Their moral anguish over the perceived evils of elective abortion have caused them to react with enthusiastic support for what seems a simple legislative remedy. Forgetting their heritage, they have embraced the ideology of those who once persecuted them. Too late they may discover that sacrificing religious liberty for political power is a Faustian bargain.