Religiously-Informed Opinions on Abortion and the Ambiguity of the Establishment Clause

The topic of abortion continues to be a highly contentious one in the United States, evidenced by the ongoing Supreme Court case Dobbs v. Jackson Women’s Health Organization that was heard in December of 2021. Many pro-choice advocates fear that this case may be the end of the landmark Roe v. Wade (1973) decision that established a woman’s right to an abortion up to the point of viability.1 Over 20 states, emboldened by the Court’s conservative majority, have introduced “trigger laws” which would restrict abortion rights if Roe is overturned.2 Many of these trigger laws impede abortion access by establishing a different baseline for personhood. By using measures other than viability, such as the detection of a fetal heartbeat with a transvaginal ultrasound, legislators can limit the amount of time that women are legally allowed to seek out an abortion. Under the currently proposed laws, abortion could be made illegal as early as 5 ½ weeks post-conception.3 Given that transvaginal ultrasounds can detect fetal heartbeats as early as a week to two weeks post-conception, nothing would stop legislators from changing this to the baseline for personhood if fetal heartbeat laws are permitted.4 Essentially, in the absence of Roe v. Wade, or comparable protection, lawmakers would possess the ability to make abortion functionally illegal by preventing women from seeking an abortion before they are aware of being pregnant.

Since abortion is a morally-influenced topic, people’s religious beliefs, or lack thereof, inevitably impact their opinion on the matter. While people often associate religion with a pro-life stance and atheism with a pro-choice stance, this is not the case. Religions widely differ in their belief about when life begins, and even within faiths, there is much inconsistency of opinion. For example, according to a Pew Research Center report on where major religious groups stand on abortion, a wide spectrum of opinions can be found across the denominations and churches of the world’s most-followed religion, the Judeo-Christian faith.5 For example, the Roman Catholic Church and Southern Baptist Convention oppose abortion rights with few exceptions, while the Episcopal Church and United Methodist Church support abortion rights with some limitations.6 The Reform Judaism movement and the Presbyterian Church support abortion rights with few or no limitations, and Orthodox Judaism and the National Baptist Convention demonstrate no clear position on the matter.7 While this is not to say that every follower within those religions takes the same stance on abortion, large percentages of people who subscribe to these religions use those teachings to guide their judgment.

Religious beliefs also contribute notably to the debate over when human life begins. Many pro-choice supporters argue that the fetal heartbeat laws are a religiously-based limit for personhood and, as such, violate the Establishment Clause of the First Amendment. The Establishment Clause was created to prevent the government from making a law “respecting an establishment of religion.”8 One issue with the argument that fetal heartbeat laws violate the Establishment Clause is the difficulty of proving a fetal heartbeat law, or any other law for that matter, relates to an establishment of religion. In fact, in Harris v. McRae (1979), a Supreme Court case concerning Medicaid funding restrictions, the Court established that the coinciding of legislation with the tenets of a specific religion did not constitute an establishment of that religion.9 Justice Scalia expanded on the idea that religion can influence codification without violating the Establishment Clause when he stated, “Our cases in no way imply that the Establishment Clause forbids legislators merely to act upon their religious convictions … we do not presume that the sole purpose of a law is to advance religion merely because it was supported strongly by organized religions or by adherents of particular faiths.”10 With the Court’s current stance, it seems nearly impossible to strike down a fetal heartbeat law using the Establishment Clause.

An additional issue with asserting that a fetal heartbeat law represents an unlawful religious imposition is the ambiguity of the Establishment Clause. The Supreme Court aimed to detangle the ambiguity of the Establishment Clause in a doctrinal test established in Lemon v. Kurtzman (1971), commonly referred to as the Lemon Test. The three-part Lemon test states that if a law does any of the following, then it violates the Establishment Clause: (1) if a law does not have a secular purpose, (2) has the primary intention of advancing or inhibiting a religion, or (3) fosters an excessive government entanglement with religion.11 The Lemon Test has faced much criticism for being exceedingly subjective, but it still stands as the primary benchmark for determining a law’s potential violation of the Establishment Clause.12 However, the Court has attempted to ameliorate the Lemon Test with the addition of another doctrinal test called the Endorsement Test, which was proposed by Justice Sandra Day O’Connor in Lynch v. Donnelly (1984).13 The Endorsement Test attempts to append the Lemon Test by setting a standard that if a “reasonable, well-informed” or “objective observer” believes that “the government is institutionally entangled with religion,” then the Establishment Clause has been violated.14 Justice O’Connor’s Endorsement Test has also faced much criticism, drawing back to the idea that the Clause’s ambiguity makes it remarkably difficult to prove that it has been violated.

Given the complexity of designating legislation as religiously motivated and in violation of the Establishment Clause, an argument that aims to protect abortion rights by targeting religious motivations is an unsuccessful one. Religious tenets inform countless moral beliefs and, as Charles Bellinger captures in his essay Religious Arguments and the Abortion Debate, “secular morality plagiarizes religious morality.”15 There exists no real separation of church and state, and nothing is truly secular when the vast majority of Western beliefs are formed on religious teachings. The United States was founded as a religious nation, even if it wasn’t written as such in the Constitution. The Establishment Clause of the First Amendment prevents the establishment of a national religion but does little beyond that to separate religion from the political realm. While Article IV of the Constitution does state that “no religious test shall ever be required as a qualification to any office or public trust under the United States,” voters and legislators have every right to use their religious beliefs to guide their thinking.16 This lack of separation of church and state is most notable with the presidential oath of office often being conducted using a Bible and Congress’s oath of office ending with “so help me God.”17 For better or worse, religion cannot be removed from legislation on abortion, nor can it be completely removed from the decisions of the state. Accordingly, the pro-choice movement needs to focus its arguments regarding the preservation of abortion rights on a foundation of science and personal freedom. Arguing that the restriction on abortion rights is an infringement on the Constitution’s stated separation of church and state is both a misstatement that there exists one religious viewpoint and that being influenced by religious morality automatically renders any law unconstitutional under the Establishment Clause.


References

1 Oyez. “Roe v. Wade.” https://www.oyez.org/cases/1971/70-18.

2 McCammon, Sarah. “‘Trigger Laws’ Are Abortion Bans Ready to Go If ‘Roe v. Wade’ Is Overturned.” NPR, December 6, 2021, sec. Law. https://www.npr.org/2021/12/06/1061896291/trigger-laws-are-abortion-bans-ready-to-go-if-roe-v-wade-is-overturned.

3 Healthline. “When Can You Hear Baby’s Heartbeat?,” September 26, 2018. https://www.healthline.com/health/pregnancy/when-can-you-hear-babys-heartbeat.

4 “Very Early Pregnancy Detection with Endovaginal Ultrasound - PubMed.” https://pubmed.ncbi.nlm.nih.gov/3292977/.

5 Masci, David. “Where Major Religious Groups Stand on Abortion.” Pew Research Center (blog). https://www.pewresearch.org/fact-tank/2016/06/21/where-major-religious-groups-stand-on-abortion/.

6 Ibid.

7 Ibid.

8 LII / Legal Information Institute. “Establishment Clause.” https://www.law.cornell.edu/wex/establishment_clause.

9 Oyez. “Harris v. McRae.” https://www.oyez.org/cases/1979/79-1268.

10 Olson, Justin. “Defining Fetal Life: An Establishment Clause Analysis of Religiously Motivated Informed Consent Provisions.” Indiana Law Journal (Bloomington), 2013-06-01 Vol.88(3) (n.d.): p.1113-1145.

11 ​​“Foundations of Law - Freedom of Religion and the Establishment Clause.” https://lawshelf.com/coursewarecontentview/freedom-of-religion-and-the-establishment-clause.

12 Goodrich, Luke. “Will the Supreme Court Replace the Lemon Test?,” March 11, 2019. https://blog.harvardlawreview.org/will-the-supreme-court-replace-the-_lemon_-test/.

13 Jr, David L. Hudson. “Endorsement Test.” https://www.mtsu.edu/first-amendment/article/833/endorsement-test.

14 Failinger, Marie. “In Praise of Contextuality - Justice O’Connor and the Establishment Clause,” n.d., 12.

15 Bellinger, Charles K. “Religious Arguments and the Abortion Debate.” Human Life Review 43, no. 2 (Spring 2017): 51–58.

16 “The Oath of Office and What It Means | Federal News Network.” https://federalnewsnetwork.com/commentary/2019/10/the-oath-of-office-and-what-it-means/.

17 “U.S. Senate: Oath of Office.” https://www.senate.gov/artandhistory/history/common/briefing/Oath_Office.htm.

Sydney Bloch

Sydney Bloch has written articles on constitutional law and criminal law for the Harvard Undergraduate Law Review. Prior to joining the HULR, she self-published a legal journal on Sports and Constitutional Law while interning at her local District Attorney's office under the mentorship of a Chief Felony Prosecutor. She is a member of the Harvard Class of 2025 and plans to concentrate in Social Studies.

Previous
Previous

The Defense of Life and The Death of Privacy