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Abortion Rights as Religious Freedom

Updated: Apr 10, 2023

The recently leaked draft opinion by Supreme Court Justice Alito in the abortion case to be decided this year notes that abortion isn’t in the Constitution. However, religious freedom is guaranteed in the First Amendment, which begins “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof;…” This can be the basis of abortion rights.


Proposed and newly-enacted state restrictions on abortion make little sense except on the predication that unborns at all stages of development have the same right to life as newborns. State reliance on this predication constitutes an establishment of religion, because the predicated belief is essentially religious.


A belief needn’t be related to God to be considered religious. In a unanimous decision in United States v. Seeger (1965), the Supreme Court specified the nature of religious belief in order to decide if Daniel Seeger qualified as a conscientious objector to military service. Conscientious objector status cannot rely on secular beliefs: that a particular war is foolish, can’t be won, or harms the national interest. Only objections based on “religious training and belief” qualify someone as a conscientious objector.


At his trial, Seeger didn’t claim to know if a Supreme Being exists, but said that his faith was “belief in and devotion to goodness and virtue for their own sakes, and a religious faith in a purely ethical creed.” The Court ruled that this belief occupies “the same place in the life of the objector as an orthodox belief in God holds in the life” of traditional conscientious objectors. The Court endorsed theologian Paul Tillich’s understanding that religious beliefs are those that concern “the depths of your life, … the source of your being, … your ultimate concern, … what you take seriously without any reservation.”


On this understanding, religious beliefs have two necessary, and jointly sufficient aspects. First, they concern matters that can’t be determined. We can never know how tall Plato was, but speculation on this matter isn’t religious because the second aspect, being a matter of ultimate concern around which people orient their lives, is absent.


Many beliefs around which people orient their lives are also not religious, in these cases because secular methods of inquiry can settle the matter. Controversy surrounds beliefs in the Holocaust and in climate change, and many people orient their lives around such beliefs. But they aren’t religious beliefs because secular methods of investigation can settle the controversies beyond reasonable doubt.


Beliefs that the human unborn have a right to life from the moment of fertilization, by contrast, are religious. Available secular evidence (that the unborn has a human genetic code at fertilization) supports the claim that all unborns have the same right to life as newborns. But through most of pregnancy unborns lack the physical underpinnings (the existence of brain components) that make human life distinctive from animal life. So is the unborn at early stages of gestation more like a newborn with a right to life, or more like animals wjoch lack the right? Secular resources are no better able to address this question than to decide when the unborn receives a soul.


The abortion issue is of enormous importance to many people. It touches the depths of their lives and their ultimate concern. It’s what they take seriously without reservation. Given this, and the inapplicability of secular evidence, attributing a right to life to the unborn throughout pregnancy constitutes a religious belief.


The default position for free exercise of religion is respect for practices that don’t unduly burdened others. Hobby Lobby could on religious grounds deny employee insurance coverage for contraception because that coverage was supplied anyway through government mandate. Catholic Social Services doesn’t have to contravene it’s religious tenets by certifying same-sex couples as foster parents because such parents can be served equally well by any of the other 40 social service agencies in Philadelphia’s program.


A default position for establishment is that no religious belief that seriously interferes with non-believers may be imposed by the state. This disqualifies abortion restrictions early in pregnancy. Many women will be harmed economically and socially if they continue unwanted pregnancies, and medically if they receive unsafe abortions. Any state interference with their abortion decisions based on religious views about the right to life of the unborn therefore constitutes an unconstitutional violation of the Establishment Clause.


Americans right and left expect and deserve constitutionally protected religious freedoms. On this ground, we would reject a law requiring the abortion of unborns with Down syndrome based on a religious belief that God wants us to perfect humanity through eugenics. Equally, we would reject legally enforced vegetarianism based on the religious belief that non-human animals have the same right to life as people. By the same reasoning, we must reject government mandates of continued pregnancy based on religious beliefs about the unborn’s right to life.

8 Comments


Michael Ray Overby
Michael Ray Overby
Mar 11, 2023

Detail here, on My somewhat "eccentric" point of view, is on the Facebook Thread. I'll repeat that here: "There IS an Interregnal Period, between Two Cells Meeting, and a Newborn Baby." OK. "During this Period (spanning "24 hours after Sex, Until 21 weeks 6 days into a CONFIRMED PREGNANCY"), why should we NOT have a woman's "Right to Choose (Abortion) be the Sole Deciding Factor in her Choice?" Before we Require her to have MEDICAL CLEARANCE for one?

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Michael Ray Overby
Michael Ray Overby
Mar 11, 2023

While you may ask in response "from where, then, do notions of personhood arise?" can i add, "From the Woman, carrying the Gestation?" Why not let her Decide that?

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meredith.cargill
Jan 04, 2023

The legal definition of 'conscientious objector' apparently cannot be guessed just by knowing the meaning of the word 'conscientious.' Intuitively, a careful, thoughtful, thorough, informed, logical analysis of the ethics of a war could lead someone to conclude that it is an immoral war and contrary to one's conscience to be complicit in it, but making that kind of "conscientious" objection would not make one a conscientious objector. That phrase is defined in the law to mean religion-based objection. The "belief" is not just in the believer as something the person believes, but in the religion as a belief that is part of the doctrine. I note the U.S. v Seeger decision apparently neglected to weigh whether Seeger's objection…


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meredith.cargill
Jan 04, 2023

What is the legal status of naturalism and humanism as "religion"? They are systematic metaphysical, ontological convictions that there is no God, there are no gods, no spirits, not souls, etc. That is, they have decided opinions on all the metaphysical questions that define religions--they just decide those questions differently. Of these two, humanism (as I am using the term here) holds that humans are still special, and deserve treatment different from how we treat animals. For humanism, the crucial "religious" question in the abortion debate would be "When does an egg become a human?" This question can then be translated into the question J. Scott Lewis brings up, which is when it becomes a person. But naturalism hold…


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Michael Ray Overby
Michael Ray Overby
Mar 11, 2023
Replying to

see below.

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meredith.cargill
Jan 04, 2023

You cite one case that defines religion according to one theologian. Are there no other legal definitions of religion? Certainly Tillich's description of it does not fit the definition one would find in any anthropologist's or sociologist's or historian's discourse. For instance, a religion is something one can "belong to." It is not just a mental-emotional condition of an individual; it is a social formation. Of course, the word has more than one meaning, depending on context, as all important words do, so you ultimately need more than one definition. And the adjective 'religious' may not always be convertible to the noun 'religion.' For the purpose of determining what counts as "conscientious" when one is objecting, a religious convictio…

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Michael Ray Overby
Michael Ray Overby
Mar 11, 2023
Replying to

see below.

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