The Demise of Roe v Wade Undermines Freedom of Religion

The Supreme Court opinion in Dobbs v Jackson Women’s Health Organization [1] was authored by Justice Alito and four other members of the Court who are all conservative Christians. At least four are conservative Catholics. (Chief Justice Roberts, who is also a conservative Catholic did not join the holding turning over all control on abortion law to the states.) All these judges placed their personal, conservative Christian beliefs above those of others. Each of them believes a “human person” (not just “human life” or a “future person”) comes into existence immediately upon conception and that abortion at any stage can be made a crime. Under the holding in Dobbs every state will now be free to criminalize any abortion; there need not be any initial time period where some or all abortions would be legal; there need not be any exception for the protection of the health or the life of the mother,[2] and there need not be any exceptions for rape or incest. Any abortion may now be considered murder.

In writing the state’s new abortion laws the controlling state legislative faction, which in a large number of states will be conservative Christians, can (and will) ignore the position of other religions, of more moderate Christians, and of non-believers. The Dobbs decision is joining the growing number of recent Supreme Court decisions where conservative Christian doctrine dominates and which moves the U.S. further away from being a non-sectarian nation having separation of church and state. After Dobbs, a Hindu, Muslim or Jew, who aides, performs, or has, an abortion in accordance with his or her religious or moral beliefs, may find themselves convicted of a crime, with no recourse. Let’s take a look at the view of abortion held by these three religions, and at national laws concerning abortion that are based on them, in comparison to the view of the Justices in Dobbs and the expected political results.

There is strong support for the sanctity of life in Hinduism but it does not maintain that a human person comes into existence upon conception. Some classical Hindu texts strictly forbid abortions except in very limited circumstances, and many Hindus believe the soul comes into existence upon conception, but a human person does not come into existence in Hinduism until the fetus becomes a sentient being that is aware of itself (called a “Jivan”). That requires a period, following conception, of at least three months.[3]

The Hindu faith, in addition, holds that ethical choices should be left to the individual even if the choice may violate a tenet of the faith. Abortion determinations are in this category. So, it’s not at all surprising that sixty-eight percent of American Hindus think abortion should be legal in all or most cases.[4] The laws of India protect a right to abortion through the twentieth week of pregnancy with the approval of a health care provider. Failed contraception is considered a valid reason for abortion. In the case of incest, rape, fetal abnormalities, and disability or the minority status of the woman, an additional four weeks are added to the initial twenty.  In addition, the Indian government’s health care system provides coverage for abortions.[5] There are about 2½ million Hindus in the U.S.

The Islamic world contains enormous division and diversity. Besides the division between Sunnis and Shiites (along with some smaller sects), the Sunnis, who constitute more than three-quarters of the total number of Muslims, follow four major jurisprudential schools. They all adhere of course to the Quran and the sunnah, the customs, practices, and words of the Prophet that are recorded in the hadith, but neither the Quran nor the sunnah discuss abortion. Only infanticide is discussed. In one sunnah a mother and her fetus were killed. Mohammed orders blood money compensation from the kin for each death; but the payment on behalf of the dead fetus came to only one-twentieth of the payment ordered for the dead women. The Prophet clearly did not consider the fetus to be equal to a full person.[6]

The Quran recognizes four stages of development from conception to childbirth. And each of the schools hold that “ensoulment” occurs through the act of an angel, with the embryo becoming a person at the end of the third stage, 120 days following conception.[7] Only one of the four schools (the Maliki school) prohibits abortions (aside from preservation of the life of the mother) starting with conception. The others permit abortions for specified reasons through the 120^th day. Each of the Sunni schools allows abortion at any time to save the life of the mother. Shia Islam is substantially similar. It allows abortions up to the end of the fourth month if there are conditions concerning the mother or the fetus that would create extreme difficulties (which includes a threat to the life of the mother).[8]

The Muslim-majority nations vary greatly in their abortion laws though none allow it past the 120th day except to save the life of the mother. The most conservative Muslim countries allow abortion only to protect the life of the mother (18 out of 47 countries surveyed by Gilla Shapiro).[9] Iran, Saudi Arabia and seven other countries add preservation of the physical health of the mother as a basis for abortion during the 120-day period. And a third group of Islamic countries add preservation of the mental health of the women, incest and rape, and any impairment to the fetus (10 countries).   At the liberal end of the spectrum, ten countries allow abortion on request through the 120-day period.[10] This group consists almost entirely of countries in, or right next to, Europe (Albania, Turkey and Tunisia) or which were republics within the Soviet Union. Today about 3½ million Muslims live in the U.S.

About 7.6 million Jews live in the United States. According to Rabbi Hara Person, the well-regarded Chief Executive of Central Conference of American Rabbis, “For Jews and others who don't share the religious view that life begins at conception, a total abortion ban may not only prevent access to necessary medical care but also violate religious freedoms guaranteed by the First Amendment… the notion that the Supreme Court might dictate when life begins according to only one religious tradition is deeply problematic and concerning to us.”[11] (Eighty-three percent of Jews say abortion should be legal in most or all cases.[12]) The National Council of Jewish Women says that Judaism recognizes not just the life of the mother but also her personal well-being, her mental health, and other circumstances in which a women must have a right to abortion. To many Jews a fetus is part of the mother's body and becomes a “person” only when it takes its first breath, i.e., when it is born.[13] To many rabbis “access to abortion is a religious requirement for Jews.”[14]

A Jewish congregation in Florida filed a lawsuit shortly after the decision arguing the State’s new law authorized by Dobbs violates freedom of religion since “abortion [may be] required if necessary to protect the health, mental or physical well-being of the woman.”[15] In Israel, so many liberal exceptions are allowed under the country’s abortion law (e.g., being single, a birth defect in the fetus) an estimated 98% of requests are approved by the official three-person committees. The government even provides full medical coverage under its “health basket” program and for all women in the military. Going to private clinics is technically illegal, but there are no known prosecutions for doing so.[16]

The current Court is giving our law a clearly conservative Christian direction. This can be seen in a number of recent decisions.[17] Even in 2014 in the case of Burwell v. Hobby Lobby Stores Inc.[18], the U.S. Supreme Court held, 5-4, that a right to coverage for contraceptives under the Affordable Care Act must yield to a closely held corporation’s Christian views opposing such contraception assistance. This pro-Christian view overriding a provision that was aimed at protecting the health and family management interests of the corporation’s employees prevailed by one vote. If a health-related provision such as this can be abrogated to protect a corporation’s conservative Christian views, it is not surprising that the Dobbs majority would write an opinion that removes protection for millions of believers in other religions, or of no religion, many of whom will find themselves a minority in a red state where they were previously protected by Roe. According to New York Times Supreme Court reporter Adam Liptak, “Bolstering religious rights, and notably those of Christians, has been a signature project of the court led by Chief Justice John G. Roberts Jr.”[19]

Unleashed by the Supreme Court’s decision, abortion wars in state legislatures and state courts are now in full swing. The position held by the most powerful religious/political faction(s) in each state will control the writing of the state’s laws although the laws will be subject to review by the state’s highest court.[20] The Supreme Court majority is well aware that like-minded conservative Christian forces will prevail in many states, most likely a majority. The intensive gerrymandering of legislative districts and the passage of voter suppression laws that were previously put in place are now working to help Republican legislators move their new abortion laws toward the conservative end of the spectrum even though public opinion may well be opposed. One third of those in America who believe that human life begins at conception nevertheless think that the decision to have an abortion should be left up to the woman.[21] The heavily pro-choice vote in the abortion referendum held on August 2 in Kansas is evidence, at least in that conservative state, of a sharp contrast between public opinion and the position of the State legislature.[22] There will be more referendums: those in red states to overturn strict bans enacted by a heavily conservative legislature (as in Kansas) and those in blue states to cement a right to abortion into state law.

Public opinion favors allowing individual religious views and personal morality to govern as occurred under Roe.[23] Also the new highly restrictive state laws are going to go into effect notwithstanding the First Amendment’s protection against domination of government by one religion (the Establishment Clause) and the Fourteenth Amendment’s promise of equal protection of the laws.[24] A Republican Congress and President could together ban and criminalize all abortions in all states, red and blue. Separation of church and state no longer obtains.  Instead of barring the strongest politico-religious faction from controlling government it is now being invited in at both the federal and state level. The Dobbs decision joins other recent Court decisions promoting pro-conservative Christian outcomes. Together they constitute a large step in the U.S. away from being a non-denominational nation toward becoming a country under conservative Christian law.

Martin E.  Gold has been teaching law at Columbia since 1989. He is the former director of corporate law for the City of New York and is a retired partner at Sidley Austin LLP an international law firm.

End Notes

1. 597 U.S. ___ (June 24, 2022) https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

2. A number of conditions can generate medical/legal complexities during pregnancy especially when abortion is not an option. For example, ectopic pregnancy occurs when a fertilized egg implants and grows outside the uterus. The fertilized egg can't survive, and the growing tissue may cause life-threatening bleeding for the mother. Other conditions include amniotic fluid embolism, hemorrhage, toxemia of pregnancy, or a ruptured uterus See e.g. Sheelah Kolhatkar, “Another Likely Effect of the Roe Reversal: Higher Health-Care Costs: Abortion bans could lead to more high-risk pregnancies.” The New Yorker, July 19, 2022. https://www.newyorker.com/business/currency/another-likely-effect-of-the-roe-reversal-higher-health-care-costs. More American women already die from childbirth complications every year than those of most other developed nations. The U.S. ranks only fifty-fifth out of all countries for maternal mortality. Ibid.

3. Dheepa Sundaram, “Hindu classical texts strictly forbid abortion. Here’s why many Hindus don’t,” Religion News Service, May 20, 2022, https://religionnews.com/2022/05/20/hindus-classical-texts-strictly-forbid-abortion-heres-why-many-hindus-dont/; "Hinduism and Abortion," BBC, August 25, 2009, https://www.bbc.co.uk/religion/religions/hinduism/hinduethics/abortion_1.shtml,; “Hindus In America Speak out on Abortion Issues,” Hinduism Today, September 7, 1985, https://www.hinduismtoday.com/magazine/september-1985/1985-09-hindus-in-america-speak-out-on-abortion-issues/.

4. D. Sundaram, ibid; Pew Research Center, Religious Landscape Study, “Views about abortion among Hindus,” 2014 Survey, https://www.pewresearch.org/religion/religious-landscape-study/religious-tradition/hindu/views-about-abortion/; "Hinduism and Abortion, supra note (Preference for male off-spring in India is an important motivator.)

5. D. Sundaram, ibid; Kiarash Aramesh, “Perspectives of Hinduism and Zoroastrianism on abortion: a comparative study between two pro-life ancient sisters,” Journal of Medical Ethics and History of Medicine, Vol. 12, August 5, 2019, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7166242/.

6. See M.H, Katz, “The problem of abortion in classical Sunni fiqh,” in J.E. Brockopp (ed), Islamic Ethics of Life: Abortion, War and Euthanasia, 2003, https://repository.library.georgetown.edu/handle/10822/1005108.

7. See Ṣaḥīḥ al-Bukhārī Hadiths, Vol. 4, Book 54, Number 430, https://www.iium.edu.my/deed/hadith/bukhari/054_sbt.html.

8. Gilla K Shapiro, “Abortion law in Muslim-majority countries: an overview of the Islamic discourse with policy implications,” Health Policy and Planning, Volume 29, Issue 4, July 2014, page 486-7, https://academic.oup.com/heapol/article/29/4/483/653159; Oren Asman, “Abortion in Islamic countries—legal and religious aspects,” Medicine and Law, Vol. 23, p. 78, Feb. 2004, https://www.researchgate.net/publication/8543535_Abortion_in_Islamic_countries_-_Legal_and_religious_aspects. (Liberalization is occurring in a number of Moslem-majority countries. In Tunisia liberalization has reflected a desire to slow population growth and to reduce the loss of life from illegal unsafe abortions. Ibid, p. 87 - 88.)

9. Shapiro, ibid, p 489–491.

10. Shapiro, ibid, p.489-490; Tunisia has a shorter, three-month limit for on-request abortions, Asman, supra note 8, p. 86.

11. “Jewish Communities React to the Possible Overturning of Roe v. Wade, Which Could Violate Their First Amendment Rights,” Insider, May 7, 2022, 6:56 PM, https://news.yahoo.com/jewish-communities-react-possible-overturning-152100436.html.

12. Pew Research Center, “Views about abortion among Jews,” 2014.
https://www.pewresearch.org/religion/religious-landscape-study/religious-tradition/jewish/views-about-abortion/ In contrast, eighty-six percent of white evangelical Protestants believe human life begins at conception and nearly three-quarters of them say abortion should be illegal in all or most cases. “White evangelicals are … far more likely than U.S. adults who identify with other religious groups to say that life begins at conception and that the fetus is thus a person with rights.” Pew Research Center, “America’s Abortion Quandary” March 7-13, 2022, https://www.pewresearch.org/religion/2022/05/06/americas-abortion-quandary/; see also note 21 infra.

13. Joe Fernandez, “Some Jewish groups blast the end of Roe as a violation of their religious beliefs,” NPR, June 26, 2022, https://www.npr.org/2022/06/26/1107722531/some-jewish-groups-blast-the-end-of-roe-as-a-violation-of-their-religious-belief.

14. Daniel Bogard and Tana Senn, “Supreme Court’s Roe ruling would trample the religious freedom of every Jewish American,” San Francisco Chronicle, May 6, 2022, updated: May 7, 2022. https://www.sfchronicle.com/opinion/openforum/article/Supreme-Court-s-Roe-ruling-would-trample-the-17155205.php.

15. Eliza Fawcett, “Synagogue Files Lawsuit, Claiming Ban on Abortion Violates Religious Freedom,” The New York Times, June 17, 2022, p. A12. https://www.nytimes.com/2022/06/16/us/florida-abortion-law-judaism.html. Jewish leaders “from across the ideological spectrum” told the Times that “Jewish teachings indicate that abortion is permissible -even required- if a mother’s life is in danger.” Ibid. The suit claims that “the act prohibits Jewish women from practicing their faith free of government intrusion and thus violates their privacy rights and religious freedom…The abortion ban "threatens" Jewish people and is a failure to maintain separation of church and state.” Vanessa Etienne, “Florida Synagogue Sues Over State's 15-Week Abortion Ban, Argues it 'Violates Religious Freedom',” People, June 15, 2022,  https://people.com/health/florida-synagogue-sues-over-states-15-week-abortion-ban-argues-it-violates-jewish-law/, See also Marci Hamilton, “The religious Freedom Restoration Act Formula comes full circle in Florida,” Justia Verdict, June 20, 2022. https://verdict.justia.com/2022/06/20/the-religious-freedom-restoration-act-formula-comes-full-circle-in-florida

16. Debra Kamin, “Israel’s abortion law now among world’s most liberal,” The Times of Israel, January 6, 2014. 

17. In Espinoza v. Montana Department of Revenue, 591 U.S. ___ (2020) https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf, the Court held on June 30, 2020 that a Montana program aiding non-sectarian private schools had to also aid private religious schools. In Fulton v. Philadelphia, 593 US __ (2021) https://www.supremecourt.gov/opinions/20pdf/19-123_g3bi.pdf, the Court ruled, on June 17, 2021, that a Catholic social service in Philadelphia, in violation of local rules, could refuse to work with same-sex couples who seek to take in a foster child.  The Court in Carson v. Makin, 596 U.S.__ (2022) https://www.supremecourt.gov/opinions/21pdf/20-1088_dbfi.pdf, ruled on June 21, 2022 that under the U.S. Constitution Maine could not have a tuition program, in rural areas where public schools did not exist, that is applicable to private schools without including private religious schools in the program.  And on June 27, 2022, just three days after the Dobbs decision, the Court in Kennedy v Bremerton School District, 597 U.S.___ (2022) https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf, held that a high school football coach has the right under the First Amendment to perform a Christian prayer in the middle of the field, joined by his players, after each home game. Each of these cases were handed down at the end of the term (in June) and involved overruling or ignoring existing precedent.

18. 573 U.S. 682 (2014) https://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf.

19. Adam Liptak, “Justices Bolster Religious Rights in Prayer Ruling.” The New York Times, A1, June 28, 2022. https://www.nytimes.com/2022/06/27/us/politics/supreme-court-coach-prayers.html

20. See, e.g., Catholics for Choice at https://www.catholicsforchoice.org/issues/abortion/; 68% of Catholics polled in 2019 opposed overturning Roe v. Wade. Dalia Fahmy, Pew Research Center, “8 key findings about Catholics and abortion,” Oct. 20, 2020, https://www.pewresearch.org/fact-tank/2020/10/20/8-key-findings-about-catholics-and-abortion/.

21. Pew Research Center, “America’s Abortion Quandary,” supra note 12. Black protestants, a group generally considered “highly devout,” are much more supportive of abortion rights than their white counterparts. Only 38% say human life begins at conception and 66% believe abortion should be legal in “all or most cases”.  Among Catholics only 44% are “extremely” or “very” confident that human life begins at conception and 56% believe abortion should be legal in “all” or “most” cases. And even among white evangelicals 24% believe that abortion should be legal in “all or most cases.”  Pew Research Center, “America’s Abortion Quandary,” supra note 12, and “Survey: White evangelicals oppose abortion: all other religious groups support it,” Religious News Service, May 6, 2022, https://religionnews.com/2022/05/06/survey-white-evangelicals-oppose-abortion-other-religious-groups-support-it/.

22. The Catholic church contributed more than $3 million to the anti-abortion campaign in Kansas. “Kansas votes to protect abortion rights in state constitution,” The Guardian, August 3, 2022,  https://www.theguardian.com/us-news/2022/aug/03/kansas-abortion-vote-state-constitution.

23. Bans taking effect in a substantial number of states do not allow any exception for rape or incest. Some states also do not have any exception for the health of the mother. Jan Hoffman, “The New Abortion Bans: Few Exceptions for Rape, Incest or Health,” The New York Times, A12, June 10, 2022. https://www.nytimes.com/2022/06/09/health/abortion-bans-rape-incest.html; See also Julie Bosman “Americans Face New Abortion Landscape in Wake of Roe Decision,” The New York Times, June 25, 2022, https://www.nytimes.com/2022/06/25/us/abortion-decision-reaction.html.

24. “If Roe were overturned, it would abrogate the religious freedom and individual rights of several minority religious communities…. Th[eir] support is often rooted in their faith and the ethics of individual choice.” (Emphasis added), D. Sundaram, supra note 3. In a recent SCOTUS Poll 62.3 percent opposed overturning Roe and just 37.8 percent supported the action.  Savage, “The decision to overturn Roe clashes with the views of a majority of Americans,” The New York Times, June 25, 2022, A15, https://www.nytimes.com/2022/06/24/us/roe-wade-abortion-popularity.html

Civil rights, Equality and Liberty, First Amendment, Religious Freedom, Reproductive Rights