Abortion Laws and the Establishment Clause

A defining principle of the United States is the separation between church and state. This principle is embodied in the Establishment Clause of the First Amendment, which provides that Congress shall make no law respecting the establishment of religion. Since 1947, the prohibition has also applied to the states, and it has been interpreted to prevent the states from enacting laws that are motivated by religious purposes. When states enact laws, they must have secular purposes for doing so.

In Roe v. Wade, the Supreme Court ruled that the right of privacy enjoyed by all Americans protects a woman’s right to decide whether to terminate a pregnancy. During the first trimester, the state may not interfere with this right at all (though in subsequent trimesters the state may impose certain restrictions). A critical premise of the Court’s holding was that, at the early stages of pregnancy, the fetus is not a ‘‘person’’ for constitutional purposes.

This critical premise of Roe is obviously at odds with certain religious views, which consider a fetus a person from the moment of conception, or shortly thereafter. Indeed, in Roe, the Court recognized that the question of when life begins is fundamentally a religious question. In cases subsequent to Roe, the Court expressly held that a state is not permitted to adopt one theory of when life begins to justify its regulation of abortions (Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 444, 1983).

Saying that the states may not regulate abortion on the basis of religious doctrine is one thing; enforcing that prohibition is quite another. There are three reasons for the difficulty of enforcing the Establishment Clause norm in the abortion context. First, determining why people believe what they believe presents difficult epistemological questions; a legislator may oppose abortion because Catholic doctrine holds that a fetus is a human being, or the legislator might be a physician who has purely secular reasons for believing that a fetus possesses human qualities. Second, distinguishing religious beliefs from nonreligious beliefs presents similarly daunting difficulties. Finally, the answer to the question of when life begins may indeed have religious and nonreligious influences.

The complexity of invalidating Abortion Laws on the basis of the Establishment Clause is illustrated by Webster v. Reproductive Health Services, 492 U.S. 490 (1989), a case involving a challenge to a Missouri statute that placed various restrictions on the right to obtain an abortion. The preamble to the state statute asserted that life begins at conception—a statement clearly at odds with Roe and its progeny. Nevertheless, despite a powerful dissent from Justice Stevens that insisted that the statute reflected an ‘‘unequivocal enforcement’’ of religion—and was therefore in violation of the Establishment Clause—the Court upheld many of the law’s restrictions, reasoning that they could be justified by secular criteria unrelated to the statute’s preamble.

Consequently, although Roe, Akron, and other decisions indicate that a state may not base anti-abortion legislation on religious ideology or premises, these premises are often so diffused into the secular legal culture that it is impossible to neutralize their influence. For example, in Harris v. McRae, 448 U.S. 297 (1980), the Supreme Court upheld the Hyde amendment, which prohibits the use of federal Medicaid funds for most abortions. Justice Stewart’s opinion for the Court concluded that the attitude toward abortion reflected in the amendment could very well reflect what the Court called ‘‘traditionalist’’ values; these value overlap, but are not identical to, religious values.

As a matter of legal doctrine, therefore, the state may not predicate laws that interfere with a woman’s right to choose on religious doctrine. At the same time, as a political matter, laws that place restrictions on abortions during the second and third trimesters will almost certainly have a strong religious influence.

DAVID R. DOW

References and Further Reading

• Everson v. Board of Education, 330 U.S. 1 (1947)
• Feldman, Noah, From Liberty to Equality: The Transformation of the Establishment Clause, Cal. Law Review 673 (2002): 90:680–700

Cases and Statutes Cited

• Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 444 (1983) 
• Harris v. McRae, 448 U.S. 297 (1980) 
• Roe v. Wade, 410 U.S. 113 (1973) 
• Webster v. Reproductive Health Services, 492 U.S. 490 (1989)