The First Amendment Could Provide a Fresh Legal Approach to Defending Abortion

Roe v. Wade was decided per a right to privacy based on the due process clause of the 14th Amendment, but there is another, perhaps at least equally compelling, way to look at the abortion issue — and that is through the lens of the establishment clause of the First Amendment.

The establishment clause asserts freedom for the first time Fromstate religion or theocracy. This is a result of our Enlightenment heritage opposing feudal state imposed religion. The establishment clause does not claim freedom of religion. It places it within the boundaries of constitutional rejection or denial.

The question of abortion is also an Enlightenment matter. Self-determination versus determination by others. In this case, that “other,” the prohibitor of abortion, would be a religious form of the state; the state having been captured, unconstitutionally, by a theocracy. Legal limitation, suppression, and criminalization of abortions on religious grounds would allow for the entry into a theocratic society, which is one doctrine only.

In the United States today, Roman Catholicism and Christian fundamentalism would legally institutionalize their anti-abortion doctrine, thus violating the First Amendment dictum that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” But Catholicism and Christian fundamentalists stake their anti-abortion claims on the existence of the soul at conception.

The Religious Views of Abortion and Ensoulment

In religious contexts ensoulment is believed to occur when the soul enters the body.

The moment of ensoulment in Catholicism has been doctrinally different over time. About 150 years ago, the church taught that ensoulment occurred at “quickening,” the moment when the pregnant person could feel the fetus moving in their body. (Fetus movement is usually felt in the first pregnancy. at about 18-20 weeks.

If they have had at least one child, they will usually feel movement between 15-17 weeks.

The church’s contemporary view is that the soul enters at the moment of conception. Christian fundamentalism also believes that the moment of conception is when personhood is established. Christian fundamentalists oppose abortion by claiming that fetuses (which they term the “preborn,” or “unborn children”) have souls. These fundamentalists agree with the Roman Catholic church that the moment at conception is unique because it is when human personhood, human life, and ensoulment happen.

Before the Vatican reversed course on the subject of Limbo in 2007Catholics believed that a soul could not be admitted to heaven if its body had not been baptized. Some Catholics still believe that fetuses can’t go straight to heaven as they aren’t baptized. They must stay in Limbo which is a speculative concept. Some Catholics believe that abortion causes souls to wander and be lost.

Christian fundamentalists assert that aborted children, also known as unborn or premature children, go straight into heaven because they are innocent, know nothing about original sin, and are too young for salvation.

Other religions have their own views on the ensoulment issue. The Mormon church’s position is that “human beings have 3 stages of life: Pre-existence as spirit children, a time of probation on earth, Eternal life with the Heavenly Father.” The Mormon church allows exceptions to its abortion ban due to pregnancy resulting from rape or incest, when the parent’s health is medically determined to be in serious jeopardy, or when it is medically determined that the fetus is so defective as not to be able to allow the baby to survive past birth.

Judaism does not have a fully developed theory about the timing or nature ensoulment. This could be because Judaism doesn’t allow for a separation of soul and matter. The Talmud does speculate about when ensoulment might occur. The Talmud seems to dismiss this possibility. [the ensoulment] “question as both unanswerable and irrelevant to the abortion question.”

Islam, however, does not believe that ensoulment occurs at conception. Currently, however, there are no such beliefs. three views of when ensoulment occurs in Islam: at 120 days, at 40 days or when there is voluntary movement of the fetus — ranging from the 12th to the 20th week of gestation.

The eternal soul is the same for Buddhism and Hinduism. ever being rebornMoksha (or Nirvana) cannot be attained until then. Many Hindus believe in Hinduism, which is similar to Catholicism and Christian fundamentalist views. believe that, “The soul and the matter which form the fetus” are “joined together from conception.” Still, in Hinduism, “If a foetus is aborted, the soul within it suffers a major karmic setback” and is “deprived of the opportunities its potential human existence would have given it to earn good karma.” So, this soul is then, “returned immediately to the cycle of birth, death and rebirth.”

Banning Abortion and The First Amendment

The 14th Amendment explains that constitutional rights may be revoked. Only be conferred on “persons born or naturalized in the United States.” At this point, modern science shows us that these persons must have been in the womb for at least 24 weeks, and they must be born. We cannot substitute theocratic for constitutional law.

Given this, legislation such as Alabama’s outright abortion ban, (which has been delayed by litigation), or other restrictive ordinances recently passed in Texas, Oklahoma and Mississippi enshrine in law select religious views of the question, namely Catholic doctrine and Christian fundamentalist doctrine.

It may be said that such laws would create a specific state “establishment of religion,” (echoing the Christian nationalist mantra that the U.S. “is a Christian country”) and simultaneously prohibit to birthing people and people of other faiths or no faith at all the “free exercise” of their beliefs. Abortion bans violate the First Amendment of the U.S. Constitution, and must be thrown out. Choice in abortion matters concerns: 1. 2.) Freedom from the dictates of state religion Self-determination and not the determination of others is what we are looking for. 3.) Freedom of religion

Denial of abortion exemplifies theocratic or reactionary forces’ domination of the state. The same reactionary state control could be used to prevent pregnancies from certain groups or individuals. This has already happened in U.S. history regarding the sterilization of the “feeble-minded,”Moreover, sterilization has been performed on Puerto Rican women in recent years.

White supremacist and antisemitic “Great Replacement” ideology (in a word: fascism) claims that a declining birth rate of white Americans, coupled with the increased fertility rate of people of color and increased immigration, heralds their eclipse as the majority group in our country. It is predicted that the U.S. would become majority nonwhite. somewhere between 2040-2050. Abortion bans are, in this view, not only a tactic to control the population but also a strategy to preserve the white minority.

It’s a strategy we’ve seen used by fascists before. A memorandum to SS Officer Adolf Eichmann from Nazi-occupied Poznan, Poland, noted that “all the Jewish women, from whom one could still expect children, should be sterilized so that the Jewish problem may actually be solved completely with this generation.” Simultaneous with the sterilization of Jewish women, German women were awarded the Mother’s Cross for having four or more children for the Third Reich.

The First Amendment argument is not only a defense against abortion and forced sterilization but also a fresh approach to adjudication of questions pertaining religious bans on other intimate matter, such as contraception, when viewed in the context of attempted theocratic intrusions into our society.