Why is the Supreme Court using religious belief to change secular law?
Democrats are generally reluctant to discuss religion, let alone debate it.
They like to point out that Thomas Paine and Benjamin Franklin were notoriously atheists, Thomas Jefferson and dozens of other founding generation figures were deists (a close cousin of atheists and certainly not Christians), and that in two different places the The Constitution explicitly rejects religion interfering with government or vice versa.
But it’s time to talk about religion whether we like it or not, because it’s not knocking on our door anymore: Sam Alito has just sent it into the house with a no-knock warrant and stun grenades threatening to catch fire.
The draft opinion Dobbs v. Alito’s Jackson is based on two main premises.
The first is that the Supreme Court does not have to recognize a “right” that is not rooted in the “history and tradition” of the nation.
This right-wing duck has been around for years and has been used to argue against almost every form of modernity, from integrated public schools to same-sex marriage, more recently. It’s a handy pole around which you can twist just about any argument you want, because American history and tradition have been all over the map for the past 240 or so years.
RELATED: What It Was Like Trying For An Abortion In The U.S. Before 1973
For example, Alito might as well have pointed out that there were no federal or state laws regulating abortion when our republic was founded, and they didn’t really start appearing until the 1800s. , as doctors pushed for a license to lock midwives out of medical practice related to childbirth (which included abortion).
Alito neglected to mention that there were no state or federal laws regulating abortion at the time of the founding – and some states did not regulate the procedure until after the Civil War.
The year Virginia got a law regulating abortion, for example, was the same year – 1847 – that the American Medical Association was founded. Ben Franklin had been dead for over half a century and not a single signer of the Declaration of Independence was still alive.
So much for the “history and tradition” of Alito at the beginning of the republic and when the Constitution was written.
The first anti-abortion law in Mississippi — the state whose lawsuit prompted this ruling — was signed into law in 1839. George Washington had breathed his last 40 years earlier.
South Dakota got its abortion law in 1899; Delaware, Tennessee, and South Carolina got theirs in 1883. In North Carolina, it 1881in kentucky 1879in North Dakota 1877in Utah and Georgia 1876 in oklahoma 1875.
The first state to win an anti-abortion law was Massachusetts — the state so overwhelmed by Puritan religious fanatics that the founders nearly rejected them for admission to the union — in 1812.
It was so bad there that Ben Franklin fled Massachusetts for Philadelphia in 1723 at the age of 17, specifically, as he noted at length in his autobiography, to get away from the religious fanatics who ruled the ‘State.
Want a daily recap of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.
Which brings us to Alito’s second position and the crux of the matter: religion.
Alito’s main point about “unborn human beings” (a phrase he repeats over and over again in his ruling) is just one point across a wide range of religious beliefs.
He’s disguised it as law, with a healthy dose of pseudoscientific grumbling about fingernails and thrown heartbeats, but it’s really about Alito’s religious belief that ‘human life’ begins at conception. .
When a zygote, an embryo or even a fetus be recognized as a human being? At fertilization? On acceleration? To viability? At birth? All have been both legal and religious norms at various times and places in our history.
Science might suggest that humanity begins when a baby is born or delivered by caesarean section: at that moment it acquires independent power, is its own “me”. Before that, the nascent life is part of the mother; the fetus is an appendage of her body, after all, and entirely dependent on her for its blood supply, oxygen, and nutrition. If she dies, he dies.
Morality might argue that human rights of some sort should arise at the time of viability, when a fetus can survive as a baby outside the womb if forced to; it was the basis of the original Roe v. Wade. But morality, like religion, varies from time to time, country to country, culture to culture.
Some religious people hold, for example, that human life begins the moment their God decides that a baby should be born, even before fertilization. God informs the couple of this moment making them excited and ready for sex, so birth control devices that prevent the predetermined outcome of pregnancy are prohibited.
Other religions throughout history have recognized that life begins with the first breath, as implicit in Genesis 2.7 and 7.21-22.
All of these decision points boil down to the question “When does a soul inhabit a human body?” presented as law. There has never been a theological consensus on this issue.
In between are a plethora of decision points which are really the question “When does a soul inhabit a human body?” presented as law. Does “human” life begin “intentionally” when a couple prepares to have sex without contraception? At six weeks, when a bundle of cells that will become a heart starts shaking? When is a real heartbeat detectable? At the “acceleration”, when the movement of the fetus is detectable? At birth?
As recently as the 1960s, theologians were vigorously debate this issue in the pages of Christianity today and Christian Life magazines. There was no consensus, and (aside from single religions) there never was.
Like Jennifer Rubin Remarks in this week’s Washington Post: “Assuming life begins at conception (thus giving states unlimited freedom to ban abortion), Alito and his right-wing colleagues would impose a faith-based diet, destroying a half -century of legal and social change.”
The vast majority of politicians who loudly proclaim the ‘sacredness of human life’ in the ‘pre-born’ or ‘unborn’ stage also oppose the provision of food, shelter, education and adequate medical care.
Seriously, if these people cared one bit about “innocent children” they would stop the school shootings by getting the guns under control in this country. But they don’t. It’s just a lot easier to “love” a fetus that’s unresponsive, doesn’t need health care or education, and doesn’t have any special immigration status. Once he’s born, all bets are off.
This simple reality pretty much proves the cynicism of Alito’s charge that the state must be able to intervene with the force of guns and prison bars to “protect” a zygote or fetus. It is all the art of religious performance, with women as victims.
“There is ample evidence that the passage of [anti-abortion] laws was,” Alito writes, “spurred on by the sincere belief that abortion kills a human being.”
Yes, it is a belief. Period.
Tragically, this is not the first time that fundamentalists in this court have used the religious beliefs of its majority to change what should be secular law.
Last year in Tandon v. Newsomthe same five judges again went too far even for John Roberts, decision 5-4 that a person’s religion was a legitimate basis for refusing to accept COVID lockdowns. The previous year, they reigned in Roman Catholic Diocese of Brooklyn c. Cuomo that churches could ignore public health orders and subject their parishioners to fatal disease because of the personal beliefs of church leaders.
The court sped along this long and dangerous road with Burwell v. Hobby Lobbythat allows employers to violate federal labor law regarding insurance coverage because of their religious beliefs, even when those beliefs are not shared by employees who have been directly affected by their decisions.
And with Masterpiece Cakethe Court even ruled that companies can discriminate against their customers based on the business owners’ religious belief that homosexuals are hated by God.
Now, “religious people” are free to claim a wide variety of exceptions to US law, terms of employment, and even common decency simply by shouting, “I believe! »
Under Roe c. Wade, people who believed abortion was wrong were free not to get one. They never had to park in the parking lot of an abortion clinic.
Under this Dobbs draft decision, however, women’s bodies legally became state property, presumably from the moment of sexual intercourse.
Will Mike Pence’s menstruation registry be relaunched to track pregnant women? Will the state require the remains of miscarriages to be collected and preserved for burial, as Pence attempted to do in Indiana?
If a woman is using or abusing drugs or alcohol, for example, even though she doesn’t know she’s pregnant, you can easily see where that logic could lead to her being charged with a crime and imprisoned. Exotic diets, fasting, experimentation with psychedelics, extreme exercise: anything could lead a zealous prosecutor armed with this decision to a load of endangering children.
Will Mike Pence’s menstruation registry be revived so women can be tracked to identify abortions? Will the government require women to collect and preserve the remains of miscarriages for burial at a licensed funeral home, as Pence tried to enact when he was governor of Indiana?
And it’s all based on his personal religious belief — shared with four fundamentalist colleagues and now about to be imposed on the rest of us — that human life legally begins the moment a sperm meets an egg.
Law in the United States should be based on age-old consensus and the latest science; it should not become a waving flag of the majority religious perspective represented on the Supreme Court at any given time.
Every member of this tribunal who seems to have decided to ban abortion was indicted by a president who did not obtain a majority of votes and was confirmed by a group of senators representing well under half of Americans. .
Their appearance on the court was organized by wealthy right-wingers who proudly proclaim their belief that America should be run along religious lines.
Only an informed, politically active majority in America can right this wrong and establish majority rule in the world’s largest democracy.
Learn about the apparent downfall of Roe c. Wade: