Josh Craddock - Lawyer, Author, Speaker
Some abortion supporters claim that making abortion illegal is a violation of the separation of church and state. The pro-life view is a religious view, so they say. Maybe you’ve seen abortion activists dressed in the red gowns made famous by the Handmaid’s Tale, the implication being that pro-life laws established some kind of religious theocracy, but is that really true? Do laws protecting children in the womb violate the Constitution, specifically the First Amendment’s establishment clause? They do not for two main reasons. First laws protecting children in the womb do not establish a national church, which is what the establishment clause is actually about. Second, you don’t have to belong to any religion to think that it should be illegal to kill innocent human beings. That children in the womb are members of the human family is a fact of basic biology, not religious belief. So first, the First Amendment’s establishment clause does not actually say anything about a wall of separation between church and state.
That language comes from one of Thomas Jefferson’s letters in 1802, not from the Constitution, and it’s a poor guide for constitutional interpretation. After all, Jefferson was in France when Congress introduced the First Amendment in 1789, and he had no role in its drafting or ratification. The establishment clause simply says that Congress shall make no law respecting an establishment of religion. In other words, it prohibits the establishment of a national church. It would also prohibit laws requiring attendance at the worship services of an official church, requiring public financial support for the official church, or limiting voting rights to members of the official church. It would also prohibit any particular religion from exercising legislative or judicial powers over non-members. Laws have to be made by the people and their representatives, not by a religious body. The establishment clause does not mean, however, that the people and their representatives can’t make laws in accordance with their values.
Even if those values are influenced by the voter’s religious beliefs. No one would say the Bible prohibits murder, therefore, voters can’t make laws against murder. If 75% of estate’s people and their representatives are Christian or Muslim or Buddhist, you can bet that the laws that they make will reflect the majority’s religious values. To take another example, do lawmakers who believe that God wants them to steward the environment violate the establishment clause when they support environmental protections? Of course not! If that were enough to violate the establishment clause, it would lead to absurd results. An atheist legislator, for example, could support a policy based on his own understanding of right and wrong, but a religious law maker wouldn’t be able to support that same policy if her moral understanding was based on religious beliefs. But aren’t pro-lifers just motivated by their religion? In fact, there are many secular pro-life advocates,
But even pro-lifers who are motivated by their religious beliefs aren’t imposing a religion on anyone else through pro-life laws. In the 1800’s many anti-slavery activists like Harriett Beecher Stowe and Sojourner Truth were motivated by their Christian beliefs to abolish slavery. Did that mean that abolishing slavery established their religion? In sum, laws that protect human beings in the womb simply do not have any of the features of a religious establishment. Number two, modern developmental biology and medical technology bear witness to the indisputable reality that the child in the womb is a human being. If you can crack open any embryology textbook, you’ll see that the development of a human begins with fertilization and that fertilization initiates the life of a new individual. As Dr. Michelin Matthews Roth of Harvard University Medical School has said, “it is scientifically correct to say that an individual human life begins at conception, and that this developing human is always a member of our species in all stages of its life.”
It is a scientifically established fact that every human being begins his or her life at fertilization, and every human being deserves human rights. Both religious believers and non-believers agree that violent acts like murder and assault should be against the law, and that the law shouldn’t discriminate or withhold its protection based on the victim’s size, age, or level of development. Nobody would say that a law prohibiting killing toddlers is an establishment of religion, but laws banning homicide in the womb are no more an establishment of religion than laws banning the homicide of toddlers or adults. You see, born or preborn, we share the same nature and it’s that inherent human nature that gives us value. In other words, all human beings are created equal and endowed with an inalienable right to life. Pro-life laws then are no more and no less religious than our Declaration of Independence.
When pro-aborts can't win the argument with biological shell games and character assassination, they usually resort to disqualifying pro-life opinions from consideration by labeling them violations of America's separation of church and state. So it's worth spending some time on a broader look at the way abortion politics intertwines with religion.