It's the Establishment Clause, Stupid!
"Either this nation shall kill racism, or racism shall kill this nation." (S. Jonas, August, 2018)
(Please note that the OpEdNews software program would not permit the publication in this space of a very nice illustration from the 1612 edition of the "King James Version" of the Bible.)
Here's the title that I wrote for it: "1612 First Quarto of the King James version of the Bible, which version (translated by an English/Scottish committee of 52 academics and theologians]) is used by certain Protestant foes of freedom-of-choice in the outcomes of pregnancy to justify their doctrine that 'life begins at the moment-of-conception.' "
There have been some very succinct slogans in U.S. political history. The one above (which I immodestly made up) is drawn from Jim Carville's famous slogan which in 1992 helped Bill Clinton defeat G.H. W. Bush: "It's the economy, stupid!" I view Jim's original in the context of other short, but sweet, U.S. Presidential election slogans, like: "Tippecanoe and Tyler too (1840); "54-40 or Fight" used by James K. Polk in the election of 1844; and "He kept us out of war," (Woodrow Wilson, 1916).
The battle over abortion rights and freedom of choice in the outcome of pregnancy has been with us since the adoption of Roe v. Wade by the Supreme Court in 1972. As the religious right closed in on getting a reversal of that classic decision, I wrote periodically on the battle. Most often my argument centered on the Constitution's Establishment Clause, found in the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;".
Since the anti-abortion rights advocates often (actually, almost always) invoked "the Will of God" in support of their position, for reasons which I still do not understand the Establishment Clause simply was very infrequently used by the Abortion Rights advocates (and if used, was not used very prominently). In his opinion on Dobbs, at the end Justice Alito said: "Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion."
Well, yes it does. As it happens, the arguments against abortion rights have always been made on religious grounds. E.g. "life begins at the moment of conception," a totally religious concept (as discussed in detail further below), and this statement from a member of the Alabama Supreme Court declaring that destruction of a (non-implanted) IVF embryo is a human life: "Human life," Parker wrote, "cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself." And then there is: "U.S. House Speaker Mike Johnson saying the notion [emphasis added] of church-state separation in the U.S. was a 'misnomer.' "
Well, I guess that neither a Supreme Court Justice in Alabama nor the present Speaker of the U.S. House of Representatives ever took Civics (and must have also skipped the course on Constitutional Law when they were in law school). For here, again, is that Clause, which happens to be the very first one in the First Amendment to the Constitution of the United States: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
At any rate, the rest of this column, on this subject, is drawn from a previously published one of mine entitled: "Abortion Rights: Once More into the Breach Dear Friends," published on OpEdNews.com on December 2, 2021. Of course, we are now engaged in a "Restoration of Roe" battle, which is going to take a very long time. But I do think that if it is going to succeed, to the very correct "right to choose," "female bodily autonomy," and "if you don't' believe in abortion, don't have one," positions, must be added the prescription for religious liberty that is right there in the First Amendment.
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For quite some time, I have been writing on the matter of abortion rights, and most especially on the consideration of them in the context of the very real threat of the imposition of religious authoritarianism on the nation by the Republo-fascist Party. On the side of the pro-abortion rights forces a consideration of that approach to the conflict has received little if any attention. In the context of what happened in the U.S. Supreme Court on Dec. 1, 2021, which brings that conflict ever-closer to the surface, I am re-running one of my more recent columns on the subject, with a few additional observations.
Introductory Comment:
At his Supreme Court hearing Justice Brett Kavanaugh (who, Sen. Susan Collins from Maine assured us, would view Roe v. Wade with an open mind) among other things had this to say, in response to a question from a lawyer from Mississippi: " 'You're arguing that the Constitution is silent and, therefore, neutral on the question of abortion?' Kavanaugh asked a lawyer for Mississippi, with seeming approval. 'In other words, that the Constitution is neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process?' "
Actually, Mr. Justice, the Constitution is NOT silent on that question, but I guess that whatever law school you went to didn't cover that subject. Every destroyer-of-abortion-rights whom I have ever come across in support of their position has taken one version or another of the life-beings-at-the-moment-of-conception concept, because any new fertilized egg is a "gift from God," or some equivalent thereof.
Actually, to adopt a Constitutional position that the criminalization of abortion is justified, regardless of the religious views of the woman desirous of having one, is to place religion at the center of the Constitutional law. Which is, in case the Justice doesn't know, a violation of the Establishment Clause of the First Amendment, which begins with the words: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” "Life begins at the moment of conception" is a religious concept, which its promoters make clear over-and-over again. Thus, once again, any imposition, by law, on any person, Mr. Justice, is a violation of the Establishment Clause. Clearly, the Constitution is NOT silent on this matter.
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Now, on to one of my previous columns on this matter, with some editing here and there (from: "The Destruction of Abortion Rights and the Rise of Religious Authoritarianism," 9/30/2020: Click Here)
As many observers have noted, with the passing of Justice Ruth Bader Ginsburg our nation is heading into what could be an enormously retrograde period in regard of individual rights and liberties. In the immediate future Trump is going to get his far-Rightist woman (whichever one) confirmed to the Supreme Court. Even if John Roberts, a Rightist himself, but not that far a Rightist, continues to maintain something of an institutionalist approach to the Constitution and the role of the Court, again as is well-known, in the immediate future the Court will at least be a consistent 5-4 Right. And Trump, actually celebrating the Justice's death (while at the same time revealing what he thinks of his chances of re-election with fair vote-counting), gleefully said words to the effect of "Now I can win a second term, 6-3."
Now, IF Biden can win the Presidency, and IF the Democrats can take the Senate with more than one seat to spare (one does not want to be in the position of having to count on Joe Manchin [ah yes{!}]), as is well-known, the Democrats could a) end the filibuster, b) admit the District of Columbia and Puerto Rico as reliably Democratic states, and c) pack the Court. Of course, even with the requisite number of Senate seats, that master of the Senate Rules Moscow Mitch could possibly figure out a way to gum up the works. But before we would need to start worrying about that, we would have to get to that position first.
In the meantime, Trump could remain in the Presidency. Notice that I did not say "win," because I don't think that he can. But the Trumpublicans probably have cheating systems in place (including the mass theft and destruction of paper ballots before counting) that even Greg Palast (How Trump Stole 2020) hasn't thought of. So, especially with the Court suddenly tilted sharply his way, Trump could still be there. And then, in terms of civil liberties, everything would be under attack. Especially Roe v. Wade and abortion rights. (And oh how I wish that the pro-abortion rights movement would use that term instead of the more common "we favor abortion." For actually, no one favors abortion --- a medical procedure that does carry some risk no matter how it is performed ---- if it can be avoided. But that's another story.) The battle will be joined.
The essence of Roe v. Wade was that, until the generally accepted time of fetal viability outside the womb, 24 weeks, women were to have freedom of choice in the outcome of pregnancy. The anti-abortion-rights movement lay fairly low during the 1970s. It began ramping up with the advent of the Reagan Administration. In the 1980 campaign, Candidate Reagan and the leadership of the Republican Party decided to use the issue as one means of bringing the then-developing Political Religious Right further into their Party. (Reagan, of course, came from Hollywood. He was very familiar with abortion, then illegal, but certain done frequently, and with those who were taking care of such matters, perfectly safe. But what did that matter to him when religio-politics was involved?)
It was at about that time (early 1980s) that the anti-abortion-rights forces began using the term "pro-life" to characterize their movement. ("Pro-life" is a term that was actually invented after the end of the Second World War by Hitler's Pope, that great pro-lifer who kept his own counsel about the Holocaust during the War, Pius XII.) And since that time, even some elements of the pro-choice movement have used the term "pro-life" to describe the anti-choicers. Thus at least some focus has been lost over what was in fact at the center of Roe v. Wade, which was decided on a "right to privacy" interpretation of the 14th Amendment. But there is a very big additional support-for-individual liberties issue out there, just waiting to be mobilized. And that is the issue of religious authoritarianism.
As it happens, the position of the anti-abortion-rights forces is based exclusively on the religious concept of "when life begins." They make no bones about this. As is well-known, they equate abortion with murder, because according to them "life begins at the moment of conception." But that is an entirely religious concept. Let's repeat that, for many people, even on the abortion-rights side, miss it. "Pro-life" is an entirely religious concept. For the Protestant side of the anti-abortion-rights movement the authority for their position is the "inerrant word of God" as found in one particular version of the Bible.
That the version most often cited by the anti-choicers is the King James version, an English translation created in the early 17th century by a 52-member committee of scholars and theologians, is a point often missed by the "inerrantists" (and their critics as well). (If the King James version were to be regarded as "inerrant," one would have to assume that "God" spoke through every member of that committee. And, of course, what does that say about the myriad other versions of the Bible, appearing in numerous translations from the original Aramaic, Hebrew, Greek, and Latin? Why, it must be asked, did God wait so long to have an inerrant version produced?)
As for the anti-choice Catholics, they rely on an 1869 dictum from Pope Pius IX that life begins at the moment of conception. (This Pope was also the one who established the dictum of Papal Infallibility.) That dictum happens to have reversed Catholic doctrine, going back at least as far as St. Thomas Aquinas, that life begins at the "time of quickening." But since the self-designated "infallible Pope" --- the first one who claimed Infallibility --- what is it about Popes named "Pius" ---said it, it is (as the current U.S. President would say) what it is.
What the Republican Religious Right wants to do is right out of the 16th century: put the power of the State and the criminal law behind one particular set of religious doctrines. To say nothing of forcing a fundamental violation of the Establishment Clause of the 1st Amendment that they totally ignore: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
The position of the Religious Right is nothing more or less than the drive to establish religious authoritarianism to govern the country. And of course, it's not just the organized Religious Right. We now have an Attorney General who claims that a major enemy for our nation is "militant secularism." As a militant secularist myself, I take this particular charge most personally. And of course, one must then ask, if they succeed on this matter --- of specifying approved religions as well as non-approved non-religious belief --- what's next? The total violation of the Establishment Clause (in reverse) to go after folk who are non-religious? Or having battles over whose justification for the "life begins at the moment of conception" doctrine is the correct one, Catholic or Protestant (and if the latter, which Bible of the myriad Protestant ones?).
What I am suggesting here is that in addition to defending the "woman's right to choose," the pro-choice/abortion-rights side needs to address this fundamental question: are religious fundamentalists going to be allowed to set social policy on one of the oh-so-many matters of personal being and belief, based solely on the religious dogmas that they personally adhere to. They so desperately want their religious beliefs to set social policy, as church-going steadily declines in the United States, that they advocate the employment of the criminal law to do so. Not only that, but the anti-abortion-rights doctrine, religion-based as it is, ignores the fact that many women who seek abortions, and their male partners, are themselves religious. They simply have a different set of religious beliefs than do the Fundamentalists and the Dominionists.
Unfortunately, there has been little uptake or recognition for this argument and its potential strength. As it happens, I have been actually have been talking about it for some years now [see my book "The 15% Solution"]). And so, what we have here, well beyond "the woman's right to choose" (in which, to repeat, I firmly believe), is a fundamental struggle over religious liberty. And if Trump remains in the Presidency [remember, dear reader, this was originally written in September, 2020], given a Trumpian Supreme Court [which of course is what we've got], the battle will be fully joined.
For, to repeat further, the anti-choice forces always base their position on religious doctrine of one sort or another. The anti-choice forces, again, want to criminalize any belief that life does not begin at the moment of conception, whether religious --- and again, there are many religious people who believe in the right to choose --- or, as in my case as an atheist, non-religious who do too. A prime example is Gov. Kay Ivey of Alabama, who has said that in her opinion "every life is a sacred gift from God." That obviously religious position is fine --- for her. But she wants that belief to be ensconced in the law. And the AL law, based on that religious concept, if allowed to go into effect, would imprison physicians or women-having-an-abortion or both, and the death penalty was considered. Cannot get any more religiously authoritarian than that.
This is a position and a policy that can take us straight back to the religious wars in Europe and Great Britain of the 16th and 17th centuries. Perhaps if imprisonment doesn't work to stop women from having abortions and physicians from providing them, burning at the stake will be next. If the drive to establish religious authoritarianism on the matter of abortion as the governing doctrine for the nation is not stopped, right now, what will be next? And in my view if the pro-choice forces do not begin to fight on this issue, if we as a nation do get back to the time of Bloody Mary (the English Queen, not the drink), they will be as responsible for that state of affairs as would be the Republican Religious Right.
As the great British atheist, Jeremy Bentham (1748-1832) said:
" No power of government ought to be employed in the endeavor to establish any system or article of belief on the subject of religion."
And then, as Barbara Brown Taylor, Episcopal Priest, Professor, Theologian, said:
"Jesus was not killed by atheism and anarchy. He was brought down by law and order allied with religion [emphasis added], which is always a deadly mix. Beware those who claim to know the mind of God and who are prepared to use force, if necessary, to make others conform. Beware those who cannot tell God's will from their own. Temple police are always a bad sign. When chaplains start wearing guns and hanging out at the sheriff's office, watch out. Someone is about to have no king but Caesar."