By Robert M. Pennoyer
For decades, state legislators committed to the “right-to-life” doctrine, which affirms that abortion at any time from the moment of conception is murder, knew that as long as Justice Anthony M. Kennedy was on the Supreme Court, the court would not reverse Roe v. Wade, the landmark 1973 ruling that codified the right to legal abortion in America. Instead, they were confined to enacting hundreds of offensive statutes under a smokescreen of rhetoric about protecting women’s health that imposed burdens on women’s access to safe abortions.
Kennedy’s 2018 retirement, coming as it did during the presidency of Donald Trump, who promised to appoint justices who will reverse Roe, changed the political calculus. Anticipating a shift in high court doctrine, legislators in several states began enacting laws that criminalize abortions after six weeks, before a woman might even know she is pregnant, as well as other statutes that would have the effect of outlawing as many abortions as possible.
Legislators who put these repressive statutes into law and enacted near-total bans on abortion forgot that this is America. We have a Constitution. When a state statute imposing anti-abortion dogma comes up for review, judges on the federal courts, including justices on the Supreme Court must, consistent with their oath to defend the Constitution, follow the framers’ original intent and hold that these statutes violate the separation of church and state enshrined in the First Amendment’s mandate that “Congress shall make no law respecting an establishment of religion,” which the Supreme Court has held applies with equal force to the states.
Will the justices on today’s court uphold the separation of church and state? The signs are ominous. Several justices have already said they will reverse Roe. During his four years in office, Trump vowed to only appoint justices who will reverse that ruling. His most recent appointment, Justice Amy Coney Barrett, testified at her hearing before the Senate Judiciary Committee that she will follow Justice Antonin Scalia, for whom she clerked. Scalia’s public comments and rulings made it clear that he did not believe in the separation of church and state.
The persecution over the past 40 years of women who do not conform to anti-abortion doctrine revived the sectarian strife rooted in the 18th century, when the colonies persecuted anyone who did not conform to the religion officially sanctioned by the colony.
To protect the new nation against that kind of sectarian division, James Madison, inspired by Thomas Jefferson’s Virginia Statue for Religious Freedom, gave us language in the First Amendment that bars all laws “respecting an establishment of religion,” a provision lawyers and judges often call the Establishment Clause.
The development of that provision began five years before its 1791 ratification when Madison opposed a Virginia bill that would have authorized the use of tax revenues to support Christian churches and organizations. His objections focused on both the freedom to exercise any given religion and freedom from the establishment of religion. Because of Madison’s continued efforts, our First Amendment includes protection for individuals to express their religious freedoms – but its Establishment Clause also ensures that the government will not impose faith on anyone or force anyone to practice an officially sanctioned faith.
For years, the Supreme Court respected this principle. The majority opinion written by Chief Justice Warren Burger in 1971’s Lemon v. Kurtzman summarized three tests that a statute must pass to survive a First Amendment challenge: First, the statute must have a secular purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; and finally, the statute must not foster excessive entanglement with religion.
In addition, the high court has adopted a crucial political-divisiveness test, saying that “political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.”
Laws banning all abortions and “heartbeat” laws fail all of the three prongs outlined in the Lemon decision. They also fail the test of political divisiveness. In the context of abortion, the issue of secular purpose turns on one central issue: whether a fetus is a human life. If the fetus is a human life, states would have a secular interest in protecting that life. But if the definition of “life” is motivated by religious beliefs and reflects religious tenets and is incorporated into law, the resulting statute violates the Establishment Clause.
Unless the courts save us from the encroaching tyranny of the Religious Right, the strife will continue. A clear majority of Americans, including members of my Episcopal Church, who believe that a woman has the moral right to terminate an unwanted pregnancy before viability, will defend the freedom of conscience guaranteed by the Constitution.
On this issue, we will never – I repeat, never – surrender to the Religious Right.
Robert M. Pennoyer is a former assistant U. S. attorney for the Southern District of New York and a former partner of Patterson Belknap Webb & Tyler.