Americans United’s legal team on Monday filed an important legal brief in a key reproductive freedom case pending before the U.S. Supreme Court.
Dobbs v. Jackson Women’s Health Organization challenges a Mississippi law that bans abortion after 15 weeks. The high court’s conservative majority could use it to undermine or even overturn Roe v. Wade, the landmark 1973 ruling that established abortion as a constitutional right.
In the brief, which was joined by the American Humanist Association, Bend the Arc: A Jewish Partnership for Justice and the Interfaith Alliance Foundation, Americans United makes an argument firmly anchored in church-state separation: that laws dealing with reproductive freedom must be grounded in secular rationales, not theology. It argues that the court’s current standard – that abortions are permitted prior to fetal viability – should be maintained.
Observes the brief, “Abandoning the viability standard would place these most serious theological conflicts back wholly in the political arena. It would thus threaten far greater religious strife, turmoil, and rancor than already exists, by creating stronger incentives for religious groups to seek to impose their own beliefs through legislation so as to prevent others’ beliefs from being forced on them. And it would dangerously increase the already substantial mistrust of our political institutions, by miring them yet more deeply in theological matters that they are not institutionally competent to resolve.”
Although often overlooked, the religious freedom aspect of the abortion issue is critical. It’s one Americans United has raised repeatedly in debates over reproductive freedom since the organization’s founding in 1947.
In the 1950s and ’60s, Americans United worked to end state laws that banned birth control or gagged doctors from discussing it with patients. These laws were in place in some states because powerful religious groups opposed the use of artificial forms of birth control. No American, AU argued, should have his or her reproductive rights subject to religious control.
In 1973, when Roe was handed down, AU expressed hope that the decision would be widely accepted by the American people. And it has been – national polling consistently finds that a majority of Americans support abortion rights. But Roe also gave conservative religious organizations a political wedge issue to rally their base, so they ramped up their assault on legal abortion. AU again argued that theology should not control the debate.
“Those opposed to abortion seek to ban it for everyone in society,” philanthropist John D. Rockefeller III wrote in a guest column for Church & State in September 1976. “Their position is thus coercive in that it would restrict the religious freedom of others and their right to make a free moral choice. In contrast, the legalized abortion viewpoint is non-coercive. No one would think of forcing anyone to undergo an abortion or forcing doctors to perform the procedure when it violates their consciences. Where abortion is legal, everyone is free to live by her or his religious and moral principles.”
In 1989, Americans United filed a brief before the Supreme Court in a case challenging a series of anti-abortion regulations in Missouri. The Missouri law declared that life begins at conception, a view, AU argued, that is anchored in theology, not science. Unfortunately, the court majority upheld the Missouri law, although Justice John Paul Stevens cited AU’s brief in his dissent.
AU President and CEO Rachel Laser summed up AU’s position in a May 2019 column in the Chicago Tribune.
“The terrifying rash of abortion bans spreading throughout our country has captured the nation’s attention, but in order to stop this trend, those who are fighting back must also focus on its deeper cause: the ever-crumbling wall of separation between church and state,” Laser wrote. “The First Amendment of our Constitution prohibits the government from imposing one set of religious beliefs, or religion at all, on others, but that’s undeniably what these bans are doing.”
Reproductive freedom and church-state separation are intertwined. If you want the former, you must stand up for the latter.
P.S. You can read more about AU’s long involvement in reproductive freedom issues here.