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When the Supreme Court decided Roe v. Wade in 1973, the argument was based on the majority’s interpretation of individual rights under the Fourteenth Amendment of the Constitution:

Defending Reproductive Rights

State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate

her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term. 

From the day that decision was handed down, more than 46 years ago, opponents of abortion have fought tenaciously to have it reversed, mostly by demanding that justices appointed to the Supreme Court (and other federal judges) be known to be anti-abortion. It is striking that opposition to Roe v. Wade and to legal abortion has not, in general, directly challenged the decision’s interpretation of the Fourteenth Amendment, but has instead made an essentially religious argument that the decision must not stand because it violates God’s law (as interpreted by the Roman Catholic hierarchy and a range of fundamentalist Protestant denominations). Once you accept the doctrine that life begins at conception, you cannot then accept the voluntary termination of any pregnancy, no matter what extenuating or complicating circumstances may exist.

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Supporters and opponents ofRoe v, Wade are thus arguing past one another. While supporters argue from the Constitution, abortion opponents are essentially demanding that their particular interpretation of religious doctrine be established as federal law

Supporters and opponents of Roe v, Wade are thus arguing past one another. While supporters argue from the Constitution, abortion opponents are essentially demanding that their particular interpretation of religious doctrine be established as federal law, even though the First Amendment’s opening clause says,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…

Supporters of legal abortion are also coming from one or more religious perspectives. Most of the main-line Protestant denominations, most Jewish currents, as well as Unitarian Universalists and Quakers, have a far more nuanced view of the issue of abortion, treating it as a complicated ethical issue that responsible individuals must work through. Similarly, atheists and agnostics usually arrive at a nuanced position that accepts abortion as an ethical option, perhaps in some circumstances the best option. The point here is that supporters of abortion rights have their own views about the ethics and morality of abortion, views that are essentially religious.

Supporters of abortion rights may thus quite reasonably argue that their religious rights would be violated if abortion were outlawed, whereas under the standard of Roe v. Wade, the religious rights of opponents are not violated: if they don’t believe abortion is right, they shouldn’t have one.

Now, with the blockade of Merrick Garland’s nomination to replace Justice Scalia, and the confirmation of Trump appointees Gorsuch and Kavanaugh, the Court might finally be on the verge of a majority that would reverse Roe. With the retirement of Justice Anthony Kennedy, Chief Justice Roberts appears to hold the balance of power. Based on what we know of his views, that is not encouraging. But Roberts has been quite expansive in his defense of his interpretation of the First Amendment. This may be the time to offer a defense of abortion rights based on religious freedom.

impeachment unavoidable

John Peeler

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