Two constitutional principles are the separation of church and state and the right of individuals to control their own lives without interference from the state or federal government. Unfortunately, until 1973 the right to an abortion was covered by a patchwork of different state laws. By denying abortion, states also denied women their constitutional right to control their own lives. Because some states were denying women the right to choose, the Supreme Court heard Roe v. Wade and ruled every state had to recognize every woman’s right to decide.

The Supreme Court recently heard Dobbs v. Jackson, the Mississippi abortion case. It is unlikely the six conservative justices on the Supreme Court will vote outright to overturn Roe v. Wade. Instead, the court’s conservative members are more likely to achieve their not-so-hidden agenda of overturning Roe v. Wade through the states, by allowing them to deny women the right to choose.

This decision will stop abortion in the 22 states that have passed laws to severely restrict or block abortion completely, anticipating a Supreme Court anti-choice decision. However, only 15 of the remaining states have laws that protect the right of women to decide.

I believe the conservative justices will let the states decide because they are under the illusion it will appease the 83% of liberals (48% of all Americans) who do not want Roe v. Wade overturned.

They also believe, without a shred of evidence, that passing the buck to the states will preserve the modicum of respect the court has. Nothing could be further from the truth. Overturning Roe v. Wade in any way would affirm the growing public perception the current court is just another political arm of conservative politicians instead of the impartial judiciary it claims to be.

Overturning Roe v. Wade by letting the states decide became evident when the court recently heard Dobbs v. Jackson. Justice Sotomayor rhetorically asked, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” and answered her question with, “I don’t see how it is possible.” Justice Kagan made a case for upholding Roe: “This is part of our law. This is part of the fabric of women’s existence in this country.” Justice Breyer quoted a 1992 Supreme Court decision reaffirming Roe: “To overrule under fire in the absence of the most compelling reason to re-examine a watershed decision would subvert the court’s legitimacy beyond any serious question.”

Justices Roberts, Barrett, and Gorsuch prefer to hide their real goal of stopping abortion by letting the states decide. Roberts commented, “I’d like to focus on the 15-week ban (similar to) the standard the vast majority of other countries have.” Are those “vast majority of countries” democracies with a separation of church and state clause in their constitution? Since the U.S. Constitution was the first entirely secular constitution, I doubt many meet that standard.

Barrett’s attention was on the burdens of parenting used to justify abortions. However, she opined since “women can put babies up for adoption, those burdens are not an issue.” Suppose the court does see adoption as an abortion alternative. Why then did the court allow Catholic Social Services in Fulton v. Philadelphia (2021) refuse to place foster children with same-sex couples in direct violation of Philadelphia’s anti-discrimination policy?

Gorsuch focused on viability when a fetus can survive outside the womb. He argued since abortion opponents claim a fetus is a living being (they claim a blastocyte — a fertilized egg — is a person), the viability status was inappropriate. He asked, “If this court rejects the viability line, do you see any other intelligible principle that the court could choose?”

Yes, I do! The woman’s choice!

The justices can believe whatever they want but can’t do whatever they want based on those beliefs. For example, Justice Scalia separated religious belief and behavior in Smith v. Oregon (1990). He argued if religious beliefs allowed everyone to do whatever they wanted, everyone would become a law unto themselves. Despite the ruling, Supreme Court decisions frequently favor religious defendants under the guise of freedom of religion, often denying secular plaintiffs their freedom from religion. Because everyone is subject to these religiously biased decisions, everyone’s religious freedom is compromised.

Some argue Roe should be overturned because we have learned more about a fetus since 1973. However, what we have reaffirmed since 1973, and knew when the Constitution was written, is that a fetus is not a person. Writing laws based on Christian ideology claiming otherwise will not change that fact.

Tom Waddell is president of the Maine Chapter of the Freedom from Religion Foundation. He welcomes comments at [email protected] and  https://ffrfmaine.org.


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