A First Amendment case for choice

Although a few legislators might dispute it, most will not: when a legislator votes to deny or restrict access to abortion, he's making a moral determination about abortion itself. There is no other intelligible motivation.

And although every judge would surely deny it, when a judge upholds abortion restrictions, she's likewise making or at least condoning a moral determination. That's because she understands the intent of the legislation and yet allows it.

Legislating morality is fraught in ways that other kinds of lawmaking is not—certainly for legislators, but especially for judges. Instantiating moral determinations into law, on matters where no societal moral consensus exists, is exceedingly dangerous.

Compounding the danger, such moral determinations made by legislators and upheld by judges are overwhelmingly inseparable from the religious convictions of those making the determinations. It is risible to pretend otherwise. That being so, both the legislating and the upholding of abortion restrictions amount to one part of society imposing its religious beliefs on everybody.

The First Amendment provides for freedom of religious practice. But surely freedom of religion and freedom from religion are two sides of the same coin. It is therefore constitutionally impermissible for some to impose, on unwilling others, moral determinations arising from religious beliefs. That is the simple, straightforward, and obvious constitutional argument against restricting abortion rights.

More complicated formulations are possible but unnecessary. Whatever substantial merits equal protection arguments under the Fourteenth Amendment might have regarding a woman's own self-integrity under the law, the First Amendment argument is irreproachable simplicity.

In her own private affairs, Amy Coney Barrett, soon to be a justice on the Supreme Court, has advocated forcefully for disallowing abortion as a matter of morality. As she herself acknowledged in confirmation testimony, such advocacy has occurred in the context of her religious practice.

In the same testimony, Judge Barrett has insisted that whatever legal judgements she reaches will be unaffected by her personal beliefs. Yet moral determinations that follow from one's deeply held religious convictions are different in kind from privately held, ideologically motivated, policy preferences that are more readily set aside in pursuit of the law.

That's all the more true when the so-called "sanctity of life" is at issue. That a judge could be unaffected by religiously convicted beliefs regarding the sanctity of life defies credulity. The honest judge must therefore recognize the power and implication of the belief in both herself and in the legislator.

The judge's responsibility is not to recuse. Rather, she must presume that the legislator restricting abortion cannot be doing other than making a religiously motivated moral determination in a societal context where no moral consensus exists, thereby imposing the legislator's religious beliefs on the larger society. The judge can do no other than observe that this is impermissible under the Constitution.

The opinion is uncomplicated. It practically writes itself. It needn't rely on a disputed right of privacy. It requires nothing more than acknowledging what is obvious.

The judge who wishes to defend the sanctity of life as she understands it has exactly the same recourse as everybody: the persuasion of individuals. Until the moral question is settled by societal consensus, she can do no more.

So in deference to the Constitution, the judge must uphold the fundamental right of choice, and a woman's right to make her own moral determinations free from outside religious impositions. But the judge's responsibility goes even further. The judge must acknowledge forthrightly that attempts to restrict abortions, particularly on grounds of regulating medical procedures, are specious and have been made in transparent bad faith.

In this the judge can interrogate her own moral and religious convictions to advantage, and is thereby freer than most to call a spade a spade. The honest judge can usefully recognize the power of her own religious beliefs to remind herself why they must not be imposed on others.

Copyright (C) 2020 James Michael Brennan, All Rights Reserved

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