Texas abortion penalty proves my point

A Texas "trigger law" that was passed in 2021, and which increases penalties for performing abortions, went into effect yesterday. The law provides for penalties of up to life in prison for performing abortions.

What justification could there possibly be for such an extraordinary penalty? Well, murder could justify it. But to hold that abortion is murder implies that the fetus is a person worthy of the same protections as persons who have been born. It's hard to see how life imprisonment could be justified for any other reason.

The problem is that fetal personhood is a moral determination about which there is no societal consensus whatsoever. I have argued that instantiating moral judgements into law where no societal consensus exists is extraordinarily fraught. I also argued that such moral determinations follow overwhelmingly from the religious beliefs of those who make them.

Thus the inescapable logic is that anti-abortion laws amount to one part of society imposing its religious beliefs on everybody. Such imposition is impermissible under the First Amendment.

That no consensus against abortion (and thus in favor of the moral judgements attached to it) exists is beyond dispute. In polling, solid majorities consistently say that abortion in some form should be legal. Upwards of two thirds of Americans have said that Roe v. Wade should not be [should not have been] overturned. My home state of Kansas made that polling starkly concrete when voters refused to remove a constitutional protection for abortion, by a stunning margin of 59-41.

The reality and potency of religiously convicted beliefs is powerfully demonstrated by the draconian new penalties in Texas. Religious believers cannot help themselves in that regard. It's the nature of religion to gravitate to the most extreme positions.

Even more problematic, religion also compels believers to impose their beliefs on everybody. They can't help themselves on that, either. But this is impermissible under the Constitution.

In that sense the Texas law is a gift that reveals the true contours of the constitutional debate, and shows why abortion rights can and must be defended under the First Amendment. This suggests an entirely new avenue for legal activity, one that's been long overlooked. It's time to get on with it.

Copyright (C) 2022 James Michael Brennan, All Rights Reserved

The latest from Does It Hurt To Think? is here.