If SCOTUS wants to stay out of religious debates, it should overturn Roe v. Wade

I originally wrote this article for TownHall. Reprinted here with permission.

[Esta publicación está disponible en español aquí.]

On December 1 the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, the case debating the constitutionality of Mississippi’s Gestational Age Act, which many believe may lead to the Supreme Court weakening or overturning Roe v. Wade. Justice Sonia Sotomayor asked Mississippi Solicitor General Scott Stewart, “How is your interest anything but a religious view? The issue of when life begins has been hotly debated by philosophers since the beginning of time. It’s still debated in religions. So, when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it — because it assumes that a fetus’s life at — when? You’re not drawing — you’re — when do you suggest we begin that life?”

Justice Sotomayor is echoing Justice Harry Blackmun’s opinion in Roe v. Wade when he said, “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”

Speaking as an atheist who opposes abortion, I find this evasion nonsensical for several reasons.

(1) Philosophers may debate when a human life has moral value, but biologists aren’t debating when a human organism’s life begins. Dr. Steve Jacobs of the University of Chicago has covered this issue extensively: he surveyed thousands of biologists around the world about when, biologically, a human organism comes into existence, and the strong consensus was at fertilization. Even biologists who identified as “very pro-choice” affirmed that fertilization marks the first stage of a new human life cycle. This same understanding is reflected in countless embryology texts published over the past several decades. In embryology, this topic is not a debate: a human zygote is the first developmental stage in an individual human’s life cycle. Biologically you, me, and Justice Sotomayor all began as zygotes.

(2) Even if it were true that there is no consensus on when a human life begins, it would make little sense for the Court to enforce a standard that assumes life doesn’t begin until at least the second half of pregnancy. Our current abortion laws allow for the destruction of hundreds of thousands of prenatal humans every year. Right now there are six states* (Alaska, Colorado, New Jersey, New Mexico, Oregon, and Vermont) that allow abortion for any reason at any stage in pregnancy. Late-term abortion providers have given interviews openly discussing aborting fetuses into the third trimester (past viability) for nonmedical reasons. These elective late-term abortions are part of Roe’s legacy, and they demand a stronger justification than “Well, there’s a lot of philosophical debate about when human life begins, so this is probably fine.”

(3) While there is no major debate in biology over when a human organism’s life begins, there is a philosophical debate over when that human’s life carries enough moral weight to merit legal protection. Notably that philosophical debate hasn’t stopped the judiciary from upholding laws regarding fetal homicide. As of 2018, 38 states had fetal homicide laws, including 29 states in which such laws apply even in the earliest stages of pregnancy. Some people argue these laws undermine abortion rights, but to my knowledge no one has argued that these laws violate the religious freedom of third-party aggressors who may not believe a fetus is “a life.” In most of the country you can be charged with homicide if you cause the death of a woman’s fetus; no one cares what your religious views dictate about whether that fetus is “a life.”

(4) There are other philosophical debates that have not prevented the judiciary from issuing legally binding opinions. For example, philosophers Peter Singer, Alberto Giubilini, and Francesca Minerva have all argued that newborn infants are not “persons” in a philosophical sense and that killing them would not carry the same moral weight as killing “people.” This debate hasn’t prevented state and federal governments from passing and upholding laws against infanticide. As another example, there is extensive and ongoing philosophical debate over the ethics surrounding vaccination and vaccine mandates, but that debate has not stopped the Supreme Court from quite recently rejecting challenges to vaccine mandates.

(5) If it’s true that the question of when human life is morally valuable is merely a religious debate, then it’s also true that Roe promoted one “religious” view over others. Roe effectively enforces the view that human life isn’t valuable enough to merit legal protection until at least halfway through pregnancy (and possibly at no point during pregnancy, as some states have decided). If the Court doesn’t want to insert itself into the philosophical debate about when a human life has moral value, its strategy should be to overturn Roe. That is how the Court extricates itself from the conversation and leaves space for the people of each state to debate different religious and philosophical views and create their legal standards accordingly. Instead, through Roe, the Court forced the entire nation to allow abortion for any reason until viability, approximately six months into pregnancy. This standard isn’t neutral, and the “religious” view it promotes is extremely unpopular. Most Americans oppose abortion after three months into pregnancy, while Roe requires states to allow it through six months. Similarly, 96% of other countries have more restrictive abortion laws than Roe allows in the United States. Nothing about the Roe standard is neutral, religiously or otherwise.

Abortion ends the life of a human in utero. This is not a religious view; it is a fact of biology. Whether it is immoral to take these lives is an open religious and philosophical question. If Justice Sotomayor believes the Supreme Court lacks authority to weigh in on that question, she should vote to overturn Roe v. Wade and let the people of each state decide for themselves.

*Post-publication edit: The original post incorrectly stated there were seven states with no gestational limits, including New Hampshire. In fact New Hampshire passed a 24-week limit earlier this year.

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