This Thursday, the Law, Rights, and Religion Project at Columbia Law school discussed a different constitutional right that protects abortion, because the Due Process Clause isn’t enough, apparently.
On September 1, millions of Texans lost their constitutional right to abortion after the state enacted what amounts to a near-total ban. Writing from my Barnard dorm, having left Texas for college eight months ago, I am unaffected by the new law. But I am lucky. Many in the community I left behind lack the privilege to cross state lines. With my home state and community in mind, I attended Thursday’s conversation surrounding the religious right to abortion. Hosted by the Law, Rights, and Religion Project at Columbia Law School, the conversation brought together the historical, legal, and theological foundations of a pro-choice theology.
The conversation complicated the typical narrative of pro-choice arguments, which often focus on freedom from religion. Instead, the panelists focused on the many people of faith for whom access to abortion is crucial because of their religious beliefs, not in spite of them. This is notably the case with the Satanic Temple. Although the Temple might not actually believe in Satan, it does believe in bodily autonomy. However, the members of the Satanic Temple aren’t the only ones with religious rights at stake; abortion seekers and providers across faiths have pro-choice religious convictions. This approach appears unusual against traditional narratives that equate religious piety squarely with anti-choice beliefs. But, in reality, pro-choice theology is steeped in precedence.
Elizabeth Reiner Platt, the Director of the Law, Rights, and Religion Project, opened the discussion by describing two opposing trends in American law. The first is the sweeping expansion of religious exemptions under the law. Most recently, courts granted religious exemptions for social distancing rules during the pandemic. The second trend is increasingly Draconian abortion restrictions, culminating in Texas’s ban this fall. Platt questioned if these trends were on a collision course. Ultimately, the courts must reconcile these rulings.
Professor Frank described his research on the Clergy Consultation Service for abortion. The non-sectarian group included Protestant Ministers, Rabbis, and dissident Catholic Clergy and nuns. Beginning in 1967, the CCS was the largest pre-Roe abortion referral service, working with tens of thousands of women to find both legal and illegal services. Their moral authority allowed the clergy to act openly, protecting them in the rare instances that a state did decide to prosecute. In 1969, one clergyman was arrested for helping a woman receive an abortion, prompting an outcry against the state’s intrusion into the sacredness of the confessional. The entire Presbytery of Cleveland asked to be indicted on the same charges in solidarity. This history adds religious leaders to the ranks of those affected by anti-abortion laws, as their ability to practice is harmed. Ultimately, the clergy proved powerful allies to the abortion seekers, lending moral authority to the movement. In keeping with the second-wave feminist argument that the personal is political, the clergy “made the pastoral political” as well.
Reverend Doctor Cari Jackson, the Director of Spiritual Care and Activism at the Religious Coalition for Reproductive Choice, provided context for the modern religious opposition to abortion. She described dominionism, the theocratic belief that God has called Christians to create a Christian nation governed by biblical law. She contrasted this ideology with the teachings of her childhood Pentecostal church, which preached to “be in the world, but not of the world.” Dominionism moves away from this teaching by attempting to create the kingdom of God in the current world, rather than waiting for the return of Jesus. As a result, criminalizing abortion becomes a priority. Dominionism is a belief system rooted in power and dominance, making it a natural ally for conservative politicians with different theologies but similar goals. Jackson contrasted the dominionist orientation with that of a justice orientation, the latter being a human, rather than godly, construction. In response to an audience question about the viability of pro-choice theology amidst the membership decline in liberal ministries, Jackson highlighted the way her work has galvanized young people and created a broader understanding of spirituality.
Finally, Rupali Sharma, Senior Counsel and Director for the Lawyering Project, which challenges anti-abortion laws, grounded the conversation in the individuals burdened by the restrictions. She represents two clients in a case against Indiana’s law that requires fetal remains to be buried or cremated. This law conflicts with the religious beliefs of her clients, one of whom is Muslim, and the other Baptist. She described how one of her clients got an abortion to remain in good enough health to take care of her four-month-old son. As such, the law conflicts with the client’s beliefs not only about when life begins, but what motherhood is. For these women, and many like them, a religious belief in abortion is not just a legal strategy. Instead, it is representative of the genuine burden the anti-choice laws place on their religious convictions. Sharma also cited the Establishment Clause to challenge anti-abortion laws, which prevents the state from promoting specific religious beliefs.
Pro-choice theology challenges the right’s monopoly on sanctity. It also renders the state’s expansion of religious protections with its restriction of abortion irreconcilable. In subverting these narratives, the religious right to abortion presents a forgotten, if not new, argument for abortion access.
Zoom screenshot via Catherine Beckett