Anti-abortion activists are predominately Roman Catholics and Evangelical Protestants. To the degree that their activism is sincere, it is based on the religious notion that the unborn are human, and therefore children of God in need of their protection. In discussions of abortion, however, the religious underpinnings of their passion are seldom made explicit. Most often, we are told that abortion is murder, an idea sometimes soft-pedaled with slogans like “abortion stops a beating heart. Linda Greenhouse recently wrote, however, that, with a now sympathetic Supreme Court in place, “Republican officeholders are no longer coy about their religion-driven mission to stop abortion.”
In modern times, of course, infanticide is nearly universally condemned as murder. It is difficult to make a moral distinction between killing a newborn and aborting a pregnancy close to term. The not-quite-born child is not substantially different from the just-born child. Each one is, at least in a physiological sense, fully human. For this reason, late-term abortions of apparently normal pregnancies are clearly problematic. One might question the interest of the state in their prohibition, however. Nevertheless, most citizens, whatever their views of abortion generally, are very uneasy about such late procedures.
One may quibble (obviously) about earlier abortions. An embryo or fetus is human, in the same sense that a detached fingernail is human, though not a human. It is more correct to say that it is a potential human. The product of a recently established pregnancy has about the same relationship to a human being as an innertube has to an aircraft carrier. Only if one posits that implantation (or even fertilization) somehow causes a soul also to be implanted as well does an embryo take on an essential human property. (It is unclear what is supposed to happen to the soul if the embryo dies. Where does it go, or does it simply evaporate?) Its physical nature of an embryo or fetus, on the other hand, is as far from human as a worm or caterpillar.
In what is supposed to be a secular government, the religious view that an embryo or fetus is an actual human should be of no legal significance, even more so as that view is held by a small minority of religious zealots. Nonetheless, the Religious Freedom Restoration Act (RFRA) and recent Supreme Court decisions such as the Hobby Lobby case have privileged reputed “religious freedom” over other freedoms. Turning back this unfortunate tide is a daunting task, but perhaps one can fight back by playing the religious game.
Suppose a female Episcopalian in, say, Texas, wants access to abortion. Can she not claim a “sincerely held” religious exemption from anti-abortion laws akin to the religious exceptions allowed in other circumstances. (We regularly allow such exceptions from obligations such as taking a COVID vaccination.)
The governing body of the Episcopal Church, the General Convention, has expressed its views on abortion. In Resolution A054 of 1994, after suggesting that abortion can have negative aspects, concluded by declaring
[T]his 71st General Convention of the Episcopal Church express[es] its unequivocal opposition to any legislative, executive or judicial action on the part of local, state or national governments that abridges the right of a woman to reach an informed decision about the termination of pregnancy or that would limit the access of a woman to safe means of acting on her decision.
Does this not mean that an Episcopalian woman’s freedom of choice is fully endorsed by her religious authorities. Should not a Supreme Court that is so deferential to religious views allow this woman to have an abortion? I suggest that posing such a question before the court would expose to all the world that abortion restrictions promoted by a zealous religious minority are in fact an imposition of those minority religious views on the population generally. They are therefore improper for the government to enact and enforce.