Hyde, Church, Coats, Weldon, "Conscience Clauses" All Unconstitutional?

Many have been critical since 1973 of the grounds of the Supreme Court's decision on Roe v. Wade.

The battles over abortion language in the health care bill have reawakened criticism of the courts for neglecting to determine that opposition to abortion - and other women's reproductive services - is religious in nature.

(I would extend the court's neglect to other patients' rights issues including end of life rights, and LGBT rights as violated by Catholic health care's protection by provider refusal laws (so-called conscience clauses) that allow doctrinal medicine to be delivered to the general public despite public funding of such facilities.)

A new paper by Justin S. Murray, a Georgetown University law professor, looks at the court's avoidance of direct Establishment Clause grounds for such decisions but works to prove that a secular case can still be made for opposition to abortion. He writes, "...I aim to prove the more modest proposition that a strong enough case can be made for restricting abortion, based solely on secular reasons, to satisfy the demands of the Establishment Clause."

This is the gold mine for opponents to abortion! Prove abortion should not be legal on secular grounds and - wallah! - the court's long-established and questionable skirting of the Establishment clause is excused. He even establishes what he calls the "underground Establishment Clause," noted with it's own acronym, UEC. It's a slight of hand: prove that Roe v Wade and other rulings are based on Establishment Clause principles and you remove any defense of subsequent laws that address women's rights to secular health care. It's almost equivalent to saying that you're not racist because you have black friends.

This is no new hat trick by opponents of abortion, and gets at one of my great concerns: the cultivation of religious legal, medical and political intellectuals by the Religious Right to oppose liberal or progressive intellectuals, all the while denying legitimacy to intellectual thought. The growing prevalence of religious education, both primary and university level, the increase of religious legal and medical associations, the dominance of religious think tanks and foundations all work to undermine secular "intellectual" society by claiming "common man" status. The perfect example is Wesley J. Smith, a senior fellow at the Discovery Institute - an organization which promotes intelligent design and "pro-life" principles while keeping "God talk" on the down-low. Same-sex marriage is refuted as "untraditional" or "unnatural." Legal abortion is not a violation of a woman's bodily autonomy and right to conscience but the state's "ethical" protection of an unborn citizen.

The slow secularization of society has not prevented these quietly religious organizations from influencing public policy on a grand and destructive level: witness the "faith-based" initiatives neatly woven in to the delivery of social services by the federal government by Bush - and maintained by Obama.

The Hyde Amendment, the Church Amendment, the Coats Amendment, the Weldon Amendment, and the Bush "conscience clause" are all reliant on contrived use or avoidance of the Establishment Clause. Yet, clearly the motivation/justification for them is religious in nature. In other words, the Establishment clause "protection" of religious actors - nurses, doctors, pharmacists and entire institutions like Catholic health care- is one-sided. Provider refusal of common secular medical services has been established according to the Establishment clause with no concern for patient's rights, conscience, or needs. One conscience and ideology protected to the detriment of another's. And to the detriment of a society that is still left to fight poverty, unplanned pregnancies, class segregation, and discrimination. The power over one's body has been, for religious reasons, put into the hands of those with authority and religious motivations. This empowerment of religious forces corrupts social justice on a grand scale because it favors one ideology over all others - and denies patients the right to their own health decisions.

As feminists now focus, in the wake of health care bill battles, on the overturning of Hyde, they would be wise to push for a reexamination of such amendments on Establishment clause grounds, as opponents of Proposition 8 in California are doing. How the courts respond is another issue that will only remain in question so long as society buys into these covert efforts to secularize or mask religious ideologies in law and ethics.

Constitutional lawyers like Marci Hamilton have made a strong case for the unconstitutionality of the Stupak Amendment and as Frances Kissling, former president of Catholics for Choices, has noted, Hyde has been unjustly accepted by feminists as a compromise on "common ground" in the abortion fight despite it's systematic discrimination against poor, minority women. This renewed focus on the quality and grounds of such rulings could signal a new move toward non-discriminatory health care laws. But it requires that patients' rights advocates reframe stealth religiosity out of the issue.

Until the courts - both state and federal - are forced to address the issue of religiously influenced medicine for women, gays, and elders, we will be left with laws that blatantly discriminate against minorities in direct violation of the Constitution.

You can download the paper here.

The abstract from Family Law Prof Blog:

Murray: "Exposing the Underground Establishment Clause in the Supreme Court’s Abortion Cases"

Justin S. Murray (Georgetown University Law Center) has posted Exposing the Underground Establishment Clause in the Supreme Court’s Abortion Cases on SSRN. Here is the abstract:

In Roe v. Wade, the Supreme Court held that women have a constitutional right to abortion based on the Due Process Clause. To arrive at this conclusion, the Court implicitly relied on concepts that properly belong to the Establishment Clause - in particular, the Establishment Clause requirement that all laws must be supported by secular purposes, not religious ones. This Article is the first attempt to describe and critically evaluate the Court’s use of Establishment Clause ideas in Roe and later abortion cases.

Some brief background is essential in order to grasp the structure and significance of the underlying Establishment Clause dynamic of Roe. The Due Process Clause allows the government to restrict fundamental constitutional liberties (such as abortion) if it has a compelling reason for doing so. States have defended their abortion laws by arguing that protecting unborn human life against homicide is a compelling reason to restrict abortion. This argument, advanced in Roe, directly presented the Supreme Court with the question of whether fetuses are human beings entitled to protection against homicide.

The Court, however, refused to answer the question and provided a convoluted, ambiguous explanation for its refusal. Careful interpretation of these ambiguous passages reveals the Court’s underlying concern that neither the judiciary nor the legislature may decide the question of fetal humanity because it is a controversial religious question. When the Court’s rationale is clarified and plainly stated in this way, it becomes clear that Roe’s method of analysis - rejecting the state’s interest not because it is false or unimportant, but because it is religious and therefore an inappropriate basis for political judgment - is identical to the Establishment Clause requirement that legislation must be based on a secular purpose.

However, the Court’s analysis is problematic, because Establishment Clause principles are consistent with governmental protection of fetal life. The humanity of the fetus can be plausibly supported, not only on religious grounds, but also on the secular grounds of philosophical, historical, and experiential reasoning. To be clear, I do not argue that these secular grounds prove beyond dispute that fetuses are human beings. Instead, I defend the more modest proposition that a debatable secular case can be made for viewing fetuses as human beings. This conclusion is not strong enough to justify criminalization or restriction of abortion (which is beyond the scope of this Article), but it does prove that such criminalization or restriction would not violate the Establishment Clause. Thus, the Court should revisit the fundamental question that it evaded in Roe and later cases: is the fetus a human being, such that legislatures have a compelling interest in protecting fetal life against abortion?