The leaked draft Supreme Court opinion suggests that Roe v. Wade is about to fall. If the court overturns Roe, the impact will go far beyond abortion rights. It will also signal the dramatic expansion of religious authority into far-flung corners of American life, as conservative Christians impose their moral ideas on the general public.
Conservatives have long been explicit in their view that the right to abortion had to be countered to maintain the Christian underpinnings of American society. After the court handed down its decision in 1973, for example, Christianity Today lamented that “the American state no longer supports, in any meaningful sense, the laws of God.” American Catholic bishops similarly spoke of the natural law that abortion violated and immediately mobilized to limit the damage.
Part of their objection to the legalization of abortion was the way the court simply assumed that the United States was a secular, civic republic. Roe marked the culmination of a 10-year interrogation of the role of religious groups within American society by the court. The justices rejected the power of religious leaders to define social and moral norms — to the utter dismay of those who saw Christian values as the bedrock of American society.
The justices first addressed religion in schools in Engel v. Vitale (1962) and School District of Abington Township v. Schempp (1963) by disallowing school prayer and overt religious exercises. In Griswold v. Connecticut (1965), the court weighed in on contraception by allowing birth control to be sold and advertised, disregarding the long-standing religious opposition that had led to laws forbidding it. It then tackled popular entertainment in Stanley v. Georgia (1969), permitting obscene films, books and other materials to be made and sold.
Through these cases, the court rejected the stance of Christian religious groups that said bans on obscenity were an expression of public morality. By the time the court took up the question of abortion, religious conservatives had grown outraged that their moral positions received no consideration.
In deciding Roe, the court made its commitment to secularism explicit. It had to. The question of when human life began and the exact status of a fetus were essentially religious questions. Different religious groups took divergent positions on abortion. Taking a stance within the dispute would involve the court in a religious debate, which it was loath to do because such a decision would violate the separation of church and state that it had earlier proclaimed.
So as the legal scholar Laurence H. Tribe later explained in the Harvard Law Review, the court took a step back from the issue. Rather than deciding the precise status of an unviable fetus, it asked itself the question, in Tribe’s words, “Who should make judgments of that sort?” The answer was clear, given the court’s prior rulings. The court should not decide, nor should political players at the state or federal level, nor should religious teachers. An individual woman in consultation with her doctor was the only person charged with making those judgments.
Here was a clear articulation of liberalism, which involved seeing women as capable of moral self-determination independent of religious leaders and even their families. It expressed what the Jesuit theologian John Courtney Murray had earlier called “the secularist tradition of the autonomous man.”
Almost immediately after Roe, conservative religious groups, members of Congress and jurists began to back away from that idea. In 1973, Congress, in response to lobbying from conservative religious groups, permitted private religious hospitals to forbid their doctors from performing abortions. Rep. Bella Abzug (D-N.Y.) and Sen. Jacob Javits (R-N.Y.) pointed out in the floor debate that the amendment actually reinforced the authority of conservative religious leaders, while denying the rights of doctors, patients and the public. Four years later, Congress passed the Hyde Amendment, which ensured that public money would not be used for abortive procedures. It was a win for conservative religious authorities seeking to influence policy.
Conservative religious groups also pushed to restore the church-state connection in other ways. Activists began to demand public funding for religious institutions and a variety of religious exemptions to otherwise neutral statutes in an attempt to reinvigorate religious influence within American life. As conservatives on the court began to sign off on the effort, liberals began to remind their conservative counterparts that, as Justice Harry Blackmun put it in 1986, “The legitimacy of secular legislation depends … on whether the State can advance some justification for its law beyond its conformity to religious doctrine.”
But conservatives instead became aggressively hostile to the ideal of secular legislation and to the notion that the state has any role in protecting the individual from religious groups. In recent years, the conservatives on the court have used the notion of religious freedom to carve out larger and larger institutions in American life — including for-profit corporations — that are able to make religious determinations limiting the choices of others. In doing so, they have helped unleash the religious authority that the court tried to contain in the 1960s and early 1970s.
With this history before us, the next steps may be easier to see. The invalidation of Roe, and of women’s right to an abortion, is not really an end but a beginning. Just as the court’s original decision in Roe v. Wade represented the apotheosis of a secular order through the privatization of religious sentiment, the court’s coming decision to overturn Roe represents a straightforward attack on the American secular ideal. It will probably be the first of many developments, as the wall of separation crumbles and as conservative religious authority floods American life.