Abortion In America Brings Up Both Spiritual And Legal Considerations
A pregnant woman. Creative Commons photo.
(ANALYSIS) On June 24, the Supreme Court ruled in Dobbs — an epochal and sweeping decision along ideological lines, that the nearly 50-year constitutional right to abortion established in Roe and reaffirmed in Casey would not endure.
The majority opinion, penned by Justice Samuel Alito, stated:
Given that procuring an abortion is not a fundamental constitutional right, it follows that the States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot “substitute their social and economic beliefs for the judgment of legislative bodies.”
Chief Justice John Roberts wrote an opinion concurring with the judgment, yet clarifying that he believed the court should have restricted the its scope to affirming the constitutionality of Mississippi’s 15-week abortion ban.
The court’s three liberal justices, Justice Stephen Breyer, Justice Sonia Sotomayor and Justice Elena Kagan, dissented. They wrote, “With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection.”
The legal reasoning and practical impact of Dobbs
Alito explained, in a lengthy opinion with many nuanced constitutional and procedural considerations, how the court determines whether there is a right to abortion under the 14th Amendment’s due process clause, which was the legal theory put forth in Casey. This case claimed that the due process clause offered both a substantive and a procedural assurance of liberty. Alito noted this legal reasoning had been called into question for a long time. Alito further elaborated that the court’s jurisprudence has affirmed two types of substantive freedoms: rights protected under the first eight constitutional amendments and those freedoms determined to be integral to the human person, yet not explicitly listed in the Constitution.
Alito further explained that in order to discern if a certain claimed freedom meets the criteria of each of these two categories, the court asks if the asserted right is “deeply rooted in (the country’s) history and tradition” and whether the asserted right is necessary to the nation’s “scheme of ordered liberty.” The court held that the right to an abortion does not meet those criteria.
Alito also warned the court must protect itself from the human inclination “to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy.” This is why, according to Alito, the court has rarely acknowledged affirmative freedoms not explicitly stated in the Constitution. In this analysis, the majority opinion concluded, “Guided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abortion.”
Alito went on to lay out the the lack of historical record for an affirmative abortion right in any scholarly treatise or legal system until very recently before Roe was decided. Alito stated: “Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right.” Alito also dismissed the petitioners’ argument that there was historically a right to abortion because common law made abortion illegal only after “quickening,” or when a baby’s movements could be felt, generally around 18-22 weeks. Alito asserted that many other legal and scholarly experts recognized pregnancy termination as unlawful before the time of quickening, noting that an abortion provider could be charged criminally if a pregnant woman died from the procedure. Alito also noted that while many states did not make abortion before quickening illegal, it did not mean that they did not have the constitutional freedom and authority to do so.
In practical terms, Dobbs means that abortion will be more tightly restricted in almost half the states or already is, making pregnancy abortion services limited in large portions of the U.S. It is probable that the Dobbs decision, and the politicization of the Supreme Court itself, will be center-stage in the fall elections.
The spirituality of abortion
Beyond this most recent and tantamount legal victory, the pro-life movement has achieved wild success as a social movement. As a corollary, the civil society structures of the progressive left on reproductive justice are facing internal turmoil that has paralyzed their social impact. The role of religious actors in the pro-life movement cannot be underestimated, but not in the way you might initially think. It would be wrong to simply dismiss the success of the pro-life movement as “the Christian right imposing its religious beliefs on women’s bodies.” Such solecisms dismiss the complexity and nuance behind the pro-life movement’s capacity to capture the hearts, the minds and yes, the spirits, of hundreds of millions of people.
In her book “How Change Happens: Why Some Social Movements Succeed While Others Don’t,” Leslie Crutchfield points to six practices of highly impactful social movements of the late 20th and early 21st centuries across the ideological and political spectrum. She covers the gamut, from the success of Mothers Against Drunk Driving in reducing drunk driving to the impact of the National Rifle Association and others in passing legislation that bolstered the Second Amendment. Crutchfield argues that appealing to the heart-values of the spirit is essential to capture the cultural imagination of common people to catalyze effective transformation through social movements. Using the example of the movement for same-sex marriage, Crutchfield points out that the momentum and center of gravity of that movement began shifting in favor of marriage equality after the key messaging shifted from abstract tax and other legal benefits of marriage and toward a “love is love” message frame.
The notion to shift the movement’s messaging from legal, rights-based language to love-based language happened after market research showed that when the average American was asked about heterosexual people’s reason for getting married, the most popular response was “love and commitment.” But, when they were asked the same question about same-sex couples, the most popular response was, “I don’t know why same sex couples would want to marry.” Crutchfield further elaborates that some respondents “hazarded guesses” that gay people might want to get married for certain health care-related freedoms and benefits. According to Crutchfield, that moment shifted the tide in the marriage equality movement’s messaging away from the complex legal benefits that marriage may or may not bestow and toward love.
This shift from a legal, rights-based messaging strategy to a relational, love-based social marketing approach shifted public opinion on same-sex marriage. The pro-life movement, arguably, has successfully appealed to humans’ most sacred animating beliefs and holy texts about loving children. They have successfully framed their approach as protecting the most vulnerable children, the unborn. They know that all the evidence suggests that pregnant women, and probably the broader public, who see an ultrasound, feel something. They recognize themselves, their own children, their future children. They have a collective maternal instinct to protect the image bearers of the next generation. They connect with something ineffable and sacred within them and within us all. That is why bills that ban abortion at six weeks have captivated public heart when they are labeled “heartbeat bills.” This language is perhaps medically dubious according to some experts, but it resonates deeply with the human heart. Compare that to a piece of proposed federal legislation with a more sanitized name — Pain Capable Unborn Child Act — that has been introduced in Congress for years by pro-life lawmakers, as recently as January 2021, but has failed to ever become law.
Progressive reproductive justice advocates have also appealed to spiritual and religious imagery to catalyze our collective mythic imagination, but to different results. For example, some reproductive justice advocates have compared the Dobbs decision to the plot of a Margaret Atwood book, and now series, “Handmaid’s Tale.” This book is set in a dystopian theocratic political community in which women are mere property, infertility runs rampant, and the women who can still bear children are consigned to servitude as “handmaids,” raped and forced to carry their own babies and then give them up to politically elite families — depicted as a puritanical, Christian right regime. Writing for the Atlantic in an article called “The Court is Making Gilead Real” after the leaked Dobbs decision, Margaret Atwood captured the acerbic, maximalist tone of this movement, which frames the success of the pro-life movement merely as religion run amuck: “That which is a sin within a certain set of religious beliefs is to be made a crime for all.”
In comparison to a strong spiritual call to action presented by the pro-life movement, reproductive rights activists have largely rejected a positive vision or role for religion or spirituality in their ranks. Where spiritual language and religious activism are present in reproductive justice circles, they are generally marginalized or impotent. For example, Brenda Davies, a popular social media influencer under the moniker God is Grey, recently referred to her abortion — for which she expressed ambivalence — as a vaguely “spiritual experience” while also stating she hated abortion.
The reproductive justice movement’s doomsday messaging and/or ambiguous appeals to spirituality — unmoored in substance and community-building — have failed to captivate the public’s imagination. Reproductive justice activists have painted a graphic and oversimplified, almost caricatured image of what they don’t want: an apocalyptic Christian dictatorship. Not what they stand for and how faith and spirituality can be a key participant in making that vision a reality. The success of the pro-life movement, for better or worse, captivated a tipping-point of Americans’ spiritual imagination around a deeply sacred call: to save nascent life. The pro-life movement let diverse grassroots actors lead; they have held space for a wide tent for traditionally religious pro-lifers and post-liberal feminists; and they cultivated a unifying vision that allowed for spiritual and even ideological pluralism.
There will be much we need to unpack in the days, weeks and years to come in this post-Roe era. In this moment, perhaps we can recognize that no one side owns the human spirit. Seeking the sacred in that which we hold dear, whether it is protecting the preborn or advancing women’s well-being, or both, is an innate part of being human. I pray we can explore, together — across dated spiritual and ideological lines that no longer fit the messiness and fullness of our humanity — how to tell and, more importantly, incarnate a different sacred story of protecting mothers and children and all those crying in the wilderness for justice.
What if there were a new frame for spiritual mothers advocating for a new vision of shared flourishing, rather than “winning” by dehumanizing the “other side.” Movements of mothers have changed the world on everything from suffrage to the racial justice. As the late Alice von Hildebrand wrote in “Spiritual Motherhood: Every Woman’s Calling”:
Motherhood is not only biological maternity. It is spiritual maternity. There are hundreds of people all around who are desperately looking for a mother. … Your task is to love those that are weak, unhappy, helpless, and unloved.
Chelsea Langston Bombino is a believer in sacred communities, a wife and a mother. She serves as a program officer with the Fetzer Institute and a fellow with the Center for Public Justice.