Why is the Supreme Court using religious belief to alter secular law?

Alito's draft opinion is full of specious legal and historical language — but it's just religious doctrine in drag

Published May 10, 2022 2:16PM (EDT)

An activist with The Center for Popular Democracy Action holds a photo of U.S. Supreme Court Justice Samuel Alito as they block an intersection during a demonstration in front of the U.S. Supreme Court on December 01, 2021 in Washington, DC. (Chip Somodevilla/Getty Images)
An activist with The Center for Popular Democracy Action holds a photo of U.S. Supreme Court Justice Samuel Alito as they block an intersection during a demonstration in front of the U.S. Supreme Court on December 01, 2021 in Washington, DC. (Chip Somodevilla/Getty Images)

This article was produced by Economy for All, a project of the Independent Media Institute.

Democrats are generally disinclined to discuss religion, much less debate it.

They like to point out that Thomas Paine and Benjamin Franklin were famously atheist, Thomas Jefferson and dozens of other high-profile people in the founding generation were deists (a close cousin to atheists and certainly not Christians), and that in two different places the Constitution explicitly rejects religion interfering with government or vice versa.

But it's time to discuss religion whether we like it or not, because it's no longer knocking on our door: Sam Alito just sent it into the house with a no-knock warrant and stun grenades that threaten to catch the place on fire.

Alito's Dobbs v. Jackson draft opinion rests on two main premises. 

The first is that the Supreme Court has no business recognizing a "right" that isn't rooted in the nation's "history and tradition."

This right-wing canard has been around for years, and has been used to argue against pretty much ever form of modernity from integrated public schools to, more recently, same-sex marriage. It's a convenient pole around which you can twist pretty much any argument you want, because American history and tradition have been all over the map during the past roughly 240 years.  

RELATED: What it was like trying to get an abortion in the United States before 1973

For example, Alito could just as easily have pointed out that there were no federal or state laws regulating abortion at all at the founding of our republic, and they didn't really start showing up until the 1800s as physicians were clamoring for licensure to lock midwives out of birth-related medical practice (which included abortion).  

Alito neglected to mention that there were no state or federal laws regulating abortion at the time of the founding — and some states didn't regulate the procedure until after the Civil War.

The year Virginia got an abortion-regulating law, for example, was the same year — 1847 — that the American Medical Association was founded. Ben Franklin had been dead more than a half-century and not a single signer of the Declaration of Independence was still alive.  

So much for Alito's "history and tradition" in the early republic and at the time the Constitution was written.

The first antiabortion law in Mississippi — the state whose lawsuit provoked this decision — was put on the books in 1839.  George Washington had drawn his last breath a full 40 years earlier.

South Dakota got its law regulating abortion in 1899; Delaware, Tennessee and South Carolina got theirs in 1883. In North Carolina it 1881, in Kentucky 1879, in North Dakota 1877, in Utah and Georgia 1876 in Oklahoma 1875.

The earliest state to get an anti-abortion law was Massachusetts — the state so overwhelmed by Puritan religious fanatics that the founders nearly rejected them for admission into the union — in 1812

It was so bad there that Ben Franklin fled Massachusetts for Philadelphia in 1723 when he was 17 years old, specifically, as he noted at length in his autobiography, to get away from the religious fanatics who ran the state.

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Which brings us to Alito's second position and the nub of the issue: religion.  

Alito's main argument about "unborn human beings" (a phrase he repeats over and over in his decision) merely represents one point on a broad spectrum of religious belief. 

He dressed it up as law, with a healthy dose of pseudoscientific grumbling about fingernails and heartbeats thrown in, but it's really all about Alito's religious belief that "human life" begins at conception.

When should a zygote, an embryo or even a fetus be acknowledged as a human being? At fertilization? At quickening? At viability? At birth? All have been both legal and religious standards at various times and places throughout our history.

Science could suggest that humanity begins when a baby is born or delivered through C-section: in that moment it acquires independent agency, is its own "self." Prior to that, the nascent life is part of the mother; the fetus is an appendage to her body, after all, and is entirely dependent on her for its blood supply, oxygen, and nutrition. If she dies, it dies.

Morality could argue that human rights of sorts should appear around the time of viability, when a fetus can survive as a baby outside the womb if forced to do so; that was the basis of the original Roe v. Wade decision. But morality, like religion, varies from era to era, country to country, culture to culture.

Some religious people argue, for example, that human life begins the moment their God decides a baby should be born, even before fertilization. God informs the couple of this moment by making them horny and ready for sex, so birth control devices that prevent the preordained outcome of pregnancy are verboten.

Other religions throughout history have recognized life as starting with the first breath, as implied in Genesis 2.7 and 7.21-22.

All these decision points amount to the question "When does a soul inhabit a human body?" presented as law. There has never been any theological consensus on that question.

In between are a plethora of decision points that are really the question "When does a soul inhabit a human body?" presented as law. Does "human" life begin at "intent," when a couple prepares to have sex without birth control? At six weeks, when a bundle of cells that will become a heart start twitching? When an actual heartbeat is detectable? At "quickening," when the fetus' movement is detectable? At birth?

As recently as the 1960s, theologians were hotly debating this very issue in the pages of Christianity Today and Christian Life magazines. There was no consensus, and (outside of single religions) there never has been.

As Jennifer Rubin notes in this week's Washington Post: "In assuming life begins at conception (thereby giving the states unfettered leeway to ban abortion), Alito and his right-wing colleagues would impose a faith-based regimen shredding a half-century of legal and social change."

The vast majority of politicians who loudly proclaim the "sanctity of human life" in the "pre-born" or "unborn" stage also argue against ensuring that every child has adequate food, housing, education and medical care. 

Seriously, if these folks cared one whit for "the innocent children" they'd stop school shootings by getting guns under control in this country. But they don't. It's just a lot easier to "love" a fetus that doesn't talk back, doesn't need health care or education, and doesn't have a particular immigration status. Once it's born, all bets are off. 

That simple reality pretty much proves the cynicism of Alito's charge that the state must be able to step in with the force of guns and prison bars to "protect" a zygote or fetus. This is all religious performance art, with women as its victims.

"There is ample evidence that the passage of [anti-abortion] laws was," Alito writes, "spurred by a sincere belief that abortion kills a human being."  

Yes, it's a belief. Period.

Tragically, this isn't the first time this court's fundamentalists have used its majority's religious beliefs to alter what should be secular law. 

Last year in Tandon v. Newsom, the same five justices again went too far even for John Roberts, ruling 5-4 that a person's religion was a legitimate basis for refusing to go along with COVID lockdowns. The year before that, they ruled in Roman Catholic Diocese of Brooklyn v. Cuomo that churches could ignore public health orders and subject their parishioners to a deadly disease because of the church leaders' personal beliefs.

The court picked up steam down this long and dangerous road with Burwell v. Hobby Lobby, which let employers violate federal employment law around insurance coverage because of their religious beliefs, even when those beliefs were not shared by the employees who were directly impacted by their decisions.

And with Masterpiece Cake, the Court even ruled that businesses can discriminate against their customers based on the business owners' religious belief that gay people are hated by God.

Now "religious people" are free to claim a wide variety of exceptions from American law, from conditions of employment and even from common decency simply by shouting, "I believe!"

Under Roe v. Wade, people who believed abortion was wrong were free to not get one. They didn't ever have to pull into the parking lot of an abortion clinic. 

Under this draft Dobbs decision, however, women's bodies have legally become the property of the state, arguably from the moment of intercourse. 

Will Mike Pence's menstrual-period registry be revived to keep track of pregnant women? Will the state mandate that the remains of miscarriages must be collected and preserved for burial, as Pence tried to do in Indiana?

If a woman uses or abuses drugs or alcohol, for example, even if she doesn't know she's pregnant, you can easily see where this logic could lead to her being charged with a crime and imprisoned. Exotic diets, fasting, experimenting with psychedelics, extreme exercise: all could lead a zealous prosecutor armed with this decision to a charge of child endangerment. 

Will Mike Pence's menstrual-period registry be revived so women can be tracked to identify abortions? Will the government mandate that women must collect and preserve the remains of miscarriages for burial with a licensed funeral home, as Pence tried to put into law when he was governor of Indiana?

Alito's decision is an open assault on the right of bodily autonomy, the right to make one's own medical decisions, and the right to choose to have or not have children. 

And it's all based on his personal religious belief — shared with four fundamentalist colleagues and now about to be imposed on the rest of us — that human life legally begins at the moment a sperm meets an egg. 

Law in the United States should be based on a secular consensus and the most recent science; it should not become a flag that flutters in the winds of whichever religious perspective is majority-represented on the Supreme Court at any particular time. 

Every single member of this court who appears to have ruled to outlaw abortion was put on the court by a president who did not win a majority of the vote, and was confirmed by a group of senators representing far fewer than half of Americans. 

Their appearance on the court was engineered by wealthy right-wingers who proudly proclaim their belief that America should be run along religious lines.

Only an informed and politically active majority in America can right this wrong and establish majority rule in the world's most important democracy. 

Read more on the apparent fall of Roe v. Wade:

By Thom Hartmann

Thom Hartmann is a talk-show host and the author of "The Hidden History of the Supreme Court and the Betrayal of America" and more than 25 other books in print. He is a writing fellow at the Independent Media Institute.

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Abortion Commentary Independent Media Institute Roe V. Wade Samuel Alito Supreme Court