It is commonly claimed that restrictions on abortion illegitimately impose some people’s religious beliefs on the rest of us. This is the wrong way to defend abortion rights. It implies that religious motives have no legitimate place in lawmaking. In fact, we all have normative commitments that we have trouble articulating – you could call them matters of faith – and we sometimes support legislation because of those commitments. (The point is particularly relevant today, because for the foreseeable future we are going to be talking about abortion a lot.)
With respect to many issues, including some involving abortion, Americans who differ on moral fundamentals should be able to work together. We will inevitably disagree about whether personhood begins at the moment of conception. But defenses of abortion should focus not on the allegedly improper ideals of those who would restrict it but on the liberty and equality of women.
Not all arguments against (or opponents of) abortion are religious. But the disagreement is like religious disagreement in that it is intractable and frustrating.
I’ve studied the secular philosophical literature on abortion in some detail. The arguments on both sides tend to be circular. We can’t even agree about the significance of what we do agree about, such as our sense that late-term abortions are more morally troubling than early ones.
Someone’s view that a fetus is a person, or that it is not, is not an inference from some more basic premise. We just can’t help believing what we believe. Religious people are often portrayed as peculiarly dogmatic and irrational. With respect to the question of who has rights and why, however, we are all in the same boat. The boundaries of moral concern are mysterious. Many people who are not conventionally religious have their own sense of what is sacred, reflected, for example, in their concern for (and support for laws protecting) endangered species.
Beginning in the 1980s, when the religious right first became a potent force in American politics, many Americans became increasingly hostile to the involvement of religious leaders in politics. Political theorists piled onto this bandwagon, crafting increasingly sophisticated arguments to show that it was immoral and disrespectful to make religious arguments about political matters. Religious thinkers responded bitterly that such a limitation on public discourse would deprive politics of important moral resources and deny them the right to state what they believe. Arguments that purported to be grounded in universal respect left a lot of actual citizens feeling profoundly insulted. It would have been better to focus criticism on the retrograde politics of the religious right rather than on its religiosity.
Government is not permitted to establish an official theology. That is why, for example, school prayers are prohibited — or, at least, were until last June. But the Establishment Clause of the First Amendment limits outputs, not inputs, of policymaking. Any law is permissible, no matter who supported it or why, so long as it has a plausible secular purpose — and there are secular arguments against abortion. As it happens, I’m not persuaded by those arguments. But that’s true of a lot of nonreligious arguments.
None of this casts any doubt on abortion rights. Forced pregnancy is totalitarian. It involves the kind of bodily control that America imposed on slaves before the Civil War. Criminal restrictions don’t do much to lower the abortion rate, but endanger all pregnant women by limiting doctors’ ability to treat them. The state would need mighty compelling reasons to justify that, and the uncertainty of the early fetus’s status means that it can’t meet that burden of proof. That is why Roe v. Wade was decided correctly, and why the Supreme Court was wrong to overrule it.
But I just said all that without so much as mentioning my opponents’ motives or treating religious support for a law as a kind of contaminant that makes otherwise legitimate laws invalid.
Religious people are citizens, and they get to vote. The political left should regard this as good news. The most important effect of politically mobilized religion in American public life was contributing to the abolition of slavery. The Social Gospel movement of the late 19th century fought alcoholism, sweatshops, decaying tenements, business monopolies and foreign wars. Organized Catholics helped push the New Deal to the left. In the 1960s, religious groups opposed the Vietnam War. The civil rights movement of the 1960s began in churches, led by the Rev. Martin Luther King. Religion, in short, has been good for American democracy. If history shows anything, it is that in this country the secular left can accomplish little without religious allies.
There is a deeper issue here. Too many narratives of American politics, on left and right alike, are Manichean caricatures of good guys and bad guys — depicting melodrama where in fact there is tragedy. The melodramatic narratives are both politically destructive and intellectually indefensible. One of the basic premises of a free society is the sad truth that disagreement about enormously important matters is inevitable.
Abortion is one of those matters. We have no choice but to have political struggles about the things we can’t agree on. But it’s not ok to tell the other side that it is a bunch of religious fanatics whose values don’t count. One of the most pressing challenges of modern politics is to tell a story of who Americans are in which each faction can recognize itself and see a home for itself. We should keep that in mind when we make political claims.
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.