In Roe v. Wade, the Supreme Court held that women have a right to abortion under the Due Process Clause of the Fourteenth Amendment. The Court reasoned toward this conclusion by importing concepts and concerns that are ordinarily associated with the Establishment Clause. This Article is the first attempt to systematically 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 see how the Court wove Establishment Clause themes into the structure of its Due Process analysis. The Due Process Clause prohibits the government from restricting fundamental constitutional liberties (such as abortion) unless 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 an ambiguous explanation for its refusal. Careful interpretation of these hazy passages reveals the Court's underlying concern that neither the judiciary nor the legislature may decide the question of fetal humanity because the question is religious in nature and divides people along religious lines. When the ambiguities are unraveled and the Court's
rationale is plainly stated in this way, it becomes clear that Roe's method of analysis incorporates the Establishment Clause requirement that legislation must be based on a secular purpose and the (now-outdated) Establishment Clause goal of alleviating political divisiveness along religious lines. The Court's analysis is misguided, however, because Establishment Clause principles permit governmental protection of fetal life. The humanity of the fetus can be plausibly based, 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 sufficient to justify legal restrictions on abortion (which is not the point of this Article), but it does show that such restrictions do not violate the Establishment Clause, that the Court's implicit reliance on Establishment Clause themes is misplaced, and that we should reopen social and judicial dialogue about the ethical status of fetal life and the constitutional status of abortion.
Murray, Justin, "Exposing the Underground Establishment Clause in the Supreme Court's Abortion Cases" (2011). Articles & Chapters. 1299.