No, Overturning Roe Would Not Establish Theocracy

Published May 23, 2022

First Things

Since the leaking of Justice Samuel Alito’s draft opinion overturning Roe v. Wade, activists, opinion journalists, and even famous authors have been shrieking that theocracy is waiting in the wings. Critics of the draft opinion allege that pro-life Americans oppose abortion purely for religious reasons, and that overturning Roe would thus establish religion. Protestors dressed in ominous Handmaid’s Tale-inspired outfits are marching outside the homes of Supreme Court justices. Various voices scaremonger that overturning Roe will lead to bans on interracial marriage and contraception—Joe Biden even stated it would lead to the segregation of LGBT-identifying students in schools.   

All of this is nonsense. Pro-choice activists want to talk about these other issues, however, because they know their position on abortion is indefensible. That’s because the pro-life cause is built upon natural and moral realities: scientific facts about when new human life begins and sound philosophy about the profound dignity and worth of every member of the human family.  

Yes, many religious traditions witness to these same truths. And if secularists can’t accept these realities, so much the worse for secularism. But laws banning fetal homicide are no more and no less an establishment of religion than laws banning adult homicide. Laws protecting people from the violence of abortion are no more and no less the imposition of morality than laws protecting people from other forms of violent assault. 

Whatever happens when the justices hand down their final decision, the ruling in Dobbs v. Jackson Women’s Health Organization will not settle the abortion debate. If Roe v. Wade is overruled, Dobbs will merely turn the debate over to the constitutionally-established processes of American democracy. But one thing is certain: Regardless of the outcome, pro-abortion voices will continue to argue that opposition to abortion is grounded only on religious beliefs.  

As a result, pro-life Americans will need to set forth evidence and arguments before our fellow citizens and persuade them to elect officials who will enact just laws. The need to defend the dignity of unborn life will only grow more urgent, not less. We must show how both modern developmental biology and medical technology bear witness to the indisputable reality that the unborn child cared for in the womb is a human being, and how sound morality concludes that all human beings deserve full rights and legal protections. 

In one sense, the secularist progressive criticism of pro-life arguments is true: At the deepest level, the right to life rests on the reality that we are made in the image and likeness of God, intended to spend all eternity with him. Of course, some reject this truth, and attempt to identify something else about human beings—or at least those human beings whom they believe merit respect—that qualifies them as subjects of justice and bearers of rights that should be protected by law. 

Our reply is simple: Whatever it is about the adult human being that truly merits the law’s protection also applies to the unborn human being. Because born or unborn, we share the same nature, and it is human nature as such—not any variable and contingent characteristic—that is valuable. In other words, all human beings are created equal and endowed by their Creator with the inalienable right to life. Pro-life laws, then, are no more and no less religious than the Declaration of Independence. One need not be a religious believer to reach this same conclusion

Regardless of the unborn child’s stage of development, whether he is four weeks old or thirty-three weeks old, abortion kills the same person. Abortion ends a life—a human life, the life of a distinct and unique human being. The science couldn’t be clearer, nor could the ultrasound photos shared when couples happily announce a new baby is on the way. 

A law forcing Jews to attend Mass or Protestants to keep kosher would be imposing religion on others. Pro-life laws do no such thing. The pro-life point of view is based on the undeniable biological fact that a human being exists from conception. The human embryo and fetus, no less than the human infant or adolescent, is a living member of the species Homo sapiens—a human being. “Embryo,” “fetus,” “infant,” “child,” “adolescent,” and “adult” are not names for different kinds of beings, they are names for the same kind of being at different stages of their natural development. The adult you is the same you who at an earlier stage of his or her development was the adolescent you, the infant you, the fetal you, the embryonic you. 

This is not a religious belief but a scientific fact. Pro-life laws are built on that biological reality and on a moral judgment about the intrinsic equal value of human life—regardless of size, developmental stage, or cognitive abilities.

In the leaked Dobbs draft, Justice Alito concludes that a pro-life law “must be sustained if there is a rational basis on which the legislature could have thought it would serve legitimate state interests. These legitimate interests include respect for and preservation of prenatal life at all stages of development.” Alito’s statement reflects the truth that pro-life views are founded on moral claims about respecting unborn life.  

Moral claims are either good or bad, true or false, regarding the dignity of the human person. There’s no escaping it. To be pro-life entails insisting that the law protect the unborn. To extend legal protection to persons according to some other criteria, such as self-awareness or the immediately exercisable capacity to reason, is to place human dignity on a spectrum, an arbitrary spectrum at that. Those who would deny human dignity to unborn human beings—and thus deny them the law’s protection—are the ones who rely on an indefensible ideology (it doesn’t deserve to be called “religious”) that views some human beings as non-persons. How it is that that ideological belief can serve as the basis of our laws, but the moral truth of human equality cannot, is never explained.  

People are free to have sex or not, but individuals should not be free to kill the children they conceive—at any stage. The child’s right to life entails the adults’ (the parents’) duty to care and thus places limits on our liberties. As a result, there can be no real right to abortion. Rather, there is the right of every child not to be the object of a choice whose specific goal is to end his or her life. Abortion is never a moral good so it cannot ever be a true constitutional right. 

Pro-lifers should not be intimidated by the overheated rhetoric claiming violations of the so-called “wall of separation” between church and state. They should continue doing what they’ve been doing for 49 years—boldly and compassionately bearing witness to the truth about the equal dignity of every member of the human family. 

Ryan T. Anderson is the president of the Ethics and Public Policy Center, and co-author of the forthcoming book Tearing Us Apart: How Abortion Harms Everything and Solves Nothing.

Andrew T. Walker is a fellow of the Ethics and Public Policy Center and associate professor of Christian Ethics at the Southern Baptist Theological Seminary. 

Photo by Joshua Woods on Unsplash

Ryan T. Anderson, Ph.D., is the President of the Ethics and Public Policy Center.

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