Did the Dobbs Decision Violate the Establishment Clause?

The U.S. Supreme Court is currently controled by far right Republican appointed justices - the majority of whom are far right Catholics - who are basically seeking to impose their religious beliefs on the country and who want to grant special rights to other far right "Christians" seeking to be exempt from non-discrimination laws at the expense of the rights of the majority of citizens.   The Dobbs ruling which struck down Roe v. Wade was a tortured and cherry picked review of bizarre historical facts and ultimately the majority's anti-abortion Catholic religious beliefs.  Now, at least two lawsuits are challenging Dobbs as unconstitutional under the constitutional bans on an established religion.  A column in the Washington Post looks at these cases and why Dobbs in essence improperly established one religious view on all Americans.  Here are highlights:

“How is your interest anything but a religious view?” Justice Sonia Sotomayor asked the lawyer for the state of Mississippi during oral arguments in the case that would later eliminate the constitutional right to abortion. “So when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it?”

Sotomayor didn’t receive much of an answer. “The people should get to debate these hard issues,” replied Mississippi Solicitor General Scott Stewart. Nor did the court’s eventual opinion in Dobbs v. Jackson Women’s Health Organization grapple with the question of how the ruling aligns with the Constitution’s guarantee of religious freedom and its prohibition against state establishment of religion.

But such questions have bubbled up in the chaotic aftermath of Dobbs, as abortion rights advocates scramble for alternative arguments to protect a woman’s right to choose. In Florida, a progressive synagogue sued to block the state law prohibiting abortion after 15 weeks, arguing that it conflicts with Jewish law, under which, the synagogue said, abortion “is required if necessary to protect the health, mental or physical well-being of the woman.”

The lawsuit, filed in state court, contends that the law violates the religious freedom guaranteed by the Florida constitution and “threatens the Jewish people by imposing the laws of other religions upon Jews.”

Now, a lawsuit filed by 13 members of the clergy in Missouri picks up on Sotomayor’s question and builds on the companion constitutional protection against establishment of a state religion.

On a federal level, this argument would be an almost certain loser, with a Supreme Court that has demonstrated increasing willingness to blur the line of separation between church and state. Even in 1980, when the court took a stricter view of church-state separation, it refused to hold that the law barring Medicaid funding for the procedure violated the establishment clause.

The outcome in Missouri courts could be different, though its abortion law — passed in 2019 with a near-complete ban on abortion in anticipation of Roe v. Wade being overturned — is explicitly grounded on religion. It states that the legislature is acting to regulate abortion “in recognition that Almighty God is the author of life.”

Lawmakers urging its passage were not coy about their religious motivation. “As a Catholic, I do believe life begins at conception and that is built into our legislative findings,” said state then-Rep. Nick Schroer, the lead sponsor. Said then-Rep. Holly Thompson Rehder, “God doesn’t give us a choice in this area. He is the creator of life. And I, being made in His image and likeness, don’t get to choose to take that away, no matter how that child came to be. To me, life begins at conception, and my God doesn’t give that option.”

As the Missouri lawsuit argues, “Questions such as the point at which life begins and whether or when ensoulment occurs are quintessentially religious ones, about which different religions hold differing views. … The explicit invocations of conservative Christian notions of ‘conception’ and sanctity of life in the text and legislative debate on H.B. 126 to justify banning abortion impose these particular religious beliefs on all Missourians, coercing people and faith communities with different beliefs and commitments to adhere to religious requirements of a faith that is not their own.”

In addition, the Missouri Supreme Court has taken a more exacting view of separation of church and state under the state constitution than its federal counterpart, saying that the charter “contemplates a strict and pervasive severance between religion and the state.”

There wasn’t much severance going on when Missouri passed its law. “Abortion bans impose one narrow religious viewpoint on all of us,” said Rachel Laser of Americans United for Separation of Church and State, which brought the case along with National Women’s Law Center. “They violate church-state separation.

Even if the lawsuit succeeds, cases such as these are Band-Aids, not cures. Missouri legislators could presumably still enact a new antiabortion law without some of the religious language that makes its current statute at least theoretically vulnerable.

Whatever its ultimate resolution, the Missouri lawsuit highlights the religious tensions unavoidable in the post-Dobbs debate. Yes, other religious and moral views are written into civil law — “Thou shalt not kill.” But abortion is uniquely grounded on metaphysical and, ultimately, religious convictions about when life begins.

“How is your interest anything but a religious view?” I still haven’t heard a convincing answer to Sotomayor’s vexing question.