Abortion, Moral Law, and the First Amendment: The Conflict Between Fetal Rights & Freedom of Religion

The status of abortion as murder, and therefore amenable to governmental intervention and criminalization, has been asserted by those favoring limits on abortion. Opponents claim a superior right of privacy and/or equality exists under the Constitution, vesting in a woman the right to decide activities and actions that affect her physical corpus. The claimed interest of a State to protect the fetus is impliedly based on the concept of “morality” or “natural law,” specifically on the premise that feticide is violative of the basic code of conduct of societal norms. To my knowledge, until now, this is the first investigation undertaken to determine whether in fact indicators of “natural law” or the moral code support this claim from a legal perspective. To investigate whether there is any “moral” basis to support the State’s claim and the Supreme Court’s recent rulings, I first examined the earliest and most important social codes that have governed the conduct of “man” since the beginnings of civilization, finding that none regard feticide within forty days of gestation as murder. I next investigated international views on abortion to determine if consensus on abortion regulations existed, (and which would be expected if a collective “moral code” existed) and found none, either in timing of allowable abortion on demand or exceptions to any restrictions. I also demonstrate that the Catholic position on legitimacy of killing a life form (based on the Sixth Commandment of the Decalogue) is vastly different than, say, the Jewish view, and that this appears to be a driving force behind the courts’ positions. As such, invidious, idiosyncratic religious influences are likely driving abortion regulations. I therefore suggest the Freedom of Religion Clause specifically bars legal intervention into practice, whether legislative or by judicial fiat. In sum, this Article demonstrates that abortion or feticide is not considered either murder (or even killing another human) by many traditions, religious or moral, and concludes that regulating abortion as sin, rather than crime, should be left to religions’ determination rather than governmental intervention. As such, I suggest that the most compelling argument then to support the claim of a woman’s right to determine whether or not to abort would be on the basis of the First Amendment’s guarantee of Freedom of Religion