It is commonplace to characterize legal arguments in favor of protecting the human embryo or fetus as “inherently religious” such that laws embodying this point of view constitute an establishment of religion in violation of the First Amendment. The practical effect of this argumentative strategy is to foreclose substantive debate on the issue of the legal status of the unborn – to preclude from consideration an entire point of view and so win an argument without ever really having one.
This claim has a long pedigree, tracing back to the founding of NARAL and Lawrence Lader’s “Catholic strategy.” Its most prominent spokesperson, however, has been Justice Stevens, who set forth the claim in his opinions in Thornburgh, Webster, and Casey. Surprisingly, a close, critical reading of these texts is almost entirely absent from the scholarly literature – an absence that this article seeks to remedy.
The article demonstrates that Stevens simply takes for granted the central claim upon which the conclusion of establishment turns – the religious character of pro-life legislation. He then employs this assumption rhetorically in order to dismiss a point of view he never squarely confronts.
Furthermore, Stevens’ characterization of religious establishment is so broad that it would render any attempt to define who is a human being worthy of legal protection (including Stevens' own) unconstitutional. The article also shows that Stevens’ cryptic invocation of the “endorsement” test fails, and that he covertly repudiates the principle of McGowan v. Maryland.
The point of the article is not to show that powerful arguments cannot be made on behalf of the abortion license, or even that some argument cannot be constructed to show that pro-life legislation is religious. Rather, the point is to show that a genuine argument must be made to that end, and not a mere accusation.
Breen, John M., Abortion, Religion, and the Accusation of Establishment: A Critique of Justice Stevens’ Opinions in Thornburgh, Webster, and Casey, 39 Ohio N.U. L. Rev. 823 (2014).
Copyright 2014 John M. Breen.