Abortion Rights and the First Amendment

South Dakota is allowing its electorate to vote on whether or not to repeal an anti-abortion law, HB 1215, which passed last spring. Both sides of the abortion issue are gearing up for a court challenge—either to that law, should the repeal fail, or to some hypothetical similar law that may pass at a later time in a different state.

The text of HB 1215 includes the following language:

“The Legislature accepts and concurs with the conclusion of the South Dakota Task Force to Study Abortion, based upon written materials, scientific studies, and testimony of witnesses presented to the task force, that life begins at the time of conception, a conclusion confirmed by scientific advances since the 1973 decision of Roe v. Wade, including the fact that each human being is totally unique immediately at fertilization.” (italics mine)

It seems to me that a talented lawyer could make an excellent case that such an abortion ban flies in the face of the First Amendment’s Establishment Clause.

First of all, let’s seemingly digress for a second and rid ourselves of some ridiculous terminology. In so doing, I hope to establish the basis of what I believe is a First Amendment argument.

The people opposed to abortion call themselves “pro-life.” However, that’s a dubious term. Do all these people refrain from swatting mosquitoes, pulling weeds, or killing plants and animals for food? It’s probably safe to say that they don’t. How then are they pro-life? OK, let’s say that they’re merely pro-human-life. Are they all against capital punishment and war? Again, probably not.

So, in the main, the people who oppose abortion are really pro-fetus. More specifically, they are pro- the belief that the Fetus is Human. Let’s call them pro-FisH. You can recognize many of them from the medallions on the bumpers of their cars. Those medallions, we should not forget, are symbols declaring specific religious belief.

A human being is clearly alive from the moment of birth until the moment of death. Whether or not that human being is alive as a human being before birth and/or after death is a religious question, not a legal—or even a scientific—one. Science can tell us that the fetus is a potential human, but it cannot honestly say that the embryo is a human, in all the variant definitions of that term. An egg is a potential bird but no one would eat an omelet and claim that he was having a chicken dinner. It would take an outrageous leap of faith to maintain that position.

The definition of human-hood is, of course, inextricably woven into the concept of “soul.” Many pro-FisHes believe that the soul enters the embryo at the moment of conception. Hence, to them, the fetus is a human life. It follows from such a belief that killing the fetus is the same as killing a human—and it’s only a short theological hop to a ban on abortion.

However, many Americans—most, if we believe the polls—do NOT subscribe to the religious definition of a fetus as a human. A law banning abortion as the killing of a human imposes a sectarian definition of "human" on the entire populace.

But the First Amendment says the government may not favor one religious viewpoint over another. Doing so would be the Establishment of a Religion, and, as such, strictly forbidden.

Therefore, HB 1215 is unconstitutional.