Four anti-abortion bills have been introduced into the state legislature including a Texas copycat bill (HR2001, HR2483, SB1044, SB1164). The issue is not whether a state has the constitutional authority to protect “unborn life” but whether women, who have been born, have a constitutional right to make decisions about their own health and life or whether unknown and unrelated people who have no interest in her life will make that decision for her.
These bills violate the Establishment and Free Exercises Clause of the Constitution because they try to put into statute a belief that only one religion has and that is completely contrary to the beliefs of many other religions and even the bible.
In twelve places (Genesis-3, Job-3, Ezekial-2, Isaiah-2, Psalms, John), the bible says that man becomes a living person when he has the breath of life, when the person can breathe on their own. It is clear from the bible that abortion was not prohibited as described in Exodus 221:22-24 where a harm occurs only if the pregnant woman herself is injured not if she loses the pregnancy, and in Numbers 5:11-31 where a priest can cause an abortion to find out whether a woman has committed adultery.
The test of whether a law violates the First Amendment is whether the principal or primary effect of the law neither advances nor inhibits religion nor fosters an excessive government entanglement with religion. The court agreed that neither a state nor the federal government can pass laws that aid one religion, all religions, or prefer one religion over another. Arizona’s Constitution says likewise. (Article XX §1)
That is precisely what these laws do. No one is forcing Catholics to have abortions or take contraceptives. So their belief and free exercise is not impinged. But other people who believe differently would be forced to accept the dogma of one church that they must carry a pregnancy to term. Thus the free exercise of those women is destroyed.
Religion has always been at the heart of anti-abortion legislation. The passage of the Hyde amendment was replete with references to sin and souls and morals. The Catholic Conference was an adviser to the House of Representatives. Justice Stevens noted in the Webster case that there was no secular purpose for the declaration that life begins at conception making it a violation of the establishment clause. Sixty-seven religious organizations submitted amicus briefs. After Roe v. Wade became law, the Catholic hierarchy devoted more time, energy, and money to abortion than any other issue – including famine, disease, homelessness, and a myriad of other sufferings inflicting living humans. Legislators have openly said they introduced and passed these laws based on religion, (Representative Lola Sheldon-Galloway, MT; Governor Kristi Noem, SD; Senator Clyde Chambliss AR; Governor Kay Ivey, AL).
A cell has life. A cell beats. Embryonic chicken hearts dissolved from their connective tissue and put into a petri dish, live and multiply. They “beat” that is to say, these disaggregated heart muscle cells contract in a rhythmic manner. That is what heart muscle cells do. They contract and relax, and then they do it again. That chicken cell is alive, but it is not a chicken.
Courts have dealt with this issue repeatedly particularly in relation to in vitro fertilization, frozen embryos, and surrogacy. Inevitably, the courts decide that the embryo is life or potential life, but it is not a human person who has legal rights and therefore imposition of a particular position supported by only one religion, works a great violation of the constitutional rights of every woman. A prohibition on abortion puts the “rights of a cell” above the rights of a living, breathing women. The mother is a person, and her health claims should be given priority.
A primary tenet of our Constitution is that no one has the right to impose their beliefs on everyone else. There is no scientific, medical, religious, philosophical or any other consensus, about when a group of dividing cells becomes a human being possessed of legal rights. However, women most assuredly are human beings and must have the full panoply of rights including control of their own destiny.
Dianne Post is an attorney who is the legal director of Secular Communities for AZ.