Does The Overturning Of Roe Violate The Separation Of Church And State?

According to a May 5, 2022, headline on the New Statesman, “Overturning Roe vs Wade blurs church and state. Religious liberty for only one religion is not religious liberty.” Similarly, a June 28, 2022, article posted on Reuters announced, “U.S. Supreme Court takes aim at separation of church and state,” making reference to the Roe decision as well. But is the overturning of Roe in any way related to the separation of church and state? Or is it simply a legal ruling made by justices who happen to be religious conservatives?

On social media, it is evident that for many the matter is already settled. In the words of an Instagram meme forwarded to me by a colleague, “Let’s be clear. This is a secular issue. It’s not about religion. It’s about human rights.” And, “Keep religion out of politics. If you don’t want an abortion don’t get one. Freedom of religion is, ‘Hey that’s against my religion so I can’t do that,’ NOT, ‘Hey that’s against my religion so YOU can’t do that.’”

But who said anything about religion? Where does the Supreme Court’s decision to overturn Roe make an argument based on religious beliefs, which allegedly, in turn, are being imposed on the nation?

Of course, there is the ever-present misconception about the original purpose of the separation of church and state.

As explained by Yale law professor Stephen Carter, “The wall of separation between church and state is not there to protect the state from the church; rather, it is there to protect the church from the state. It stands as a divide to preserve religious freedom. And one needs to protect the church from the state because the latter will utilize its enormous powers to do what the state has always done—either subvert the religion or destroy it.”

But even viewed through the most liberal lens regarding the separation of church and state, the overturning of Roe had nothing to do with this separation in any way. It was a legal ruling, based on the Constitution and biological realities, not a religious ruling based on the Bible and principles of faith. And as many have pointed out since Roe became law in 1973 (including some prominent liberal law scholars and jurists), Roe was simply bad law.

Put another way, the Court is not saying to secular Americans or to Americans who belong to “progressive” religious denominations, “Show me in the Bible where there is a right to abortion.” The Court is saying, “Show me in the Constitution where there is a right to abortion.”

Justice Harry Blackmun manufactured that right in his majority opinion in 1973. Justice Samuel Alito simply exposed the fact that such a “right” had never been there at all. The premise does not rest upon religious rights.

In keeping with this mindset, the Secular Pro-Life website reposted an August 9, 2021, article by Kelsey Hazzard titled, “Reverse Roe to Support Separation of Church and State.”

Strikingly, the article argued that, “For decades, the abortion industry and its lobbyists have advanced a false narrative that the pro-life position is inherently religious. Speaking as a pro-life atheist, that is hogwash. In fact, nearly 13 million religiously unaffiliated Americans oppose abortion. We accept the overwhelming scientific consensus that human life begins at fertilization.”

So, for these secular pro-lifers, this is about science, not religion. Hazzard continues, “Scientific consensus, not religion, should inform government policy. But the Justices who decided Roe v. Wade paid no heed to that laudable principle. They relied heavily upon religion and pseudoscience to muddy the waters and strip unborn children of legal recognition.”

So, according to this atheist pro-lifer, it was the framers of Roe who violated the separation of church and state!

Yes, “The Court treated the Stoics, Jewish scholars, Aristotle, and modern-day physicians as equally valid, competing sources of wisdom on the question of when a human life begins. They are not. No offense to Aristotle, but he never saw a sonogram. The Stoics lacked the benefit of the scientific method. If the Court had a robust respect for the separation of church and state, the disciplines of philosophy and theology would not have warranted consideration. The Supreme Court would have followed modern medicine—and Roe would have been a very different opinion.”

To be sure, the pro-life movement is largely religious, led by Catholics and Evangelicals and supported by Orthodox Jews. And there are strong, Bible-based grounds to be made for the position against abortion. But there is also a strong secular argument. (For an overview of both perspectives, see here.)

More importantly, the Court’s decision to overturn Roe simply corrected a long-term, egregious, terribly costly legal ruling, recognizing the validity of the Dobbs case as well.

The fact that many religious Americans voted for Donald Trump, who in turn appointed three justices to the Court, all of whom voted with the majority, simply means that our system works.

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