Anti-Abortion Statutes As Religious Beliefs

In Dobbs v. Jackson Women’s Health Organization, Justice Alito ruled there is no right, under the U.S. Constitution, for a woman to have an abortion. Since then, eleven states have either enacted or activated statutes that forbid the performance of an abortion. Others may soon follow suit. This Article does not attempt to dispute the reasoning of the Dobbs decision.

Instead, it asks whether the eleven state statutes, now construed as constitutionally permitted, are, in fact impermissible intrusions into the constitutionally required separation of church and state. This Article approaches this problem from both a historical and philosophical perspective. First, it uses the over 4,000-year-long history of the church state interrelationship (including U.S. Supreme Court opinions) to define when a belief is a “religious belief.” Second, using that definition, the Article engages in a careful logical analysis of the eleven statutes to argue both that they promote religious beliefs in contravention of the First Amendment’s Establishment Clause and that they do not fall under the exception the Court has carved out in Kennedy v. Bremerton.