This week, a leak revealed that the current uber-conservative and overwhelming Catholic SCOTUS intends to overturn Roe v. Wade. This is being done despite the transparently false protestations of Supreme Court (In)justices Kavanaugh and Coney Barrett who claimed in their nomination hearings that “Roe v. Wade was settled precedent.” This act will allow individual states to ban abortion and even enact vigilante laws (like SB8 in Texas) to punish any who are involved, no matter how peripherally. When pressed about it last year, Coney Barrett was dismissive of the disruption to women’s lives if forced pregnancy becomes legal, stating that babies can be legally left at public places like firehalls without legal consequence, so why are they whining?
When Do Human Rights Begin? (It’s a trick question!)
The significance of a Catholic SCOTUS is the theological belief in Catholicism that conception is the point at which human life must be protected at all costs, as well as a theological belief that birth control is morally wrong. These are not beliefs shared by all or even most faiths in our pluralistic society, including Mormonism. These beliefs specifically contradict Jewish dogma that the life of the mother should supercede the viability of her fetus whenever there is a conflict. When the state, rather than churches, takes on the role of enforcing a moral code, particularly in areas where people disagree in good faith, we no longer need churches. Churches cease to be the moral authority in such a state, because the state is impinging on the practice of one’s religion.
Well, let’s not get too far afield here. First, what is the state? In the case of SCOTUS removing federal protections for women by overturning Roe v. Wade, the state reverts to one’s state within the fifty states. If you live in Texas, your state will have a completely different set of laws than if you live in New York. That might not be objectionable if an entire state was all the same religion, but that is not the case. It really has never been the case, and make no mistake, this is a religious decision. Even before the United States was a country, different communities were formed around religious groups, notably the Puritans. But within those communities were minority religions like Quakers. Some states allowed the dominant voices to rule over the others, giving preference to them (including tax breaks, access to lands & funds, and allowing them to determine policies for everyone) while suppressing the rights of others. Others, objecting to this theocratic rule, founded Rhode Island, a pluralistic community that did not give preference to the dominant religion. Thus the separation of Church and State (that current conservatives want to erode) was born.
Many states, including Utah, have what are called “trigger laws” that go into effect immediately if Roe v. Wade is overturned. Utah’s law will sound familiar to those who actually know what church policy is regarding abortion. Unlike many Evangelical-dominant states in the deep south, Utah’s trigger law will carve out exceptions. However, unlike Church policy, in making these exceptions the legal standard for abortion, they are to be regulated by government officials and include some difficult hurdles that further restrict the human rights of women (and girls, unfortunately, who are the most likely to bear the brunt of these additional requirements). Here are the legal exceptions Utah has created:
- A woman can still receive an abortion if the pregnancy poses a life-threatening risk to the woman or “a serious risk of substantial and irreversible impairment of a major bodily function.”
- An exemption is also granted if two physicians who practice “maternal fetal medicine” concur that the fetus “has a defect that is uniformly diagnosable and uniformly lethal or … has a severe brain abnormality that is uniformly diagnosable.”
- Those pregnant as a result of rape or incest are also eligible for an exemption. The physician must verify with law enforcement that the incident was reported.
So, what’s different between the Utah law and Church policy? The specifics of regulating the exceptions. Unlike Church policy, there is a requirement that the woman have two OB-GYNs who concur that there is a birth defect. (Will insurance cover the second consultation? Will the state? I’m pretty sure my insurance only covers one referred specialist, not two). Also unlike Church policy, the rape or incest must involve a police report. While that may sound reasonable to most non-rape victims, it practically ensures that minors who are victims of paternal incest will be forced to carry a pregnancy to term. It also assumes that the rapist was not a police officer, and that the police department will file the report even if they don’t find the victim credible. It is also unlikely that women who were victims of marital rape will file a police report; violent spouses behave unpredictably when confronted.
While it’s a pretty commonly cited statistic that only 2% of rapes ever result in a conviction (and 60% aren’t even reported), if the price to get an abortion is filing a police report, I’m sure more women will do what they have to do so that their lives are not ruined by an unwanted pregnancy. Other states are actually emboldening rapists by giving them and their families the right to sue a rape victim who got an abortion. The date of viability is also placed at a somewhat reasonable 18 weeks rather than the 6 weeks in Texas (which is before most pregnancies can be detected).
Of course, Mormons who live anywhere other than Utah are subject to whatever laws their own states decide to employ, including those as egregious as the Texas and Mississippi laws. The conservative preference for state over federal law reduces the scope of the Church’s influence to one little state rather than leavening the whole loaf. Utah may continue to be a peculiar people, and maybe will have a less violating policy on abortion than other conservative states, but other states will continue to ignore what Mormons think on this and most topics.
Reasons for Hope
One of my favorite podcasts always ends with “reasons for hope” from each panelist.
There’s an argument that Roe v. Wade wasn’t the right law anyway. It’s based on privacy because abortion is a private act that shouldn’t bear public scrutiny, rather than a woman’s right to the pursuit of happiness, which one would assume includes bodily autonomy. Often when an extremist act like this one, striking down a protection that the majority of Americans believe should exist, will result in a better future law, one that is probably much better than the anti-woman crapfest happening in Southern states.
The other important reason for hope is that abortion to terminate a pregnancy is not the only solution anymore. Arbortifactants (abortion pills) as well as various morning after pills are widely available (although some Southern states are trying to prevent their residents from obtaining them through mail delivery services), and effective up to ten weeks. Surgical abortion is not the only method to terminate an unwanted pregnancy anymore.
Before Roe v. Wade, women seeking an abortion went to another state, and there are many groups that will assist with the costs of transportation, hotel, and the procedure. Bear in mind that anti-abortion laws are a regressive tax: they hurt the poor, especially those who can’t afford time off work, more than the middle and upper classes. Those with means are in a better position to protect themselves from unwanted pregnancy.
Moral Authority v. Compulsion
The real problem with these types of rules is that the state should always be less morally restrictive than one’s Church because churches interpret moral codes differently. The law should allow for these various interpretations without compelling any of them to behave in a way that is more restrictive than their own codes.
When the state is more restrictive than the Church, and as we can see in the case of Utah’s trigger law, that’s a natural byproduct of turning a church policy into a regulated law, then the state is the moral arbiter of behavior, not the Church. There is no room for the Church to create a moral argument or to carve out a space for belief to flourish in such a situation.
This is also a problem when the state creates a restriction that contradicts one’s religious moral code. This occurred when a Sikh student attending BYU (BYU was the state in this situation) was forced to shave in accordance with the school’s honor code, an act which violated his religious code. While this decision was later reversed, the damage had already been done. As I said in my Mormonland interview a few years ago, legislated morality is not morality at all. Morality must be the result of moral deliberation and persuasion, not compulsion.
Speaking of BYU and thought experiments in which BYU is the “state,” creating laws to enforce what it sees as morality, there are many more examples of why creating a rule or a law, including the methods to enforce it, undermine moral arguments. Is it a sin to wear knee length shorts, shoulder-length hair (for a man), or to be in an apartment after 1AM? No, but it’s against the enforceable rules which implies it is morally wrong. And that erodes the actual moral argument of the law of chastity. The law is replaced with the hedges around it. We all need to bear in mind the scripture chase verse we had to memorize when I was a teen:
[T]he Lord seeth not as man seeth; for man looketh on the outward appearance, but the Lord looketh on the heart.1 Samuel 16: 7
Making moral issues compulsory makes them something other than moral issues. No thoughtfulness required. Your heart doesn’t have to be changed. You just have to be willing to outwardly conform and in some cases police and judge others, turning them over to the state.
This is kind of the opposite of reasons for hope. Here are some of the potential “doom and gloom” scenarios that are possibilities for our near future.
The first that is kind of obvious is an erosion of the legitimacy of the court. The court is a small, self-policing body with no real oversight by rules of conduct. You can be married to an insurrectionist and not be obligated to recuse yourself from cases that literally involve her and her causes. If the court acts in ways that the public don’t agree with, they don’t have a military to enforce their rulings. What happens if a contested election goes to them and they behave according to their political views rather than the law?
Some are concerned that this unfettered court will proceed from overturning Roe protections enacting a total federal ban on abortion, similar to fascist countries. Some states might be tempted to outlaw or limit access to birth control for citizens, as in now defunct laws that many states had on the books decades ago.
Additionally, could this court seek to directly attack gay marriage and overturn Obergefell? Would this revert us to a state-level legal patchwork where gay people can get married in blue states, but not red states? Are trans rights similarly on the target? It’s not unfathomable, since these rights are still emerging and are not long-standing. What about anti-CRT laws at the federal level, or limiting federal funding based on a conservative wishlist?
- Are you concerned about the overturning of Roe v. Wade?
- Do you like Utah’s trigger law? If so, why? If not, what would you change?
- How do you see the role of state usurping ecclesiastical authority when laws are more restrictive (or differently) than a church’s moral teachings?
- What do you think is next? Are you hopeful or not?
*The Handmaid’s Tale was written during the Reagan era, when a woman’s decision to terminate a pregnancy was protected by federal law through Roe v. Wade. In the novel, the United States is partly overthrown by a religious conservative group called Gilead who, among other things, greatly restricts the rights of women. Women are assigned various roles: Marthas to cook, Handmaids to bear children, Aunts to enforce the sexual slavery and training of the Handmaids, and Wives to oversee the other women in the household. It sounds a little like polygamy. Lesbians who are caught are sterilized, deemed gender traitors and sent to a penal colony to do forced labor. Homosexual men are hung on a public wall for others to see. The beginning of this dystopian hellscape occurs when women’s bank accounts are shut down, and all their funds are given to their nearest male relative. While some of the men are upset by this, most of them try to comfort their wives, sisters, mothers, and daughters by telling them, “Don’t worry. I’ll still make sure you have access to funds.” But that was the first step, and it wasn’t long (in the novel) until women were rounded up and forced into these aforementioned roles. Because of their proven fertility, the Handmaids were the least lucky of the women. Their existing children were taken from them, and doled out to the “righteous” families of Gilead leaders, and they were forced into sexual slavery in similar households, undergoing a monthly ritual to impregnate them.
 As Sam says to Farmer Ted in the problematic 80s teen comedy Sixteen Candles “You get to be King of the Dipsh!ts. That’s kind of cool.”