Abortion, Religious Arguments, and the Need for Overlapping Political Consensus
Does abortion or any other political issue prohibit or require religious arguments? I tend to think it’s the latter, but that our focus should be on the political task of achieving an overlapping consensus of the public’s views, religious or otherwise. Let’s develop this point by looking at a couple recent episodes, both of which invoke the need for more clarity on what it means to make a “religious argument.”
First, in the oral arguments for Dobbs v. Jackson Women’s Health, both Justices Sotomayor and Alito asked Scott Stewart (the lawyer representing Dobbs and the state of Mississippi) whether he was using religious arguments (in the case of Sotomayor) or whether there were secular arguments (in the case of Alito) in his definition of human life’s beginnings. Unfortunately, the definitions of “religious” and “secular” were not clearly defined by anyone, and the exchange fell flat.
Second, this brief exchange came to mind in the aftermath of the leak of Justice Alito’s draft Dobbs opinion. One reaction came from a tweet by Catholic journalist Kirsten Powers:
“If you think abortion is wrong, don’t get an abortion. It’s not ok to impose your religious view on others. Why should a Jew or Muslim, for eg, have to live acc to your interpretation of the Bible? If you don’t get this, please don’t ever use the phrase ‘religious freedom’ again.”
So, what to make of these two episodes? First, on the face of it, it is common sense and consistent with the First Amendment (especially the Establishment Clause) that religious freedom demands tolerance on religious matters, and that nobody should be forced to live according to a particular religion’s creed. For example, nobody should be forced to read the Bible or Koran or any other holy book, regardless of the truth of the claims within them or the social benefits that may result from such a practice. To do so would be an unjust use of state power and a fundamental violation of the sacred rights of conscience. And, if that is what’s driving Sotomayor, Alito, and Powers in their comments, it all seems rather uncontroversial.
However, to leave the matter there does not solve all of our problems, and it would leave us with a rather naive view of what undergirds many of the laws we make together as a society. For example, let’s ask the question, “why should the law protect the lives of 23-year-olds?” The answer to this question will inevitably lead us to a position that can only be justified by some kind of faith commitment — you might say, a religious commitment, if we define religious as “rooted in an unprovable point of view.” It will typically involve, for example, a view that human beings are inherently valuable, that each person has equal worth, or that creatures with a human DNA structure have inviolable rights. It may even include the view that unlike the previable unborn, 23-year-olds are independent of their mothers for life. It turns out, though, that within these justifications, it’s still not clear why human beings have inherent value, who has equal worth, what justifies inviolable rights, and why independence is a legitimate distinction for legal protection. The more you drive down, the more you ask why, the more you realize that your position on almost any political issue is rooted in an article of faith (a religious article), and is not an obvious deliverance from scientific method or rational demonstration.
If it’s true, then, that all views on when and how the law should protect human life are irreducibly religious, the political task should therefore not be to eliminate religious points of view from the public square. Instead, the pre-eminent political task of all citizens should be to persuade other religiously motivated citizens to embrace an overlapping consensus on the political issues of the day, a consensus that brings together people of different religious views to embrace the same political position. The real difference between Kirsten Powers and her pro-life opponent (even her so-called secular pro-life opponent!) is not that one has a religious perspective on abortion (or any other issue) and one has a secular perspective (whatever that means). No, the real difference is that they don’t have political agreement on the question of abortion. They have no overlapping consensus. The difference between the view that 23-year-olds should have legal protection and that the 15-week unborn should have legal protection is not that one view is religious and the other is secular. No, it’s that there is widespread political agreement on the former, and less political agreement on the latter. There is maximal overlapping consensus among religious believers on the former question, and much less overlapping consensus among religious believers on the latter question.
This means, then, that if Roe and Casey are overruled, the controversies and questions that will emerge in the states and in the country will not have to do with whether religious or secular points of view prevail on the question of abortion. Instead, the question will be, which religious view (or set of religious views) will receive the most political agreement, which articles of faith will receive the most widespread political support, and which unprovable assumptions about legal protections for the human community will garner the most political consensus in our communities? Science can tell us when human life begins, but it can not tell us whether, when, and why we should protect that human life. It is the latter political task that rightly belongs to a society governed by the consent of religiously motivated human beings, a task that does not become easier when we recognize the religiosity of all human beings, but one that becomes more difficult as we see the demand to persuade others of the rightness of our political positions.
