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Webster v. Reproductive Health Services
Supreme Court of the United States (1988)


It is by now well known to even the most secular scholars of law that there are serious divisions among (and to some extent within) the various religions regarding the onset of human existence. See, e.g., Roe v. Wade, supra, 410 U.S. at 160-61; McRae v. Califano, 491 F. Supp. 630, 690-702 (E.D.N.Y. 1980), [check balance of cite]. Missouri has "found" that "the life of each human being begins at conception" -- thereby coming down four-square on the side of certain religious teachings and in opposition to others. Just last month, however, the Court reminded us that "[i]n proscribing all laws 'respecting an establishment of religion,' the Constitution prohibits, at the very least, legislation that constitutes an endorsement of one or another set of religious beliefs..." Texas Monthly v. Bullock, ____ U.S. ____, 109 S.Ct. 889 (1989).

To understand what it is about Missouri's "finding" that contravenes the First Amendment's establishment clause, it is instructive to contrast this case with another in which the Court specifically found no establishment clause violation. In Harris v. McRae, supra, 448 U.S. at 319-20, the Court considered and rejected the argument that Hyde Amendment's restrictions on abortion funding were predicated on a particular religious viewpoint "concerning the sinfulness of abortion and the time at which life commences," and that they therefore unconstitutionally established religion. Citing McGowan v. Maryland's teaching that a statute does not necessarily violate the establishment clause simply because "it happens to coincide or harmonize with the tenets of some or all religions," 366 U.S. 420, 442 (1961), and noting that the Hyde Amendment reflects "traditionalist" values toward abortion as much as religious values, the Court concluded that "the fact that the funding restrictions in the Hyde Amendment may coincide with the religious tenets of the Roman Catholic Church does not, without more, contravene the Establishment Clause." 448 U.S. at 319-20 (emphasis added).

Here, we submit, there is more. For the Missouri legislature has not merely created legislation requiring its citizens to act in a way that happens to coincide with a religious viewpoint; it has purported to make a "finding" of fact in an area that lends itself to theological debate but not objective observation or legislative fact-finding.

Justice White, in his Thornburgh dissent, characterized the "question of when human life begins" as "unanswerable." 476 U.S. at 800. Upon reflection, it becomes apparent why this is so. There are, of course, certain objectively verifiable physical stages of fetal development, commencing from the moment of conception and culminating in the actual birth. Advances in science and medical technology enable observers better to gauge these various stages of fetal development, so that we might know at exactly what point certain fetal organs are present, at what point the fetus achieves viability, and so on. Stated simply, science and medical technology enable us to gain greater insight into the wonder of human development. But that is as far as they can ever take us. The ultimate question -- Is human life present? -- requires a pre-existent value system that defines the very essence of human existence. The great faiths provide those value systems, each according to its own traditions and teachings.

Legislatures are in the business of regulating human conduct, not opining on metaphysical theology. Had Missouri refrained from issuing its "finding" that human life begins at conception, and merely enacted the rest of the statute at issue in this case -- restricting the use of public employees, public facilities and public funds for abortions; requiring performance of abortions after the sixteenth week of gestation in a hospital; requiring doctors to determine fetal viability prior to performing certain abortions; even declaring that unborn children have certain protectable interests -- there would be no establishment clause problem. Such regulation of human conduct toward fetal life need not be premised on a particular religious conception concerning the precise moment human life is present. Whatever one's views on that inherently religious question, the state has a substantial interest in the protection of fetal life -- which all agree is at least potential human life -- sufficient to justify the types of regulations, Missouri has imposed upon the performance of abortions.

By taking the extra step, though, of issuing a legislative finding in an area that is beyond legislative competence and susceptible only of religious dogma, Missouri has enacted legislation that has a "principal or primary effect" of advancing a particular religious viewpoint. Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). As Professor Tribe has observed, "when government needlessly uses means that are inherently religious, a message of endorsement is virtually unavoidable. By adopting the language and precepts of a religion as its own, government implies that non-adherents are outsiders." L. Tribe, American Constitutional Law, at 1285 (2d Ed. 1988). That is what Missouri has done here.

Much in the real world may hinge upon a state's right to jump into the theological fray. AS the Court recognized in Roe v. Wade, defining a fetus as a person from the moment of conception could lead to great legal mischief:

"When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception always exists. The exception contained in Art 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother's condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment's command?

"There are other inconsistencies between Fourteenth Amendment status and the typical abortion statute. It has already been point out, n 49 supra, that in Texas the woman is not a principal or an accomplice with respect to an abortion upon her. If the fetus is a person, why is the woman not a principal or an accomplice? Further by the penalty for criminal abortion specified by Art 1195 is significantly less than the maximum penalty for murder prescribed by Art 1257 of the Texas Penal Code. If the fetus is a person, may the penalties be different?"

410 U.S. at 157-58 n. 54. The point is obvious: Once a state has the right to define for all purposes the onset of human life, the constitutional protections of the Fourteenth Amendment (among others) should logically extend no less to a fetus than to any other person -- including his or her mother.

One way to avoid this conundrum, obviously, would be to reaffirm the Court's approach in Roe v. Wade: rule that abortion is a fundamental constitutional right, and that states "may not adopt one theory of when life begins to justify its regulation of abortions." City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 444 (1983). That is what the courts did below. [cite]. As we have argued in Point I above, we do not believe that is the correct approach; we think the Court should strip abortion of its "fundamental" right status in typical cases. But that should not give states free reign to define the onset of human life -- for in so doing, they impermissibly establish religion.

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