Of abortion rights and religious freedoms

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This month, in anticipation that the U.S. Supreme Court will soon overturn Roe. vs Wade and give states more authority to restrict abortion, Oklahoma passed a new state law making it unlawful to terminate a pregnancy "with knowledge that the termination … will … cause the death of an unborn child."

The law defines an "unborn child" as "a human fetus or embryo in any stage of gestation from fertilization until birth."

If it were up to me, I would hold this law to violate the religious freedoms guaranteed under the First Amendment to the U.S. Constitution. The state has here "established" a religious belief as Oklahoma law and thus has prohibited the "free exercise" of religion by pregnant women who don't believe personhood begins with conception.

The First Amendment orders that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." This restriction on government applies to the several states as a protection of individual autonomy through the 14th Amendment.

The First Amendment separates that which is "church" from that which is "state." The "state" is prohibited from imposing its views as to matters that belong to "church."

For example, St. Thomas Aquinas, the great medieval philosopher, didn't believe human life began at conception. He taught that "ensoulment" didn't occur until several weeks later, around 40 days after conception.

This understanding of a gradual transition from the mystery of life's origins to unquestionable life (called "delayed hominization") had also shaped the regulation of abortions centuries ago in England. Back then, the end of faith-based belief and the start of a secular reality in personhood was called "quickening." An abortion after the "quickening" of a fetus was considered to be homicide, as Supreme Court Justice Samuel Alito reminded us in his much-discussed leaked draft opinion.

Opinions differ sharply as to when "life" or "humanity" begins. Whether an embryo or fetus is or is not "human life" is a matter of conjecture and so of faith. It is not provable.

As long as the right of a fetus to live is only a matter of a faith-based definition, the state may not impose that definition on those who don't share the same understanding of when personhood begins.

The state may not impose on Catholics the belief that life does not begin at conception. Reciprocally, it may not impose on non-Catholics the belief that life does begin at conception.

It's worth noting that the new Oklahoma law prohibiting abortions goes out of its way to make clear that the "Oklahoma Religious Freedom Act" — a law safeguarding individuals' religious rights — cannot be invoked to protect a woman's choice to have an abortion. Are Oklahoma lawmakers all but conceding that in the early stages of pregnancy it is a matter of religious belief whether a fetus has human rights?

The proper power of the state to protect the unborn begins when it can be demonstrated that the fetus is a living human person — when its humanity is no longer only a matter of faith. A fetus that could, if prematurely delivered alive, survive outside the mother's womb is already a living reality, not a merely potential life. It has achieved "viability," the often maligned threshold defined in the 1973 Roe vs. Wade decision. The capacity of that fetus to live, its autonomous agency as a being, even while still in its mother's womb, is a secular fact that cannot be denied by any rational mind.

Clearly, as a secular fact, such a viable life can be protected by the state even against the liberty interest of the mother in terminating its development.

But can we think of another, better, more humane and more rational point in a pregnancy at which to begin the protection of yet-to-be-born life?

For the state to forbid abortions early in a pregnancy would be to impose a chosen religious belief about what life is on citizens who believe otherwise, an unconstitutional establishment of religion. So in the beginning of a pregnancy, we must agree to disagree as to what a fetus is.

What point? I can find no self-evident moment when all would agree that a fetus has just acquired the right to life as a human person. However, there does seem to be wide agreement that some remarkable transition occurs after several months from the time of fertilization.

Aquinas spoke of a time for "ensoulment"; medieval English jurists pointed to a stage in gestation called "quickening"; our Supreme Court has offered "viability'' outside the womb. In Europe, most countries respect a right to abortion early in a pregnancy but not later. Polls tell us that most Americans reject the incompatible maximum claims of pro-choice and pro-life advocates.

The middle ground favored by many Americans is for abortion to be allowed early in a pregnancy but not in later stages.

There is wisdom in this almost instinctive gut feeling, with its long tradition and multicultural appeal. It could lead us to a compromise in which, during an early period in a pregnancy, the mysteries of life and faith would be honored by the law, so that abortion would be permissible. Afterward, states would have power to prohibit the taking of a life.

Those states that chose to enact restrictions would likely differ as to what precise number of days or weeks from fertilization would constitute the period of wholly free choice. But under the First Amendment, they would be required to provide a reasonable duration for that period of uncertainty during which the religious liberty of every pregnant woman would be honored.