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Pro-Abortion Professor Suggests Challenging Bans on First Amendment Grounds

AP Photo/Amanda Andrade-Rhoades

The pro-abortion crowd has been having quite a hard time lately. When it became apparent that the Supreme Court could overturn Roe v. Wade, the left has been struggling to figure out how to preserve one of their most hallowed of institutions: Abortions. The left is already looking for ways to make sure abortions continue even if Roe is overturned and states pass stricter abortion laws. But they are also trying to brainstorm legal avenues as well. Some are suggesting they challenge anti-abortion laws on First Amendment grounds.

NBC legal analyst Barb McQuade posted a tweet arguing that the pro-abortion lobby could possibly push back against abortion bans by arguing it violates First Amendment protections on freedom of religion. She tweeted:

Time to challenge abortion bans on 1st Amendment grounds. Not every faith believes life begins at conception. If a baker may not be forced to bake a cake for a same-sex wedding on the basis of religious freedom, surely a woman can’t be forced to give birth

The tweet also linked to a New York Times op-ed written by media activist Maureen Dowd titled, “Too Much Church in the State.”

In the article, Dowd alleges that the five conservative Supreme Court justices are going to rule against Roe v. Wade because of their religious beliefs. She wrote:

Justice Barrett said then that she would not impose her personal beliefs on the country. “Judges can’t just wake up one day and say ‘I have an agenda — I like guns, I hate guns, I like abortion, I hate abortion’ — and walk in like a royal queen and impose their will on the world,” she said amicably. “It’s not the law of Amy. It’s the law of the American people.”

Yet that’s what seems to be coming. Like a royal queen, she will impose her will on the world. It will be the law of Amy. And Sam. And Clarence. And Neil. And Brett.

Dowd also suggests that the “Supreme Court’s impending repeal of Roe will be owed to more than judicial argumentation” because “there are prior worldviews at work in this upheaval.”

She later claims “Catholic doctrine may be shaping (or misshaping) the freedom and the future of millions of women, and men” and that there “is a corona of religious fervor around the church” that is somehow influencing the justices’ ruling.

Of course, Dowd never provides a shred of evidence indicating the justices are issuing their ruling because of their faith. It’s merely a politically convenient assumption. One could make that contention with many types of rulings or legislation. It says in the Bible, “thou shalt not murder.” Does this mean America has laws against murder purely because of religion?

But the notion that one can challenge abortion bans based on religion is an interesting one. I’m no legal scholar, but it is not difficult to identify the difficulty of such a proposition. For starters, religious belief does not necessarily cover all types of behavior or actions. Radical Islamic terrorists believe their religion tells them to murder infidels. Surely, folks like McQuade would not suggest they have the First Amendment right to practice a murderous version of their religion on American soil, right?

Much of the debate over abortion hinges on the fact that it affects a human life. Some religions teach that a human being is not alive at conception, but later in the process. However, other religions – and even science – say something different. The comparison to baking a cake for a homosexual couple is absurd on its face, as it does not involve the violation of one’s right to life.

Using the First Amendment against abortion bans is a rather creative thought. The Supreme Court seems poised to reject the idea that the right to privacy covers the right to terminate a pregnancy. If the left is going to mount another legal challenge in support of abortion, the right to freedom of expression might be the only one that could possibly present a solution. Unfortunately for Democrats, it is still a long shot. If the court rules as expected, states will once again become the ones to decide how they will approach abortion.