Silencing religious voices weakens support for human dignity

Written by William C. Duncan

December 14, 2022

In the early 20th century there was a widespread and disturbingly oppressive consensus among prominent scientists and politicians: They agreed that states could and should sterilize individuals against their will if the state determined they were “unfit” and thus likely to pass on negative traits to children. During the 1900s, over 60,000 people – largely women, and especially black women – became victims of this program that became known as “eugenics.”

New York Times reporter Adam Cohen told much of this story in his 2016 book, Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck. In a 2017 interview on National Public Radio, Cohen described the eugenics movement, and the sparse but ultimately successful opposition:

Well, you know, the Catholic Church was actually fairly heroic on this issue. … A lot of the progressives of the era, including Teddy Roosevelt, Louis Brandeis, the great progressive justice and even people associated with the fledgling ACLU, American Civil Liberties Union, they supported eugenics. So it was really a situation where there were almost no advocates for the women involved. The Catholic Church was one because they believed that – not only did they believe in reproduction, but they believed that people should be judged by their souls, not by these attributes that the eugenicists were so focused on. And in many states, when there was a eugenic sterilization bill before the legislature, the people who showed up to oppose it were Catholics, they were priests, they were nuns. And there were states like Louisiana with high Catholic populations where eugenic sterilization laws were voted down really because of the Catholic Church.

Despite examples such as this one, past and present, religious influence on public policy is a source of controversy.

It has even been raised in the ongoing legal challenge to Utah’s abortion law. To address this question and respond to possible misconceptions, Sutherland Institute filed an amicus brief with the Utah Supreme Court.

Sutherland’s brief points out factual flaws with the claim that Utah’s abortion law violates Utah’s constitutional protection of religious freedom by imposing a religious view of when life begins.

First, there is no evidence that any church interfered with or dominated the creation of Utah’s abortion law. In fact, the Utah law is very similar to a 1962 proposal of the American Law Institute, a legal professional organization. That proposal, like Utah’s law, prohibits abortions except in cases of danger to the mother, a fatal defect of the unborn child, and when the pregnancy resulted from rape or incest.  In the former two instances, it requires two physicians to certify the conditions justifying the exemption. This suggests that the state was reverting to laws in place before Roe v. Wade was decided now that that decision has been reversed.

Second, the Utah law does not use a religious or spiritual criterion in its legal definitions. Instead, the law uses a biological definition of when an abortion can occur: “after implantation of a fertilized ovum.” This definition is consistent with how the Utah Supreme Court has defined murder (in a case involving the killing of a woman and her unborn child).

The idea that Utah’s abortion law violates religious freedom is also inconsistent with important legal principles.

For instance, in 1980, the U.S. Supreme Court considered a similar claim in a challenge to a policy banning the use of taxpayer funds for abortions. The court determined that just because a law “may coincide with the religious tenets of the Roman Catholic Church does not, without more, contravene the Establishment Clause.” The court used a persuasive analogy: “That the Judeo-Christian religions oppose stealing does not mean that a State or the Federal Government may not, consistent with the Establishment Clause, enact laws prohibiting larceny.”

Additionally, the lawsuit challenging Utah’s abortion law does not point to anyone who has a religious belief that requires them to get an abortion. While there are examples of religious groups that believe that abortion may not be always be wrong, the constitutional protection of religious exercise is a protection from being forced to do something, or prevented from doing something, contrary to one’s beliefs. The Constitution does not protect a right to have one’s beliefs favored over others.

Finally, even if someone argues that they have a religious duty to perform or participate in an abortion, this does not mean that religious view would overcome the state’s compelling interest to protect human life. Even sincere religious beliefs have to yield sometimes to critical interests like protecting life and public safety.

Ironically, while claiming concern about religious freedom, this lawsuit could make it more difficult for religious people to participate as equals in the civic process if it succeeds. If a policy can be invalidated merely because it is supported by people of faith or coincides with their beliefs, it could effectively silence religious voices in the political process.

As the example of involuntary sterilization shows, suppressing religious voices may mean silencing the only people courageous and principled enough to stand up for the dignity, humanity and rights of oppressed people. That would be a blow not only to people of faith but to the community as a whole.


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