Will the First Amendment’s separation of church and state save Roe v. Wade?

For decades state legislators committed to the right-to-life doctrine, which affirms that abortion any time from the moment of conception is murder, knowing that as long as Justice Anthony Kennedy was on the Supreme Court the Court would not reverse Roe v. Wade. Instead, they were confined to enacting hundreds of statutes under a smokescreen of rhetoric about protecting women’s health that imposed burdens on women’s access to safe abortions.

Counting on President Trump’s appointment of justices who would reverse Roe, legislators in Alabama have now enacted a law criminalizing all abortions. Legislators in other states have enacted “heartbeat” laws criminalizing abortion after six weeks before a woman would even know she was pregnant, in every case with no exception for rape and incest.

The legislators who, to put their right-to-life doctrine into law, enacted total bans on abortion forgot that this is America. We have a Constitution. When a state statute based on the right-to-life doctrine comes up for review judges on the federal courts, including justices on the Supreme Court, who took the oath to uphold the Constitution will have no choice but to follow the framers’ original intent and hold that these statutes violate the separation of church and state enshrined in the First Amendment’s mandate that “Congress shall make no law respecting an establishment of religion,” which the Supreme Court held applies with equal force to the states.

The persecution over the past 40 years of women who do not conform to the right-to-life doctrine revived the sectarian strife rooted in the 18th century when the colonies persecuted anyone who did not conform to the religion adopted by the colony. To protect the new nation against that sectarian strife Madison and Jefferson gave us the First Amendment’s establishment clause. The development of the establishment clause began five years before its ratification when Madison opposed a Virginia bill that would have authorized the use of tax revenues to support Christian churches and organizations. His objections focused on both the freedom to exercise religion and freedom from the establishment of religion. Because of Madison’s continued efforts, when the first Congress convened the First Amendment to the Constitution included the protection of religious freedoms.

The majority opinion written by Chief Justice Burger in Lemon v. Kurtzman, 403 U.S. 602, in 1971 summarized three tests that a statute must pass to survive a First Amendment challenge: “First, the statute must have a secular purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster excessive entanglement with religion.” In addition, the Court adopted a political divisiveness test as crucial, saying that “political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.”

The Alabama law banning all abortions and the “heartbeat” laws fail all three tests and the political divisiveness test. In the context of abortion, the issue of secular purpose turns on one central issue: whether a fetus is a human life. If the fetus is a human life, states would have a secular interest in protecting that life. If the definition of life is motivated by religious beliefs and incorporated into law, the resulting law violates the establishment clause.

The test for the entanglement clause challenges requires that a statute have a clearly secular purpose that does not discriminate against a sect and does not evidence a legislative intent to endorse religion or a particular religious belief.

Unless the courts save us from the encroaching tyranny of the religious right, the strife will continue because a clear majority of Americans, including members of my Episcopal Church, who believe that a woman has the moral right to terminate an unwanted pregnancy before viability, will defend the freedom of conscience guaranteed by the Constitution and will never, I repeat never, surrender to the religious right.

Robert M. Pennoyer is a former assistant U. S. attorney for the Southern District of New York and a former partner of Patterson Belknap Webb & Tyler.