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Perspective: The state can’t remain neutral on contentious issues like abortion

Arguments against Roe v. Wade aren’t just religious. Atheists have a stake in the case, too

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Illustration by Alex Cochran, Deseret News

Throughout 49 years of Roe v. Wade, the legal and cultural tactics around abortion may have shifted, but the central question remains the same: Where do we draw the boundaries of personhood? And how do we make law in a country where there is so little agreement on who is a person under the law?

The Supreme Court is expected to issue its opinion in Dobbs v. Jackson Women’s Health by the end of June. The Mississippi law at the heart of the case bans abortion after 15 weeks, an approach that is explicitly disallowed by the viability and undue burden standards established in Roe and revised in Planned Parenthood v. Casey. Simply agreeing to hear the case meant the court is conceding that Roe might be overturned.

The original holding in Roe attempted to ground its trimester framework for abortions in scientific fact, not moral values. It was shaky from the beginning. Little about the pacing of pregnancy lends itself to bright-line cutoffs. Viability has crept forward as medical science has advanced, due dates systematically underestimate actual delivery dates, and the first two weeks counted in the “40 weeks” of pregnancy occur before conception has taken place. (Thus, six-week heartbeat bans actually pertain to fetuses that are only four weeks old).

But during oral arguments, Justice Sonia Sotomayor made it clear she wants abortion jurisprudence to be rooted in the objective and the universal, not in questions of faith or philosophy. She asked Mississippi Solicitor General Scott Stewart whether the state can have a legitimate interest in the question of when life begins, or whether raising the question at all is straying into matters of religion. Sotomayor asked, “How is your interest anything but a religious view? The issue of when life begins has been hotly debated by philosophers since the beginning of time. It’s still debated in religions.”

Since the question isn’t viewed as settled in America, Sotomayor saw it as inappropriate to assert the state has an interest to protect possible life. Her questioning implied that the state should restrain itself to consider unambiguous harms, such as the medical risk of pregnancy to the mother — things that could be measured in maternal mortality statistics and other more scientific ways.

As a former atheist, I felt she was selling secular philosophy and politics short. We can’t bracket all contested questions as religious and outside the realm of government. Atheists, no less than religious people, urgently want to know what it means to live well. Abortion attracts the attention of nonreligious thinkers precisely because the topic is contested and the stakes of the question are high. No one wants to shortchange either mother or child; the question is what we owe to each, and how we know.

As Justice Samuel Alito pointed out in his own comments, the question of when life begins is contested by secular philosophers, as well as religious scholars. Peter Singer argues that not just abortion, but infanticide is morally acceptable in the case of babies with serious disabilities. Secular pro-life makes its case against abortion by arguing that, from the moment of conception, a fetus is human, and alive, and that human life is human life. Neither argument hinges on specifically religious claims. Whatever the decision in Dobbs, there will be both atheists and religious people dissatisfied with the outcome.

The state can’t remain neutral on the questions of murder, just war, moral desert and welfare aid, or other contentious issues. Every law makes a value judgment, and every value judgment presumes an ethical and metaphysical basis for that judgment.

Living in a pluralistic society means writing laws and issuing judicial decisions which don’t match everyone’s deeply felt moral views. The state can’t remain neutral on the questions of murder, just war, moral desert and welfare aid, or other contentious issues. Every law makes a value judgment, and every value judgment presumes an ethical and metaphysical basis for that judgment.

Where a loose consensus prevails, it is easy to imagine that we have left ethical and religious questions behind and are dealing with naked and incontestable facts. But this undersells how much philosophy and metaphysics are the foundation of our choices — even the ones that don’t feel like choices at all.

In many of the moral decisions we make, we have a strong sense of what is right, without having to appeal to first principles, religious or secular. We tend to struggle with finding the will to follow our conscience, not the initial problem of discerning what is right.

In the same way, it’s easy to catch or throw a ball without ever having studied the physics of how, exactly, the ball tumbles through the air. The physics are still real, whether or not we can rattle off the equations. But, in moral and material things, we often rely on a strong sense of what is true, without having to know why it is true.

It’s the harder or contested cases that force us to go back and examine the foundations, although our easy choices are as rooted in religious and philosophical questions as the hard ones are. There are no neutral or unrooted moral facts. Every claim about morality, just like every claim about an object in motion, is rooted in a theory of how the world works and where we stand.

Politicians, justices and ordinary citizens don’t limit their own credibility by admitting that their analysis is informed by their values. There’s no alternative to philosophy in politics or in any domain of personal life.

Leah Libresco Sargeant is the author of “Arriving at Amen” and “Building the Benedict Option.” She runs the substack Other Feminisms, focused on the dignity of interdependence.