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Elizabeth Samuels April 1, 2020 Religion, Abortion, & Law: An Analysis of How Religiously Informed Conceptions of Personhood Shape U.S. Supreme Court Rulings on Abortion by Elizabeth Samuels Stu Marvel Adviser Women’s Gender, and Sexuality Studies (WGSS) Stu Marvel Adviser Dabney Evans Committee Member John Blevins Committee Member 2020 Religion, Abortion, & Law: An Analysis of How Religiously Informed Conceptions of Personhood Shape U.S. Supreme Court Rulings on Abortion By Elizabeth Samuels Stu Marvel Adviser An abstract of a thesis submitted to the Faculty of Emory College of Arts and Sciences of Emory University in partial fulfillment of the requirements of the degree of Bachelor of Arts with Honors Women’s Gender, and Sexuality Studies (WGSS) 2020 Abstract Religion, Abortion, & Law: An Analysis of How Religiously Informed Conceptions of Personhood Shape U.S. Supreme Court Rulings on Abortion By Elizabeth Samuels Has religion covertly become an integral part of American abortion and reproductive health law despite the formal constitutional separation of Church and State? If so, How? And what might we learn from an investigation into whether and how religious conceptions of personhood have been transferred from conservative Christian contexts to national abortion law? To answer this interlocking set of questions, I traced the advent of America’s Religious Right and their role in creating the modern anti-abortion advocacy movement. I then analyzed nine Supreme Court rulings that form the legal framework for our nation’s status quo regarding abortion. I found that while many liberal Justices acknowledge the role religion plays in informing deeply held conceptions of personhood, they defer to secular arguments and argue that the Court’s neutral role requires the upholding of abortion’s legality. Conversely, conservative Justices have increasingly emphasized the personhood of the fetus while denying the role of religion in informing anti-abortion views. Their strategy mirrors that of the anti-abortion advocacy movement. I argue that through the use of language and argumentation containing implicit religious sentiments, conservative Christian understandings of personhood (i.e., that life begins at conception) have had great and lasting impact on restricting women’s access to abortion. And that although in name a neutral and impartial institution, the Supreme Court reflects the proliferation of conservative Christian notions at the highest level, impacting all jurisprudence and laws below it. I conclude by arguing that the First Amendment’s Establishment Clause is an important legal avenue by which this undue influence on abortion law should be challenged. Religion, Abortion, & Law: An Analysis of How Religiously Informed Conceptions of Personhood Shape U.S. Supreme Court Rulings on Abortion By Elizabeth Samuels Stu Marvel Adviser A thesis submitted to the Faculty of Emory College of Arts and Sciences of Emory University in partial fulfillment of the requirements of the degree of Bachelor of Arts with Honors Women’s Gender, and Sexuality Studies (WGSS) 2020 Acknowledgements Endless thanks to Dr. Stu Marvel for being the most incredible and encouraging adviser. I don’t know what I would have done without you! In addition, thank you to my committee members, Dr. Dabney Evans and Dr. John Blevins, for being enormously supportive and helpful throughout this project. Table of Contents Chapter 1: Introduction………………………………………………………………..1 v Research Question……………………………………………………………..1 v Method and Theory……………………………………………………….……2 Chapter 2: Background, Literature Review, Where my Research Fits………………...7 v Background………………………………………………………………..........7 v Literature Review……………………………………………………………....10 v Where my Research Fits………………………………………………………..22 Chapter 3: The Religious Right and the Anti-Abortion Movement……………….……27 Chapter 4: Supreme Court Opinions and Findings……………………………………...38 v Roe v. Wade (1973) …………………………………………………………….38 v Maher v. Roe (1977) ……………………………………………………………43 v Harris v. McRae (1980) ………………………………………………………...45 v Akron v. Akron Center for Reproductive Health (1983) ……………………….50 v Thornburgh v. American College of Obstetricians & Gynecologists (1986) …..52 v Webster v. Reproductive Health Services (1989) ………………………………57 v Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) …………...62 v Gonzales v. Carhart (2007) ……………………………………………………..67 v Whole Woman’s Health v. Hellerstedt (2016) ………………………………….73 Chapter 5: Conclusions…………………………………………………………………..76 1 Chapter 1: Introduction Research Question “One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion” Justice Harry Blackmun, Roe v. Wade, 420 US 113, 116 (1973). “The intensely divisive character of much of the national debate over the abortion issue reflects the deeply held religious convictions of many participants in the debate.” Justice Paul Stevens, Webster v. Reprod. Health Servs., 492 U.S. 490, 571 (1989). Has religion covertly become an integral part of American abortion and reproductive health law despite the formal constitutional separation of Church and State? If so, how precisely has religion influenced and presented itself in abortion jurisprudence? And finally, what might we learn from an investigation into whether and how religious conceptions of personhood have been transferred from conservative Christian contexts to national abortion law? To answer this interlocking set of questions, I analyze nine Supreme Court rulings that form the legal framework for our nation’s status quo regarding abortion, first establishing its broad legality and subsequently enabling many current features and restrictions of access to the procedure. I hypothesize that through the use of language and argumentation containing implicit religious sentiments, conservative Christian understandings of personhood (i.e., that life begins at conception) have had great and lasting impact on restricting women’s access to abortion. And that although in name a neutral and impartial institution, the Supreme Court reflects the proliferation of conservative Christian notions at the highest level, impacting all jurisprudence and laws below it. 2 Method and Theory In this project I examine how religiously charged language – specifically surrounding conceptions of fetal personhood – functions to frame and produce concrete results in the legal realm of abortion and reproductive rights. I analyze a series of relevant and influential Supreme Court cases, examining whether and how the Religious Right’s beliefs about when life begins have pervaded legal conceptions of personhood. This project is written as part of the Women/Gender Studies Honors program, and the work of feminist scholars and activists are a crucial authority in this research. Through my project, which aims to understand and analyze the ways in which reproductive rights are restricted and challenged through law, I hope to further the feminist goals of women’s equality and champion reproductive justice.1 There are countless ways to study the issue of abortion: researchers look at perceptions, laws, and practices, and do so in reference to individuals, clinics, local areas, states, and countries. In narrowing down, I wanted to focus on legal aspects of abortion in the United States, in order to thoroughly follow the progress and history of one country’s trajectory. I pull from several different social science theories in creating my methodology. Socio- legal theory contends that an “analysis of law is directly linked to analysis of the social situation in which the law applies.”2 I am therefore interested in looking at how the societal “situation” of abortion, made up by the beliefs, practices, and discourse surrounding the procedure, contributes to and is in turn influenced by law. Legal discourse analysis looks at the link between law and language,3 emphasizing the importance of linguistics and phrasing in the law, something I am 1 SisterSong, a women of color reproductive justice collective, defines reproductive justice as: “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.” Reproductive Justice, SISTERSONG, https://www.sistersong.net/reproductive-justice. 2 David N. Schiff, Socio-Legal Theory: Social Structure and Law, 39 THE MODERN LAW REVIEW 287 (1976). 3 Beverly Brown, Legal discourse, ROUTLEDGE ENCYCLOPEDIA OF PHILOSOPHY (1998), https://www.rep.routledge.com/articles/thematic/legal-discourse/v-1. 3 delving into by looking at phrasing and argumentation in Court opinions. Similarly, theories of framing4 look at how the way issues are presented