Rules Are for Schmucks: How to Save Freedom of Choice

Once Brett Kavanaugh is confirmed to the Supreme Court—as seems likely—the possibility that Roe v. Wade will be reversed will skyrocket. Kavanaugh has reportedly told senators that he considers Roe to be “settled law.” That’s nice. But Plessy v. Ferguson was “settled law” before the Brown v. Board of Education court unanimously decided to reverse it. When Sen. Schumer asked Kavanaugh the more pertinent question of whether he thought Roe had been correctly decided, Kavanaugh coyly declined to answer.

It would be foolhardy not to plan ahead for a post-Roe world. Prudent action now could actually make a difference.

The day after Roe is reversed, all or some abortions will instantly become illegal in a dozen states, where currently unenforceable statutes are on the books. It will remain explicitly legal in eight states, and the others will become battlegrounds. Unquestionably, many women will be hundreds of miles away from a legal abortion provider. Additionally, the status of the online sale of Plan B and other early pregnancy abortion pills will be up in the air. There is every likelihood that the religious right and their well-funded lobby will seek to expand its victory by banning abortion throughout the country, perhaps through court action arguing that abortion deprives the unborn of the right to life guaranteed by the Fifth Amendment.

Barring some dramatic change in Washington, the best way to resist this may be to roll with the punches, rather than leading with the chin. The buzzword of the day is “religious liberty,” which seemingly means “You can break whatever laws you like so long as God commands.”

This commitment to the protection of religious liberty has led to countless special privileges for the devout. Religious corporations can offload healthcare costs onto the federal taxpayer or their employees directly, because that’s what God wants. Churches can laugh off zoning regulations that apply to everyone else, because that’s what God wants. Religious schools can kick out handicapped kids. Religious employers can discriminate against black people, gay people, pregnant women, or anyone else they like. Religious drug users can freely ingest hallucinogens that would send anyone else straight to jail. The list goes on and on.

The religious right is not alone in their ability to warp faith to fit political ideology. How hard would it be to formulate a sincerely held religious belief that God prefers that children only be born to mothers who really want them? That human life is so preciously intertwined with the divine that it should only occur in the most optimal of circumstances? It shouldn’t be challenging for any theologian familiar with religious texts to pull out examples like Sarah and Abraham longing for the eventual birth of their son, Isaac, and develop an emphatically pro-choice belief system along these lines.

Religions recognized by the government have been built on ideas far more outlandish than this. There’s a religion recognized by the courts based on white supremacy. There’s a brand new religion recognized by IRS called the “Pussy Church of Modern Witchcraft,” that claims to be simultaneously feminist and anti-transgender women, against the very tenets of the feminist movement’s attempts to meet the needs of and uplift the most marginalized. There’s a court that awarded a coal miner a six-figure judgment because his employer wanted him to punch in to work with a scan of his hand, which apparently inscribed the “mark of the beast.” Compared to all the other foolishness that passes for religion, the concept that all newborns should be wanted by their parents is a slam dunk.

The principal potential faith group for this new, pro-choice religion is doctors. The politicians who want to criminalize abortion are, for the most part, cowards. They happily mouth the words “Abortion is murder,” but they don’t want to treat it like murder or any other crime. If you hire someone to bump off your annoying neighbor, or to rob his house, or to kidnap his child, under every other law known to humanity you’re liable for the same penalties he is. But most anti-abortion politicians claim that they would never aim to punish a vulnerable women, only the predatory and evil abortionist. Exhibit A is Donald Trump, who one moment said he thought women who undergo abortions should be punished, only to have his campaign officially flip-flop the very same day.

So it’s the doctors who most need the protection that accompanies a sincerely held religious tenant. They’re the ones who need to be able to say “You can’t lock me up for sincerely exercising my religious beliefs. If you don’t lock up religious parents who scoff at the truancy laws, if you don’t lock up religious people who torture animals, then you can’t lock me up for performing abortions. I am doing what I devoutly believe is in best accord with the principles that guide the universe. Unwanted children cannot possibly be what God wants.”

In all fairness, a religious liberty argument for abortion rights is not a unique or new idea. The Satanic Temple has been litigating for years against the nuisance laws the state of Missouri has enacted against women seeking free choice, like a 72-hour waiting period and a requirement to listen to a fetal heartbeat. They even scored a stunning success earlier this year when Missouri’s attorney general conceded in open court that women seeking an abortion don’t have to listen to the ultrasound heartbeat if they don’t want to. If Roe is reversed, I’m certain the Temple will use that experience to make arguments with a similar effect as those outlined above.

I hope they succeed. But given the stakes, it’s a good idea for someone else to start a religion tailor-made for freedom of choice, in support of abortion providers (and perhaps abortion drug sellers). I understand the “Satan as a literary metaphor for the Enlightenment” shtick, and I admire it. But in the real post-Roe environment with real people who have real problems, a religion that doesn’t carry the baggage of Baphomet could be a plus. There’s plenty of space for friendly competition.

Somewhere over the rainbow, maybe there’s a world where the same rules apply to everybody and supernatural beliefs have no bearing on who does or doesn’t go to jail. Since that’s nothing like the world we live in, a little advance planning to preserve women’s freedom of choice would be a smart idea.