With Liberty and Justice for All: Abortion, Religious Freedom and the Constitution

Abstract

The status of abortion as murder, and therefore amenable to governmental intervention and criminalization, has been asserted by some segments of the populace. Their opponents claim a superior right of privacy exists under the Constitution, vesting in a woman the right to decide activities and actions that affect her physical corpus. Those belonging to the pro-life movement claim no Constitutional right superceede the mandate of the government to regulate violation of a societal norm - killing a fetus, which they contend enjoys the same rights as a live-born child.

This article examines the earliest societal codes of conduct, cited as the predicate for the contention that murder is abhorrent to a civilized society, and hence amenable to criminalization, by extension contending this practice applies to fetucide. The article then examines the various differing positions of the major Judeo-Christian religions, only one of which regards fetucide as murder, and finally sets forth the true meaning of natural law, often raised in support of the premise that abortion is violative of the basic code of conduct of societal norm.

This article suggests that while murder may be amenable to governmental regulation, this injunction pertains only killing of human beings, and then only under certain circumstances. Finally, the article demonstrates that abortion or fetucide is not considered either murder or even killing of another human by most traditions, and that the penal status of abortion as sin, rather than crime, should be left to religions determination rather than governmental intervention. In that the varying religions differ on whether abortion is considered murder, the matter falls under religious doctrine, coming under the rubric of Freedom of Religion. As such, the first amendment to the Constitution specifically would bar any legal intervention barring the practice, whether legislative or by judicial fiat.

Keywords: abortion, murder, killing, privacy, constitution, religious freedom, first amendment

JEL Classification: I18, K1, K30, K32, K42, K14