The First Amendment, Moral Law and Abortion: The Conflict between Fetal Rights & Freedom of Religion

69 Pages Posted: 25 Jan 2016

See all articles by Barbara Pfeffer Billauer

Barbara Pfeffer Billauer

Institute of World Politics; International Program in Bioethics, U. of Porto; Foundation for Law and Science Centers, Inc.

Date Written: January 22, 2016


The status of abortion as murder, and therefore amenable to governmental intervention and criminalization, has been asserted by those favoring limits on abortion. Opponents claim a superior right of privacy and/or equality exists under the Constitution, vesting in a woman the right to decide activities and actions that affect her physical corpus. The claimed interest of a State to protect the fetus is impliedly based on the concept of 'morality' or 'natural law', specifically on the premise that fetucide is violative of the basic code of conduct of societal norm. To my knowledge, until now, this is the first investigation undertaken to determine whether in fact indicators of 'natural law' or the moral code support this claim.

To investigate whether there is any 'moral' basis to support the State's claim and the Supreme Court's recent rulings, I first examined the earliest and most important social codes that have governed the conduct of "man" since the beginnings of civilization, finding none regards fetucide before forty days of gestation as murder. I next investigate international views on abortion to determine if consensus on abortions regulations existed, (and which would be expected if a collective 'moral code' existed) and found none, either in timing of allowable abortion on demand or exceptions to any restrictions. I also demonstrate that the Catholic position on legitimacy of killing a life form (based on the 6th commandment of the Decalogue) is vastly different than, say, the Jewish view, and that this appears to be a driving force behind the courts' positions. As such, invidious, idiosyncratic religious influences are likely driving abortion regulations. I therefore suggest the Freedom of Religion Clause specifically bars legal intervention into practice, whether legislative or by judicial fiat.

In sum, this article demonstrates that abortion or fetucide is not considered either murder (or even killing another human) by many traditions, religious or moral, and concludes that regulating abortion as sin, rather than crime, should be left to religions determination rather than governmental intervention. As such I suggest that the most compelling argument then to support the claim a woman’s right to determine would be on the basis of the First Amendment's Guarantee of Freedom of Religion.

Keywords: whole foods v. cole, roe. v wade, abortion, privacy, autonomy, equality, freedom, constitution, moral law, moral code, natural law, international view on abortion, hammurabi's code, justinian code, decalogue, ten commandments, mosaic code, 6th commandment, religious freedom, first amendment

JEL Classification: K32, K42, K33, K14, J17, J18, J16, J12, J13, I18, I12, H73, H51, B30, B31, D63, D62, D71, D78, D84

Suggested Citation

Billauer, Barbara P., The First Amendment, Moral Law and Abortion: The Conflict between Fetal Rights & Freedom of Religion (January 22, 2016). Available at SSRN: or

Barbara P. Billauer (Contact Author)

Institute of World Politics ( email )

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Washington, DC
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+1 202-462-2101 (Phone)

International Program in Bioethics, U. of Porto ( email )

Rua Dr. Roberto Frias
4200-464 Porto

Foundation for Law and Science Centers, Inc. ( email )

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Suite LL1
Washington, DC 20036
United States
972 54 344 6055 (Phone)

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