Religion and the Unborn Under the First Amendment


Dov FoxFollow

Document Type


Publication Date



Assisted reproduction, stem cell research, and abortion are among the primary social controversies in which religion tends to play a conspicuous role. A prominent objection to state restrictions on practices like these holds that they implicate judgments about nascent human life that hew too closely to religion under First Amendment principles governing the separation of church and state. I argue in this chapter that this Establishment Clause challenge trades on a misunderstanding of religion and its relationship to ideas about the unborn. It conflates four influences thought of as “religious.” The first three – compulsions of faith, promises of salvation, and obedience to God – may not be endorsed by government. But there is a fourth influence, involving larger visions about what makes society good, that legitimately animates state action. And it is this fourth influence, I will show, that best explains most efforts to protect fetuses and embryos.

This is not to say such laws do not have other constitutional problems; just that religion is not one. Reproductive restrictions that nevertheless infringe liberty and equality guarantees do not necessarily violate free speech, that is, even if large numbers of people support them based on their faith. This chapter makes three chief contributions. First, it supplies a long-missing defense of the Supreme Court’s cursory holding in Harris v. McRae that federal funding preferences for childbirth over abortion do not violate the First Amendment. Second, it resolves the church-state case against laws ranging from fetal pain bans and mandatory ultrasounds to Pro-Life license plates and personhood amendments. Third, it offers original reflections on religious pluralism, democratic legitimacy, and constitutional contestation that meaningfully implicate a range of controversies that reach beyond the treatment of potential life.

Publication Info

Chapter 26 in Law, Religion, and Health in the United States (Holly Fernandez Lynch, I. Glenn Cohen, & Elizabeth Sepper, eds. Cambridge University Press, 2017)