With the courts still grappling with challenges to
the contraceptive mandate of the Affordable Care Act, conscience-based objections will likely remain a major legal issue in the near
future. In the wake of the Supreme Court’s decision on marriage equality,
Republican presidential candidate Mike Huckabee urged opponents to refuse to perform marriages for reasons of conscience.
Debates about birth control and same-sex marriage seem to establish conscience-based arguments as a staple of social conservative advocacy. Although the autonomy rights invoked by feminists seem logically related to the idea of conscientious objection, the two arguments could not be much more ideologically opposed in contemporary politics.
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| Waiting for Hobby Lobby (Credit: American Life League) |
After Roe studies how and why
supporters of legal abortion began prioritizing choice arguments in the later
1970s. Over the course of the decade, feminists became convinced that they were
losing ground because they could not compete with pro-lifers in electoral
politics. In formulating an election strategy, movement leaders developed a
message that they believed would speak to politicians and voters uncomfortable
with the termination of pregnancy. Rather than mentioning abortion, feminists emphasized the importance of freedom from governmental interference.
Initially, some in the movement found novel definitions of the idea of
reproductive choice, using it to demand economic justice for poor women and
rights to free child care and health care. When feminists emphasized a far
narrower idea of choice, they did so to adjust to a rapidly changing political
climate, one in which free markets, welfare reform, and small government
attracted support from both parties.
As
feminists crafted a pro-choice message, they also experimented with arguments
based on religious conscience. In challenging the constitutionality of the Hyde
Amendment, a ban on Medicaid funding for abortion, attorneys Rhonda Copelon and
Sylvia Law invoked both the Free Exercise Clause and the Establishment Clause,
insisting that abortion regulations sometimes offended the deeply held beliefs
of those who saw abortion as a moral choice.
Historians
from Sara Dubow to Jeremy Kessler are working now on histories of conscience
claims, establishing that many of them that do not resemble the conservative
arguments so common today. After Roe
made me wonder about why and when activists and attorneys like Copelon and Law
downplayed conscience arguments for reproductive rights. Of course, the Satanic
Temple’s recent challenge to abortion regulations must count for something (how
could any judge with a heart ever side against the Satanic Temple?).
Generally, however, I imagine that there is an important story to tell about the tensions inherent in the arguments feminists made about religion and abortion. While highlighting the religious objections of women who favored legal abortion, Copelon and Law also insisted that the Hyde Amendment violated the Establishment Clause, forcing the religious views of conservative Catholic members of Congress on everyone else. Defining the right role for religion in abortion politics seems to have been hard. Understanding how feminists tried to achieve this goal—and whether and why they failed—seems particularly important given the prominent place of conscience in politics today.
Generally, however, I imagine that there is an important story to tell about the tensions inherent in the arguments feminists made about religion and abortion. While highlighting the religious objections of women who favored legal abortion, Copelon and Law also insisted that the Hyde Amendment violated the Establishment Clause, forcing the religious views of conservative Catholic members of Congress on everyone else. Defining the right role for religion in abortion politics seems to have been hard. Understanding how feminists tried to achieve this goal—and whether and why they failed—seems particularly important given the prominent place of conscience in politics today.
