Since Dobbs was handed down last summer, there has been a flurry of court cases trying to find a new way to establish the so-called right to abortion within the US Constitution or even within the various state constitutions. While it is clear that the US Supreme Court has rejected the idea of abortion being a “right to privacy” others still, unfortunately, believe that there is something within the founding document that allows for the practice of abortion within a national scope or at least a statewide scope. Lately, we have seen some try to argue that without abortion, they are fundamentally being denied their religious rights. The question, of course, is there any merit to this particular case?

 

 

In order to get to this particular point, one must dive into the very idea of rights themselves. Certainly, from a moral standpoint, rights are not simply desires, but something having to do with helping us fulfill our human nature. The very idea of rights stems from the idea of justice itself. As St. Thomas Aquinas asserts, “every virtue that causes the good of right in due operation, be called justice.”[i] Justice deals with operations pertaining to the concupiscible appetites in relation to others. In essence, the simplest way of defining justice is along the lines of “that which is due to another”. It is from these moral duties (what is due) that a moral power develops, this moral power is what is commonly referred to as a right.

 

 

With respect to the right to life, how exactly does this right come about? Simply, it is the moral power that derives from our moral duty to not harm innocent human beings, and in particular, the duty to protect innocent human life. Since man is a social and rational creature, he is able to recognize moral duties and in particular the need to protect innocent human life from harm since it is contrary to the good. From this, the moral power of one to say that he or she has a right to life becomes apparent. Society has the moral obligation to try and protect its citizens from physical harm. As such laws are developed to help ensure this. Failure to abide by the law results in suffering a consequence. Again, even the consequence is a duty in that it helps ensure, as an example to others and as a form of teaching to the offender, that its citizens are protected.

 

 

What about religious rights? How does this fit in? Truly, as a free society, citizens believe in the ability to have religious rights. To practice as they see fit. Again, this idea stems from the right to pursue the truth. Others have the duty to let other people try to obtain truth as well, as a result, by informing the intellect, people make the best judgment and choose their faith. Religion is simply not meant to be forced upon others since it is ultimately the free will that is needed to help direct a person toward God and happiness. However, there are limitations to the right of free exercise of religion. One might choose to be a member of a religion that believes in human sacrifice. However, that does not mean that they can perform human sacrifice. Some rights simply are more foundational and more important than others. One does have the right to get to his or her job, but one does not have the right to break traffic laws to get to that job, even if that person is late. Why? Because human lives are at stake and the right to one’s bodily integrity and life is more important than someone’s right to get to their place of employment. The same sort of logic applies here. One has a right to seek God and happiness, but that does not supersede another’s right to life especially in light of the moral duty to protect innocent human life.

 

 

That is the wrench in the wheel when it comes to those arguing that abortion is part of religious rights. It’s simply not. Not even religious practice has the right to supersede the right to one’s life. The fact is that the right to life is simply the most foundational right. When the Founders wrote the Declaration of Independence, “life” was listed as the first inalienable right. This was not done by accident. One must have life, in order to have liberty, and one must be free to do the good in order to obtain happiness. It is merely an act of logic that the Founders understood. Our act to seek God is simply mankind seeking happiness, but in order to be able to seek God (the right to religious expression) one must have the right to life first. This is not a complicated formula. So fundamentally, when one takes away the right to life then one affects the other rights. One would not be able to have the liberty to seek God. Our Founders understood this reality and understood that there are certain inalienable rights that presuppose government and civil laws.

 

 

More profoundly, by denying the right to life to uplift other rights, other rights become perverted. Life becomes more arbitrary. The idea of personhood becomes more arbitrary. As a result, the idea of the dignity of the human person is disrespected. If life gets in the way then one merely needs to kill the life in order to proceed forward. This idea is contrary to the idea of man being a social and rational animal. Killing people disrupts the social order.  Not to mention if people can be disposed of because of arbitrary reasons, then one misses the point of what happiness is. To move toward happiness, one must do their moral duties and one of those duties is to protect innocent human life. Virtue helps mankind fulfill their human nature. By doing virtuous acts the person is able to pursue happiness properly. This is why there can be no religious right to abortion. Virtue demands that people act virtuously and killing people is contrary to virtue.

 

 

Ultimately, the idea that there is a religious right to abortion is merely a myth. The deliberate and intentional killing of an innocent human being can never be ethically justified. Making abortion legal does not change this ethical reality. It is simply still an evil. Truth be told, Associate Justice Clarence Thomas said it best in his concurring opinion in Dobbs, “That 50 years have passed since Roe and abortion advocates still cannot coherently articulate the right (or rights) at stake proves the obvious: The right to abortion is ultimately a policy goal in desperate search of a constitutional justification.”[ii] The reason why there is no constitutional justification is that our Founders understood that the right to life presupposes our constitutional foundation. Without this right, all other constitutional rights are meaningless.

 

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[i] Aquinas, Thomas, Summa Theologica, I-II, Q. 61, A. 3

[ii] Dobbs v. Whole Women’s Health, No. 19-1392, 597 U.S. ___ (2022), Thomas, Clarence, concurring, at 5.

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