If the Supreme Court overturns Roe v. Wade next June – which is a likely outcome, if the justices’ questions during oral arguments in Dobbs v. Jackson Women’s Health Organization earlier this month are any indication – it will signal the failure of a liberal Protestant decision in a religiously and politically fractured nation. Roe is not often thought of as a religiously influenced decision, but it was actually deeply rooted in the particular religious tradition of liberal Protestantism – which is why it is now likely to be rescinded at a cultural moment when liberal Protestantism’s political influence has diminished.
Like nearly all other Supreme Court decisions of the 1940s through early 1970s, Roe v. Wade (which the Supreme Court decided in January 1973) reflected liberal Protestant norms of the time. Aside from the Court’s lone Catholic (William Brennan), all of the justices in 1973 had been raised in Protestant homes, mostly of the mainline variety. There were three Episcopalians, three Presbyterians, one Lutheran, and one Methodist serving on the Court – and nearly all had been in some way influenced by the prevailing sentiments in liberal Protestantism, which emphasized the values of equality, democracy, minority rights, and individual liberties. The justices disagreed among themselves as to exactly how to apply those values, but they were united in affirming the values themselves.
Supreme Court Justices in 1973
Like many liberal Protestants of the time, they did not think of their own liberal Protestant-influenced values as the product of a particular religious tradition; instead, they thought of their values as so generically self-evident that they could exist in a religious vacuum and be shared by nearly all Americans. “I think it is the first duty of the justice to remove his own moral, philosophical, political and religious beliefs” when deciding a case, Justice Potter Stewart, one of the seven justices who joined the Court’s majority in Roe, declared at a press conference in 1981. Stewart no doubt thought that his support for abortion rights – or for any other rights, for that matter – had little to do with the fact that he was raised in an Episcopalian family or that his entire education had occurred in elite institutions that were dominated at the time by liberal Protestants. Thus, when the overwhelmingly mainline Protestant Supreme Court (including Stewart) issued its 7-2 ruling in Roe, the justices failed to see how strongly influenced their decision was by liberal Protestant assumptions – which meant that they failed to anticipate how many Americans would object to it or how controversial it would remain. A week after the Court issued the Roe decision, the decision’s author, Justice Harry Blackmun, appeared to be taken aback by all of the criticism he received. “I suspect, however, that the furor will die down before too long,” he wrote to a friend on January 31, 1973. “At least I hope so.”
Blackmun, in fact, was one of the most strongly Protestant of the Protestants on the Court. Several of the justices, though raised in Protestant homes, were not particularly devout, but Blackmun kept his parents’ Methodist faith. Not only did he attend weekly Methodist Sunday services throughout his adult life but he served as a lay reader of scripture and even preached on a few occasions. Those who think in strictly secular terms of the justice who became best known as a passionate defender of abortion rights might be surprised to find a couple of his sermons filed among his public papers – including a 1992 sermon on the book of Ruth, which he delivered at a Methodist congregation a few months before his retirement from the Court. Blackmun’s sermon content indicates that his faith was thoroughly liberal, in keeping with the progressive wing of Minnesota Methodism. Some of the Bible’s great themes, he declared in a 1987 sermon were “freedom, equality, due process, [and] equal protection.” When he looked at the book of Ruth in particular, he saw a mandate to show compassion and protect the rights of women, and when he looked at the Bible as a whole, he saw a living and evolving text that favored the bedrock principles of liberal democracy.
Justice Harry Blackmun
The United Methodist Church, like several other mainline Protestant denominations, endorsed abortion rights in 1970 (three years before Roe), and it was home to many pro-choice activists. It is therefore not surprising that a devout liberal Methodist would embrace abortion rights advocacy as a logical outgrowth of his faith, whether or not he consciously made the connection between his church’s teachings and his own interpretation of the Constitution. Like many other liberal Protestants of the time, Blackmun thought that the decision to terminate a pregnancy was a decision fraught with moral overtones, because the fetus had intrinsic value, whether as an actual or potential human life. There must come a point in pregnancy when the value of the fetus so exceeded the value of a woman’s freedom of choice that the state would be justified in stepping in and protecting fetal life. But at the same time, like many other liberal Protestants who were the product of a deeply existentialist era in mainline Christianity, Blackmun placed a primacy on freedom of conscience and freedom of choice. The state could not force a woman in the first trimester of her pregnancy to carry that pregnancy to term. It could not violate her right to privacy.
At the time, many liberal Protestant ministers viewed the abortion issue primarily in terms of the freedom to make moral decisions, which they thought was a foundational principle of human rights and religious freedom that was rooted in the creation order. “We have the capacity, as well as the right, to make moral decisions,” the Presbyterian campus minister at the University of Arizona declared in the 1970s, in a statement that reflected the view of many mainline Protestants of the time. “In the case of the woman who is pregnant, nothing is more personal than that. It affects her more than anyone else, so that issue of God creating us with moral agency comes down to a bottom line in relation to women having the right to decide for themselves.” Blackmun held a similar view, though in Roe he focused more on the doctor’s right to decide to terminate pregnancies rather than a woman’s right to do so – much to the consternation of some feminists who appreciated the results of Roe but would have preferred to ground it more specifically in women’s rights.
Like other pro-choice Protestants of the time, Blackmun viewed the Catholic absolutist position against abortion as a recent sectarian opinion that did not reflect the views of the majority. “There has always been strong support for the view that life does not begin until live birth,” he wrote in Roe. “This was the belief of the Stoics. It appears to be the predominant, though not the unanimous, attitude of the Jewish faith. It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family.”
Thus, perhaps, it is understandable that immediately after authoring the Court’s majority opinion in Roe, Blackmun thought that the controversy over abortion rights would soon subside and that public opinion would eventually coalesce in support of the Court’s decision. This, after all, was what had eventually happened in every one of the other controversial Supreme Court decisions that the liberal Warren Court had issued. And if it could happen in the case of school integration or school prayer, surely it could happen with abortion as well – because the moral principles of equality, privacy, and freedom of choice that were reflected in the decision were self-evident principles that, unlike the arguments of the pro-lifers, were not at all religiously sectarian.
Blackmun was wrong, of course. The controversy over his decision did not subside. Perhaps that is partly because the values that he thought were broadly based were, in fact, rooted in a particular religious tradition that many Americans did not share. Public opinion polls from the mid-1970s suggest that perhaps as many 45 percent of Americans supported a constitutional amendment to protect unborn human life from the moment of conception. In a country so closely divided on the question of abortion, Blackmun greatly overestimated the degree to which a liberal Protestant view of the question could easily prevail.
Pro-life Rally in Minnesota, 1973 (U.S. News & World Report)
He knew, of course, that many theologically conservative Catholics did not share his view of the issue. But he also knew that the Court had already ruled that Catholic proscriptions on contraception could not be written into state law and restrict other Americans’ access to condoms and birth control pills. The same was true of abortion, he thought.
But what he failed to anticipate was the commitment of many Catholics to read the Constitution through the lens of their own values, which assumed the humanity of the fetus. Blackmun thought that the state’s interest in protecting fetal life superseded the rights of a pregnant woman only in the last few months of pregnancy, but for those who thought that human value was based on something more intrinsic than merely its developmental stage or appearance, Blackmun’s differentiation between third-trimester fetuses and those in their first trimester made a lot less sense. Those who believed that the unborn were full human beings had every reason to believe that their campaign against abortion was a human rights cause of the highest importance and that it was supported by the Constitution, because they thought (contra Blackmun) that the Fifth and Fourteenth Amendment’s prohibitions on depriving a person of life without due process applied to the unborn just as much as to anyone else. Their assumptions about the formation of human life and human personhood guided their reading of the Constitution, just as Blackmun’s liberal Protestant views and values guided his interpretation. And, like liberal Protestants, they believed that their reading of the Constitution was not dependent on the values of a particular religious tradition, even if that might have been the case. Instead, they based their argument for the humanity of the unborn on natural law, a philosophical tradition they thought was fully accessible to non-Catholics because it depended on reason rather than revelation.
It was not only Catholics who objected to Blackmun’s liberal Protestant reading of the abortion question. At the time, many African American Protestants, whose own tradition was shaped less by the value of personal moral choice and more by the value of equity for the marginalized, also opposed abortion. And though that has changed somewhat as the pro-life cause has become associated with a set of policies that hurt the poor, African American Christians are still not very likely to see the abortion issue in quite the same way that Blackmun and many other white liberal Protestants did in the 1970s. But during the next decade and beyond, some of the most vocal opposition to abortion came from white evangelical Protestants, whose political influence was increasing at the very moment that liberal Protestantism was declining.
Liberal Protestants of the mid-to-late 20th century were committed to the value of religious pluralism, but on many issues (including abortion), they often underestimated the degree of religious and ideological diversity in the nation and the number of people who did not share their perspective. The increasing presence of pro-life Catholics and evangelical Protestants in national life were a reminder of that diversity. Contrary to Blackmun’s expectation, the political influence of opponents of abortion continued to increase in each decade of the late 20th century and beyond, while liberal Protestantism’s direct influence on politics decreased. Due to both a rapid decline in the number of liberal Protestants in the late 20th century and a concerted strategy of presidents in both parties to diversify the Court (which, for liberals, meant appointing non-Protestant religious and racial minorities, and for conservatives, meant appointing conservative Catholics), liberal Protestant influence on the Court almost entirely disappeared in the 21st century. Today there is only one Protestant on the Supreme Court. Thus, if the Court overturns Roe by a 5-4 decision in June, the majority will almost certainly include at least four Catholics.
If that happens, it will be a reminder that the liberal Protestant assumptions about human life and moral values were not religiously neutral after all, nor were they as widely shared as the justices had assumed. Of course, the views of pro-life activists are not universally shared either (despite the universal claims of natural law arguments), and therein lies a dilemma. As problematic as the liberal Protestant judicial consensus in mid-20th century America might have been, it at least provided a unifying framework of human rights much of the time. Now that we no longer have even the pretense of such a consensus, what can help us settle the disputes between Americans of widely varying moral and constitutional views? Will we have to settle for a country that is increasingly less united on the most important questions – that is, a country where some states provide Medicaid subsidies for abortions and others ban it altogether, and where policies on issues such as COVID protections and gun rights vary just as widely?
Unfortunately, the answer is probably yes. Liberal Protestants in the mid-20th century overreached when they thought they could dismiss Catholic concerns on the issue and settle the abortion question by judicial fiat. But now that their judicial fiat is on the verge of being rescinded, we face a new dilemma: the absence of any pretense of a moral consensus at all.
Perhaps the best we can do in such a situation is to give each state the right to adopt whatever policies it sees fit. But maybe there is another way to protect human rights while also acknowledging the diversity of religiously based moral values in our post-Protestant pluralistic society. If such a possibility exists, neither side in the abortion debate has yet discovered it. But now that both Roe and liberal Protestant assumptions seem to be facing an imminent demise, it may be more important than ever to try.