Was the Dobbs decision a violation of religious freedom?

Following the deadly September 11th, 2001 attacks by Islamic extremists from Saudi Arabia, several right-wing Christian governors, along with state and national legislators, fueled fear and hatred toward Muslims in the United States. These leaders falsely alerted their constituents of a so-called highly organized plot to impose Sharia Law upon the nation.  

Sharia (or Shariat) constitutes the range of religious laws that comprise part of the Islamic tradition representing Allah’s absolute and unchanging divine law. It originates from the religious foundations of Islam and is based on the sacred texts of Islam, most notably from the Quran and the Hadith (the words, actions, and the silent approval of the Islamic prophet Muhammad transmitted through the narrators.)

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Though no such Sharia Law conspiracy was ever unearthed, several states and municipalities nonetheless passed legislation prohibiting the application or implementation of Sharia law in the courts or in any civil (non-religious) jurisdiction. Other states passed ballot measures that “prohibit the state’s courts from considering foreign, international or religious law.”

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By 2014, these states included Alabama, Arizona, Kansas, Louisiana, North Carolina, South Dakota, and Tennessee.

If we are to believe the Second Amendment’s Establishment Clause of the United States Constitution, these laws would be unfounded and redundant since no religious tradition can be established as basis for any laws that apply to the people at large.

If we were to ask some of the early founders of the United States whether the country is a “Christian nation,” they might voice the opinion that it is not.

They would point to what has come to be called “The Treaty of Tripoli” (Treaty of Peace and Friendship between the United States of America and the Bey and Subjects of Tripoli of Barbary) in advance of the first war fought between the United States and Muslim states (1801-1805). The Treaty was signed in 1797 to ensure commercial rights and to protect U.S. ships in the Mediterranean from Barbary pirates.

The U.S. Congress ratified the Treaty on January 3, 1797, and then it was signed by President John Adams. Article 11 is often referenced when discussions of the role of religion in the United States government arise.

Article 11 states that “the Government of the United States of America is not, in any sense, founded on the Christian religion.” It was worded to put at ease the delegates in Tripoli (Libya) that the U.S. did not hold animosity against member states in the Muslim world.

But if we know our U.S. religious history, we must acknowledge that the supposed “wall of separation between church and state” discussed by our founders, especially Jefferson and Madison, has all these years been a mere illusion. If any wall exists, it blows in the wind as a sheer and tattered white sheet with no substance or weight.

From the moment Christopher Columbus and his crew stepped onto the sands of what would become the mighty United States of America, an overarching Christian tone, tenor, and substance has overridden the very foundations of our civil law, forming the basis over who can engage in civil and professional life of the community and nation and to what extent.

From the “Doctrine of Discovery” (Papal decrees granting Christians the right to colonize previously non-Christian countries); to the Puritans establishing their religion as the only acceptable religion at the time; to the Salem Witch Trials; to the no sales on Sunday “Blue Laws”; to forced Christian conversion of enslaved Africans; to Congress passing the “Civilization Act” of 1819 providing the U.S. government funding to subsidize Protestant missionary educators to convert indigenous peoples to Christianity.

Then from General Grant expelling “Jews as a class” from Tennessee; to the motto “In God We Trust” first appearing on US coins issued during the Civil War; to Congress officially declaring Christmas as a national holiday; to the Naturalization Act of 1870 revising the 1790 Law and Fourteenth Amendment so that naturalization became limited to white persons and “aliens of African nativity and to persons of African descent,” effectively excluding Chinese and other Asian immigrants of all religious faith backgrounds.

Then from the “Chinese Exclusion Act” (renewed in 1892, made permanent in 1902, repealed in 1943) prohibiting Chinese immigration for ten years to President Franklin Delano Roosevelt signing Executive Order 9066 ordering the evacuation and mass incarceration of 120,000 persons of Japanese ancestry, many of whom were Buddhist and U.S. citizens or documented immigrants living on the West Coast.

Then, from President Donald Trump’s attempt to “ban all Muslims from entering the United States,” up to and including the unprecedented Supreme Court ruling taking away reproductive health rights in Dobbs v. Jackson Women’s Health Organization (2022, reversing nearly 50 years of settled law in Roe v. Wade (1973).  

Yes, the Dobbs v. Jackson Women’s Health Organization has major implications in establishing Christian domination and hegemonic standards regarding what constitutes life and when life begins in apparent violation of the “establishment” of religion clause in the First Amendment. This decision crossed that essential barrier in violation of the guarantee of religious freedom.

While no religious denomination or faith community can be viewed in monolithic terms, it must be emphasized that reproductive issues pose a complex and complicated issue when discussing any religious denomination. However, some general trends and policies often emerge.

Let us investigate two other monotheistic Abrahamic religions, Islam and Judaism, and review their stances on reproductive freedoms.

Islam

“[T]he majority of Muslim scholars permit abortion, although they differ on the stage of fetal development beyond which it becomes prohibited.” -Azizah Y. al-Hibri, an American scholar.

Islamic views on reproductive issues are shaped by Hadith, in addition to the opinions of legal and religious scholars. The holy Quran does not address chosen abortion directly, and there exist no explicit prohibitions on a person’s right to choose an abortion under Islamic law. The parameters are often set by individual denominations and countries.

All Islamic denominations and sects recommend abortion when the life of the mother is endangered since the mother’s life is considered the highest priority.

The four Sunni Islam schools of thought—Hanafi, Shafi‘i, Hanbali and Maliki (85-90% of Muslims)—hold their own standards regarding if and when abortions are permissible in Islam.

The Maliki madhhab holds “that the fetus is ensouled at the moment of conception” and thus “most Malikis do not permit abortion at any point, seeing God’s hand as actively forming the fetus at every stage of development.”

On the other hand, several Hanafi scholars believe that abortion should be allowed before the 120^th day following conception, though some Hanafi scholars teach that abortion within 120 days is makruh (disapproved, i.e. discouraged).  

Sahih al-Bukhari (book of Hadith) writes that the fetus is believed to become a living soul after 120 days of gestation.

In Shia Islam (10-15%), abortion is “forbidden after implantation of the fertilized ovum.” The leader of the Iranian Islamic Revolution, Ayatollah Khomeini proclaimed that shari’a forbids abortion without any reason “even at the earliest possible stage.” This dictum is accepted by many other Shiite scholars.

According to Islam scholar Sherman Jackson, “While abortion, even during the first trimester, is forbidden according to a minority of jurists, it is not held to be an offense for which there are criminal or even civil sanctions.”

Judaism

“The Torah, the Mishnah, the Talmud and later rabbinic sources consider the woman’s physical and emotional health before that of the fetus. Until the baby is born, Judaism considers the fetus to be part of the woman’s body. She is never the villain when difficult choices need to be made.” -Rabbi Mara Nathan, sermon titled, “The Right to Choose Is a Jewish Value

In Jewish law, life does not begin at conception. In the Talmud, the fetus is discussed as “mere water” before 40 days of gestation. After this time, the fetus is regarded as a physical part of the pregnant woman’s body. It is not seen as separate from the mother’s body until the birthing process begins and after the first breath of oxygen flows into the lungs, which allows the soul to enter the body.

Since Dobbs, many state legislatures have also banned the safe and effective drugs used in medication abortions, mifepristone and misoprostol. The national drugstore chain, Walgreens, was the first to ban the drugs even in states where abortion remains legal.

Several organizations sued the government for access to reproductive care including abortion. Some of these organizations, both Jewish and Muslim, sued on religious grounds since their respective faith communities allow abortion.

For example, from a press release of Muslim Advocates: “The Supreme Court’s radical decision to overturn Roe v. Wade represents a dangerous Christian nationalization of American law and kicks open the door to future reversals of the right to contraception,” begins the press release, “the right to marry whomever you want and even the right to teach your children a language of your choice. By upholding a law that defines life as beginning at conception, the U.S. Supreme Court has enshrined the religious doctrine of one minority religious community into law — violating the First Amendment principle of religious freedom….”

Several Jewish organizations have already filed suits challenging abortion bans in states such as Ohio, Florida, and Texas.

“There’s going to be a wave of religious freedom lawsuits,” said Rabbi Daniel Bogard, who is married to Rabbi Karen Bogard. “We’re going to find out if this country really believes in religious freedom, or whether this country believes in the freedom of a small minority to impose its will on the rest of us.”