Update (November 19, 2021, 10:02 a.m.): Footnote 2 was added to clarify the level at which the discussion is taking place (RFRA only applies to the federal government). I regret the conceptual confusion.
I know all of you (nerds) are eagerly awaiting oral arguments in Dobbs v. Jackson Women’s Health Organization on December 1 (so am I). I’ve written about the case previously, most recently for The American Mind. There, I expressed (some) doubt that Roe and Casey will be overturned. With their fate in the hands of Justice Brett M. Kavanaugh—this generation’s Justice David H. Souter, who, 30 years ago saved Roe by cowardly joining the Casey plurality—I don’t love the odds. But, as a Catholic, I’m duty-bound to hope.
To be absolutely clear, even if the pro-life movement gets everything it wants in Dobbs, it won’t be enough to declare “victory” on abortion because abortion rests on a more fundamental issue, namely, religious liberty.
To win, we’ll have to dig much, much deeper than just a 5-4 (or even 6-3!( win in Dobbs. And I don’t just mean “deeper” in the sense that we need to keep organizing at the state level. What I mean is that we need a wholesale conversion of our culture to one in which abortion is seen clearly as the monstrous evil it is. At present, I don’t believe that we have what it takes to do that.
I don’t mean to be the bearer of bad news (sorry it keeps coming on Friday, too), but this is the hand I’ve been dealt by circumstance. Allow me to explain.
In my travels through the borderless hellscape that is the world wide web—specifically YouTube—I came across, as part of a video compilation, a TikTok video by a young woman explaining, elatedly, how the Church of Satan plans to resist the possible overthrow of the bloody Roe regime. (Because I’m not a “Zoomer,” I don’t have a TikTok account, so I can’t link to the video. Fret not: You’re not missing anything.) Hardly believing my ears, I did some independent digging and discovered that, horrifyingly, she was right.
The Church of Satan—it should come as no surprise—is all-in on feticide. (Water is wet.) After all, Satan “was a murderer from the beginning and does not stand in the truth, because there is no truth in him. When he lies, he speaks according to his own nature, for he is a liar and the father of lies” (Jn. 8:44). So, what’s their plan?
Well, it’s as devious as Satan himself. And to stop it, we on the Right will have to totally rethink our political strategy. In fact, stopping it will require the Right to have an actual political strategy, born of a political consciousness beyond empty fundraising and drum-beating every two years in the 3-6 months prior to an election. Thus far, our side (such as it is) has been content merely to react—first in confused disbelief, then in horror and anger, and finally in despairing resignation—to the latest perversion spawned from the dark heart of the political Left.
We yell, “Stop!”—really loudly, too—but we’re as effective at stopping the Left’s History march as is a hippie before a bulldozer: not very.
If we want to win on this issue—truly win, not merely secure a temporary respite from our rearguard action—we’ll have to do better. Much better.
The Church of Satan plans to use the Religious Freedom Restoration Act (RFRA) of 1993 to claim a “religious right” to obtain abortions. Yes, you read that right. The Satanists’ dastardly plot is to invoke a religious entitlement, grounded in federal statutory law, to murder their own children.
War is Peace. Freedom is Slavery. Ignorance is Strength.
Here’s how the argument runs:
First, according to a memorandum from the United States Attorney General, “RFRA prohibits the federal government from substantially burdening a person’s exercise of religion, unless the federal government demonstrates that application of such burden to the religious adherent is [1] the least restrictive means of [2] achieving a compelling governmental interest.”
Second, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”
Third, those beliefs need not be part of established religious doctrine to be considered under the Free Exercise Clause; instead, free exercise is based on “sincerely held religious belief.”
Fourth, one of Satanism’s “Seven Tenets” (a lame plagiarism of the Ten Commandments) is that “[o]ne’s body is inviolable, subject to one’s own will alone.” That extends to abortion.
Fifth and finally, because that tenet is part of Satanism’s fundamental set of “religious” teachings, it qualifies as a “sincerely held religious belief” that the Supreme Court, under its current precedent, cannot question and which the First Amendment protects.1
It doesn’t matter if the Supreme Court returns abortion to the states if religious liberty remains a fundamentally content-less doctrine, to be filled by cynics with twisted moral visions, and political and social power.
Let’s imagine that—miracle of miracles!—the justices we’ve given our blood, sweat, and tears to install on the Supreme Court actually make good on their legal philosophy—originalism—and overturn Roe and Casey in Dobbs next June. Next, Texas outlaws abortion entirely. Afterwards, a Satanist claims that having an abortion is a ritual in her faith, and she satisfies the “sincerely held religious belief” standard under current Supreme Court precedent.2
Because of the Supremacy Clause, federal law trumps state law in cases where the two conflict. (It’s more complicated than that, but just go with that formulation unless you want to fall down a preemption rabbit hole. Trust me, you do not want to fall down a preemption rabbit hole.) That means that the First Amendment trumps state-level abortion bans, like Texas’ in this hypothetical world.
So, Jezebel gets her abortion. And so do all her buddies.
Thus, abortion lives on, even in a positive-for-the-pro-life-movement, post-Dobbs world.
Unless, that is, we gain a proper understanding of religion, which doesn’t include feticide as a legitimate religious obligation.
Coming to such an understanding shouldn’t be difficult. But for decades, the Right has slavishly fetishized a putatively neutralist proceduralism when it comes to constitutional law, ceding ever more ground to the Left in the process, even as it crows incessantly about its commitment to its “““principles.””” In other words, beautiful loserdom as the M.O. of legal conservatism, which desperately needs to be wedded to a robustly political approach to American life if it is to survive.
I fear that the Right no longer knows how to make commonsense distinctions, in light of the natural law, that would prevent such mind-bending lawyering from Satanists from carrying the day. Or, worse, it no longer has the confidence to do so even if it does have the knowledge.
Ask yourself: Does the First Amendment protect Aztec-style human sacrifice?
Of course not. But why?
Because natural rights are bounded, limited, that is, by the natural law, which obliges us to respect the equal natural rights of others—including the right to life. Human sacrifice is not an expression of true religion and is as flagrant a violation of the natural aw as there is.3 Abortion, once we repair to first principles, is really no different.
But until we can articulate that, defend it politically, and press it in the courts, we’ll be doing little more than spinning our wheels, waiting to be conquered.
It’s worth noting that the state of free-exercise jurisprudence is complex, in flux, and a bit of a mess at the moment, especially after Fulton v. City of Philadelphia last term. What I’ve presented is, to the best of my understanding, basically how I see these things playing out.
In reality, we’d be dealing with state-level “mini-RFRAs” and states’ First Amendment equivalents, but my aim was to keep the discussion simple to demonstrate that we need a substantive understanding of religion if we’re going to avoid taking one step forward and two (or three) steps back.
See Vincent Phillip Muñoz, If Religious Liberty Does Not Mean Exemptions, What Might it Mean? The Founders’ Constitutionalism of the Inalienable Rights of Religious Liberty, 91 Notre Dame L. Rev. 1387, 1409-1412 (2016).
Interesting formulation, Deion. Of course, by this logic the Satanists would be entitled to go maskless and vaccine-less as well...and we know how likely THOSE arguments are to be upheld by the courts. But I take your point that creating a religious "loophole" to many laws only works if we have some positive conception of what "religion" is!
Thank you for drawing attention to this, Deion. I had been made aware of the "Church" of Satan's attempt to circumvent the Texas abortion law, and agree that it will be important to quash this sort of thing. Where I would base my strategic fire is on point five, dealing with sincerity of religous belief. In my view, no tenet of the "Church" of Satan can, in fact, be a sincerely held religious belief. I have no doubt that the Satanist's belief in absolute bodily integrity (which, I note, would be irrelevant should the Court adopt the Craddock/Finnis/Bradley/George interpretation of the 14th Amendment, but alas) is sincere, but it is not religious, for the simple reason that Satanism is not only not the true religion, it is not a religion at all. While Montesquieu believed that religion, ultimately, was just a set of cultural mores and traditions, we religious can and should reject that view. Madison referred to "religion, or the duty which we owe to our Creator," in his proposed amendments to VA's decleration of rights, and while I am enough of a pluralist that I would tweak this slightly so as to incorporate religions that do not orient themselves specifically around a creator, I am not enough of a relativist as to side with Montesquieu. Religion has a real character, seperate and distinct from mere philosophy, tradition, and conviction. It refers specifically to the relationship between man and the supernatural, most evidently exemplified by G-d. It entails a reaching beyond the things of man, and even the natural world, to that which exists on a level beyond us. The "Church" of Satan is, at the end of the day, a group of atheists who are annoyed by the presence of religious Americans in our polity. It is fairly clear from their press releases announcing this lawsuit that they would be equally as happy with eliminating religious liberty protections for those of genuine faith as they would gaining the dispensation for their members to get abortions; this is because they are essentially cosplayers, using religious-like dress, chants, traditions, and language to make their secular idealogy appear like a religion. To them, our religious practices and prayers, sacraments and scriptures, are just adornments on a set of outdated ideas, and so they dress their modern ideas up in the same cloth and call it the same thing. Because we are overwhelmed by the false neutrality you rightly call out, we tend to allow any deeply held belief to be considered a religion (hence, the deeply problematic tendency for people on the right to describe "wokeness" as a religion, when it is really just a demanding idealogy), when the truth is that we can differentiate not only between religions that are true and ones which are mistaken, but between things which are truly religion and things which only appear, to students of Montesqueiu, to be such. Hence, the "Church" of Satan is free to express their beliefs about the importance of bodily integrity as much as any other member of the polity, and they are protected by the 1st Amendment's speech clause in doing so. But they are no more protected by the religion clauses than would be someone's sincere beliefs in the Democratic party platform, the philosophy of Kant, or (as the Supreme Court rightly distinguished) the nonsense spewed by Thoreau. Much as they may hate this fact, religion is recognized as a real thing by our Constitution and is granted special rights that secular beliefs are not.
Of course, your suggestion about recognizing natural rights is another useful strategy. Munoz' article to which you cite is a very thought-provoking piece, from a very intelligent author. I just think it is worth outlining that in addition to this "Church's" practices being incompatible with true religion, they are also not motivated by a belief which is truly religious.