Roe v. Wade was based on the Supreme Court’s decision that the Constitution includes a right to privacy and thus a woman’s right to determine whether or not she needs an abortion, i.e. what happens to her own body. This right of privacy is precisely what Justice Alito challenged and what the Supreme Court agreed with.
But most anti-abortion forces base their opposition on the premise that life begins at conception; hence having an abortion is the prenatal equivalent of murder. It is on this basis that they oppose abortion and not on the woman’s constitutional right to privacy. Their opposition to abortion is based on religious doctrine.
So what if the right to an abortion were argued on the basis of religious freedom instead? While everyone can agree that life does begin at conception, not all religions agree that a fetus is fully human.
Judaism, to name one such religion, asserts that the fetus’s existence does not equate with the life of the mother. In his Mishneh Torah, Maimonides, the famous 12th century rabbi, philosopher and doctor, wrote that: “The sages ruled that when complications arise and a pregnant woman cannot give birth, it is permitted to abort the fetus in her womb, whether with a knife or drugs, for the fetus is considered a rodef [a murderer in pursuit] of its mother … If the head of the fetus emerges, it should not be touched, because one life should not be sacrificed for another. Although the mother may die, this is the nature of the world.” In other words, a fetus is not considered fully human until it is nearly born.
Similarly, Jewish tradition interprets a law in the Torah (Exodus 22) in which two men fight and a nearby pregnant woman is injured such that she miscarries, not as a case of murder but one for which the men must pay damages for the injury to the husband of the woman(!).
Based on rulings such as these, all forms of Judaism permit abortion, the most traditional more restrictively, the more liberal broadening the scope of permitted abortions to include the mental health of the mother.
The point is that no single religion should be able to dictate when life begins (or ends) for people of other faiths (and everyone else too).
I believe that a better case for the right to an abortion can be made based on the first amendment to the constitution “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” To prohibit abortion at the federal level or state level would both establish one religion’s perspective on the issue as the law of the land AND prevent those religions that permit abortion from exercising their faiths’ teaching on the subject.
Because the Supreme Court overturned Roe on the basis of a woman’s constitutional right to privacy, then we ought to challenge its decision in the name of religious freedom, both the freedom from state-imposed, theologically-based laws and the freedom to practice one’s own religion without impediment.
Such an appeal would be sure to resonate with the conservatively minded Supreme Court, it being so resolute in protecting the people’s freedom of religion.