The Blogs: White Christian Nationalism Has Come to the Supreme Court

Signs from the Jewish rally for abortion justice, which took place in front of the US Capitol in May 2022. (Stacey Newman)

As the abortion battle moves to the states, pro-choice supporters must realize they are fighting an ideology, as neither the law nor religion nor science supported the overturning of Roe v. Wade

When the Supreme Court overturned Roe v. Wade, the opinion stated that it was because the Constitution does not specify a right to privacy. Legal scholars have disputed this, but it is clear that neither religion nor science supports the position taken by the majority of justices, who used their personal ideology (reflecting white Christian nationalism ¾ a Christian heresy) in place of the accepted understanding of the law, science and religion. It was as if the conservative Supreme court majority were using the quack science that refutes the existence of climate change to overturn an environmental legal precedent.

In “Alito and public opinion reveal link between Roe and broader white Christian nationalist agenda,” an opinion piece for the Religion News Service, Robert Jones provides data connecting the two. Pro-choice advocates should expand their arguments to include scientific and religious facts if they wish to persuade more people to support reproductive freedom. Those unfamiliar with the Bible and church doctrine often yield to the religious right’s position that there is no support for abortion in the Bible, Judeo-Christian ethics, the church, God or even science. Let’s consider the issue from all these perspectives.

The concept that life begins at conception is wrong based on biological and reproductive arguments. Judaism doesn’t support the idea, and neither the Catholic Church nor Protestant denominations have taken consistent positions on it. Yet without scientific or religious consensus, the Supreme Court has opined on this philosophical question that has grave real-world implications.

“There is no scientific consensus as to when an embryo is a person,” says Scott Gilbert, the Howard A. Schneiderman Professor Emeritus of Biology at Swarthmore College and Finland Distinguished Professor (emeritus) at the University of Helsinki. Gilbert says the argument that life begins at fertilization is weak and points out several major flaws with the position. Scientifically, the argument for life rests on the fact that one’s DNA or human blueprint is determined during fertilization. But the blueprint for a house is very different from the actual house.

Gilbert notes that geneticists have identified several milestones from conception to birth. One of these, the formation of the primitive streak — when cells begin to differentiate and individuation occurs — is a much better choice than fertilization for when personhood begins. This reasoning is consistent with many current reproductive practices, including IVF and birth control.

Biblical arguments

In Jewish thinking, choice is a pro-life position that recognizes both the life of the unborn and the life of the mother as sacred. To appreciate the similarity between the Jewish view and the historic Christian view, it is important to understand the Jewish view. In “Some Key Sources on Abortion (Extended Source Sheet),” which Rabbi Danya Ruttenberg prepared for the National Council of Jewish Women, she makes several important points.

First, citing Exodus 21:22-23, Ruttenberg notes, “The fetus does not have the status of personhood; causing a miscarriage incurs monetary damages, not capital punishment for manslaughter.” Next, citing Mishnah Oholot 7:6, she states, “The full status of personhood begins at a viable birth.” Ruttenberg also offers support for abortion being seen as self-defense if the pregnancy puts the life or health of the mother at risk.

Additionally, Ruttenberg references Mishnah Niddah 3:7 for the proposition that “the fetus does not have meaningful status for the first forty days” and cites additional sources in the Talmud that argue that the fetus is “merely water” before 40 days following conception. The end of the 40 days would be around seven or eight weeks gestation as we typically measure pregnancy today. Following this period, Ruttenberg explains, the fetus is considered a physical part of the pregnant individual’s body, not yet having life of its own or independent rights. The fetus is not viewed as separate from the parent’s body until birth begins and the first breath of oxygen into the lungs allows the soul to enter the body.

Based on these principles, rabbis have long argued that prohibiting abortion infringes on freedom of religion. In her article, “Do Abortion Bans Violate Jews’ Religious Rights? Lisa Fishbayn Joffe, a legal scholar and expert on women’s equality and religion, recounts the arguments made by a Palm Beach County synagogue in a suit filed in state court against Florida’s law banning abortions after 15 weeks of pregnancy. She states:

There is widespread agreement among scholars and rabbinical authorities that a complete prohibition on abortion is inconsistent with Jewish law and tradition. Under Jewish law, an abortion to save the life of the mother is permitted.

When the fetus isn’t a threat to the mother’s life, Jewish denominations take varying views on abortion, with Orthodox and Conservative rabbis generally favoring more constraints. In contrast, those in the Reform and Reconstructionist movements largely support leaving the decision to the pregnant person.

I expect most Jews are not familiar with the weaknesses of the arguments of conservative Christians on abortion. When Jewish teachings are combined with historic Christian and scientific arguments, the pro-choice case is compelling.

Christians who use the Bible to make the case that abortion is wrong often cite four types of passages.

One reading of Exodus 21:22-25 reasons that since children are a blessing from God, the loss of such a blessing should be compensated.
Passages discussing pregnancy resulting from sex outside of marriage consider the initial act of fornication or adultery to be sinful. By this logic, having an abortion to hide the first sin only compounds it.
Several scriptural references mention the word “conceived” and talk about life beginning in the womb.
Other passages deal with barren women who pray to God for the blessing of a child and have their prayers answered. The argument here is that God controls conception; therefore, willfully killing what God creates is wrong.

None of these verses provide insight into whether life begins at fertilization, individuation or at some other point, and interestingly, Jewish scholars use some of these same verses to argue the opposing view. This is further proof that conservative Christian arguments against abortion are debatable and not firmly rooted in science or canonical religious texts.

Theological arguments

Theologians have made various determinations about when life begins based on arguments concerning when the soul enters the body, how the soul is created, and how sin is transmitted from Adam to us. But no church has held consistent views over the centuries. Some theologians argue that life begins at fertilization, while other say three days, seven days, 40 days, or even 80 or 90 days after fertilization. Some have even said that life begins at birth.

First, let’s consider ensoulment. Augustine observed that in discussions of Exodus 21, the question of ensoulment was usually raised. “The law does not provide that the act pertains to homicide, for there cannot yet be said to be a live soul in a body that lacks sensation when it is not formed in flesh and so not yet endowed with sense,” he wrote. Both Jerome and Augustine affirmed that man did not know when God gave the rational soul.^[1]

“Thomas Aquinas was clear that there was actual homicide when an ensouled embryo was killed. He was equally clear that ensoulment did not take place at conception,” according to John T. Noonan, Jr.^[2]

Aquinas held a mediate animation theory, asserting that the male receives his “rational soul” 40 days after conception and the female at 80 to 90 days.^[3]

It should not be surprising that past theologians took different positions, since the role of the ovum was not understood until 1875, having only been discovered in 1827.^[4]

It wasn’t until 1965 at Vatican II that the Catholic Church definitively stated that life begins at conception. In the early 1970s, the Moral Majority joined this position, bringing us to where we are today. The theory that life begins at conception, meaning fertilization, is a relatively new concept.

Biological arguments

Does life start at fertilization, conception, individuation, or some other milestone, such as the first detectable heartbeat, breath or brain wave?

First, we must clarify our terminology. The Supreme Court and religious groups frequently use the words conception and fertilization interchangeably, whereas others maintain that conception refers to successful implantation of an embryo. Similarly, some use the term embryo to generically refer to a fertilized egg, whereas others differentiate between preimplantation and attached embryos.

From fertilization to individuation, the blastocyst is approximately 100 to 150 cells. This microscopic mass could fit within the period at the end of this sentence. This is not what most people think of when they think of human life.

A blastocyst is similar to a seed, and as distinct as a seed is from a plant, so are these seeds of cellular life different from human life. Like seeds, which must be planted before they can germinate, blastocysts have no hope of becoming human life if not implanted in the womb.

In other words, a seed is not a plant.

Reproductive arguments

First, if one argues that human life begins at fertilization, then a range of reproductive and family planning options would be illegal in many states.

Second, fully 40% to 60% — possibly even 80% — of all fertilized ova fail to attach to the uterus and are naturally destroyed. Defining life as starting at individuation does not place a greater or lesser value on these seeds than God or nature does.

Third, what makes embryonic stem cells so valuable is that they are undifferentiated. Taken from blastocysts, these cells have the potential to become any kind of human cell. But having the potential to become something is different from being something. Borrowing from the theological argument, the soul can’t enter the body if there is no body.

When life begins: The primitive streak

Norman Ford offers one of the best-argued cases that life does not begin at the moment of fertilization. The Salesian priest, moral philosopher, and author of “The Prenatal Person: Ethics From Conception to Birth” and “When Did I Begin? Conception of the Human Individual in History, Philosophy, and Science” provides several potent arguments against fertilization as an individual’s starting point, including:

The split into identical twins can happen up to 10 days after fertilization.
Approximately 70% of embryos either never implant or never complete implantation.
Early embryonic cells are undifferentiated and can develop into any type of human cell.
An embryo can develop into a cancerous tumor in the uterus, also known as a molar pregnancy.

In his review of Ford’s book, Darryl R.J. Macer notes, “There are important philosophical problems with ensoulment occurring before an individual exists,” including the primitive streak’s emergence at 14 days, at which point the clump of cells has begun to form an “individual coordinated embryo.”

Macer continues:

Ford concludes that the time of individualisation is 14 days, the time from which we began. There is some logic in saying that a “human individual could scarcely exist before a definitive human body is formed.”

In determining when life begins, neither God nor nature has left us on our own to solve this ethical dilemma. God has provided us with a literal, definitive dividing line — the primitive streak — and its formation provides a clear division between cellular life and human life. Because it occurs in nature, this line can be agreed on by biological researchers, is used in reproductive medicine, and could be ethically and popularly supported. However, there is a difference between answering the biological question concerning the beginning of life and deciding if or when an abortion can take place.

An answer to the philosophical, religious or theological question of when life begins would be informative but should not be determinative as to the potential limits on abortion. In using Dobbs v. Jackson Women’s Health Organization to overturn Roe v. Wade, the Supreme Court majority took a theological or philosophical position, (held by a minority of Americans) — even though there is no religious or scientific consensus on when life begins — and imposed its view on others with differing views.

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[1] Augustine, De Origine Animae 4.4 (PL 44.527); Jerome, On Ecclesiastes 2.5.

[2] John T. Noonan, Jr., “An Almost Absolute Value in History,” in Noonan, J. T., Jr., ed., The Morality of Abortion, Harvard University Press, Cambridge, Mass., 1970.

[3] Thomas Aquinas, Summa Theologica, Part I, question 75, article i; cf. question 76, article iii ad 3; question 118, article ii ad 2.

[4] John T. Noonan, Jr., The Morality of Abortion: Legal and Historical Perspectives (1970), p. 38.