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Does the First Amendment forbid Congress from Prohibiting Abortion?
Posted on 09.09.08 by J. Neil Schulman

In the wonderful movie Contact, from Carl Sagan’s novel about first contact with extraterrestrial intelligence, scientist Ellie Arroway must convince a panel that she’s the right candidate to be earth’s first ambassador to non-humans. When asked by one selector whether she believes in God — as does most of the human race — Ellie answers that, as a scientist, she only believes what can be proved, and doesn’t believe there’s proof either way. Ellie is rejected in favor of the opportunistic David Drumlin, who cynically gives the panel exactly the pious affirmation of faith they need to select him over Ellie.

The Saddleback Church presidential forum cast Barack Obama as Ellie Arroway and John McCain as David Drumlin.

When asked their positions on abortion, McCain — whose Senate voting history often finds him to the left side of the Republican Party — gave his right-wing base exactly the answer they needed to hear: that human rights begin at conception.

Barack Obama gave the Arroway-like response that the question of when life begins was above his pay grade — a dangerous answer for a man seeking the job most people think carries the highest pay grade there is. Even Senator Obama has come to consider his answer too glib.

I believe in God but I don’t think there’s a clear answer to when human life begins, even in the Judeo-Christian tradition. The Old Testament uses the Hebrew word nefesh for both “soul” and “breath.” From this comes the earliest Judeo-Christian belief about when human life begins: when a baby’s first breath pulls its soul into the body.

The more-recent belief that human life begins with conception is revisionist and more secular, since it either ignores the question of whether human beings even have souls separate from the body or reduces to absurdity with the idea that a conscious soul can live within a single fertilized cell.

Whether or not John McCain believes his dogma, his answer panders to what ironically enough aligns doctrinaire “pro-lifers” with atheists who don’t believe human beings have non-material souls.

Barack Obama — regarded as being to the left of McCain — is actually giving a more conservative answer: that the question of when human life begins is unknown to us because God’s design for when the human soul first gets into its body has not been clearly revealed to us.

The policy implications are ambiguous — since it’s possible an abortion might indeed end a nascent human life — but leaves no moral certainty to condemn it as homicide, either.

Nonetheless, Senator Obama is correct. A free society, to remain free, must resolve such theological questions by individual conscience rather than pious — and collectivist — lawmaking that establishes by law one religion’s dogma over others.

Could it be Congressional lawmaking on matters of conscience was precisely what the Framers’ First-Amendment prohibition against Congress establishing a religion was intended to prevent?


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