The law grows dark

Dear Readers, Law is rational and fact-based; religion is about faith.  The two can be uneasy bed partners; Sharia (Islamic) Law is considered inhumane.  With Halakah (Jewish) Law, a woman is legally unable to divorce until her husband provides a “Get” (permission to divorce).  At least, a Catholic woman only needs a dispensation or annulment to remarry as a Catholic, after a civil divorce.

This tension is crystalized in reproductive rights.  Science defines the beginning of life as when a fetus is capable of surviving outside a woman’s womb – we have not yet conceived of a uterine device capable of nurturing life mimicking the wonderful construct of the human body.  Roe v. Wade was a legal opinion authored with science in mind.

Religion defines life as beginning at conception, when the soul enters the body.  This is an ineffable mystery based on faith or belief, instead of demonstrable proof.  Legally, you can pass laws prohibiting or limiting abortion, that is a rational policy choice.  However, when you premise that choice on Biblical scripture or tenets, the justification for such a law crumbles.

In Alabama, this is just what happened with in vitro fertilization.  IVF gives hope to childless couples who cannot conceive by natural methods.  Women treated with fertility-killing chemotherapy or radiation can freeze eggs, later artificially inseminated, and then scientifically implanted to allow life to bloom.  Not in Alabama, where unfertilized eggs are legally treated as people, and all the rights flowing from this designation, because of judicial opinion.

Ethically, science has developed wondrous procedures.  Genetic manipulation at the cellular level is curing diseases like sickle cell anemia and cancer.  It might also be used to repair genetic defects in the womb.  Or, to clone animals and stave off extinction.  The probity of these is for experts and ethicists to debate, but not grounds for judges to decide their legality.

The Alabama Supreme Court used a faith-based precept (popular with conservative jurists) to interpret Alabama, granting “personhood” designation for fetuses in the womb.  There are many problems with this approach.  Take government assistance programs, which are based on identity and/or occupants in a family or occupants of a residence.  If life begins at conception, maybe, you can claim the unborn as a tax deduction or in applying for government funding.  If a fetus is a person, this is not legal hyperbole.

There is an element of misogynism in criminalizing abortion, as women are barred from making personal health decisions.  Carrying a doomed fetus can (and has) resulted in women dying from sepsis or women losing their fertility from complications causing destruction to reproductive organs.  Medically speaking, at least some abortions are about healthcare and not about killing the unborn.

In Arizona, a Civil War Era statute prohibiting abortion, a near-total ban, was revived by an Arizona Supreme Court opinion finding it a still legal statute.  This was a territorial law passed before Arizona achieved stated before a woman could vote – at the time, women were essentially chattel or property, on the level of livestock, as opposed to a person.  Thankfully, the Arizona legislature eliminated this odorous statute, but only after three (3) missteps over two (2) weeks.

Law and morals (faith) are two (2) different aspects of regulating behavior.  They can converge.  For example, it can be illegal and immoral to kill another human being. However, the law makes exceptions where faith might not.  You can legally kill an intruder to protect home and family; a Quaker would allow that it is never moral to take a human life.

The same is true, an act might be moral (as faith dictates), yet be illegal.  In some cultures, female genitalia mutilation is a widespread and accepted custom.  In the United States, and most of the developed world, it is a crime. 

Faith has a dark side.  Mahsa Amini was a 22-year-old Iranian woman arrested in September 2022 for refusing to wear a hijab in public, as required by Islamic law.  She died in police custody.  Shafilea Ahmed was a 17-year-old British-Pakistani woman killed by her parents in September 2003 in an “honor killing” when she refused an arranged marriage; they went to prison (thankfully), where many of these do not result in even a conviction.  Thousands of women die each year from this practice.  

These tragedies illustrate why faith and law cannot be mixed.  We cannot let faith creep into our legal system.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.