If Abortion Is Protected From COVID-19 Orders, Why Isn’t Worship?
Apr 3, 2020 by David Fowler
The constitutional issue is both easy and complex, but the court orders prohibiting application of the COVID-19 directives to abortion clinics is instructive as to the religion question.
Laying Out the Constitutional Ground Rules
First, neither the Constitution nor the 14th Amendment says anything about abortion.
Second, unlike abortion, the First Amendment has an express prohibition on the federal government infringing “the free exercise of religion.”
Third, the constitutional prohibition on state government interference with the “free exercise of religion” and the liberty to make an abortion decision are the product of the U.S. Supreme Court’s interpretation of the 14th Amendment’s Due Process Clause. The Court has interpreted the 14th Amendment’s Due Process Clause in a substantive manner to determine what laws unreasonably deprive a person of “life, liberty, or property” rather than what process of law was “due” when a person was being “deprived” of one of them.
Understanding the Basis on Which Abortion Clinics Are Protected
It was by means of substantive Due Process that the Court interpreted the word “liberty” in the 14th Amendment as a limitation on the broad common law powers of state government.
At the time the Constitution was adopted and the 14th Amendment ratified, the common law, expounded (not created) by court rulings and, when necessary, clarified or abrogated by enacted law, had defined the words “life,” “liberty,” and “property” well, and it had done so in such a manner as minimized conflict between them. A simple but clear example is that one’s liberty at common law did not include depriving another of life or property.
But in Roe v. Wade and subsequently in Planned Parenthood v. Casey, the U.S. Supreme Court refused to look at the common law meaning of these terms as they would have been understood by our forebearers. Instead, the Court “interpreted” liberty to mean that a state did not have a substantial enough interest in potential human life to infringe on a woman’s liberty to make an abortion decision until the unborn child was “viable.” Prior to that time, a ban on abortions, even elective ones, was an unconstitutional exercise of power.
In other words, here is the key point: By its opinions, the Court said that, by the word “liberty,” the people had constitutionally preempted the common law powers the state otherwise had to regulate the practice of medicine by giving specificity to the absolute right to life at common law as it relates to unborn persons and protecting it.
That is why the federal courts told Texas, Ohio, and Alabama they couldn’t enforce their COVID-19 orders against the abortion clinics.
Applying the Constitutional Preemption Concept to Another Right
To demonstrate what I just said, let’s look at a favorite case of gun rights enthusiasts, District of Columbia v. Heller. In Heller, the U.S. Supreme Court held that the “District of Columbia’s prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.”
In doing so, the majority refused the argument of dissenting Justice Stephen Breyer that the Court should apply some kind of balancing test to the legislation to determine if it really was an infringement of the Second Amendment. Breyer wanted the Court to apply a public health and safety type-balancing test, not unlike the one that was used by states to justify the temporary closure of abortion clinics and, in some states, forestall worship services.
What the Court said in rejecting this balancing argument is key:
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. . . .
[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.
Then, the Court added something particularly important relative to its role in changing times when confronted with the exercise of a constitutionally enumerated right:
Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
Applying the Constitution to Worship
I am not here saying that Christians must or even should continue to assemble for worship during this pandemic, but based on the preceding analysis, it would seem that the “preemption” of the common law power of state governments by inclusion of a right in the Constitution—abortion and guns—would have to apply with equal force to a right that is actually enumerated therein, particularly when it comes to a fundamental aspect of at least the three great world religions, their adherents assembling for worship and instruction.1
Perhaps the only way it wouldn’t is if the worship of God has been sacrificed at the altar of sexual liberation by the high priest and priestess of abortion on the U.S. Supreme Court, who secured that liberation from the unwanted “natural sanction” of God-created life.
1. Moreover, it is well established that states can give greater protection to rights enumerated in the U.S. Constitution than is given by the U.S. Constitution. Thus, it should be noted that Section 3 of Article I of Tennessee’s Constitution specifically deals with worship: “That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience; that no man can of right be compelled to attend, erect, or support any place of worship, or to maintain any minister against his consent; that no human authority can, in any case whatever, control or interfere with the rights of conscience; and that no preference shall ever be given, by law, to any religious establishment or mode of worship.” While most likely it is speaking of the right of the individual to worship—e.g., as a Presbyterian, Methodist, Anglican, etc.—beliefs about the need to assemble for worship would seem to be an integral part of the right to worship about which civil government is also not competent to make a judgment.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.