The U.S. Supreme Court recently heard arguments about a Mississippi law banning virtually all abortions after 15 weeks of pregnancy.
Anti-abortion activists cheered the possibility that the court could overturn the landmark Roe v. Wade case, which granted women a constitutional right to abortion before fetal viability.
The Church of Jesus Christ of Latter-day Saints has aligned itself on several social issues with conservative religions, but its position on abortion is more complicated. The Utah-based faith condemns “elective abortions for personal or social convenience” yet permits the procedure in cases of rape, incest, severe fetal defects or when the life or health of the mother is in “serious jeopardy.”
In these excerpts from The Salt Lake Tribune’s “Mormon Land” podcast, Christine Durham, former chief justice of Utah Supreme Court and herself a Latter-day Saint, discusses this momentous case and its potential implications for the future.
With six conservative justices now on the high court and after hearing oral arguments, what do you see are the chances of the justices overturning Roe?
I’m making a calculated guess, as are most people, but my sense is that it’s better than a 50/50 chance that they will decide to back away from 50 years of precedent and redo Roe or abolish or eliminate it entirely.
What are the court’s options? The justices don’t necessarily have to do all or nothing. Completely overturning Roe might not be the outcome, right?
Ever since Roe v. Wade became law and, then settled law, all of the litigation has been around the levels of restrictions that can constitutionally be placed on abortion provisions. … The basic question for them is whether they’re going to lift or remove the rationale that supports bodily autonomy for women in the arena of pregnancy. If they do that, there’s no compromise. If they decide they need compromise, they will have to leave that basic principle in place and then address how far a state can go. And they’ve been doing that for a long time.
Even though the LDS Church has made statements strongly opposing elective abortions, the church has never called for an absolute ban. Why do you think that is?
(Rick Egan | The Salt Lake Tribune) Former Utah Supreme Court Chief Justice Gordon Hall and Latter-day Saint apostle Dallin H. Oaks visit with then-Justice Christine M. Durham during her retirement reception at the Matheson Courthouse in 2017.
My own assessment is that it has to do with our theology. We do not have a theological explanation or conclusion with respect to the notion of when human life, in terms of live birth, begins. That differentiates us from, for example, the Catholics and many evangelicals who are quite firm in their belief that life begins at conception and that any interference with the growth of a fetus is equivalent to taking human life. Although there are plenty of pronouncements suggesting that we value potential lives, the Latter-day Saints have never identified or been willing to identify the notion of interference with potential life as akin to what the Catholics and the evangelicals call it, which is murder. That term has never been used in LDS explanations or communications. … The issue of being named and being placed on the rolls of the church is a significant expression of one’s humanity and one’s connection to the church, but it has never been a ritual that has been mandated or encouraged for stillborn children or for children who are born and live for very short periods of time. [Neither is it] forbidden. People who have stillborn children, or the latter circumstance, can ask for a name and a blessing. But it’s always struck me as extremely significant that we’ve never identified a fetus or an embryo or an unborn fetus as the death of a child. …Now, it seems to me that people who believe as a matter of religious conviction that life begins at conception can’t tolerate any of those exceptions any more than they can tolerate the notion of elective abortions.
So the church’s position is not strictly speaking, pro-life?
No, but I really don’t think most members know that. You do have some strong language coming from church leaders to the effect of elective abortion and they always seem to couch it in terms of convenience or social needs. (And that is language that minimizes choice, minimizes the reasons why women would seek elective abortions.) … And they’ve also identified those kinds of abortions as sinful and requiring some form of repentance to put oneself right with God after making those decisions. What disturbs me a little bit about that language is that — I’m sure there are instances, although I would suspect they’re pretty rare among LDS women — it’s difficult for me to imagine that there are many instances of “convenient” abortion. I suspect that it’s a very serious matter, a very personal matter. … They are done because of underage pregnancies, because of pregnancies for women, especially very young women, who may be drug addicted, who may be entirely without any form of familial support. They may be people for whom bringing a child into the world can be a complete catastrophe.
What do you think of the LDS Church policy that if a woman is considering an abortion for any reason, she should seek counseling from her male leaders?
To me, that’s a quite disturbing injunction. …I admire and respect the people who serve in that calling (my husband is a former bishop) but we have a lay clergy. They are not trained in psychological issues. They are not trained in medical issues. They are not marriage counseling experts. They bring what they can do through the [Holy Spirit] that inspires them. But it’s really hard for me as a woman to imagine having to go to a bishop or a stake [regional] president and say, “OK, here’s my life, and here’s what this means for my life. And here’s what I think is the best decision to deal with what’s happening in my life.” I find it intrusive and disrespectful of the options for personal revelation for an LDS woman to approach that problem prayerfully and in the context of hopefully a happy marriage. But, of course, there are circumstances where even that doesn’t exist, where a spouse is abusive or has abandoned the family. There are all kinds of circumstances where a woman needs to have the final responsibility for that choice. … And the options for potential intimidation or the biases and experience of the church leader [could] cause her to make decisions that might not be the decision she would make as an autonomous person.
Do you think that it would be better for the abortion issue to be settled in the political arena with Congress passing a federal law instead of all these patchwork laws from state to state?
In terms of regulation and some degree of uniformity and access to services in this really sensitive area, it would make a lot of sense. Politically, it’s completely impossible.
Can women ever be truly equal if they are not allowed to govern their own bodies?
Absolutely not. All the things that we tout as being necessary for women to reach equality — employment, ability to support oneself, educational opportunities — are impacted by the arrival of children and that arrival doesn’t affect men in the same way whatsoever. [Men] simply don’t tend to take on the same degree of responsibility. The idea that women cannot have any arena of choice — [from pregnancy to labor and delivery to post-birth] — is exclusively and almost always detrimental to women.
To hear the full podcast, go to sltrib.com/podcasts/mormonland. To read a full transcript and receive other exclusive “Mormon Land” access and gifts, go to Patreon.com/mormonland.
