Guest Blogger: Our Faith-Based Justices
by Geoffrey R. Stone, the Harry Kalven, Jr. Distinguished Service Professor of Law at the University of Chicago is the author of War and Liberty: An American Dilemma (2007) and a member of the ACS Board of Directors.
In Gonzales v. Carhart, the Supreme Court, in a five-to-four decision, upheld the constitutionality of a federal law prohibiting so-called “partial birth abortions” (properly described as “intact dilation and evacuation” or “intact D & E”) despite the absence of an exception to protect the health of the woman. Gonzales reversed an earlier decision, Stenberg v. Carhart, in which the Court had held a virtually identical state law unconstitutional, primarily because it failed to include an exception to protect the health of the woman.
In the majority’s view, the critical difference was that in enacting the federal law Congress made several findings to support the legislation. The majority accepted those findings even though, as Justice Ginsburg observed in an unusually scathing dissent, those findings were nothing more than political nonsense.
Among Congress’s clearly erroneous “findings” were its assertions that no medical schools provide instruction on intact D & E, that intact D & E is never necessary to safeguard the health of the woman, and that intact D & E is less safe than alternative procedures. Each of these “findings” was and is false. In fact, many medical schools, including Chicago, Northwestern, Yale, Columbia, teach intact D & E; there is a clear medical consensus that in particular circumstances intact D & E is necessary to protect the heath of the woman; and there is a clear medical consensus that in particular circumstances intact D & E is safer than the alternative procedures.
It is not unusual for the Supreme Court to give deference even to implausible legislative findings. But the findings must at least be rational and, when a law restricts a fundamental constitutional right, the findings must be almost unimpeachable. In this instance, every federal court that reviewed these congressional findings rightly described them unreasonable, unbalanced, polemical, and unsupported by the facts.
The five justices in the majority in Gonzales have put at risk the health of women who suffer from heart disease, uterine scarring, bleeding disorders, compromised immune systems, and certain pregnancy-related conditions, such as placenta previa and accreta, as well as those women carrying fetuses with certain abnormalities, such as severe hydocephalus. In all of these circumstances, and many others, the use of the intact D & E is necessary to ensure the health of the woman.
It is important to note that the prohibition of intact D & E has nothing to do with preserving the life of a fetus. The “partial birth abortion” law does not prohibit any abortions. Rather, it prohibits only a particular means of performing abortions. If the woman is willing to undergo a greater than necessary risk to her health, she may terminate her pregnancy by other, less safe, methods. She may, for example, have the fetus terminated by injection prior to extraction, or removed by cesarean, or extracted by non-intact D & E (which involves dismembering the fetus in utero).
What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales. Because the intact D & E seems to resemble infanticide it is “immoral” and may be prohibited even without a clear statutory exception to protect the health of the woman.
By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality. To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental. The moral status of a fetus is a profoundly difficult and rationally unresolvable question. As the Supreme Court has recognized for more than thirty years, when the fundamental right of a woman “to determine her life’s course” is at stake, it is not for the state -- or for the justices of the Supreme Court -- to resolve that question, and it is certainly not appropriate for the state or the justices to resolve it on the basis of one’s personal religious faith.
In 1972-73, I had the privilege of serving as a law clerk to Justice William Brennan, then the Court’s only Catholic justice. It was in that year the Court decided Roe v. Wade. Justice Brennan struggled in that case, as he struggled in earlier cases involving such issues as school prayers, to separate his personal religious views from his views as a justice. He joined the decision in Roe because he believed in the separation of church and state and because he was convinced that his religious views must be irrelevant to his responsibilities as a justice.As the Court observed fifteen years ago, “Some of us as individuals find abortion offensive to our most basic principles of morality, but than cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.” It is sad that Justices Roberts, Scalia, Kennedy, Thomas and Alito have chosen not to follow this example.
Written By:Mithras On April 20, 2007 6:06 PM Written By:Theodore On April 21, 2007 3:08 AM
I am thankful that Abraham Lincoln mandated his own "moral code," based on his religious beliefs, when he gave the Emancipation Proclamation. There were quite a few people who disagreed with his view of morality, and yet he imposed it nonetheless. Views aren't irrelevant merely because they are religious-- to deny one a right to use his religion as a basis for decision-making is denying his right to religion. True religion is manifested through the hands, and is never merely a mental exercise. The fact that a man comes to a conclusion about morality based on his religion does not make it a less worthy conclusion. Christianity was the impetus behind the move to abolish slavery. Does that somehow make slavery less wrong because we have a religious aversion to it? Or make the goal of getting rid of it less noble? See William Wilberforce.
You attack the Court mandating its morality, yet in "defining the liberty of all," did the previous Court not make a moral judgment about the value of the unborn life? A moral code is being imposed either way you cut it. You have just determined that imposing a morality with no regard to religion is the superior method. I suppose that the source of these imposed "values" is irrelevant, provided that they don't come from God.
These five justices will be vindicated, in this life or the next, not based on the fact that they were following their religion, but because they did the right thing.
My thanks to Professor Stone. With the exception of a single editorial cartoon, the media, and the "liberal" blogs have been silent on the fact that the 5 justices (the majority) are all Roman Catholic. One(Thomas) was a seminarian, three(Roberts, Scalia, and Scalito) are known to attend the Tridentine Mass. With the possible exception of Kennedy, these are deeply conservative, fundamentalist Catholics.
We must keep in mind that the Pope Benedict has stated that the sacraments of the Church can be denied to any public figure who does not appose abortion. Simply stated, this is a hair breath away from excommunication, and would weigh heavily on most catholics.
That said, what is startling is the language in the majority opinion. This is not written with the hope of establishing equanimity or an attempt to dampen future conflict. It denigrates the judgment of women, gives Congress the ability legislate "morality", and in the grand tradition of the church, ignores the science of medicine.
In the interest of full disclosure, I am a graduate of the University of Notre Dame and Georgetown University Medical School. It strikes me that in the practice of medicine, one should not impose personal religious dictums on a patient. Am I wrong in expecting the same from a Supreme Court Justice?
There is so much wrong with this analysis that it's hard to know where to begin. But rather than a critique, permit me pose a question. If the five Justices in the majority are taking marching orders from Rome, why would two go out of their way to invite a challenge to the law on Commerce Clause grounds.
This kind of analysis really is quite despicable.
Tim Dowling
The majority accepted those findings even though, as Justice Ginsburg observed in an unusually scathing dissent, those findings were nothing more than political nonsense.
But in the actual court opinion, I find -- on the bottom of page 6, top of page 7 -- these words:
"The Court rejects certain of the parties arguments. On the one hand, the Attorney Generals contention that the Act
should be upheld based on the congressional findings alone fails because some of the Acts recitations are factually incorrect and some of
the important findings have been superseded."
Hmmm, how to explain the contradiction between the assertion of the "distinguished professor," and the actual text of the opinion?
Of course! It must be the Vatican! That's who did it! Pesky Catholics!
Stone's suggestion that one must be a believer in Catholic dogma to vote to uphold a democratically-passed law prohibiting a particularly controversial late-term abortion procedure is both obviously wrong and patently offensive.
There aren't many Catholics in Britain, but the British Abortion Act bans third-trimester abortions -- not just "partial-birth" abortions -- without any health exception. No one has ever suggested that the British judges are in the grip of theocracy because they have not struck down this duly-enacted provision.
Proudly secular France limits abortion after the first trimester.
These civilized countries recognize that all rights, including the right to abortion, have common-sense limits.
America should, too.
Even the First Amendment, which is first for a reason, has limits. It doesn't protect all speech, no matter how injurious. For example, it excludes from protection defamation and incitement to riot. And it does not invalidate government regulation of political activity willy-nilly: for example, it doesn't give a candidate the right to file to run for elective office late after the deadline has passed.
Similarly, the right to abortion should not include late-term abortions, such as partial-birth abortion, unless that is necessary to save the life of the mother or prevent permanent physical disability (which, empirically speaking, it does not appear to be necessary for).
I should not have to point this out, but I am not Catholic (or particularly religious, for that matter).
Professor Stone's analysis does not even understand the basic holding of the case. _Gonzales v. Carhart_ did not overturn _Stenberg_.
Prof. Stone-
In fact, many laws schools, including Chicago, Northwestern, Yale, Columbia, teach intact D & E ....
I think you mean "medical schools."
Ed's Note's: Corrected