It Was Religion, Plain and Simple (and Crazy)

It’s the official doctrine of the Catholic Church that a zygote, blastocyst, embryo or fetus is just as much a human being as you or me. It’s a crazy idea, but it shouldn’t matter to the rest of us what a church’s doctrine is as long as they leave the rest of us alone (and don’t do anything crazy to their children on religious grounds). It shouldn’t even matter to the rest of us that a lot of non-Catholics have adopted the same peculiar idea. The problem is that millions of people who accept this strange religious doctrine want the rest of us to act as if we accept it too.

I don’t know how many people who want to force pregnant women and girls to give birth are motivated by the religious idea or by the desire to control women’s and girls’ lives. Some or many are motivated by both. Linda Greenhouse, who writes about the judicial system for the New York Times, says she originally put the Dobbs decision that overturned Roe v. Wade in the abortion category, but then decided it was really about religion:

My own way of keeping track of a Supreme Court term is to log each of the term’s decisions on a chart labeled by category: criminal law, administrative law, speech, federalism and so on. For this past term, one of my charts was, of course, labeled “abortion,” and naturally that’s where I recorded Dobbs v. Jackson Women’s Health Organization….

But the other day, going over my charts before filing them away to prepare for the next term, a realization struck me. I had put Dobbs in the wrong place. Along with the decision about the praying football coach and the one requiring Maine to subsidize parochial school tuition, Dobbs belongs under “religion”….

Justice Alito took pains to present the majority’s conclusion as the product of pure legal reasoning engaged in by judges standing majestically above the fray of Americans’ “sharply conflicting views” on the “profound moral issue” of abortion, as he put it in the opinion’s first paragraph. And yet that very framing, the assumption that the moral gravity of abortion is singular and self-evident, gives away more than members of the majority, all five of whom were raised in the Catholic Church, may have intended.

recent essay in my local newspaper by a Congregational minister, John Nelson, was a powerful reminder that in speaking from one particular religious tradition, the court ignored other vital streams of religious thought. “Samuel Alito is as free as any person to hold forth on morals and politics,” Pastor Nelson wrote, “but his opening salvo is backed up with no reflection on the sources, claims or nuances of morality, leaving the impression that the decision was developed through moral bias rather than moral reasoning.” Describing his own response to the decision as one of “fury,” the pastor said that the justices, in their “concern for the lives of fetuses,” overlooked the “lived experience” of women. “To show no regard for a lived experience is immoral,” he wrote.

Indeed, the fetus is the indisputable star of the Dobbs opinion. That is not necessarily obvious at first reading: The opinion’s 79 pages are larded with lengthy and, according to knowledgeable historians, highly partial and substantially irrelevant accounts of the history of abortion’s criminalization. In all those pages, there is surprisingly little actual law. And women, as I have observed before, are all but missing. It is in paragraphs scattered throughout the opinion that the fetus shines.

“None of the other decisions cited by Roe” and Planned Parenthood of Pennsylvania v. Casey, the 1992 ruling that reaffirmed the right to abortion, “involved the critical moral question posed by abortion,” Justice Alito wrote. “They are therefore inapposite.” Further on, he wrote: “The dissent has much to say about the effects of pregnancy on women, the burdens of motherhood, and the difficulties faced by poor women. These are important concerns. However, the dissent evinces no similar regard for a state’s interest in protecting prenatal life.”

This was a strange criticism of the dissenting opinion, signed jointly by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. They argued vigorously for retaining the 1992 Casey decision, which in fact, in a departure from Roe, declared that the state’s interest in fetal life was present from the moment of conception. Casey authorized the states to impose waiting periods and “informed consent” requirements that the court in the years following Roe v. Wade had deemed unconstitutional.

Justice Alito knows the Casey decision very well. As a federal appeals court judge, he had been a member of the panel that upheld most of Pennsylvania’s Abortion Control Act in the case that became Casey. Then-Judge Alito, alone on the panel, wanted to uphold a provision of the state law that required a married woman to inform her husband of her plan to get an abortion.

In affirming the appeals court’s decision, the Supreme Court in Casey emphasized in one of the opinion’s most vivid passages the unconstitutional burden that the spousal notice requirement placed on women: “We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.” Perhaps that aspect of the Casey decision still rankled. In any event, Justice Alito’s attack on his dissenting colleagues for ignoring the state’s interest in fetal life was seriously misguided.

Of course, from his point of view, Casey didn’t go far enough because the weight the court gave to fetal life was well below 100 percent. The Casey decision was five days shy of 30 years old when the court overturned it, along with Roe v. Wade, on June 24. Given that this was their goal from the start, the justices in the Dobbs majority really had only one job: to explain why. They didn’t, and given the remaining norms of a secular society, they couldn’t.

There is another norm, too, one that has for too long restrained the rest of us from calling out the pervasive role that religion is playing on today’s Supreme Court. In recognition that it is now well past time to challenge that norm, I’ll take my own modest step and relabel Dobbs for the religion case that it is, since nothing else explains it.

Onward Christian Soldiers, Supreme Court Edition

The first words of the Bill of Rights are: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. In recent decades, that’s meant people are free to practice their religion (the Free Exercise Clause) but not promote it as part of their government jobs (the Establishment Clause).

Charles Pierce of Esquire discusses today’s right-wing reinterpretation of what constitutes free exercise and the establishment of religion:

… It was a pretty good day for theocracy. In Kennedy v. Bremerton School District, by the 6-3 vote that was so carefully purchased with dark money and so carefully engineered by Mitch McConnell, the Court sided with a football coach named Joseph Kennedy who used to have his team meet at midfield for a postgame exercise in what the Court said Monday was “quiet personal prayer.”

The history of the case is a perfect example of a small-town controversy that was fairly clear-cut until the conservative movement managed to get it through a carefully engineered conservative-heavy judicial system until it finally landed on the doorstep of Supreme Court Justice Neil Gorsuch. In 2015, the school district told Kennedy to knock it off. Kennedy refused and was placed on administrative leave. Instead of reapplying for his job when his leave ended, Kennedy decided to sue the school district. He lost in court. Then he lost his appeal. Then an earlier Supreme Court declined to take his case.

But the longer you can keep going in the courts, the better chance you have of running into a conservative Christian who will find room for white-people Jesus in the Bill of Rights…. Kennedy tried again and, this time he finally found Gorsuch and the rest of the Papal States on the Supreme Court.

Once again, that crew threw aside a sensible, durable framework in favor of some sort of weird, literalist invocation of American history. Much of the previous Establishment Clause law had rested on a 1971 case called Lemon v. Kurtzman—decided, it should be noted, by an 8-0 vote under Republican Chief Justice Warren Burger …

Leaving Coach Kennedy’s triumph for a moment, we should be wary of the blithe way the Court’s majority dismisses Lemon as irrelevant to Establishment Clause jurisprudence. Lemon was not purely about prayer. It has also been central to keeping the bunco scheme that is Creationism—as well as its gussied-up cousin, Intelligent Design—out of the public schools … [Lemon] was used to squash attempts at bootlegging Creationist bushwah into science classes in Arkansas and Louisiana … in 2005, when it helped decide a famous case in Pennsylvania. …

In this particular political moment, you’d have to be considerably naive to think that the reactionary right isn’t coming for the public schools, largely because they never stopped coming for the public schools. They will use radicalized Christian religion as their primary artillery. Last week, the Supreme Court opened up the wallets of Maine taxpayers and invited religious schools to dive right in. Would you like to guess what might happen if another Intelligent Design case makes it in front of the current Supreme Court majority?

… Public education is unconstitutional because it is insufficiently theocratic. An interesting legal theory that is coming soon to a Supreme Court near you.