In late June of 1992, just a few weeks before I entered law school, the Supreme Court issued its decision in Planned Parenthood v. Casey. In that case, a bare majority of the justices reaffirmed—or rather, reimagined—the right to abortion invented by the Court two decades earlier in Roe v. Wade. I was surprised, and crushed. For pedagogical reasons that elude me still, Casey was the first day’s reading assignment in my Constitutional Law course.
About three years later, as my law-student stint was winding down, a few of my classmates and I drove to Cambridge, Massachusetts, to attend an intimate “Law Students for Life” gathering at Harvard Law School. The keynote speaker was the late Fr. Richard John Neuhaus, and I recall vividly his dramatic, inspiring conclusion—one that he would repeat thirteen years later in what Robert George has called “the greatest pro-life speech ever given”: “Until every human being created in the image and likeness of God is protected in law and cared for in life, we shall not weary, we shall not rest. We shall overcome.”
Fr. Neuhaus exuded and expressed more confidence that day than I felt then and since. But he did not hope in vain, and last week, in Dobbs v. Jackson Women’s Health Organization, the Court ruled that “the Constitution does not confer a right to abortion” and “Roe and Casey must be overruled.” No doubt Fr. Neuhaus would insist that it is not nearly time yet to “rest,” but the Court’s repudiation of two of its most egregious and damaging errors is both welcome and warranted.
The angry criticism and overheated denunciations of the decision were expected. What is surprising is that, despite having nearly two months’ advance notice of the Dobbs decision’s arguments due to a Supreme Court leak, the critics and denouncers—like the dissenting justices—have so little to say in defense of Roe’s reasoning. According to them, the fact that Roe was imposed five decades ago is enough to warrant and sustain the sweeping and extreme regime it imposed. They effectively concede, as Justice Byron White observed at the time, that the imposition was little more than an “extravagant” exercise of “raw judicial power.”
For some, the Dobbs controversy is providing an occasion not so much for legal arguments about constitutional text, historical practice, and the weight of precedent as for the time-tested tactic of blaming the Catholics. One would-be Thomas Nast took to Twitter with a drawing of a mitre-wearing bishop holding a gun to the back of a blindfolded Lady Justice’s head. A new Paul Blanshard charged that “six [sic] Catholics on the Court just imposed Church law on the American people,” “made the Court a synod,” and “looked more like servants of the Vatican than servants of the American people.” Protestors waved signs with the now-familiar demand about “rosaries” and “ovaries.” That the justices have returned the abortion-regulation question to democratic processes and politically accountable actors is said, oddly, to confirm our slide into dystopian theocracy.
Again, playing the anti-Catholic card in abortion litigation and debate is not new. In 2007, after the Court upheld a ban on partial-birth abortion in Gonzales v. Carhart, the University of Chicago’s Prof. Geoffrey Stone—one of the nation’s leading scholars of constitutional law—lodged the “painfully awkward” but “too obvious” charge that the Court’s Catholic members had “failed to respect the fundamental difference between religious belief and morality.” As Prof. John Breen has explained, the tendentious claim that abortion regulations necessarily involve unlawful impositions of religious doctrine was a staple of the late Justice John Paul Stevens’s opinions on the matter. Relatedly, Sen. Dianne Feinstein’s infamous complaint that “the dogma lives loudly” in then-Prof. Amy Coney Barrett underwrote the senator’s conclusion that Barrett, as a Catholic, could not be trusted with the judicial role.
It is true, of course, and interesting, that at least two-thirds of the justices now serving on the Court are Catholics. And it is true that the Church’s clear and consistent teaching on abortion is pro-life.
Yet the anti-Catholic charges of theocratic imposition are as unconvincing as they are offensive. The Supreme Court has said both that laws must have a “secular purpose” and that “religious” beliefs cannot supply a “rational basis” for liberty-limiting official actions. It is entirely sensible to maintain that, this side of heaven, political authorities should legislate and regulate on secular matters, which include, of course, the authentic flourishing of human persons and communities. What Pope Emeritus Benedict XVI called “healthy secularity” leaves ample room for policies that aim at creating and strengthening what the Second Vatican Council called “conditions favorable to the fostering of religious life” and, certainly, for laws protecting the most vulnerable human persons from lethal violence.
Duly enacted laws do not become unconstitutional religious edicts simply because they are consonant with religious communities’ teachings. The fact that citizens are motivated or inspired by faith does not taint their political activism and participation. A jurist who concludes that the relevant constitutional text permits a controversial question to be decided politically is not issuing an encyclical or reporting a revelation.
The foundational premise of the pro-life position—that is, that every human being should be “protected in law and cared for in life”—is no more “theological” than the commitments behind laws mandating environmental stewardship and prohibiting unjust discrimination or exploitation. The facts about the human person and about human development, not secret knowledge or gnostic mysteries, are the basis of the pro-life case and the warrant for pro-life legislation. Neither bigoted attacks on Catholic justices nor superficial invocations of church-state separation change these facts.
Richard W. Garnett is professor of law and concurrent professor of political science at the University of Notre Dame.
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