Partial-Birth Bigotry

Visiting Fellow John Yoo
Visiting Fellow
John Yoo
Almost 50 years ago, a young presidential candidate named John F. Kennedy declared, "I do not speak for my church on public matters, and the church does not speak for me." Americans put aside worries about his Catholic faith and elected him to our nation's highest office.

But for many liberals today, what's good enough for a Kennedy in the White House isn't good enough for a Kennedy on the Supreme Court. Last week Justice Anthony Kennedy authored the 5-4 majority opinion in Gonzales v. Carhart upholding the 2003 Partial Birth Abortion Ban Act, which prohibits an abortion procedure that partially delivers a living fetus and then kills it.

Liberal critics just can't believe that a majority of Americans find this procedure immoral. Nor can they understand why many think the Supreme Court's decision in Roe v. Wade is muddle-headed and misguided for conjuring a woman's right to abortion out of a constitutional guarantee of "due process." Nor do they appreciate that many think the Supreme Court has usurped the democratic process by choosing to decide the correct balance between the rights of a pregnant woman and an unborn child.

Rather than develop reasoned responses to the Court or the arguments of conservatives, liberal critics resort to the mystical for easy answers. . . . It is much easier to dismiss your opponents as driven by mysterious forces than to do the hard work of developing arguments built on human reason.

Instead, pro-choice liberals resort to the claim that the decision in Carhart must come, not from reason, but from the justices' personal religious beliefs. Geoffrey Stone, former dean of the University of Chicago Law School, claims the justices upheld the ban because they're Catholic. "It is too obvious, and too telling, to ignore," he writes on his law school's Web site. "By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality."

Mr. Stone's view apparently is shared by Rosie O'Donnell, who asked on ABC's The View: "How about separation of church and state in America?" Similarly, a pro-choice coalition of religious leaders issued a statement saying the five justices in the majority "decided they could better determine what was moral and good than the physicians, women and families facing difficult, personal choices in problem pregnancies."

These accusations rely on one truth. The five justices in the Carhart majority--Kennedy, Chief Justice John Roberts, and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito--are Catholic. But as a critique of the Supreme Court's work, the claim is plain silly, if not sad.

No one thinks religious belief explains the views of the dissenting justices. Justices Stephen Breyer and Ruth Bader Ginsburg, it seems, are Jewish, while Justices John Paul Stevens and David Souter presumably are Protestants. Do liberals think their four votes are corrupt because Jewish or mainline Protestants leaders support a constitutionalized right to abortion? Liberals did not raise religion when Justice Kennedy voted in Casey v. Planned Parenthood (1992) to reaffirm Roe, nor when he parted ways this week with his Catholic brethren who wanted to uphold three death sentences (the Church opposes the death penalty).

Playing the religion card is worse than silly because it shows how intellectually lazy the liberal defense of Roe has become. There are many reasons why the Court upheld the federal partial-birth abortion law, but not a state ban that it struck down in 2000. The Court found the state law too vague, while the federal law is more specific about the prohibited procedures. The Court may have been demonstrating more respect for the judgment of Congress than that of the states. Or the Court may have been following public opinion: Polls show that a majority of Americans agree with the partial-birth abortion ban. Almost two-thirds of the Senate, including Democratic Sens. Patrick Leahy and Harry Reid voted for it. Four years ago, today's critics didn't ask whether Mr. Leahy's and Mr. Reid's votes were inspired by their Catholic or Mormon faiths.

Rather than develop reasoned responses to the Court or the arguments of conservatives, liberal critics resort to the mystical for easy answers. They suggest that irrational religious faith or pure Catholic doctrine handed down from the Vatican drives the Justices. It is much easier to dismiss your opponents as driven by mysterious forces than to do the hard work of developing arguments built on human reason. This religious critique recalls the nativist fear of Catholicism that too often appears in U.S. history. Senate Democrats appealed to the same bias when they filibustered judicial nominees for their "deeply held" religious beliefs, as Sen. Charles Schumer said of now-circuit judge William Pryor.

Now that liberals want to keep count of these matters, I should disclose that I am not Catholic. I did clerk for Justice Thomas, but I didn't know if he was Catholic at the time. To confuse matters, I agree with the late law professor John Hart Ely (religion unknown) who wrote that Roe v. Wade was wrong "because it is not constitutional law and gives no sense of an obligation to try to be." But if the Court ever returned the issue to the states, I would probably vote for a woman's legal right to an abortion in California. And I fully agree with my liberal colleagues who like to make sport of Justice Kennedy's opinions: He often seems more interested in his power on the Court as the crucial fifth vote than in consistently advancing a coherent view of constitutional law.

I don't know how all of this would fit on the critics' religious scorecard, but it is a score that most Americans won't keep.

John Yoo is a visiting scholar at AEI.

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