Carhart, Religion, and the Constitution

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For my initial thoughts on the recent Supreme Court decision Gonzales v. Carhart, see here. Since that post, I've had a chance to see a lot more of the commentary that's ensued, and I wanted to highlight a couple responses I've seen to the aftermath, first on the claim that this is a religiously-motivated decision and second on the actual constitutional issue at stake. The first point comes from Rick Garnett here, in response to a post by Geoffrey Stone at the Huffington Post. The key quote from Stone is:

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.

Now consider Garnett's response:

It is true that the majority included “moral concerns” – like the public interest in promoting “respect for life” – among the “legitimate government interests” that could justify the federal ban. It is not clear, though, why we should regard these concerns, or the view that human fetuses are moral subjects whose lives have value, as any more “religious”, and therefore suspect, than our nation’s fundamental commitment to the view that all human beings are moral equals, regardless of race, and should be treated as such in law. For a judge to identify such concerns as a permissible basis for legislating – given the fact that, in the Court’s view, the law did not impose an “undue burden” on the abortion right – is not to attack church-state separation or to substitute revelation for the will of We the People.
As I've argued many times in the past (see especially here), there is no rational basis for the claim that pro-life convictions are mere religious dogma, because such assertions ignore a fairly rich philosophical framework that often lies behind such convictions. But what's particularly silly about Stone's claim is that one of the five justices in the majority in this case voted to uphold the basic right to abortion in 1992 and insists in this opinion that he sees himself still affirming that. If he's spouting forth Catholic doctrine in the guise of a legal opinion, how did he end up affirming what his church denies? Still worse, if Stone is serious about this he should worry about Kennedy's votes on capital punishment cases, since the Roman Catholic Church opposes the death penalty. I haven't heard anyone complaining about the church-state line being transgressed there. Even worse, the mainline Protestant denominations and Reform Judaism congregations of the four minority justices are officially pro-choice, and I don't see anyone complaining about their violations of church and state in voting in a way their religion happens to support.

Second, John Bambenek seems to me to get it entirely right with respect to the constitutional issues. Regardless of whether you think the Constitution guarantees a right to abortion hidden in the right to privacy, which in turn comes from some notion of substantive due process, it should be very clear to any reader of the Constitution that the right to abortion is at most a derivative right in the Constitution. It's a little surprising, given that, that it should be held up as some absolute right that never gets outweighed by rights that the Constitution explicitly mentions. Yet somehow the right to abortion in some contexts has come to outweigh the right to free speech, the right for a pharmacist to carry out religious convictions not to sell medication intended to produce an abortion, and other constitutional rights, and somehow the normal regulation of medical procedures that anything but abortion will regularly receive from the federal government has become unconstitutional only in the case of abortion.

Now it's true that the Supreme Court has technically allowed some restrictions on abortion, at first only in the third trimester (before 1992) and later during the second half of pregnancy as viability has moved earlier (explicitly allowed after 1992), but these allowances have been permitted only provided that the restrictions have exceptions for the life and health of the mother. But the health exception has been taken to be so broad that it's been used to overturn every single abortion restriction that has ever been challenged at the federal level (if I read the news reports right about the significance of Carhart being the first ever to be uphold such a restriction). So it seems that in practice any restriction that's been challenged has been overturned, and thus the right to abortion really has seemed to be a sacrosanct right that no other right has any business interfering with, no matter how strong the other right.

If the rights explicitly outlined in the Constitution are always trumped by a right not even mentioned in the Constitution, indeed one that is grounded in a further right not even mentioned in the Constitution, then it does seem as if the Supreme Court's willingness to allow regulation of the procedure for the first time moves things back in the direction of the Constitution's own emphasis. Furthermore, this one procedure that has been given sacrosanct status is now going to be treated as any other medical procedure to which most of us usually have rights to undergo, i.e. the government can limit its use in certain instances or disallow certain methods of its use.

This all seems to be true even if I grant for the sake of argument that the Constitution does guarantee a right to abortion. What the Court has done is stop insisting on treating the right to abortion as a right that outweighs all other rights. Justice Kennedy would be the first to insist that he has not stopped seeing it as a constitutional right. So rather than now treating the rights of women to have abortions as less than other rights (as I think pro-choicers want to spin it), this decision merely places that right on par with other rights to undergo medical procedures. It's a step in the right direction for the pro-life cause, because it does limit what has been a sacrosanct right in a way that previous Supreme Court decisions have never allowed. But that doesn't mean that it has limited the right in any way beyond how other rights are limited all the time when other rights seem to count against them.

The real moral victory for the pro-life side will come only when the fetus' moral status is recognized, thus placing the fetus' right to life as a legitimate contender against the right of a woman to undergo whatever medical procedure she chooses to undergo. But even the recognition of a fetus' right to life could never lead to allowing abortions to be restricted if the right to abortion is seen as so absolute that no moral consideration could ever outweigh it. The Supreme Court has now insisted that any right to abortion is not like that, whatever else might be true of it. In that I have to agree, and I think the Constitution would agree. This seems to be so even if the right to abortion is guaranteed by the Constitution, since nothing I have argued in this post assumes that it isn't.

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