Abortion Bigots

Last week the Supreme Court upheld a federal law banning the ghastly partial-birth abortion procedure. It was a 5-4 vote, and the justices in the majority were all Catholic. Soon afterward, this cartoon by Tony Auth appeared in the Philadelphia Inquirer.

Mr. Auth is, of course, entitled to his opinion and a certain degree of artistic license. The point he appears to be making is that the five justices voted the way they did due to their Catholic beliefs. Rosie O'Donnell and other anti-life activists made similarly hysterical statements.

This is a laughable argument on its face. First, think for a moment about what the Court did. This ruling agreed with a law passed by Congress, most of whose members are not Catholic and are nominally Christian at best, and signed into law by a Methodist president. Liberal Democrats like Harry Reid and Pat Leahy voted to ban partial birth abortion. It can hardly be described as some kind of Catholic conspiracy, as the cartoon suggests.

Second, while Catholics are a big part of the pro-life coalition, they are not the only part. Evangelical Christians, conservative Jews, Muslims, and many mainline Protestants are equally in favor of limiting abortion in general and partial-birth abortion in particular.

Third, there are plenty of reasons to oppose partial-birth abortion that do not depend on any sort of Christian belief at all. Law professor Robert Miller explained this in First Things.

Similarly, until the last few decades, Anglo-American law, which has historically been dominated by non-Catholics, treated abortion as a serious crime, even in early pregnancy, and consistently did so in order to protect the life of the unborn child. If you’re heard otherwise, see the monumental new history of Anglo-American abortion laws by Professor Joseph W. Dellapenna, Dispelling the Myths of Abortion History, a massive work spanning eight centuries and 1,200 pages, which is destined to become the magisterial treatment of the subject. Note to Mr. Auth: Prof. Dellapenna is not a Catholic; he describes himself as a lapsed Unitarian.

Furthermore, if Mr. Auth bothered to read the philosophical literature on abortion, he’d find that there are serious arguments on both sides of this issue. In particular, he might be surprised to learn that many of the most sophisticated defenders of abortion rights long ago conceded that a human fetus is a human being, not a clump of cells (it’s rather difficult to know much about embryology and conclude otherwise). Hence, most such philosophers defend abortion either by arguing that abortion is a permissible form of homicide, such as self-defense, or else by distinguishing human beings from human persons (human persons being human beings with some minimal level of mental capacity) and arguing that only human persons and not human beings generally are entitled to moral protection.

For my part, I sense in both these doctrines a reductio ad absurdum of the view they are meant to defend, and so I think the arguments fall out very largely on the pro-life side. Still, I recognize that the issues here are very complex and involve many contestable points in ethics and meta-ethics, and so I appreciate that other people, reasonably and in good faith, often come to views different from my own. Mr. Auth, probably because of his complete ignorance of the relevant arguments, is unable to say the same. MORE

John Yoo, another law professor and former Bush Administration official (whom I totally disagree with on many issues) describes the Auth cartoon as nothing less than ignorant bigotry.

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. MORE

Chuck Colson of Prison Fellowship is demanding an apology from Auth and calling for people to drop their subscriptions to his newspaper. I hope he succeeds but I'm not holding my breath.