Religious Law is Not So “Natural” Anymore
The Roe decision Friday should not have come as much of a surprise to those following the case and the sneak peek leak of the final decision in early May. But the reality of the court’s official ruling was as shocking as the news of a missing family member’s body is discovered to the distraught family. “Say it ain’t so!” –you just cannot prepare, even with the grimmest of warnings.
The fact is, the warning signs have been coming for quite some time–since the late 1970s. It became a cause célèbre of the nascent Religious Right—following Billy Graham In the “Fourth Great Awakening” of the 1950s—when one of their first issues of grievance was losing steam and headed toward heap of lost causes. The segregationist academy Bob Jones University was denied tax exempt status due to racial discrimination (admitting only married Blacks). This was probably the beginning of a concerted movement to re-evangelize the American people and government, but a movement in need of other missions. Roe v. Wade was a flash point worth appropriating. Meet Jerry Falwell, Ralph Reed, Tony Perkins, a host of unctuous televangelists, grifters, and hangers-on. They became the face and vocal cords of the persecuted-but-now-respected Christian. They were the foot soldiers, the groupies, the tent revivalists, the founders of elementary through college level religious schools, the inspiration of the evangelical Christian homeschool fad, the abortion clinic harrasers and murderers, the Olympic Park bombers, and the idolizers of Trump the President. They were everywhere: they filled a need.
But they were not the brains behind the legal system that overturned Roe. They were–and remain– the midgets of Western intellectual tradition and foreigners to the body of work of its great thinkers. As fundamentalists, there is one and only one resource of knowledge. Any and all claims to knowledge must refer back to their holy text for verification. Any and all questions of ethics, metaphysics, science, society and law, are answerable only through the word of God, as transcribed in the Bible, translated or interpreted by….whoever.
While the evangelical Christian Right expediently latched on to the abortion controversy as a new battlefront in the culture wars, their Christian soulmates in the Catholic tradition had long since staked their position on it over centuries through the development of Natural Law theory and its antecedents and interpretations; in this case, human life as sacred and it beginning at conception. Currently, almost 30 percent of federal judges identify as Catholics, while nationally Catholics account for only 21 percent of the population. Representatives of Catholic persuasion in the U. S. Congress have increased 68 percent since 1960 also to about 30 percent of the total body . Six Catholics and one former Catholic now serve on the Supreme Court. All but one (Sotomayor) is a conservative chosen by a Republican president. Richard Doerflinger at The Notre Dame University Center for Ethics and Culture says there is a long tradition of Catholics entering the legal professions, and that “other devout Christians who have been able to have some influence in Republican administrations have been happy to support serious Catholic judges for the court.” (1)
The obvious problem here arises when judges foundational religious beliefs are in conflict with a secular interpretation of law in cases where the Constitution is ambiguous in wording or intent. The doctrine of Originalism, promoted by current justices Thomas and Barrett, and Barrett’s former mentor Scalia, is fraught with problems because of these ambiguities. What, specifically, are citizens’ rights beyond those listed in the first eight amendments to the Constitution? And how are they to be determined? That is under the domain of the Fourteenth Amendment “due process” clause prohibiting deprivation of life, liberty, or property. Those unenumerated rights become (or not) codified by evaluation through “substantive due process.” One such evaluation is whether or not the right is rooted in and has a long tradition in American society. The author of the ruling in Friday’s decision, Samuel Alito, claims that the right to an abortion doesn’t meet that standard–and furthermore never should have allowed to become law in the first place. The right to privacy, which is one of those unwritten rights, and which was the basis for passing it in 1973, does not apply since there is a possible human life involved. So here we go: when in doubt, refer back to Catholic natural law, precedent and 50 years of tradition be damned.
So it’s done, just like that. What was once a protected right is no longer, and will be extremely unlikely to come back.
Such is the risk of relying on a religiously-biased court to decide cases of secular law. But how did we get into such a dependent reliance on the courts to begin with? In the text of the decision, Alito writes
“In this country during the 19th century, the vast majority of the States enacted statutes criminalizing abortion at all stages of pregnancy…….By 1868, the year when the Fourteenth Amendment was ratified, three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime even if it was performed before quickening…… Of the nine States that had not yet criminalized abortion at all stages, all but one did so by 1910…….
The trend in the Territories that would become the last 13 States was similar: All of them criminalized abortion at all stages of pregnancy between 1850 (the Kingdom of Hawaii) and 1919 (New Mexico).…… By the end of the 1950s, according to the Roe Court’s own count, statutes in all but four States and the District of Columbia prohibited abortion “however and whenever performed, unless done to save or preserve the life of the mother,”…..
“This overwhelming consensus endured until the day Roe was decided. At that time, also by the Roe Court’s own count, a substantial majority—30 States—still prohibited abortion at all stages except to save the life of the mother…….And though Roe discerned a “trend toward liberalization” in about “one-third of the States,” those States still criminalized some abortions and regulated them more stringently than Roe would allow…… Court’s opinion in Roe itself convincingly refutes the notion that the abortion liberty is deeply rooted in the history or tradition of our people.”
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.
Therein lies the answer to the question of how we got into a position of total dependence on the court: our own state legislatures and governors writing and passing these laws in the first place. Like, since, forever. There, also, the court says, is your deep roots and tradition. But if the polling is even close to accurate, close to two-thirds of American believe abortions should be legal. In the long term, this should translate into state laws far more compassionate than those now on the books or soon to be. But it will be a long road getting back. Millennials, Generation Z, Alpha, and beyond: stake your claim in a more just America. Don’t allow the dead hand of 19th and 20th century law dictate unwanted religious obedience from you.
Marty Bankson, reporting for The Humanist Advocate
June 26, 2022