Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, July 2, 2019

Same Old Song


Have you ever had the experience of getting in your car, turning on the radio, and hearing some really lousy song?  It’s one you’ve heard many times before.  And it’s a terrible.  The tune is bad.  The lyrics don’t make any sense.  It’s not good music, yet it gets played over, and over, and over again.  And you wonder how did this song ever manage to get so much airplay?

On May 23rd, the New York Times decided to spin an old song—that pro-life legal measures violate the Establishment Clause.  It’s a horrid tune in which two notes barely fit together, but it gets played again and again.  This time, the tune was covered by Linda Greenhouse, the Times’erstwhile Supreme Court reporter who has devoted some of her post-NYT career to writing in support of abortion rights (see here and here).

In the opening riff of her op-ed, Greenhouse praises the Republic of Ireland for having thrown off “the shackles of the Roman Catholic Church” by repealing the country’s constitutional ban on abortion.  And she bemoans “the impact of religion’s current grip on public policy” in the United States and what she describes as the country’s march toward “theocracy.”

She then intones the oft-repeated canard that abortion “was legal at the nation’s founding, and for much of a century afterward.”  No serious student of legal history believes this, and Greenhouse cites no authority for the proposition, though she likely has in mind Cyril Means, the general counsel for NARAL (then the National Association for the Repeal of Abortion Laws), who invented the idea of a “common law liberty” to abortion in a law review article he published in 1968.  As Joseph Dellapenna demonstrates in his comprehensive book, Dispelling the Myths of Abortion Historyabortion was treated as a crime in English common law in colonial America, as reflected both in those judicial opinions that survive, and in the writings of English commentators Edward Coke, Matthew Hale, and William Blackstone, and American writer Francis Wharton.  Indeed,Dellapenna shows that, prior to Means’ invention, “[t]he unanimous sense of the legal and general community was that abortion was a crime because it involved the killing of a child—if one could prove that the child was alive at the time of the abortive act and died as a result” (p. 237). 

But this is only a side melody.  Greenhouse’s main chorus is that restrictions on abortion violate the Establishment Clause because “God’s will cannot be a constitutional justification for a law that erases an individual right.”  That might serve as a plausible interpretation of the Clause insofar as the law being challenged required some act of worship, prayer, or religious confession, but it is not plausible if the act regulated is explicable in thoroughly secular terms. 

Of course, pro-life legal measures do not order anyone to go to church.  They do uphold a foundational premise of civilization and the rule of law—defending the lives of innocent, vulnerable human beings.  This is not religious.  Or rather, it is religious but in much the same way that support for laws prohibiting discrimination against racial minorities and people with disabilities are religious.  It is religious in the same way that opposition to torture as a method of interrogation, and support for legal protection of the environment are religious.  Religious people support each of these things.  And they often do so in explicitly religious terms, by referring to the Bible, or the teachings of their religious community, or the will of God.  Indeed, Greenhouse is deeply troubled by the statement issued by Governor Kay Ivey in support of Alabama’s recent statute prohibiting most abortions, that the legislation stands as a powerful testament to the belief “that every life is precious and that every life is a sacred gift from God.”  Yet this same language could have been lifted word-for-word from statements made in support of the Americans With Disabilities Act.

Greenhouse acknowledges that when the Establishment Clause claim was put forth in the Hyde Amendment litigation, it “never got any traction,” but she never pauses to ask why.  So confident is she in the merits of “Establishment Clause arguments” that Greenhouse doesn’t recognize the fact that she hasn’t put forth any arguments, only assertions that the Establishment Clause precludes pro-life legal measures.

Greenhouse offers Justice Stevens’ opinion in Webster v. Reproductive Health Services as a model for asserting the Establishment Clause claim against abortion restrictions, but, as I explain at some length here, Stevens fails to set forth an argument demonstrating the religious character of pro-life laws.  Stevens’ merely assumes these laws are religious and then writes his opinion based on that assumption.  He makes no effort to establish the truth of what, in the end, is only a bare accusation.

Stevens would have invalidated the preamble to the Missouri statute at issue in Webster. The preamble declared that the “life of each human being begins at conception.”  For Stevens this was an “unequivocal endorsement of a religious tenet” that “serve[d] no secular purpose” and so violated the Establishment Clause.  He failed to account for laws that coincide with the religious beliefs of some religious adherents, such as laws against perjury and the Biblical injunction “You shall not bear false witness against your neighbor.”  Supreme Court cases such as McGowan v. Maryland and Harris v. McRae uphold this principle and Stevens is at pains to distinguish them.

Moreover, in the post-Casey era, lower federal courts have upheld legislation that makes the same factual claims as set forth in the preamble to the statute in Webster.  Courts such as the Eighth Circuit in Planned Parenthood v. Rounds have acknowledged the foundation of these statements as empirical observation and scientific fact, not religious belief.

In the end, Greenhouse’s op-ed (like Stevens’ opinions in Thornburgh andWebster) is founded on the mere accusation of religious establishment.  She points to a policy position with which she disagrees (a position supported by some overtly religious people) and then cries “Establishment Clause!”  This is not the music of constitutional argument, but the shrill voice of someone desperate to hold on to power.

Archibald Cox once said of brief writing that “a good brief marches, and a great brief marches and sings.”  The claim that pro-life legal measures violate the Establishment Clause stumbles and wails because those who employ it never demonstrate the religiosity of the laws they would strike down.  This tired, old song should come to an end.


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