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.

Friday, July 1, 2022

Re-Post: Abortion, Religion, and the Accusation of Establishment

Sara Feigenholtz -- Statue of Liberty Pope Gun

The Post-Dobbs world in which we now live has brought with it an oft-repeated accusation, now voiced with renewed vigor: the pro-life position is inherently religious and so cannot serve as the foundation for any law restricting abortion.  This accusation is an attempt to win an argument without really having one – to declare illicit and rule out of bounds ab initio an opposing point of view.  Moreover, it is an accusation that draws upon the ugly history of anti-Catholic animus and violence in the United States.  It is a slur that seeks to paint the advocates of the pro-life position as religious zealots who seek to impose the moral demands of their faith on the public at large.  The image above, posted by an Illinois State Senator following the Dobbs ruling (and referred to in Rick Garnett’s First Things piece) reflects the hate directed toward Catholics as a result of the Church’s efforts to protect and foster unborn human life.

In responding to this accusation, some might find it helpful to consider my article Abortion, Religion, and the Accusation of Establishment.  I am reposting it here following Rick’s suggestion.  In the piece I engage in a line-by-line critique of Justice Stevens’ opinions in Thornburgh, Webster, and Casey where he attempts to show that the pro-life position is inherently religious such that, when it is embodied in law, it constitutes an establishment of religion in violation of the Constitution.  Like others who level this accusation, Stevens fails in this regard.  Indeed, he does nothing to actually show the religious nature of the normative premises he opposes.  He merely assumes that they are religious, and in so doing channels the anti-Catholic sentiment now once again on vivid display throughout our country.

I will have more to say about this in a subsequent post.


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