Five Supreme Court Justices—See How They Rule
20 January 2006
Is there anything left unsaid about Roe v. Wade, that landmark Supreme Court decision? Opponents of Roe insist that the decision arbitrarily cut off public debate and legislative action which would have resulted in state laws that better reflect public opinion on abortion. Supporters point out that Supreme Court rulings are not meant to reflect public opinion but to preserve constitutionally grounded human rights, however controversial those rights might be.
Both sides lay claim to a vision of Roe that is either a conservative’s nightmare or a feminist’s dream. Roe, we are told, secured a woman’s right to decide to have an abortion so firmly that no one—doctor or spouse, parent or politician—could have anything to say about when, whether or why a woman has an abortion.
As is often the case, reality is quite distinct from dreams and nightmares. Did Roe cut off public debate and legislative action? Not a chance! Abortion is more discussed and more legislated in the US than in any other country. Federal and state law severely limit poor women’s use of government health care funds for abortion. Most states require parental consent or notice for minor’s abortions. Women are required by law to listen to often inaccurate information about abortion safety and fetal development and then wait several days between their first medical appointment and the abortion to “think over” their decision. The beauty of Roe, its supporters believed, was that it affirmed that women could be trusted to make the decision about abortion. Subsequent modifications of Roe have proved that American society is a long way from trusting women to decide when and whether to bring new life into the world.
Now, a long shadow looms over what is left of Roe as two conservative Supreme Court Justices, John Roberts and, most likely, Samuel Alito, take their seats. While conservative justices are no more monolithic than liberal justices, the five Catholic justices who will sit in judgment on whether Roe stands or falls are not likely to rule on the basis of deep respect for the consciences of individual women. Justice Scalia has long asserted that the power and moral authority of the court and the government is derived from the will of God, rather than the will of the people. And Scalia’s God is a conservative Roman Catholic patriarch. From this vantage point, even Clarence Thomas looks like a progressive. While Samuel Alito (still unconfirmed as of this commentary) has not shown Scalia’s contempt for the will of the people, he has clearly stated his belief that the Constitution does not provide for a right to choose abortion.
It is not then an overstatement to say that how Roe will be interpreted—and if it will survive at all—is in the hands of five Catholic men who appear more similar than different. Good and decent men for sure, men influenced in varying degrees by their wives, their daughters and the world around them. Perhaps, as Catholic men of a certain age, they saw, in their own families, women destroyed by the burden of following church positions against contraception in the fifties and sixties. Perhaps they have struggled in their own marriages with the challenge of the bans on contraception, sterilization, assisted reproduction and abortion. We know little about this part of their lives.
At the same time, we can see in their decisions as judges, in what is called “judicial temperament”, a particularly capital C Catholicism, one in which the reality of each human life—its challenges, vulnerabilities, aspirations and struggles—is almost always subordinated to “the rules,” absolute, unchanging and certainly not influenced by experience.
Raising such considerations is currently considered taboo. Senators asked not one question of John Roberts or Samuel Alito about how one of the most important aspects of their life and values—their religious beliefs—would influence their judicial opinions. Had they asked such questions, the bully boys of the Christian right would have called the Senators “anti-Catholic.” In a strange way, these social conservatives have demanded of liberals adherence to the very “soft relativism” they decry as immoral. Always ready to cast the first stone, they now claim we cannot “judge” the beliefs and values of these justices as “right” or “wrong.” “Deeply held religious beliefs,” they tell us, cannot be examined or evaluated. No matter how much they influence the decisions of a prospective judge, candidate or legislator, they must simply be ignored in the process of determining fitness to serve the people.
This “hands off religion” rule in judging fitness for public office is especially detrimental to women’s well-being, for it is conservative religious interpretations of both women’s roles and sexual morality that have for centuries inhibited women’s equality. Roe v Wade was one of the first examples of a break in the constitutional law that had such discriminatory and hateful views of women. Its glory is not that it enshrines a right to choose abortion in our laws, but that it recognized, in a modest way, that women are moral agents, capable of being trusted to make complex moral decisions about their own lives and the well being of society. Let us hope that the five Catholic men who will get to decide whether or not that principle is affirmed have the human temperament to honor that value.
All Rights Reserved. Originally produced by Catholics for a Free Choice as an audiofile.