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player ready...The four conservative Catholic Supreme Court justices who, along with another conservative justice, recently cast a preliminary vote to overturn Roe v. Wade were confronted with a Hobson’s choice that could long haunt the rest of us. The thought keeps me up at night.
I can imagine a reader saying: “Ron, you worry too much.”
But consider the justices’ alternatives: A) Sustaining a woman’s right to an abortion would violate the Catholic doctrine to which all four — Samuel Alito, Clarence Thomas, Brett Kavanaugh and Amy Coney Barrett — subscribe. B) Overturning Roe would violate a judge’s obligation to recuse himself or herself when faced with a conflict of interest. (The fifth justice who appears to favor ending Roe, Neil Gorsuch, attends an Episcopal church with his family.)
Again I can understand the temptation to respond: “Well, perhaps.”
But B follows A as inevitably as night succeeds day.
The archbishop of San Francisco has barred U.S. House Speaker Nancy Pelosi from receiving Communion. In a letter to the archdiocese’s Catholics, he announced the ban remains in effect “until she publicly repudiate(s) her support for abortion ‘rights’ and confess(es) and receive(s) absolution for her cooperation in this evil in the sacrament of penance,” Archbishop Salvatore Cordileone wrote. That punishment is obligatory for all Catholic politicians who support abortion, Cordileone explained, citing the Code of Canon Law.
With that weapon poised over the justices’ heads, the consequences of a final decision about Roe similar to the leaked draft opinion are patent. It will trample on the prohibition laid out in the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Alito, the author of the draft opinion, tried preempting that objection by saying the court was only returning the issue to the states, indicating that abortion will remain available where voters favor a woman’s right to choose.
Before taking comfort in that promise, recall that Supreme Court decisions trump legislative acts. The justices would face the same Hobson’s choice. Not striking down a state’s legalization of abortion would still violate Catholic teaching. Why would the justices be any more inclined to recuse themselves?
Yet it’s an ancient principle rooted in the Bible, while religious objections to abortion are relatively recent. God, the Bible says, “shows no partiality and takes no bribes,” but neither the Old nor New Testament forbids, nay mentions, abortion.
Alito makes much of that fact that the word “abortion” doesn’t appear in the U.S. Constitution. But shouldn’t the calculus also include its absence from Christianity’s authoritative text?
Indeed, for centuries, the church condoned abortion. If they were alive today, the famed theologians Augustine and Thomas Aquinas would join Pelosi in excommunication. The church’s punishment for having an abortion or advocating it only became canon law in 1869.
Currently, our Supreme Court is poised to go further in that direction, even as the pendulum has swung toward Roe-like legal protection in Catholic countries. In 2021, Mexico’s Supreme Court unanimously decriminalized abortion. Women also have the right to terminate a pregnancy in predominantly Catholic Argentina, Cuba, Uruguay, France, Spain, Ireland, Italy, Portugal and Lithuania.
But if canon law becomes U.S. law, we will be perilously close to having a state religion. Conversely, other faiths’ adherents will be relegated to second-class citizenship.
Catholics were the first American victims of that corollary.
Maryland began as a haven for Catholics fleeing the Old World’s religious wars. But in 1692, the Church of England became Maryland’s state church, and its largely Catholic inhabitants were taxed to support it.
All of the original 13 Colonies had anti-Catholic laws.
Catholics couldn’t hold office in New York. In Massachusetts, they could only do so if they renounced the pope’s authority. Hatred of Catholics was preached from Protestant pulpits and taught in the halls of ivy.
Harvard had an endowed Dudleian lectureship that equipped students with the know-how for “detecting and conviction and exposing (of) the idolatry of the Romish Church, their tyranny, usurpation, damnable baseness, fatal errors, abominable superstitions and other crying wickedness in their high places.”
The prejudice and pain that thinking engendered were long-lived.
An axiom of American politics was that a Catholic would never sit in the Oval Office. John F. Kennedy broke that barrier when he assumed the presidency in 1961 — a milestone for our diverse society. His achievement established that there is no religious requirement for the highest office in the land.
Will that toleration of differences in faith and creed survive if the court moves on from Roe to banning birth control — forbidden by canon law — and same-sex marriage?
Protestants will be in the same position Catholics once were — governed by laws they had no say in. The court hasn’t a single liberal Protestant justice to say to colleagues: “Hold on a minute. My pastor supports abortion rights and access to birth control.”
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Our society is already fractured. Do we want to subject it to the stress test of reopening the wounds of religious conflicts dating to the Reformation? All it takes to avoid that perilous experiment is for one justice to join Chief Justice John Roberts, who seems troubled by Alito’s opinion. One justice to say:
“I must recuse myself. Not because I support abortion. But because I fear the consequences for my country, and my church, of remaining silent about my conflict of interest.”
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