Legal journalist Lincoln Caplan has a long piece in Harvard Magazine celebrating Justice Elena Kagan. For the most part, the piece intelligently presents an unabashedly liberal perspective—it sees things largely through Kagan’s eyes—and I have no interest in contesting that perspective here. But this passage on Dobbs sure seems to flirt—or perhaps jump right in bed with—anti-Catholic bigotry:
All the justices in the majority were raised Catholic. Their ruling permits laws making it a crime to perform or have an abortion, based on the theological belief that life begins at conception. That encroaches on the religious freedom of the many whose faith leads them to believe otherwise—say, that life begins at birth—while leaving the health of pregnant women of all faiths vulnerable, particularly those of color and with low incomes.[Emphasis added.]
A few comments:
1. Nothing in the Dobbs majority opinion invokes, or in any way depends on, a “theological belief that life begins at conception.” Nor does the opinion even invoke the scientific consensus that the life of a human being begins at conception. Rather, the “overwhelming consensus” that the opinion relies on is a historical legal consensus:
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.… 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.” [Citations omitted.]
From this “overwhelming consensus” comes the “inescapable conclusion … that a right to abortion is not deeply rooted in the Nation’s history and traditions.” I’m not going to attempt to summarize here the rest of the majority opinion. The essential point is that it is flatly wrong to assert that its holding is in any way “based on the theological belief that life begins at conception.”’
But perhaps I am misconstruing Caplan’s ill-crafted sentence. Perhaps he means that the Dobbs ruling “permits laws making it a crime to perform or have an abortion [even though those laws are] based on the theological belief that life begins at conception.” But that would just mean that he is making a different error. There is compelling scientific evidence that the life of a human being begins at conception. What possible reason is there to suppose that a legislator who votes to ban abortion from conception isn’t acting on that scientific understanding? Surely it cannot matter if the legislator also holds a “theological belief” that mirrors that scientific understanding.
2. So why would Caplan think it pertinent to state that “All the justices in the majority were raised Catholic”? Why does he not point out that Justice Sotomayor also was? Or that other justices supportive of Roe—William Brennan, Anthony Kennedy—also were? It sure seems that Caplan is peddling anti-Catholic bigotry.
3. Bans on abortion cannot plausibly be said to “encroach[] on the religious freedom” of someone who believes that the life of a human being “begins at birth.” If someone holds that unscientific, faith-based belief, it obviously does not follow that the person’s religious faith generally requires that she have an abortion.
I understand that in some faiths abortion might well be considered obligatory for women facing life-threatening circumstances. But there has never been an abortion law in this country that has not had a life-of-the-mother exception, and if such an exception were so narrowly drawn that it conflicted with a woman’s faith demands, the legal question would be whether she would be entitled to a broader exception, not whether the entire abortion law should be invalidated.
While I’m at it, I’ll note a couple of other flat-out errors that Caplan makes (without, of course, blessing everything else in his piece).
Caplan asserts that “no party in the case” (his emphasis) asked the Court to overturn Roe. But Mississippi dedicated the bulk of its merits brief to that very request. How could anyone who followed Dobbs not know this? (Perhaps Caplan is misremembering the dispute over the fact that Mississippi’s certiorari petition only very briefly asked the Court to overturn Roe.) From page one of Mississippi’s brief:
On a sound understanding of the Constitution, the answer to the question presented in this case is clear and the path to that answer is straight. Under the Constitution, may a State prohibit elective abortions before viability? Yes. Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion. A prohibition on elective abortions is therefore constitutional if it satisfies the rational-basis review that applies to all laws…. Roe and Casey are thus at odds with the straightforward, constitutionally grounded answer to the question presented. So the question becomes whether this Court should overrule those decisions. It should. The stare decisis case for overruling Roe and Casey is overwhelming.
Caplan asserts: “Five of the six Republican-appointed justices—Roberts, Alito, Gorsuch, Kavanaugh, and Barrett—were nominated by presidents elected with less than a majority of the popular vote.” That’s not correct. President George W. Bush won re-election in 2004 with a majority of the popular vote, and he nominated Roberts and Alito in 2005. (It’s also curious that no one who makes this point ever seems to observe that Justice Ruth Bader Ginsburg and Justice Stephen Breyer were nominated by a president, Bill Clinton, who won only 43% of the popular vote.)