(This will be a long post, so be warned.) For those just tuning in: Amy Sullivan argued that those Catholic bishops willing to deny communion to Catholic politicians who support legal abortion are partisan hacks, since they don’t have the guts to threaten to deny communion to Catholic judges who vote to keep Roe on the books. I’ve argued that her argument—which has to entail the position that no person could sincerely see a moral distinction between legislating and judging—is false. On her principles, as one emailer noted, Catholics serving on zoning boards would have to be denied communion if they allowed Planned Parenthood clinics to be sited, as would Catholic tax officials who let pro-abortion groups keep their nonprofit status.

Matthew Yglesias has now weighed in, posting a statement of the American bishops that he takes to support Sullivan’s view. It’s not the most carefully written statement the bishops have ever made—note the mid-statement switch from “public official” to “elected official” and back again—but you’d have to read it in a pretty flat-footed way to conclude that the bishops are saying that a Catholic Supreme Court justice who adheres to precedent based on the sincere view that it is binding is formally cooperating with evil, let alone obstinately persisting in grave sin (and thus rendering himself ineligible for communion). See my 12:13 post here for my response to more flat-footed readings of Catholic statements on judges’ duties to the unborn.

A number of correspondents ask, reasonably: If Catholic judges can vote to re-affirm Roe based on a sincere view that they are constitutionally obligated to do so, why can’t Catholic legislators vote against pro-life bills based on a sincere view that they are constitutionally obligated to act in accord with Supreme Court precedents? And if they can, then how can a blanket policy of denying communion to politicians with pro-abortion voting records be justified?

Answer: The bishops would, in my view, have to make an extremely rare exception for the Catholic legislator who sincerely (though wrongly) believes that he has a constitutional obligation to act this way but does not affirm that there is a moral right to abortion, does not deny that the unborn deserve legal protection, does not justify his vote as a matter of refusing to “impose morality,” etc. Such cases do exist, although they are very rare. Early in his governorship of Pennsylvania, Robert Casey vetoed a pro-life bill on the theory that the Supreme Court had left him no choice. (He subsequently rejected that theory.) But in such cases, the legislator would be duty-bound to support a constitutional amendment to rectify the injustice. (If he believed that this supposed obligation resulted from a binding but erroneous Supreme Court decision, he would also be obligated to work to confirm justices who would overturn Roe and Casey.) I am aware of no politicians today who would meet these criteria, although perhaps there are state legislators here and there who do.

Most of my commentary in this matter has concerned judges who hold views about judging that constrain their discretion. If the judge practices a Dworkinian “moral reading” of the Constitution, then he is, whether or not he admits it, playing a legislative role. A Catholic Dworkinian who reads a right to abortion into the Constitution would have sinned in the same way as (and perhaps in more ways than) a legislator who votes for abortion.

My thanks to Professor Bainbridge for the support.