Stone on Faith-Based Justices

Our Faith-Based Justices
Geoffrey R. Stone
Chicago Tribune
April 30, 2007

In a society that celebrates the separation of church and state, citizens, legislators and judges should be careful about imposing their personal religious beliefs on the whole of society. In recent years, this has been a central issue in our public debate about such issues as stem-cell research, gay marriage, the teaching of creationism, abstinence education and abortion. In its recent decision in Gonzales vs. Carhart, the U.S. Supreme Court justices may have faced this dilemma.

In a 5-4 decision, the court upheld the constitutionality of a federal law prohibiting "partial-birth abortions" (properly described as "intact dilation and evacuation" or "intact D&E"), despite the absence of any statutory exception that would allow the procedure to be used when necessary to protect the health of the woman. Seven years ago, before the appointments of Justices John Roberts and Samuel Alito, the Supreme Court held a virtually identical state law unconstitutional.

As Justice Ruth Bader Ginsburg made clear in an unusually scathing dissenting opinion, the court's decision has put at risk the health of women who have heart disease, uterine scarring, bleeding disorders, compromised immune systems and certain pregnancy-related conditions, such as placenta previa and placenta accreta, as well as women carrying fetuses with certain abnormalities, such as severe hydrocephalus. In all of these circumstances, and others, the availability of intact D&E may be necessary to preserve the health of the woman.

It is important to note that the prohibition of intact D&E has nothing to do with preserving the life of a fetus. The partial-birth abortion law does not prohibit abortions. Rather, it prohibits a particular means of performing abortions. If the woman is willing to undergo a greater than necessary risk to her health, she may terminate her pregnancy by other less safe, methods.

What, then, explains this decision? To be frank, the court's opinion is a hodgepodge of confusing and sometimes offensive ramblings about how women may "regret" having abortions and about how intact D&E "resembles" infanticide. But none of the court's musings credibly distinguish its earlier decision. Moreover, the court has never before allowed the government to restrict a woman's right to terminate a pregnancy without an express statutory exception to protect her health. In Gonzales, the court abandoned this long-standing principle.

Here is a painfully awkward observation: All five justices in the majority in Gonzales are Roman Catholic. The four justices who are not all followed clear and settled precedent. It is distressing to have to point this out. But it is a fact that merits attention. In similar circumstances, where a decision could not credibly be explained in terms of traditional legal analysis, the same sort of observation would be appropriate and necessary if five Jewish justices disregarded precedent to vote in favor of the interests of Israel or five African-American justices disregarded precedent to vote in support of black reparations.

Of course, that all of the Catholic justices voted as they did in Gonzales might have nothing to do with their personal religious beliefs. But given the nature of the issue, the strength of the relevant precedent, and the inadequacy of the court's reasoning, the question is too obvious to ignore.

However distressing the inquiry, it is legitimate, indeed important, for us to ask whether, in deciding this case, the justices in the majority ignored the critical line between religious belief and public morality. To be sure, this can be an elusive distinction. But in a society that values religious freedom for all citizens, it is fundamental.

In 1972 and 1973, I served as a law clerk to Justice William J. Brennan, then the court's only Catholic justice. It was in that year that the court decided Roe vs. Wade. Brennan struggled in that case, as he struggled in earlier cases involving such issues as school prayer, to separate his personal religious views from his views as a justice.

He joined the decision in Roe because he believed in the separation of church and state and because he was convinced that his religious views must be irrelevant to his responsibilities as a justice.

As the court observed 15 years ago: "Some of us as individuals find abortion offensi